Figure 1. Desperate men, women and children fleeing from their countries, moving along ever-shifting and dangerous migration routes. Source: National Geographic.
As international migration is gaining increasing attention in political and legal debates, understanding the key trends in migration policies has never been more crucial. As a direct consequence of globalisation, people are on the move nowmore than ever. The main cause of this phenomenon, and especially of illegal immigration, has always been the search for better "living conditions", something that has generated a very strong "dynamic" of flow of movement of individuals or groups from low-income countries to countries more economically, socially and politically developed. In addition, global migration trends are also influenced by political instability, conflict and war [1].
A state's decision to admit immigrants is formally a function of its sovereignty, as codified in international law, according to which states are free to reject or expel non-citizens that try to enter a country’s borders while lacking the necessary documents. This linkage of immigration policy with sovereignty is propagated by governments around the world as being of ‘national interest’ [2].
The criminalisation of illegal immigrants has been escalated by the creation and support of punitive measures against unauthorised communities and those who help them, both individual-based and government-funded. These could include Non-Governmental Organizations (NGOs), persons or groups of people that aim at assisting or providing for needing immigrants. According to recent studies, 162 countries have been recognised as having adopted legislation that criminalises or otherwise punishes unauthorised migration. This includes detention, imprisonment for up to 15 years, expulsion, deportation and/or imposition of fine in cases of illegal border crossing to name but a few. In many cases, stricter punishment is prescribed for cases where assistance or shelter is offered to those who cross the borders illegally.
Figure 2. More than 3,885 migrant deaths in 2020 were recorded by IMO. Source: Pexels.
Regarding the case of the United States, during Former President Donald Trump’s administration, the country launched an operation aimed at the “great expulsion” of immigrants, both lawfully present and unauthorised, despite the fact that they were not neither violent nor threatening and had deep roots in the country. This relentless campaign of deportation was frequently justified as a war against “illegality”— that is to say, against unauthorised immigrants.
Although they might be complying with international law, when such measures are implemented by countries on an international level, they raise many political and moral questions. Many argue that the criminalisation of illegal immigration represents an instance of an “actor-centred”, rather than an “act-centred” approach to criminal law, a kind of criminal law concerned, not so much with actions and omissions, as with actors themselves [3].
Due to the fact that this legal mindset has been widely adopted and established, it has led to the proliferation of phenomena of discrimination against immigrants because of their race, ethnicity, religion, or identity. This form of prejudice has been added to the general sense of xenophobia they face simply because they are foreigners. As the United Nations (UN) and the International Organisation of Migration (IOM) suggest, when states impose laws regarding migration, there are basic objectives and principles that must be taken into consideration.
Figure 3. Former US President Donald Trump urged Republican politicians not to pass immigration reform, saying immigrants would steal American jobs. Source: Unsplash.
Migration should take place in a safe, orderly and dignified manner, something than implies the mitigation of the risks associated with the movement of people. Thus, addressing the serious issue of migrants who are particularly vulnerable to discrimination, exploitation and abuse and are in danger of being exploited by crime organizations involved in human trafficking and smuggling, is of crucial importance.
Humane and orderly migration also requires compliance with international law. The obligation to the respect, protection and fulfilment of the rights of individuals is of paramount importance and applies to all individuals residing within a state’s territory, regardless of their nationality or migration status in order to preserve their safety, physical integrity, well-being and dignity.
Figure 4. Migration is de facto a fundamental part of trafficking from the perspective of the trafficker, criminal gangs and others related to human smuggling. Source: Unsplash.
Migration policy is also often the subject of intense political debate and can be based on populist sentiments whereas it should be built upon facts and a well-founded analysis of the benefits and risks that this movement of people poses to the state. In addition, there are dozens of intergovernmental and non-governmental organizations whose mandates touch on migration and humanitarian action. Governing migration requires partnerships to broaden its understanding and to develop comprehensive and effective approaches.
Figure 5: The map indicates the number of deaths in the Mediterranean routes for the period of 2015 to 2019. Source: International Organisation for Migration (IMO).
Recognising the importance of migrants’ human rights and complying with international law are basic and fundamental obligations that states should follow so as to ensure the well-being of their citizens and facilitate the process of others, who have not been so fortunate in their lives and are in search of a better future. Because ultimately, a nation, as it has been said, is known and remembered by how it treats its people.
[1] Duvell, F., Triandafyllidou, A., Vollmer, B. ( 2010), Ethical issue in irregular migration in Europe, in Population, Space and Place, Vol. 16, 3, p. 227-239.
[2] US Commission on Immigration Reform 1997, p. 1.
[3] One could define actor-centred, as opposed to act-centered law, as a criminal law ideal-type according to which criminalization should have types of offenders, rather than types of offences as its intentional objects, so that punishment should be inflicted on persons, not so much because of something they might have done, as because of who they are – or, better still because of their fitting a ready-made (either criminological or legal) image of a certain type of person. In brief an “actor-centred” criminal law focuses, not on wrong doings, as on wrong beings: the fact of being a certain kind of person is directly made into a wrong that triggers the infliction of a punishment. A typical example of the imposition of this kind of mentality is Nazi Germany.
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