The Global Compact for Safe, Orderly, and Regular Migration: Will It Live Up to Its Name?

Kevin Appleby
Center for Migration Studies

Credit: UN Photo/Loey Felipe

The Global Compact for Safe, Orderly, and Regular Migration: Will It Live Up to Its Name?

The member states of the United Nations — absent the United States — have begun their work on producing a Global Compact for Safe, Orderly, and Regular Migration (“the Compact”), an international agreement that would establish a multilateral framework for migration governance. The Compact, as reflected in the Revision 1 zero draft[1] document, contains 22 objectives which lay out “actionable commitments” by member states to improve how global migration — irregular, regular, and “mixed” movements — is managed.

While the objectives are progressive and based on human rights principles, based upon the negotiations to date, it is becoming clear that they go too far for some governments which have been offering amendments to the text to reaffirm their sovereignty and lessen their obligations to joint goals. There are several areas of contention which could derail the effort and produce a document which does little, if anything, to impact the status quo. This paper examines these points of disagreement and offers improvements to the text which could make the Global Compact for Migration a meaningful, if not unprecedented, achievement.

I. General Observations

Before analyzing specific issues, general observations should be made which provide context to the negotiations and highlight factors which could impact the effectiveness of the Compact. Of greatest concern, the Compact is 1) legally non-binding, 2) does not contain specific targets for member states to achieve by a certain date, and 3) has an ill-defined implementation strategy. Combined with the uncertainty of any funding to build member state capacity to implement the agreement, it is possible that the lofty goals within the Compact may never be realized. In the end, member states may not have the resources to implement effective policies to advance the Compact and, without objective metrics to determine success, progress could be assessed only anecdotally, if at all.

Second, the Compact only mentions the role of civil society in achieving the goals sparingly and does not acknowledge the role of faith-based organizations at all. Civil society organizations have been valuable partners with governments in implementing effective migration policies. Faith-based organizations in particular — which are present in sending, transit, and destination countries — often fill service gaps that governments cannot or will not fill. Language should be added to reinforce the role of civil society, and specifically faith-based groups, in the implementation of the Compact, making them trusted partners with member states, consistent with a whole-of-society approach to migration.

Third, the tension between the rights of the sovereign to manage migration versus the commitment to multilateral cooperation has been prevalent throughout the negotiations. This conflict has been reflected by many governments in addressing the drafts, which have introduced such language as “in accordance with national laws” and “pursuant to existing policies” into many provisions. Specific issues, such as the use of firewalls[2] in providing social services to migrants; the distinction between regular and irregular migrants and the obligation of member states to each group; and border management and the rights of migrants in vulnerable situations have become flashpoints for reasserting national sovereignty rights, rather than emphasizing mutual cooperation. How the member states resolve this tension throughout the Compact may determine whether the Compact fosters progress or reaffirms the status quo.

Finally, an ongoing issue is how the Global Compact for Migration and the Global Compact on Refugees complement each other, and whether one or both compacts will address the plight of migrants in vulnerable situations. To date, the Global Compact on Refugees has reaffirmed the current legal framework governing refugees while increasing responsibility sharing, thus precluding the addition of populations within the current refugee protection mandate. This would include persons who are internally displaced, driven from their countries by climate change or natural disaster, and fleeing general violence or persecution by nonstate actors.

In the Global Compact for Migration, however, there are member states who want to strictly limit the document to the management of migrants, either those with legal status or those who are driven primarily by economic or family reunification interests, and not by protection needs. As such, both compacts could fail to adequately address the migrants who may fall through the international protection cracks. Advocates and supportive member states will need to fight to ensure that migrants in vulnerable situations are protected and their needs addressed, ideally in both compacts.

II. Needed Improvements to the Revised Zero Draft

In order for the Global Compact for Migration to make a difference on the ground — which is a stated goal of the co-facilitators to the process — improvements must be made to at least five areas of the zero draft: 1) legal immigration; 2) border management and detention; 3) access to social services; 4) return and reintegration; and 5) migrants in vulnerable situations. While not exhaustive, this list includes consequential issues on which there is not consensus.

A. Legal Immigration

Despite focusing on safe, orderly, and regular migration, the Global Compact does not call for an increase in legal immigration avenues as a principle, which is one of the primary methods of guaranteeing safe and orderly migration. The absence of such a declaration leaves the impression that the Compact would be more focused upon preventing irregular migration than replacing it with legal avenues.

To be fair, Objective 5 of the document, which focuses upon legal pathways, provides several options for legal immigration, focused mainly upon labor mobility. In one case, it calls for member states to “expand” options for labor migration. But the section does not recommend an increase in legal pathways, much less set any targets for achieving certain levels of legal immigration globally, ideally in conjunction with the 2030 Sustainable Development Goals (SDGs).[3] Coupled with a lack of clarity on accountability measures, the absence of specific targets by which to increase legal migration is one of the Compact’s greatest weaknesses.

One possible process, suggested by the Scalabrini International Migration Network (SIMN)[4], would be for member states to ascertain the size of their undocumented populations and work to reduce or eliminate the number of undocumented by creating legal avenues, including regularization, by 2030. Such a concrete goal, which would be transparent and offer accountability, would provide the “headline” — the singular achievement — that the Compact needs.

To explain, Objective 2 of the document lays out commitments for gathering more accurate immigration data, including on the number of undocumented. Having member states commit to garnering accurate information on their immigrant populations would be a good first step in assessing the type of policies needed to assist them, including the deployment of legal avenues and regularization programs.

Labor Immigration

Objective 5 prioritizes labor migration as a means for legal immigration, which raises issues of labor rights and immigration status, particularly the issue of permanence. As a general matter, nations have preferred a temporary labor model, often referred to as circular migration, while human rights advocates have maintained that labor migrants should have the opportunity to obtain permanent residence, either upon entry or after a reasonable amount of time. Immigration status often can determine the leverage that a migrant may have in the workplace, and whether she enjoys portability in employment (can work for more than one employer) and is eligible for certain benefits, including retirement benefits.

The Compact contains language that allows migrant workers to change jobs and employers, despite requests from a few member states to eliminate the language (Objective 6, paragraph 21[h]). It also provides the same rights to migrant workers extended to all workers, including wage protections, the right to organize, and privacy protections (Objective 6, paragraph 21[j]).

However, it does not contain language that would encourage the adjustment of temporary workers, over time, to permanent status. As Sergio Carciotto (2017) points out in his study of Zimbabwean migrant workers in South Africa, migrant workers should be able to earn the right to apply for permanent residence after a certain time, so that they can leverage their rights more effectively.

Family-Based Immigration

With regard to family-based immigration, language is included that emphasizes the importance of family reunification “at all skill levels,” and promotes provisions in migration laws and policies that remove barriers to the realization of the “right to family unity and to family life” (Objective 5, 20 g). These barriers include income requirements as a condition of legal immigration, language pre-tests, length of stay, and type of regular status, all of which would prevent family reunification. Pro-integration provisions include providing family members access to “work authorization and access to social security and services.” Some member states have asked that the prohibitions on legal immigration restrictions on families be taken out of Revision 1, so that such barriers could be used to prevent the entry of low-income and less educated family members.

The Compact also does not specifically encourage the creation of visas based on a family relationship or stipulate that “integrating provisions in migration laws and policies” would mean that a laborer could petition for family members to join them after some time. However, many studies have shown that family unity can contribute to the economy, as families are economic actors who start businesses, create jobs, support each other, keep their members off of public assistance, and strengthen local communities and a nation’s social fabric.

Zoya Gubernskaya and Joanna Dreby (2017) argue that family-based immigrants are more upwardly mobile in the workplace because of the support of their families and because they are not tied to an employer. A study by the National Academies of Sciences, Engineering, and Medicine (2016) found that the US immigration system, based upon family-based immigration, has benefitted the nation’s “economic growth, innovation, and entrepreneurship.”

Another danger of only encouraging the development of labor-migration schemes, as the Compact does, is that nations might eliminate family-based visas in order to create room for additional labor visas, in order to keep legal immigration at a net zero level.

In fact, the Trump administration has endorsed a proposal that would cut legal immigration in half by eliminating a large portion of the family-based immigration system. The proposal would create a merit-based system, in which family membership would be minimized, thus altering the diversity and skill levels of immigrants to the United States. Put another way, it would discriminate against low-skilled workers and immigrants of color (Nakamura 2017).

Regularization

Finally, the issue of regularization — another method for decreasing the undocumented population worldwide and encouraging their integration — should be specifically mentioned in the Compact. While facilitating access to “regularization options” was included in the zero draft, it was altered in Revision 1 and replaced by “procedures towards residence status” (Objective 16, paragraph 16[g]).

In other words, it does not encourage member states to create new regularization programs, but simply to facilitate access to existing procedures that can lead to permanent status that do not necessarily include eligibility for citizenship.

Regularization programs carry many benefits to the host nation, as it allows migrants to integrate into society and become full contributors to the nation’s economy. It also increases the amount of remittances sent home, as legal workers often can earn more in the workplace than undocumented workers without full rights.

During the 2013 immigration debate in the United States, for example, the nonpartisan Congressional Budget Office (CBO) (2013, 3) found that legalizing 11 million undocumented people in the United States would increase gross domestic product (GDP) by 3.3 percent in 10 years and 5.4 percent in 20 years.

Moreover, the International Organization on Migration (IOM) (2004, 2) found in a report that legal status has a positive impact on the size of remittances: “The immigration policies of destination countries and the legal status of migrants can have important impacts on their possibilities for sending remittances. Legal migrants have opportunities for upward mobility in the labour market and better access to information on human and labour rights. This increases their chances of social integration and higher earnings, which in turns allows better access to formal channels of money transfer as well as enhanced options for investment.”

Thus, destination counties which increase legal status and legal avenues for migrants economically benefit their own nations, as well as sending nations — a win-win strategy.

Recommendations for the Global Compact for Migration on Legal Immigration

  1. The Compact should state in the preamble and in Objective 5 that member states should commit to an increase in legal immigration channels as a preferred means of creating safe, orderly, and regular migration.
  2. The Compact should maintain language in Objective 6, paragraph 21(h-k) that gives migrant workers portability in employment and flexibility in their terms of employment as well as the rights and protections extended to all workers.
  3. The Compact should add language that encourages member states to give temporary workers an option to apply for permanent residency after a reasonable amount of time working in a nation.
  4. The Compact should make clear that family-based immigration should be promoted and should not be eliminated or reduced in order to create additional employment-based or merit-based visas.
  5. The Compact should include language including regularization schemes as a means of decreasing the number of undocumented workers in their nations, with the goal of eliminating their undocumented populations by 2030, in conjunction with the 2030 SDGs. A regularization program can be linked to the SDGs as a means of increasing the support of diaspora communities to the development of their source countries.

B. Border Management and Detention

One of the more controversial and significant issues in the Compact which has received minimal attention to date is border management. Objective 11, titled, “Manage borders in an integrated, secure, and coordinated manner,” addresses this issue, and focuses upon the cooperation between nations in managing international borders.

Border management provides the basis for nations to work together either to protect large movements of migrants and refugees or deter them, as has been seen in many contexts over the past several years. In their article analyzing deterrence policies, Bill Frelick of Human Rights Watch, Ian Kysel of the American Civil Liberties Union, and Jennifer Podkul of Kids in Need of Defense (2015) provide many examples, such as the interdiction and off-shore processing utilized by Australia; the cooperation of the United States and Mexico in controlling the flight of Central American children and families from gang violence in the Northern Triangle; and the agreement between the European Union and Turkey to prevent the migration of Syrians to Europe in 2015.

These deterrence policies are characterized by interdiction, detention, pushbacks at borders, and the closing of borders at source and destination countries. In some instances, destination countries have conditioned aid upon a source country limiting migration from their territories. The authors conclude that these deterrence tactics and schemes deny due process protections to bona fide asylum seekers (Frelick, Kysel, and Podkul 2015, 196-98).

In a statement delivered to the 2017 International Dialogue on Migration (IDM), SIMN stated that the success of the Compact would be measured by how it mitigated these deterrence policies and replaced them with protection policies. Instead of providing support to “the externalization of borders,” the Compact should include and promote an “externalization of protection.” [5] At a minimum, multilateral cooperation to address large movements should include a protection component based upon responsibility sharing, both regionally and internationally.

While the language in Revision 1 does affirm protection mechanisms in border management efforts, it also reinforces the right of nations to cooperate to ensure “security,” in “accordance with national sovereignty” (Objective 11, paragraph 26).

For example, it encourages the development of “technical cooperation agreements that enable States to request and offer assets, equipment and other technical assistance to strengthen border management,” which essentially gives cover to a destination nation that wishes to outsource enforcement to another country, even though it specifies “in the area of search and rescue, as well as other emergency situations” (Objective 11, paragraph 26[f]).

In contrast, three sub-paragraphs of Objective 11, properly interpreted, could hold member states accountable to a protection system in their border management cooperation agreements. First, it seeks to enhance “regional and cross-regional border management cooperation on proper identification, timely and efficient referral, human rights protection and assistance for migrants in situations of vulnerability at or near international borders, in compliance with international human rights law” (Objective 11, paragraph 26[b]).

Objective 11 goes further, committing member states to “strengthen oversight of procedures and due process at international borders, including individualized assessments, in compliance with international human rights law” (Objective 11, paragraph 26[e]). This language ensures that some screening is pursued at international borders, consistent with human rights standards.

Moreover, Objective 11 contains strong language to ensure that “child protection authorities are able to commence procedures for the determination of the best interests of the child once a child crosses an international border, particularly in the case of unaccompanied or separated children . . . in accordance with international law” (Objective 11, paragraph 26[g]). This language is a step forward in international protection for children as such screening does not exist universally, and should be maintained in the Compact.

Thus, the Compact does encourage member states to adopt measures which protect migrants, rather than rely on deterrence initiatives. In an ominous turn, however, the European Union has requested that deterrence language be inserted into the opening paragraph (chapeau) of Objective 11 and in paragraph 27(f) of the section. For the reasons articulated above, the co-facilitators should not add such language to the next draft, as it would undermine the entire purpose of the Global Compact.[6]

Detention

Objective 13, titled “Use migration detention only as a measure of last resort and work towards alternatives,” is a strong section which addresses the deterrence tactic of detention, employed in responding to large movements of migrants and refugees. It calls for the monitoring of the conditions of detention to ensure its use as a measure of last resort, and encourages the broad use of alternatives to detention, including “community-based care arrangements.” Studies have shown that community-based alternatives to detention are cheaper, ensure that migrants show up at their court hearings, and are more humane.[7]

Objective 13 also discourages the use of detention as a “deterrent” or “punishment to migrants,” and holds authorities accountable for “violations of human rights abuses.” Detention conditions also are addressed, requiring, at a minimum, “access to food, healthcare, legal orientation and representation, and adequate accommodation, in accordance with international human rights law” (Objective 13, paragraphs 28[c],[e]). These strong principles should be maintained in the final draft of the Compact.

Perhaps the most significant paragraph in the Compact, if it is agreed to, is paragraph 28(g), which calls for “ending the practice of child detention in the context of international migration.” Paragraph 28(g) further states that children should be placed in alternatives to detention, including allowing children to “remain with their family members or legal guardians in non-custodial contexts” (Objective 13, paragraph 28[g]).

This language is a step forward from the New York Declaration for Refugees and Migrants, which maintained that member states can detain children as a “last resort,” a huge loophole, with member states working “toward ending” child detention (UNGA 2016, paragraph 2.12). Ending child detention would mark a significant achievement for the Global Compact for Migration. Any regression to the standard included in the New York Declaration should be opposed.

In their intervention with the co-facilitators during the second phase of negotiations, SIMN requested the addition of “parents” to the list of family members with whom children should remain, in order to address the deterrence tactic of family separation at international borders. In fact, a sentence specifically discouraging the separation of children from their family members, including parents, at international borders should be added.[8] The Trump administration informally has begun separating parents from their children at the US-Mexico border, a cruel policy that has led to the removal of over 700 children from their parents since January 2017 (Dickerson 2018).

Recommendations for the Global Compact on Border Management and Detention

  1. Deterrence tactics such as detention, border closings, family separation, interdiction, and pushbacks, among others, should specifically be discouraged in the Global Compact. Technical cooperation agreements in paragraph 28(f) should specifically exclude the transfer of equipment for enforcement purposes to bolster deterrence tactics.
  2. Paragraphs 26(b), (e), and (g) should be maintained and strengthened, as they enhance regional cooperation on protection and assistance for migrants in vulnerable situations.
  3. Objective 13 on detention should maintain an emphasis on alternatives to detention, especially in community-based care arrangements, ensure that detention standards are humane, and hold accountable authorities who violate human rights.
  4. Paragraph 28(g) calls for the end of child detention and should be maintained. Specific language prohibiting the separation of children from their parents and other family members should be added.

C. Irregular Migrants: Access to Services

An issue which has emerged in the early rounds of negotiations has been the distinction between irregular and regular migrants and how member states treat or provide services to each distinct group. A parallel issue is whether, in gaining access to such services, a migrant’s privacy information — address, country of origin, and legal status — would be kept confidential and not shared for law enforcement purposes.

Some member states have advocated that a distinction between irregular and regular migrants be inserted throughout the document, particularly with regard to any actionable commitments made by member states to migrants in general. To their credit, the co-facilitators of Mexico and Switzerland avoided such a detailed distinction in Revision 1, opting to limit the definition to the preamble.

One problem in their language, however, is the declaration that migrants “unlike refugees, are not inherently vulnerable, but their human rights must be respected under international human rights law at all times, in particular when they face an increased risk of violations and abuses” (preamble, paragraph 3).

Stating in an international document that migrants are not “inherently vulnerable” sets a dangerous precedent which immigration opponents could use to justify the denial of a multitude of rights to migrants, regardless of the qualifying human rights language in the sentence. Several member states objected to this definition and requested that it be changed. But to what?

The reality is that migrants who are in transit are often extremely vulnerable, as they are subject to harassment, human trafficking, gender-based violence, unjustified detention, and possible death. Many do not have the luxury of flying in on a plane and overstaying a visa, for example, but are forced to journey in remote regions, including across deserts and oceans.

As such, the language “inherently vulnerable” must be struck from the Compact and replaced with a more precise definition between refugees and migrants. The most precise distinction is that migrants do not meet the definition of refugees found in the 1951 Refugee Convention or its 1967 Protocol.

A sub-issue flowing from the irregular/regular distinction is the services regular migrants are entitled to and that irregular migrants should be provided. During the negotiations, the Holy See and a number of member states led by the Philippines and several Latin American countries made the argument that migrants, regardless of legal status, are entitled to certain necessities, such as healthcare, education, and housing, based on their human rights.

However, in Revision 1, language detailing such benefits was struck and replaced with the phrase, “basic services, necessary to exercise their human rights.” From this language, it is unclear the services to which an irregular migrant may have access, as it could be interpreted widely by member states. In its response, the Holy See asked for clarification regarding the new language and restoration of a list of benefits. In its own statement, Caritas Internationalis also argued for a restored list of services available to irregular migrants.

As “human rights protection” is used in various forms throughout the revised draft, SIMN asked that the term be clarified by linking it to the United Nations’ approved international human rights instruments.[9]

Firewalls

Another major issue related to access to services is the issue of “firewalls,” or an explicit barrier between the use of personal information obtained from irregular migrants for purposes of benefits and for the purposes of enforcement. In other words, a government would be prohibited from using personal information — name, location, and other personal data — for deportation purposes.

The problem also arises in terms of data collection, when nations attempt to determine how many irregular migrants live in their territories. While it is vital to collect such information for public policy purposes, it is equally vital to ensure the information is not abused and that immigrants are not afraid to seek services or provide information about themselves.

Even without sharing personal information with law enforcement, demographic data — such as where irregular migrants are concentrated in a country — can be used for law enforcement purposes, as well as to limit federal government funding to local jurisdictions with a large number of undocumented persons.

Some have argued, including SIMN, that such demographic data should not be used for enforcement purposes and that the question “country of citizenship” should not be used in census or other survey questions. In the United States, the Trump administration has proposed a “country of citizenship” question for the 2020 census, which has been greeted with much controversy (Wines and Baumgaertner 2018).

Revision 1 weakens firewall language in some places. For example, in Objective 15 regarding access to services, it removes firewall language and provides that states must “ensure that personal data is not reported” to immigration enforcement “authorities, and migrants are not apprehended at places of service delivery.” The new language obviously gives member states wide discretion on how to keep personal information from being used for law enforcement purposes, if at all.

The European Union, Australia, and other nations have argued that firewall language undermined the “whole of government” approach in the Compact, as all agencies of government should be used to manage migration, including enforcement agencies. Other nations, consistent with civil society, have argued that removal of such language undercuts a “whole of society” approach, in which “such measures allow for irregular migrants to safely report crimes, gender discrimination, and unfair labour practices.”[10]

The firewall issue is another conflict in the Compact which pits one view of managing migration — through legal and inclusive means — with another —through the use of enforcement. In order for human rights protection to be maintained in the Compact, firewall language must be used consistently throughout the text, in the context of both access to services and data collection.

Recommendations on Irregular Migrants and Access to Services in the Global Compact for Migration

  1. Language in the first revision which proclaims that migrants are “not inherently vulnerable” should be removed and replaced with language that defines migrants as persons who do not meet the 1951 Refugee Convention’s definition of a refugee.
  2. The benefits which should be made available to irregular migrants should be listed in the text, and human rights protection should be linked to relevant human rights instruments.
  3. Firewall language should be maintained in the Compact and not weakened, in relation to both access to services and data collection.
  4. Demographic data should not be used for the purposes of targeted enforcement and to deprive local jurisdictions with large immigrant populations of funding support.

D. Return and Reintegration of Migrants

An area which many predicted would be controversial is how migrants are returned to their home countries. During the consultation phase of the Compact, several member states raised this as a concern, claiming that all member states have an obligation to receive their nationals.

Several issues arise under this topic, including whether a migrant is returned in violation of the principle of non-refoulement—which could include being forced to “voluntarily” return through various coercive tactics. For example, the interdiction of migrants, through interception at sea or on land in a transit country, often can lead to refoulement, as asylum procedures and adjudicators may not be available.

A second sub-issue is how a returned migrant is re-integrated into their home country and whether services are provided to ensure a secure re-integration into the country, as some migrants may have valid fears of smugglers, human traffickers, gang members, or even governmental authorities.

Objective 21 of the Compact, titled “Cooperate in facilitating dignified and sustainable return, readmission, and reintegration,” covers the area, but several sections of the Compact complement it, including Objective 18 on skills development, which can be applied to returning migrants.

Revision 1 features new language which asserts that returning nationals should be received, “in accordance with the obligation of States to readmit their own nationals” (Objective 21, paragraph 36). As mentioned, such language was included in response to the complaint from certain nations that countries of origin do not fully cooperate in facilitating the return of their citizens, particularly in issuing travel documents. SIMN and others have responded that destination countries have an obligation to ensure due process for migrants, to treat them with respect and dignity, and not return them to possible harm.

Objective 21 also outlines the preference of voluntary, rather than forced, return. The distinction between “voluntary” and “forced” return can often be blurred, as vulnerable migrants often are coerced by enforcement authorities to sign documents that facilitate their return.[11]

Prolonged detention, as well, can force a migrant to return “voluntarily” rather than stay for a long time in difficult detention conditions in order to receive an asylum hearing. Paragraph 36(a) states that return should be in compliance with “international human rights law.” However, coercion can be hard to prove and, in many cases, migrants have no avenue to make a complaint or remedy an injustice. Specific language should be added to the Compact which strictly prohibits the use of coercive tactics to force migrants to waive their rights and return “voluntarily.”

The Compact also does not specifically prohibit the use of interdiction to stop migrants from reaching the territory of a nation or returning them to a country without due process. Denying access to a nation can take the form of not allowing a migrant to cross an international border or intercepting them in a transit country and returning or forcing them back across a border. Under such conditions, the principle of non-refoulement is frequently violated (Frelick, Kysel, and Podkul 2015, 196-98).

Objective 21 is instructive of how forced return should be measured against international protection norms, stating that returns “follow an individualized assessment of the circumstances that may weigh against the return, such as risks of torture or other irreparable harm, in compliance with due process guarantees and in accordance with international human rights law” (Objective 21, paragraph 36[f]).

This language, however, does not explicitly prohibit return in compliance with the principle of non-refoulement or international refugee law, which is an additional standard of protection which should be added to the end of the paragraph, as follows: “in accordance with international law and the principle of non-refoulement.” In his discussion with member states, Volker Türk, assistant high commissioner for protection of the United Nations High Commissioner for Refugees (UNHCR), stated that non-refoulement can apply to those who have not been formally identified as refugees under international law.[12]

Reintegration

With regard to the reintegration of migrants into their home communities, Revision 1 recommends that governments provide returned migrants “equal access to social protection and services, psycho-social assistance, vocational training, employment opportunities, recognition of skills acquired abroad, and financial services.” The key word here is “equal,” as it implies that migrants be provided access to services available to the nation’s citizens and that are presumably already in place.

In reality, returned migrants do not have easy and immediate access to these services, plus they are often inadequate to ensure they can live a life with dignity. Reintegration programs should focus solely upon the needs of the returned migrants, including their physical security, so they are able to access and utilize services — job training, employment placement, basic necessities — tailored to their needs. Physical security is needed, as often returnees face threats from smugglers, human traffickers, and gang members.

Thus, reintegration programs designed for returnees should be created, ideally financed in part by destination nations that are returning migrants. Such programs, if effectively implemented, can ensure that migrants remain in their country and do not attempt to again migrate irregularly.

Graziano Battistella (2018) of the Scalabrini Migration Center in Manila, Philippines, has proposed return and reintegration programs based on a conceptual policy framework, pairing the types of return to the services needed upon return. He points out that not all returnees are alike — some are voluntary, some are forced, and some return at the end of their contract, despite wanting to stay — and that the services provided to them upon return can vary, depending on their needs. As such, there is not a “one-size fits all” approach to reintegration.

As an example, SIMN has implemented an entrepreneurship and innovation program in several countries, including Mexico and Central America, that helps returning migrants learn a skill and either find employment or start their own business, with good success. The program targets returnees who have been deported from host countries and has placed 15,000 migrants per year in permanent employment. Such a model should be replicated in other nations and fully supported by both origin and destination countries.[13]

Recommendations for Return and Reintegration in the Global Compact

  1. Language should be added to Objective 21 of the Compact that prohibits the use of coercive tactics to force migrants to sign documents to “voluntarily” return to their countries without benefit of due process.
  2. Interdiction policies which return migrants to their home countries without due process protections should be prohibited.
  3. The principle of non-refoulement should be applied to migrants in Objective 21.
  4. Reintegration programs, which ensure that returned migrants receive a full range of services to reintegrate into society, including physical security, should be available in origin countries and funded by both countries of origin and countries of destination.

E. Migrants in Vulnerable Situations

Perhaps the most challenging issue of both the Global Compact for Migration and the Global Compact on Refugees is migrants in vulnerable situations. Who are they? They include migrants who flee natural disasters or climate change; migrants who are fleeing generalized violence; or special groups such as unaccompanied alien children, victims of domestic violence, or victims of human trafficking. They all have one thing in common: they would be at risk of harm if returned to their countries.

The draft of the Global Compact on Refugees does not specifically address these vulnerable groups, while the Global Compact for Migration includes some vulnerable groups but is vague as to what means of protection should be offered to them. In Revision 1, the co-facilitators insert a human rights protection standard to these groups, but, as mentioned, it is uncertain exactly what protection this standard affords them unless it is tied to human rights instruments or to enumerated rights in the text.

Objectives 5 and 7 of the Global Compact for Migration attempt to address vulnerabilities in migration. Objective 7 commits states to “protect and assist migrants in accordance with our obligations under international human rights law . . . arising from personal characteristics, the reasons for leaving their country of origin, the circumstances under which they travel or the conditions they face upon arrival” (Objective 7, paragraph 22). This broad definition of potential grounds of vulnerability necessarily captures a large group of migrants who are in vulnerable situations.

More specifically, Objective 7 speaks of migrants who “may require a heightened duty of care,” such as “victims of sexual and other gender-based violence, workers facing exploitation and abuse, domestic workers, minorities, marginalized groups, and persons with disabilities” (Objective 7, paragraph 22[d]). However, it only directs member states to “develop partnerships to raise awareness and provide gender-responsive policy recommendations” for these groups, not necessarily to take steps to protect them.

As for victims of climate change or natural disasters, the Compact in Objective 5 encourages nations to provide “protection and reception of tailored duration on humanitarian grounds” for persons fleeing “sudden on-set natural disasters, slow-onset environmental degradation, emergency situations, and serious violations of human rights.” It suggests that “humanitarian visas, private sponsorships, access to education for children, and temporary work permits” be provided (Objective 5, paragraph 20[f]). SIMN has stated that member states should add these tools and others to their “legal toolbox.”

While the language encourages nations to protect these vulnerable groups in different ways, it does not require protection measures or commit them to any plan of action. The term “serious human rights violations,” contained in the same paragraph, can be interpreted to mean that certain migrants fleeing situations of generalized violence should receive international protection, despite the fact that some nations do not recognize generalized violence as sufficient to gain asylum.

Studies have shown that providing temporary protection to migrants in vulnerable situations can benefit a host country. A Center for Migration Studies of New York report found that 88 percent of the over 200,000 nationals of El Salvador, 50,000 Haitians, and 57,000 Hondurans who received temporary protected status (TPS) from the United States participated in the workforce (Warren and Kerwin 2017). Another study found that their deportation would reduce the US GDP by $45.2 billion and that it would cost $3.1 billion to deport them (ILRC 2018).

The issue of migrants who fall through the cracks of protection should be seriously addressed in both compacts, ideally by including identical paragraphs or language in each drafted by a panel of international law experts. As one member state representative put it, it is better that the two compacts have overlapping language than gaps in protection.

Recommendations on Migrants in Vulnerable Situations for the Global Compact for Migration

  1. The standard “human rights” protection should be more precisely defined in the Global Compact for Migration, so that member states are committed to a standard level of protection for migrants in vulnerable situations. Ideally, the definition should be tied to human rights instruments, such as the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, among others, and to enumerated rights in the text.
  2. Member states, working individually and collectively, should be required to provide temporary, if not permanent, legal protection to victims of climate change and natural disasters. The Global Compact on Refugees should more directly address the protection of migrants in vulnerable situations, with both compacts having identical paragraphs or language on the subject.
  3. Migrants who experienced “serious human rights violations” should be considered for asylum protection by an appropriate legal authority.
  4. A panel of experts should be appointed to advise member states on the issue of migrants in vulnerable situations, so as to ensure that the compacts together fill any gaps in their protection.
  5. Nations should add legal tools to their “toolboxes” of protection for migrants in vulnerable situations, including humanitarian visas, TPS, and group-specific visas. The UNHCR 10-Point Plan in Action on refugee protection and mixed movements provides best practices that should be implemented.

Conclusion

The Global Compact for Safe, Orderly, and Regular Migration represents a unique opportunity for the global community to forge common approaches toward the treatment of migrants worldwide. Given that the full title includes “safe, orderly, and regular,” the Compact should encourage, if not require, the adoption and implementation of policies that replace irregular migration with regular migration.

As laid out, this would include increasing legal avenues for migration, including regularization programs, ideally tied toward reducing irregular migration by a certain percentage by 2030, in conjunction with the sustainable development goals. Besides an opportunity to utilize legal channels for migration, irregular migrants should also be ensured basic services, regardless of their status, to ensure their well-being.

Nations also should add more legal tools to their toolbox by adding visas that can be used to protect migrants in vulnerable situations, including humanitarian visas and visas tailored toward specific vulnerable populations, such as victims of human trafficking and domestic violence, unaccompanied children, the disabled, and those in need of temporary protection. Migrants who have experienced “serious human rights violations” should be protected under international refugee law.

The Compact should not promote deterrence and enforcement tactics as a means of reducing irregular migration, because these tactics are certainly not “safe” for the migrant. Deterrence policies can place migrants in danger by de facto removing due process protections through detention, interdiction, pushbacks, the closing of border, and other tactics. Instead of externalizing borders, nations should promote responsibility-sharing mechanisms that externalize protection.

Return and reintegration policies should be governed by the principle of non-refoulement. Tactics which force migrants to “voluntarily” return to their countries without due process should be prohibited. Reintegration programs should be tailored to the needs of returned migrants and include job training and placement, physical and social protection, and basic needs support.

In the end, the Global Compact for Migration will be successful if it creates a new approach to governing global migration that emphasizes the carrot and not the stick, legal pathways rather than enforcement and deterrence. Certainly, enforcement policies are part of the equation, but migration is better managed if there are legal avenues that migrants can use to escape harm or to support their families.

Will the Global Compact for Safe, Orderly, and Regular Migration live up to its name? The jury is still out. What is needed is a paradigm shift globally, away from the deterrence model now in use and toward mutual cooperation marked by responsibility sharing and an increase in legal avenues for migration. If the Compact can achieve this shift, it could change migration governance for the better into the future.


[1] Revision 1 of the zero draft reflects revisions suggested by member states. See https://refugeesmigrants.un.org/sites/default/files/180326_draft_rev1_final.pdf.

[2] A “firewall” is a policy which prohibits a member state from using the personal information of migrants for enforcement purposes.

[3] See https://sustainabledevelopment.un.org/post2015/transformingourworld.

[4] See www.simn-global.org.

[5] Statement of the Scalabrini International Migration Network for International Dialogue on Migration, April 19, 2017, http://www.simn-global.org/news_post.php?category=press&news_id=346.

[6] Statement of Austria on behalf of 27 EU member states during UN negotiation session, April 6, 2018.

[7] See CLINIC (n.d.).

[8] During the last round of negotiations, the Holy See delegation requested that a sentence prohibiting family separation at international borders be added to the Compact.

[9] These instruments could include, among others, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.

[10] “Civil Society Open Letter to United Nations Member States on the Global Compact for Safe, Orderly and Regular Migration,” May 3, 2018, https://gallery.mailchimp.com/8093208e6abb2fb927fe1267f/files/e029517e-c8f5-460e-bbcf-a9c77b7d4586/Open_Civil_Society_Letter_3May_FINAL_EN.pdf.

[11] The absence of counsel, and language barriers, can lead to coercion.

[12] Briefing of Member States on Global Compact on Refugees, United Nations, April 13, 2018.

[13] Scalabrini International Migration Network, “Employment, Entrepreneurship, and Social Innovation of Migrants and Refugees Model,” http://www.simn-global.org/anuncios/485/5adf894fd8741.pdf.

 

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Author Names

Kevin Appleby

Date of Publication May 8, 2018