Migration management strategies and irregular migration

According to the ILO, the prevention of irregular migration depends on the creation of more legal migration opportunities. In this sense, intensification of border controls – “more policing” instead of

“better policies” – is not the solution.²⁹⁷ There is a recognised need for a “comprehensive and co-ordinated policy approach which attempts to tackle all dimensions of the phenomenon”, engaging

“not merely the participation of governments, but also the social partners and civil society”.²⁹⁸ The proposed approach incorporates measures to reduce irregular labour migration at all stages of the migration process:

i. Activities in countries of origin, as well as inter-state co-operation (public

information/educational campaigns that inform potential migrant workers on the risks of irregular migration; capacity building to strengthen institutional structures - policies and measures adopted by countries to protect their workers while seeking more employment opportunities abroad, negotiation of bilateral labour agreements.

ii. Border controls and the articulation of a viable visa policy (a minimum of bureaucratic obstacles and/or red tape enabling migrants to enter and take up employment.

295 Council of Europe (CoE) Assembly 2007: Report, op. cit., para. 112-119

296 Council of Europe (CoE) Assembly 2007: Resolution, op. cit. para. 20-21

297 ILO (2004): op. cit., p. 61, para. 199

298 OSCE, IOM, ILO (2006): Handbook on Establishing Effective Labour Migration Policies in Countries of Origin and Destination. Vienna. Geneva. Available at:

http://www.ilo.org/public/english/protection/migrant/download/osce_handbook_06.pdf , p. 161, 165

iii. Measures and sanctions against those who facilitate irregular migration.

iv. Protection for irregular migrant workers (minimum guarantees for the protection of irregular migrants as an integral aspect of a preventive approach).

v. Opening up more legal channels for labour migration –policies to establish legal migration methods and procedures that are equitable and sufficiently attractive to deter potential migrants from travelling by irregular means.²⁹⁹

GCIM observes that “strengthened border controls and visa restrictions have not always been effective in preventing irregular migration”.³⁰⁰ It recognises the need for a long-term approach based on a combination of measures. Border control policies should be accompanied by:

i. additional information programmes, providing prospective migrants with a better understanding of the risks entailed in irregular migration;

ii. guidance in finding regular migration opportunities;

iii. capacity-building programmes, involving training and institutional development;

iv. introduction of new legislation, policies and practice, especially in countries that have only recently been confronted with the issue of irregular migration;

v. interstate co-operation.³⁰¹

GCIM has consequently now proposed several activities. States and other stakeholders “should engage in an objective debate about the negative consequences of irregular migration and its prevention”; regional consultative migration processes should include irregular migration in their agendas; states should provide additional opportunities for regular migration (when gaps in the labour market need to be filled, for example, and to establish clear and transparent criteria for the recruitment of foreign workers); appropriate measures taken against employers who engage migrants with

irregular status; states “should establish fast, fair and efficient refugee status determination procedures, so that asylum seekers are quickly informed of the outcome of their case”; and in situations of mass influx, “states should consider offering the new arrivals prima facie refugee status”.³⁰²

For the Office of the United Nations High Commissioner for Refugees (UNHCR), the primary point of interest in irregular migration and its management is the intersection between refugee protection and irregular migration. In the UNHCR’s view, the main challenge for refugee protection derives from two interrelated facts. First, most contemporary refugee movements today consist of mixed flows; what is more, the motives for migrating individuals are also mixed, and increasingly so. A second challenge is related to the nature of refugee movements, which are increasingly irregular, take place without the requisite documentation and frequently involve human smugglers and traffickers. In this context the Office recognises the need for a legal and procedural framework

299 Ibid., pp. 174-175

300 GCIM (2005): op. cit. p. 35

301 GCIM (2005): op. cit. p. 35, para. 17-18

that can combine migration management with the protection of refugees: “[M]igration management must take due account of international refugee protection obligations, including the importance of identifying people in need of international protection and determining appropriate solutions for them”³⁰³. According to UNHCR, mixed migration towards the European Union’s borders cannot be addressed by “enhanced border and migration control measures alone”, but should involve “close co-operation among states within the European Union, as well as with governments of countries of transit and origin.”³⁰⁴

In 2006 the Office developed a ten-point action plan of protection tools, especially relevant for refugees who are at risk of refoulement, human rights violations and other potential hazards. The framework could be developed into broad migration strategies and could have an impact on the introduction of regularisation measures. The action plan proposes mechanisms to make asylum proceedings more flexible and transparent and which could, subsequently, reduce backlogs in applications. The measures include: (i) the establishment of protection-sensitive State entry systems (training of border guards on how to respond to asylum applications); (ii) the development of appropriate reception arrangements (registration of new arrivals and provision with temporary

documentation) and (iii) the launch of mechanisms for profiling and referral (initial determination and counselling in order to establish whether people wish to seek asylum. and to identify other available options, including return, regularisation or regular onward migration.³⁰⁵

In some situations, the UNHCR argues, refugees and other relevant persons of concern could profit from migrant-worker programmes or temporary work permits. Similarly, refugees could benefit from legal onward movement from the host State to a third country through regular migration channels.³⁰⁶ Regarding persons who do not meet the criteria for refugee status, UNHCR proposes to take into consideration alternative temporary migration options: “these could variously allow them to stay legally in the country of arrival, or to move to a third country for humanitarian reasons, or for the purposes of work, education or family reunion. Efforts to address mixed population movements should also explore a place for regular migration options, temporary or even longer term.”³⁰⁷ In its commentary on the Commission’s 2007 Green Paper on the future common European asylum system also sees a need for a common European policy on regularisation: “While it is beyond the scope of UNHCR’s mandate to comment on regularization measures for persons who are not in need

303 UNHCR (2007): Observations on the occasion of the First Euro-Mediterranean Ministerial Meeting on Migration Algarve, 18-19 November 2007. Available at:

http://www.unhcr.org/protect/PROTECTION/473d554b2.pdf , p.1

304 UNHCR (2007): Implementing the Ten-Point Plan of Action in Southern Europe: Activities Undertaken by UNHCR to Address Mixed Migration in the Context of the Mediterranean/Atlantic Arrivals. Available at:

http://www.unhcr.org/protect/PROTECTION/452ce4cd4.pdf, p.1

305 UNHCR (2007): Refugee Protection and Mixed Migration: A 10-Point Plan of Action, revised January 2007, http://www.unhcr.org/protect/PROTECTION/4742a30b4.pdf, p.3

306 UNHCR (2007): Global Appeal 2008-2009; Available at: http://www.unhcr.org/publ/PUBL/474ac8c12.pdf, p.28

307 UNHCR (2007): Refugee Protection and Mixed Migration, op. cit., p.3-4

of international protection, it is clear that this is an area in which increased EU coordination is needed.”³⁰⁸

Finally, the Office observes that there is considerable confusion in the European media about terms such as “refugees”, “asylum-seekers”, irregular (or “illegal”) migrants, and “economic migrants”.

Moreover, asylum-seekers and refugees are often cited in close association with crime and terrorist acts. Consequently, UNCHR calls on mass information campaigns in countries of origin, transit and destination, in order to discourage irregular migration, warn of the dangers of smuggling and trafficking, and focus on legal migration options.³⁰⁹

308 UNHCR (2007): Response to the European Commission’s Green Paper on the Future Common European Asylum System, available at http://www.unhcr.org/protect/PROTECTION/46e53de52.pdf , p.27

7 The EU policy framework – relevant legislation and