CCJHR-ISS21 seminar on climate migration

The CCJHR and the Institute for Social Science in the 21st Century (ISS21) Migration Cluster jointly hosted an inter-disciplinary seminar on climate migration on Thursday 2nd March 2017 in the School of Law, UCC.

Few people challenge the strong scientific evidence that anthropogenic climate change is a reality, and is negatively impacting many parts of the world. Indeed, one of the most oft-quoted consequences of global climate change is the possibility of large-scale human migration in response to rising sea levels, increased desertification, and intensification of natural disasters such as hurricanes and flooding.

Therefore, this seminar considered the human, social and legal implications of climate migration from an inter-disciplinary perspective, bringing together researchers from the fields of geography, philosophy and the law. Professor Robert McLeman from Wilfrid Laurier University Ontario and Trinity College Dublin, commenced by examining why people migrate and the different categories of climate-relating migration. Professor McLeman set out a variety of scenarios, including amenity migration (for example people in China migrating away from urban areas to avoid extensive smog and pollution), seasonal migration arising from seasonal floods in Bangladesh or dry season migration in India and central Asia, and climate extremes such as Hurricane Mitch which prompted a pulse of short-term evacuations and distress migration. Professor McLeman concluded by stressing that we should not fear floods of climate refugees but focus on addressing root causes, building adaptive capacity and creating basic legal protections and rights.

Next, Dr Cara Nine from the Department of Philosophy, UCC presented on her research into two key aspects of climate migration. First, Dr Nine examined the issues of territory and sovereignty in the context of disappearing states such as the small Pacific Islands that comprise Kiribati and Tuvalu. Applying John Locke’s proviso mechanism to territorial rights, Dr Nine queried when a state or people might become a candidate to gain sovereignty over new territory due to the disappearance of their original state. Dr Nine then examined the concept of place attachment, defined as the positively experienced bonds between persons and their environment, and identified specific interests including autonomy, self-esteem and personal identity that affect an individual’s personal interests.

Dr Dug Cubie from the School of Law, UCC addressed the legal categorisation of “climate refugees” and identified the lack of an accepted legal definition. In particular, Dr Cubie noted the multi-causal nature of migratory decisions and that, except in cases of catastrophic environmental degradation, attributing causation to climate change was challenging. Dr Cubie also highlighted the importance of considering potentially vulnerable people who remain in their homes due to ill-health, age or other reasons. The right to remain requires the application of human rights principles such as participation, empowerment and accountability to ensure adaptation with dignity. In particular, Dr Cubie noted the rights of access to information, participation in decision-making and effective access to justice arising from Principle 10 of the 1992 Rio Declaration on Environment and Development.

The seminar concluded with an open discussion with those in attendance on a variety of aspects, and the benefits of such inter-disciplinary events to share knowledge and experience across the university. For more information, see:

Migration and responsibility for deaths in the Mediterranean

UNHCRThe tragic deaths of an estimated 700 people in the Mediterranean this week have again highlighted the limits of Europe’s responses to migration, including forced migration and human trafficking. It has taken the deaths, the avoidable deaths of hundreds of desperate people, including several hundred children, to jolt Europe into action. These tragic events were avoidable, and following the policy choices made by the European Union and its Member States in 2014, they were, sadly, all too predictable.

Following Italy’s decision to end the successful Mare Nostrum search and rescue mission, because of a lack of financial support, the EU launched the much more limited Triton mission, the priority of which was  ‘border management’.

The Mare Nostrum mission itself was launched by Italy in response to another tragic event, the drowning of 366 Eritrean and Somali men, women and children off the coast of Lampedusa. This event is now almost forgotten. At that time, the European Council met and expressed its deep sadness at this tragedy which, it said, “shocked all Europeans”. Sadly these words have become all too familiar. Commissioner Malström called for a more open approach to migration, to define a common European policy based on the rights of the migrants and of the asylum seekers and on solidarity to both the migrants and the Member States.

In 2011, we heard similar expressions of outrage following the ‘boat left-to-die’ tragedy, when more than 60 people lost their lives amid confusion and dispute as to who bore the legal responsibility to launch a rescue mission. Rapporteur for the Parliamentary Assembly of the Council of Europe (PACE), Dutch Parliamentarian Tineke Strik, concluded following her investigation that this was a tragedy that should not have happened – in the busy Canal of Sicily.

The Council of Europe Group of Experts on Action against Trafficking (GRETA), commended Italy’s Mare Nostrum operation, as an example of best practice in protecting victims of trafficking. In 2014, Mare Nostrum saved the lives of more than 150,000 people. When the mission was ended, GRETA wrote to Prime Minister Renzi expressing its concern at the ending of the Operation and calling for its reinstatement.

Mr Francios Crépeau, UN Special Rapporteur on Migration, writing in December 2014, expressed his fear that without Mare Nostrum, thousands of people would die in 2015. Shamefully, and tragically, his fears have been realised. In October 2014, the UK Govt. announced that it would not support search and rescue missions in the Mediterranean because they created, in their words, an unintended “pull factor”, encouraging more migrants to attempt the dangerous sea crossing. The failure to recognise the desperation and trauma endured by people who are smuggled or trafficked, many of them children, provoked outraged responses from civil society,  UN and European human rights bodies. In a strongly worded statement, Mr Crépeau said:

“To bank on the rise in the number of dead migrants to act as deterrence for future migrants and asylum seekers is appalling. It’s like saying, let them die because this is a good deterrence.”

The European Council has now agreed to triple the funding to be provided to Operation Triton, headed up by the EU agency, Frontex and the Italian authoritiesAn increase in the numbers of Syrian refugees to be resettled is also likely, though remains a matter of voluntary pledges. The recognition that the Dublin system is broken is welcome, if long overdue.

The proposal to seek a UN Security Council resolution to destroy the vessels of traffickers and smugglers reflects a continuing preoccupation with security. As yet, far too little is being done to respond to what is a humanitarian and human rights crisis.  Despite a Joint Statement from UN leaders, calling for expanded access to regular migration routes, this is not addressed, the focus remaining on return of irregular migrants (including through expedited removals), and externalisation of border controls.

UN Special Representative on Migration, Mr Peter Sutherland speaking on Morning Ireland commented that there is a lack of clarity on the responsibilities of states towards asylum seekers who arrive on their shores. The responsibilities, however, are clear, and have been reinforced by the European Court of Human Rights in its landmark 2012 judgment, Hirsi v Italywhich condemned any ‘push back’ of asylum seekers or migrants to countries where they would face torture, inhuman or degrading treatment.

Ireland has done far too little to assist in this crisis to date. The comittment to providing a fully crewed naval vessel is welcome, but it is not enough. We could and should play a much bigger role in resettlement of Syrian refugees, as called for by UNHCR for several years now. The avoidable deaths of children, women and man in coffin ships should be confined to the distant and sad past, not an all too familiar tragedy on the shores of the European Union.

Professor Siobhán Mullally, Director, Centre for Criminal Justice and Human Rights, University College Cork, Vice-President of the Council of Europe Group of Experts on Action Against Trafficking in Human Beings. 

 

Migration and Regularisation in Poland by Alan Desmond

CCJHR blog is pleased to be able to cross post this blog by Alan Desmond with Human Rights in Ireland.  Alan is writing a PhD here at UCC, under the supervision of Professor Siobhán Mullally, on the regularisation of undocumented migrants in international and European Human Rights Law. Alan is a Government of Ireland Research Scholar in the Humanities and Social Sciences.

The immigration to Poland from the east which followed the collapse of communism in 1989 and the fall of the Soviet Union in 1991, coupled with EU accession negotiations in the 1990s, forced Poland to try to put in place a framework to deal with immigration. One of the methods employed in the field of irregular immigration was to implement regularisation or legalisation programmes, a process whereby unlawfully present non-EU citizens can apply for a legal status.

 Despite the dim view of regularisation taken by the Council of the European Union and the European Commission which emphasise instead enhancing border control and returning irregular immigrants to their countries of origin or transit, most EU Member States have implemented regularisation measures of one sort or another. Poland’s third regularisation programme, underway since 1 January, looks set to succeed where the country’s first two attempts at regularisation failed.

The 2003 and 2007 Regularisations

Poland’s first attempt at regularisation was carried out in 2003 in anticipation of its accession to the EU in May 2004, with the second regularisation programme coming in 2007 ahead of Polish membership of the Schengen zone.

Both attempts were abjectly ineffective. This was due to overly-restrictive eligibility criteria, failure to publicise the programmes amongst the target group and the understandable reluctance of immigrants without a legal status to present themselves to the authorities.

In order to successfully apply for regularisation in 2003 the Polish authorities had to be satisfied that applicants did not pose a threat to national security or public order, with irregular immigrants having to submit proof of, amongst other things, almost 7 years’ continuous residence in Poland; medical coverage and sufficient resources to support themselves without recourse to social welfare; a promise of work; and legal title to residential accommodation. The 2007 regularisation programme was even more restrictive.

While the 2003 programme facilitated regularisation of about 2000 immigrants, the 2007 programme yielded less than 1000 successful applications.

Those who acquired a legal status under both programmes were given a one-year residence permit and were drawn primarily from the most well-organised immigrant groups in Poland, namely the Armenian and Vietnamese communities. While Ukrainians constitute the largest irregular immigrant community in Poland, they ranked third in terms of successful applications.

Given that Poland’s irregular population is estimated by the government to be between 40, 000 and 100, 000, with NGOs putting the figure at 100, 000 – 500, 000, Poland’s first two attempts at regularisation were wholly unsuccessful.

The 2012 Regularisation

It is perhaps unsurprising, then, that a third regularisation programme was deemed necessary. Providing a legal status to immigrants allows them to emerge from the shadows of illegality where exploitation is rife. Freed from the fear of deportation which blights the lives of irregular immigrants the world over, regularisation empowers them to demand respect for their rights. Indeed States will sometimes be required to provide a legal status to irregular immigrants so as to comply with their human rights obligations. The right to respect for private and family life recognised in Article 8 of the European Convention on Human Rights is one example of a human right which has been found to oblige a State to regularise the status of an irregular immigrant.

While agitation by civil society and immigrants themselves played an important part in the introduction of a third regularisation programme in Poland, politicians seem to have proposed the relevant legislation not so much out of an awareness of human rights obligations as out of a realisation that the country’s dynamic economy, coupled with large-scale emigration of Polish citizens, has produced a demand for labour.

Thus from 1 January until 2 July an application for regularisation may be lodged by unlawfully present immigrants who have been continuously resident in Poland since 20 December 2007 and by asylum-seekers whose application for refugee status was refused prior to 1 January 2010.

Successful applicants will be granted a two-year residence permit which will also entitle them to work without a work permit, though the legislation provides that these two years may not be counted as part of the period of continuous legal residence which is required before an immigrant can apply for EU long-term residence status.

In contrast to the stringent requirements of the first two regularisation programmes, the current programme precludes regularisation only where applicants are found to be a threat to national security or public order; to have submitted false documents or information as part of their applications; to have been entered into the Schengen Information System by another Schengen country for the purposes of refusing entry.

The current regularisation programme is thus far more applicant-friendly than the earlier ones and its less restrictive eligibility criteria mean that it is open to a far wider pool of Poland’s irregular immigrant population than was the case in 2003 and 2007.

Little surprise, then, that the first eight weeks of the programme have seen 3377 applications submitted to the regional authorities in each of Poland’s 16 administrative regions, more than half of the combined total of applications submitted during the 2003 and 2007 botched attempts at regularisation. A negative decision at the regional level may be appealed to the Office for Foreigners.

The scale of the response no doubt reflects the government information campaign and media coverage, but with just 303 positive decisions issued so far it remains to be seen whether increased awareness and more favourable eligibility criteria will in fact translate into an appreciably larger number of regularised immigrants than Poland’s previous efforts to provide legal status for unlawfully present non-EU citizens.

Furthermore, despite the comparative generosity of the current regularisation programme, it fails to deal with irregular immigrants who arrived in Poland after the magic date of 20 December 2007. Are they to await the country’s fourth regularisation programme four years from now? Would the implementation of such a regularisation programme be contingent on propitious economic circumstances? To avoid uncertainty and unfairness it might be wise to follow the advice of people such as Joseph Carens who has argued that rather than having recourse to one-off amnesties, liberal democratic States should institutionalise an automatic transition to legal status for irregular immigrants who have been settled for a specified minimum length of time. Just how much time should have to pass before an irregular immigrant gains legal status is of course fertile ground for disagreement and, as Carens admits, a question whose answer inevitably involves an element of arbitrariness.

Detailed, regularly updated information on Poland’s third regularisation programme is provided in a number of languages at http://abolicja.gov.pl

Irregular migration in the EU

This blog post was submitted by PhD candidate Alan Desmond, who is reading for a PhD under the supervision of Dr. Siobhán Mullally

A number of recent studies throw new light on the phenomenon of irregular migration in the EU. Project Clandestino – Undocumented Migration: Counting the Uncountable Data and Trends Across Europe, funded by the European Commission, has found that there are fewer irregular migrants in the EU than previously assumed. While the European Commission had estimated that up to 8 million foreign nationals were residing in its territory without a right to legal residence, a detailed review of the situation in the Member States has led Clandestino researchers to estimate that the range is more likely between 2.8 and 6 million. Both figures were calculated for the year 2005. Flow trends indicate that irregular residence has since declined further. Clandestino makes the important distinction between irregular residence and irregular work with the phenomenon of irregular work by regular residents becoming more relevant in recent years with the growth of the EU and the rise in the number of EU citizens with the right to travel but not to work.

Project Clandestino includes a database which provides an inventory and a critical appraisal of data and estimates on irregular migration in the EU and in selected Member States as well as three transit countries (Morocco, Turkey and Ukraine).

In a series of research briefs and country reports, Project Clandestino highlights the pathways into and out of irregular status for migrants in the selected Member States. Ireland is not one of the countries included in the project but on the basis of Life in the Shadows, the excellent 2007 publication on irregular migration in Ireland from the Migrant Rights Centre Ireland (MRCI), it would seem that most irregular migrants in Ireland enter the country legally but subsequently become undocumented for a variety of reasons eg. overstaying visas.

Regularisation of Undocumented Migrants

One of the pathways out of irregularity identified by Project Clandestino is regularisation, a practice which is analysed in REGINE – Study on practices in the area of regularisation of illegally staying third-country nationals in the Member States of the EU, also funded by the European Commission and conducted by the International Centre for Migration Policy Development (ICPMD).

The study, commissioned by the European Commission subsequent to its
Communication on policy priorities in the fight against illegal immigration of third-country nationals (2006), examines policies and attitudes to regularisation in all 27 Member States. It defines regularisation broadly as “any state procedure by which illegally staying third country nationals are awarded a legal status” but it recognises that actual practices are more complex than such a neat definition would suggest: not all procedures that have regularising effects are explicitly designed as regularisation measures.

The study found that some 5 million applications for regularisations were recorded between 1996 and 2008, while the actual number may be significantly larger and may lie at up to 6 million. Some 3.5 million persons have been regularised over the same period.

The analysis of regularisation measures in the 27 EU Member States reveals that the great majority of EU Member States currently use, or have used, some sort of regularisation measure in the recent past. This is interesting in light of growing EU opposition to regularisation which culminated in an effort to commit the EU to a ban on mass regularisations of irregular immigrants in the European Pact on Immigration and Asylum agreed in 2008 during the French Presidency of the EU. Inclusion of the proposed ban was dropped from the final draft at the insistence of the Spanish government with the Pact now committing the European Council “to use only case-by-case regularisation, rather than generalised regularisation, under national law, for humanitarian or economic reasons.”

Two Types of Regularisation identified by REGINE

The study distinguishes between two types of regularisation, namely, regularisation programmes and regularisation mechanisms.

Programmes are not part of the regular policy framework but rather are specific measures which run for a limited period of time and typically target specific categories of non-nationals in an irregular situation. They usually involve larger numbers of persons and frequently target employed irregular migrants, often in an attempt to clamp down on irregular employment more generally. Criteria for regularisations through programmes are on the whole relatively transparent and clearly defined. Among the most frequent criteria used are: residence in the country before a certain date, length of residence, proof of employment.

Mechanisms on the other hand are part of the regular migratory policy framework and are thus permanent measures. Criteria and procedures are often less well defined, leaving substantial room for administrative discretion. In contrast to programmes, permanent mechanisms typically are small-scale measures, regularising only relatively small numbers of irregular migrants and are focused largely on humanitarian cases. Over time, however, the number of persons regularised through mechanisms can be substantial and comparable with the number of persons regularised through programmes.

Regularisation in Ireland

In its profile of Ireland the REGINE study categorises as a regularisation programme the Irish Born Child Scheme (IBC/05 scheme) which was carried out in 2005 to deal with the many parents of Irish citizen children who were undocumented and who faced the prospect of being deported. The scheme allowed such parents to apply for permission to remain on the basis of their parentage of an Irish child born in the State before 1 January 2005, subject to certain criteria.

The study notes that “there was no clear legislative basis for the introduction of the “IBC/05” scheme – it forms part of the general provisions of Section 3 of the Immigration Act 1999.” The number of applicants was 17,900 of whom 16,693 were granted the status, which status was a temporary, renewable, permission to remain in Ireland with the right to work. 14, 101 persons applied for renewal with13,838 persons granted renewal.

On the basis of submissions made by the Immigrant Council of Ireland (ICI), the study categorises as a regularisation mechanism the practice in Ireland between 1996 and 2003 of granting non-national parents of Irish citizen children permission to remain in the State. This policy ended in February 2003 with 11,500 applications outstanding. It was in response to such applications that the IBC/05 scheme was introduced; the scheme also dealt with applications from persons who entered after February 2003 and before the Constitution was amended in 2005 to preclude the acquisition of citizenship by virtue of birth in the State alone.

Also categorisable as a regularisation mechanism according to the study is section 4 of the Immigration Act, 2004. It provides the Minister for Justice, Equality & Law Reform, or an immigration officer on his behalf, statutory discretion to give a non-Irish national permission to be in the State and to impose conditions on such permission in relation to engagement in employment or duration of stay as he deems fit. Section 4 vests the Minister with particular statutory functions that must be exercised by him or her. The exercise of these functions must be governed by the requirements of administrative law in relation to the exercise of discretionary powers. However, despite the clarity of this legislation, the Minister claims that he is not obliged to consider applications for residency made pursuant to section 4 in a situation where a person is in the country without permission and/or has made an unsuccessful application for refugee status. While the Minister claims not to be bound by section 4 of the 2004 Act there are many instances where the Minister has regularised migrants by granting them permission to remain, for example, based on marriage to an Irish national or being the parent of an Irish child.

A further regularisation mechanism provided for in Irish law is leave to remain pursuant to section 3 of the Immigration Act, 1999. This section provides that an immigrant in respect of whom a deportation order has been issued must be notified in writing of the Minister’s proposal to deport them and the reasons for their proposed deportation. Within fifteen working days from the date of the notification letter, these persons may make representations in writing to the Minister setting out the reasons why they should be allowed to remain in the State. The Minister then has the discretion not to deport a person but to offer him or her leave to remain.

REGINE’s identification of existing regularisation mechanisms in Irish law is timely given the forthcoming Immigration, Residence and Protection Bill (IRP Bill) which sets out a legislative framework for the management of inward migration to Ireland and lays down a number of principles governing the presence in the State of foreign nationals, including the obligation on a foreign national who is unlawfully in the State to leave. It sets out statutory processes for applying for a visa, for entry to the State, for residence in the State and for being required, when necessary, to leave.

The IRP Bill does not, however, include any regularisation mechanism. The ICI, in its Analysis of the IRP Bill 2008, expresses concern that the Bill effectively abolishes the regularisation mechanism provided for in the aforementioned section 3 of the Immigration Act, 1999 whereby the deportation of an immigrant must be notified to him or her and he or she must be given 15 working days to make submissions as to why he or she should not be removed from the State. On the basis of such submissions the Minister may grant leave to remain. Section 4(5) of the IRP Bill, however, allows for the summary deportation of unlawfully present immigrants as it provides that they “need not be given notice of a proposal to remove” them from the State.

The ICI expresses grave concern that the repeal of section 3 of the 1999 Act “may lead to the summary deportation of vulnerable migrants who may have become unlawfully resident in the State through no fault of their own.” It calls for an avenue to deal with and provide for persons in exceptional circumstances. Currently, the Bill allows the Minister no flexibility to deal with persons whose residence permits are non-renewable; who were not able to apply for a modification of their existing residence permit; who did not manage to apply for the renewal of their permit within the specified time period. Once classified as ‘unlawfully present’ a foreign national no longer has any possibility of regularising his or her status in the State.

The ICI believes that the Bill needs to make clear that discretion can be exercised to allow account to be taken of exceptional cases and provides the example of a woman resident in Ireland on the basis of a marriage to an Irish national who, as a result of domestic violence, no longer lives in the same household with her husband. In such circumstances she would need to apply for the modification of her residence permit in order to remain in the State. Where she has not done so within three months from the expiry of her current permit, the legislation as drafted does not allow for the renewal of her permit even if the reason for her failure to apply are threats made by her husband to have her deported if she went near the Gardaí.

Despite, or perhaps because of, the fact that the IRP Bill does not provide for an unlawfully resident non-national to regularise his or her status in the State, the Government agreed in September 2008 as part of the social partnership talks to set up a programme to regularise the status of undocumented migrant workers in Ireland who previously held work permits.

The move was characterised by the Irish Times as a significant U-turn by the Government, which previously signalled that any such move could provide an incentive for illegal immigration. It would appear now, however, that the U-turn manoeuvre may not be executed given reports earlier this year that the Government will not be introducing a “bridging visa” for migrants who had become undocumented through no fault of their own. This U-turn upon a U-turn is presumably due to the failure of social partnership talks in February. But whatever the reason, the result is the same: no possibility for unlawfully present non-nationals to regularise their status.

Finally, it is worth noting that one of the methods of data-gathering employed as part of the REGINE study was the distribution of a questionnaire to EU Member States. In relation to common EU actions and a standardised approach to regularisation, the official position of the Department of Justice, Equality and Law Reform (DJELR) is that the ministry has ‘no views’ on the subject. One hopes that this is not the official position of the DJELR on all common EU actions in the area of immigration.