Issues in International Migration Law

311 Pages·2015·2.821 MB·English

by  Richard Plender

Issues in International
Migration Law

Issues in International
Migration Law
Edited by
Sir Richard Plender
leiden | boston
Library of Congress Control Number: 2014958617
isbn 978-90-04-20851-3 (hardback)
isbn 978-90-04-20852-0 (e-book)
Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands.
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Table of Contents
Preface vii
1 Nationality Law and Immigration Law 1
Richard Plender
2 Global Migration: Current Trends and Issues 13
Ajay Bailey
3 Migration for Employment 27
Ryszard Cholewinski
4 Access to Social Protection for Non-Citizen Migrants:
The Position of Irregular Immigrants 81
Gijsbert Vonk
5 Capricious Games of Snakes and Ladders: The Nexus of
Migration and Integration in Light of Human Rights Norms 91
Dora Kostakopoulou
6 The Admission of Refugees 111
Guy S. Goodwin-Gill
7 Family Reunifi cation at the Interface of EU Law and the
European Convention on Human Rights 119
Adam Weiss
vi Table of Contents
8 The Right to Leave Any Country Including One’s Own 143
Dimitry Kochenov
9 Deportation and Expulsion 179
Cliff ord Mailer
10 Exceptional Duties to Admit Aliens 201
Alessia di Pascale
11 Free Movement of Persons and Regional International
Organisations 223
Sara Iglesias Sánchez
12 The Asylum Seeker’s Right to Free Legal Assistance and/
or Representation in EU Law 261
Elspeth Guild
Annex I: EU Immigration and Asylum Law 285
Annex II: EU Immigration and Asylum case-law 293
Index 299
Preface
This work presents the revised papers resulting from a conference held at the Faculty
of Law of the University of Groningen under the auspices of the Groningen Centre
for Law and Governance and the Department of European and Economic Law at the
Faculty, during my tenure of a Visiting Professorship there. The conference brought
together scholars from a number of countries to examine a series of issues in inter-
national migration law.
The opening chapter, which I have contributed, sets the scene by looking at
the relationship between nationality law and immigration law. Ajay Bailey, who is a
demographer at Groningen, then looks at current trends and issues in global migra-
tion. Ryszard Cholewinski, from the International Labour Offfijice in Geneva, deals
extensively with the problems of migration for employment, looking extensively at
the work of the ILO in this fijield, as well as at the work of various regional organisa-
tions in diffferent parts of the world. He demonstrates that ‘international migration
governance is clearly underpinned by the rule of law’. Gijsbert Vonk, a colleague
at Groningen, then takes up the batting, looking at the position of irregular immi-
grants in access to social protection for non-citizen migrants.
Dora Kostakopoulou, from Warwick University, then looks at the nexus of mi-
gration and integration in the light of Human Rights norms, noting that contempo-
rary civic integration regimes ‘decry the passing of the old world of national mono-
culturalism and closure’, rather than embracing the new world of the 21st century.
Guy Goodwin-Gill, from All Souls College, Oxford, discusses the admission of refu-
gees, observing that protection is the question and the challenge for today. Adam
Weiss, lately of the Aire Centre in London, looks at family reunifijication at the inter-
face of EU law and the ECHR, noting that the convergence of these two areas of law—
a process that has only just begun—will, in the coming years, afffect a large number
of areas of the law, including criminal law, asylum law, and the right to property.
viii Richard Plender
Dimitry Kochenov, a colleague in the Department at Groningen, examines the
right to leave any country including one’s own. He concludes that ‘the possibility to
leave reinforces liberty at the level of individuals and the respect of the laws at the
level of societies.’ Cliffford Mailer, a UK immigration judge, and Barrister, discusses
UK and European law on deportation and expulsion, drawing in particular on cases
with which he has dealt. Alessia di Pascale then discusses exceptional duties to ad-
mit aliens, concluding that an obligation to admit aliens is foreseeable as a result of
the emergence of the human rights paradigm, particularly where the family unit,
the non-refoulement principle, and the prohibition of torture and degrading treat-
ment are afffected.
Sara Iglesias Sánchez, from the University of Cádiz, examines free movement of
persons and regional international organisations, drawing attention to the trend to-
wards coordination and interaction between diffferent and overlapping regional pro-
cesses. Elspeth Guild then concludes this work with an examination of the asylum
seeker’s right to free legal assistance and/or representation in EU law, taking account
of the recasting of the Asylum Procedures Directive, while retaining the discussion
of its predecessor, which is still applicable in Ireland and the United Kingdom.
I am most grateful to the contributors for their willingness to come to
Groningen for what was an exceptionally stimulating conference, and to provide
papers for this book. Suryapratim Roy most kindly worked on the copy-editing of
the papers and prepared them to be sent to Nijhofff. My colleague in the Department,
Laurence Gormley worked on the proofs, updated the web-references and prepared
the index, which our Departmental Secretary, Karien Galli, typed up. I am most
grateful to them for their input.
My special thanks also go to David Oleson, for kind permission to reproduce
his ‘Parquet Deformation’ design on p. 109, and to Professor Steve Peers, of Essex
University for permission to use the information he has collated which is repro-
duced in Annexes I and II.
International migration law continues to be of major importance, and I hope
that this collection of papers will widen horizons in the debate and assist in achiev-
ing an understanding of the fact, often forgotten by those who prefer rhetoric to
understanding, that migration is a truly global phenomenon. While Europe is at the
forefront of population changes and debates on the control and management of mi-
gration, there are major issues and crises in many areas across the globe, and various
contributions to this volume rightly draw attention to them.
Richard Plender
1 Nationality Law and Immigration Law
Richard Plender*
I. Introduction
Immigration law characteristically determines the circumstances and conditions
in and on which those who are not citizens of a State are permitted to enter and
remain within it. The right of a citizen, subject to very few exceptions, to enter and
reside in his own State is widely regarded as axiomatic. Article 3(2) of the Fourth
Protocol to the European Convention on Human Rights simply proclaims that ‘[n]o
one shall be deprived of the right to enter the territory of the state of which he is a na-
tional’. An anomaly arises in the European Union since Article 18 of the Treaty on the
Functioning of the European Union, headed ‘Non-discrimination and Citizenship
of the Union’, provides that ‘[w]ithin the scope of application of the Treaties, and
without prejudice to any special provisions contained therein, any discrimination
on grounds of nationality shall be prohibited’. Since freedom to enter and reside in
any Member State is a matter within the scope of application of the treaties, Member
States have committed themselves to prohibit, subject to any special provisions con-
tained in the founding treaties, discrimination between their own nationals and
nationals of other Member States as regards admission to and residence in their ter-
ritories. Moreover, the Council of Europe Convention on Nationality does not only
establish principles and rules relating to the nationality of natural persons and rules
regulating military obligations in cases of multiple nationality, to which the internal
law of States Parties shall conform but records that ‘the aim of the Council of Europe
is to achieve greater unity between its members’.1
* Sir Richard Plender QC, LL.D. is Visiting Professor at the University of Groningen and
former High Court Judge (England and Wales).
Sir Richard Plender (ed.), Issues in International Migration Law
Copyright 2015 Koninklijke Brill NV. Printed in The Netherlands. ISBN 978-90-04-20851-3 pp. 1-11
2 Chapter 1 – Richard Plender
II. Traditional International Law
It remains the case that outside Europe national rather than international rules de-
termine who is, and who is not, to be considered as a national of a State. Nevertheless,
international rules determine the extent to which one State must accept another’s
determination that an individual is to be treated as a national of the second State.2
1. The Tunis-Morocco Nationality Decrees Case
The Permanent Court of International Justice itself, in the Case concerning the
Nationality Decrees issued in Tunis and Morocco stated that the question whether
a matter was solely within the reserved domain is essentially a relative one, which
depends on the state of international relations. In circumstances in which Great
Britain enjoyed capitulatory rights against the Bey of Tunis, so that the latter could
not afffect British subjects with nationality, it was not open to France to impose its
nationality upon British subjects presumed to be subjects of the Bey.3
III. Modern Trends
In the period since 1972, some change has taken place in respect of the freedom of
States with respect to the grant of nationality. There has been a reduction in the sig-
nifijicance of the linkage between nationality and allegiance: a reduction lamented
by those who oppose the increase in multiple nationality that has accompanied it.4
Moreover the substantial growth in world migration which taken place in the inter-
vening years has tended to strengthen the nexus between nationality and the grant
of passports and rights of residence.5
1 European Convention on Nationality (signed 6 November 1997) ETS 166.
2 R. Y. Jennings and A. Watts (eds.), Oppenheim’s International Law, 9th ed. Vol. I, (Oxford
University Press 2008), p. 852.
3 Nationality Decrees Issued in Tunis and Morocco (French Zone) (Advisory Opinion) PCIJ Rep
Series B No 4.
4 On 16 October 2010, the disclosure of the fact that the then Dutch Christian Democrat
Deputy Minister for health and sport Marlies Veldhuijzen van Zanten-Hyllner is a dual na-
tional prompted Geert Wilders, leader of the PVV, to call for the resignation of the deputy
minister.
5 Randall Hänsen and Patrick Weil, Towards a European Nationality: Citizenship, Immigration
and Nationality Law in the EU (Palgrave MacMillan 2010), write in the opening sentence of