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  • The topic is: "It is discriminatory for countries to apply strict migration policies. Where a person happens to be born is an accident and this should not play a key role in where a person can live. In particular, wealthy countries should allow in fa

The topic is: "It is discriminatory for countries to apply strict migration policies. Where a person happens to be born is an accident and this should not play a key role in where a person can live. In particular, wealthy countries should allow in fa Essay Example

  • Category:
    Law
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    Essay
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    Undergraduate
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Restrictive Migration

Introduction

The term immigration, apart from drawing from factual issues, has its legal consequences. The term, sometimes also known as emigration, refers to the process by which a person enters another country when they have the intention to live in that particular country permanently.1 Immigration thus raises a number of legal consequences such as nationality (citizenship) i.e. that special and abstract relationship which exists between an individual and their nation. Customarily, this relationship obligates the citizen to have an allegiance to the nation while the state, in return, offers protection to the citizen as well as membership to the nation.2 Other than nationality and or citizenship, immigration may also cause certain other legal consequences such as refugee or asylum seeking status. A refugee who is outside the country of their nationality or for persons who have no nationality, such a person is considered a refugee when they are outside the country where they last habitually resided and such people must be unwilling or unable to avail themselves to the protection of the country in question out of persecution or on the basis of a well founded apprehension of persecution for reasons of race, religion, nationality, membership to a social group or because of their political opinion.3 This paper considers the concept of restrictive immigration laws which several countries have enacted with the sole purpose of curtailing the influx of immigrants into their jurisdictions.

The History of Restrictive Migration

The upsurge in international terrorist activities in the world, especially from the late 1990s, is partially responsible in the increase in immigrant restrictive legislations in Western countries. While it is pointed out that all along, most Western countries always had their reservations about allowing into their jurisdictions immigrants, the urgency for such mechanisms were given impetus by the global fight against terrorism. This is particularly true of the Australian and Western European countries such as France and the Netherlands.4

The introduction of the anti-immigration laws in the US is traceable to the abolishment of the Guest Worker visas for the Latinos; which visas had in 1959 ensured admission into the US of 450,000 Mexicans into the US for work related services. However, some two decades later, this category of visas was abolished and instead, the US government introduced the guest visas which could only admit into the US 20,000 Mexicans.5

The reaction by the Mexicans was to resort to undocumented entry into the US. The United States government, while intending to stem the dangerous influx from the Latinos, enacted the repressive legislation, The Immigration Reform and Control Act of 1986. This statute, among other purposes, was intended to criminalize the hiring by any employer, of any workers who had no documentation.6 Besides the above legislation, the US government enacted in 1990, the Immigration Act, so as to reduce the number of visas for the immediate family members who could immigrate to the US.

Like the rest of the world countries, the US government made a reactive response to the increasing threat of international terrorism by passing a raft of anti-immigration legislations. For instance, in 1996, Congress passed the Antiterrorism and Effective Death Penalty Act which made otherwise legal immigrants deportable from the US in the interest of public policy and law and order.7 The culmination of the zenith of the enactment and enforcement of the anti-immigration laws in the US was the passing through Congress of the USA Patriot Act of 2001, which gave the president the authority to order the deportation of any immigrant whom the AG had reason to believe might either commit further acts of terrorism or those who could facilitate acts of terror.8

In Australia, the restrictive trigger was pulled by the consequences of the war led by the United States in Afghanistan against the Taliban regime. During the war, a number of Afghans trooped to Australia as asylum seekers from the horrors of the war in their own countries.9 The terrorist attack upon the world Trade Centre’s Twin Towers in New York hardened the attitude of Australians towards Afghans and Muslims generally. Consequently, Odhiambo-Abuya points out that the government had to develop very hardened position towards not just the Afghan asylum seekers, but all asylum seekers generally. This, the government achieved through the amendment of the Commonwealth Migration Act of 1958 to validate the government’s actions of “deflecting asylum seekers.”10

The circumstances that justified the proliferation of restrictive immigration laws in Australia were not any different over in Western Europe. In fact, the timing was equally similar even in Europe. This is because the 2002 French Presidential elections were dominated by the questions of anti-immigration policies for the candidates, Jacques Chirac and Jean Marie Le Pen. Mr. Le Pen’s popularity seemed to sore among the conservatives over the tough anti-immigration laws which he espoused.11 The inference that may be drawn here then is that the same issues that informed the drive for restrictive immigration laws down in Australia must have caused the urgency of the debate in Western Europe.

Arguments for Restrictive Migration

The enforcement of restrictive immigration laws, it has been argued by its proponents, brings with it several advantages. The most important of these benefits has been noted as increase in trade opportunities. It is submitted that the enforcement of tough immigration laws into the United States against the Latinos, from especially Mexico, helps to protect the American job market.12

The argument advanced by most Americans the influx of the Latinos continues to diminish the likelihood of the Americans being hired by employers. This is because unlike the Americans who are paid $10 per hour, the Latinos are cheaply remunerated at only $1 per hour. Consequently, employers would scramble to hire the Latinos in order to bring down their costs of production.13 Thus, in order for the American job market to be preserved for the Americans and lower joblessness, most Americans have argued for the enforcement of tougher anti-immigration legislations to keep off not only the Latinos, but other would be immigrants such as Africans as well.14

The second argument for the restrictive immigration laws is the need for the countries concerned to put in place adequate security measures. This particular argument is quite evident in the trail of reasons that informed the passage of the two notorious US legislations between 1996 and 2001, i.e. the Antiterrorism and Effective Death Penalty Act of 1996 and the USA Patriot Act of 2001. Like has been pointed out, earlier in this paper, Massey and Sanchez identified the main concern for the US authorities that informed these particular legislations was the need to enhance the country’s security. This need was particularly evident subsequent to the terrorist attacks upon the US in New York in 2001.

A third advantage that proponents of the anti-immigrant legislations have impliedly asserted is that free immigration brings down the quality of life of the citizens. This comes out more strongly in the arguments by top notch US protectionist politicians like Pat Buchanan.15 Hoppe notes that most Americans see the influx of the Latinos as being a threat to their jobs because the Latinos offer cheap labour. Consequently, free immigration would cause unprecedented joblessness among the American citizens. Loss of jobs, no doubt, leads to a reduction in one’s quality of life.

Another argument that seems to buttress calls for the passage of restrictive migration laws is the need to protect what lawfully belongs to the citizens against the threat of plunder by the immigrants.16 Take for instance the Australia’s policy of interception and deflection of immigrants before they set foot on its shores.17 According to this policy, the Australians intercept and redirect immigrants destined for its territory to other Pacific states like Papua New Guinea and Nauru, of course at a cost to such states. This policy is meant to discourage illegal immigration, also known as queue jumping in Australia in order to be able to ensure the use of Australian resources remains confined to the Australians. This argument is also to be found in the European argument of “we are overloaded” for the rejection of immigrants.

Other proponents have also argued that restrictive migration causes an increase in human boarder patrols as the countries beef up their boarders out of the need to keep out the illegal immigrants. For example, Massey and Sanchez outline that the introduction of migration restrictive laws by the United States to control the Mexican Latino immigration into the US caused massive funding increments. This is because, in 1987 when the need to strongly enforce immigration laws had not been as urgently called for, the US had only deployed four thousand Boarder Patrol Officers as compared to the fourteen thousand deployed in 2007. This increment, they state, pushed this Patrol’s up by a record eight times. The subtle argument herein is that there is need for countries to enforce free movement so as to minimize on the costs that come with tight boarder controls.18

Arguments against Restrictive Migration

Just like various arguments going against the putting in place of anti-immigration laws have been advanced, a set of counter reasons have equally been articulated by the opponents of this argument. Firstly for instance, it has been argued that this policy, rather than improve trade engagements between countries as has been believed, it actually impedes trade engagements.19 This is because trade engagements are favoured by free immigration policies for countries rather than restrictive policies. This is because trade is favoured by the opening up of markets, rather than closure of the same. Consequently, therefore, if a country enforces restrictive migration laws, it would, instead of enhancing trade, hamper trade.20

The second argument that has always been offered in order to counter the push for restrictive migration laws is that such laws contravene express provisions of certain international human rights instruments. Take for instance the provisions of the Universal Declarations of Human Rights, UDHR, which declares that human beings are born free and equal. Consequently, the declaration requires human beings to act towards each other in a spirit that depicts brotherhood.21

Primarily, for human beings to be held to have been born free and hence be truly free in the true sense of the tenor of the UDHR, states must not be seen to be enforcing restrictive laws that hamper the freedom of movement of certain sections of the human people. In fact, the declaration of human equality presupposes that no one else is to unilaterally decide against another one’s already made decision. For instance, in the Australian policy of interception and deflection, there is an Article 1 of assumption herein that the Australian authorities are not equal to the asylum seekers as they determine against decisions that the asylum seekers had already made, that of reaching Australia, not any other Pacific state as is the present practice.

Besides, the restrictions also run counter to the UDHRs’ declaration that require all people to be entitled to all the rights without any discrimination ensuing out of such disabilities as age, race, international status of a country, nationality, social origin, birth or other status.22

However, by the various states seeking to enforce these migration restrictive legislations, they are in essence stand in breach of the anti-discrimination declaration. This is because for instance, the Australian interception and deflection is an entrenched for of discrimination founded on nationality, religion (consider Islam and the raft of anti-terrorism laws most countries have enacted in the period subsequent to the post 2001 terrorist attacks on the USA.23

Besides, some of the anti-immigration laws expressly breach the declaration which requires the right to recognition of a person everywhere as a person before the law.24 The USA’s Patriotic Act’s provisions have very prejudicial provisions to people of Article 6 of the UDHR. This is to the extent that the statute allows the president to cause to be deported without recourse to the Courts. How then is one to reconcile the fact that big western countries, notwithstanding their international law obligations, have been accomplishes in the derogation of basic human rights provisions expressly contained in international human rights covenants that they dutifully continue to reiterate their commitment to.

Refuting Arguments against Restrictive Migration

While opponents of restrictive migration may put up suave arguments as against the putting in place by various countries of legislations which may be restrictive of migration, there are really sufficient reasons and justifications as to why they may be necessary.

Principally, one very justification for such laws is the need for enforcement of security within its borders for its citizens.25 Every government has an obligation to provide protection and security for its nationals (citizens) within the nation’s territory. In a state’s pursuit to provide security and other forms of protection to its citizens, it is bound to take reasonable measures to enact laws that, its leadership believes, will work in the country’s interests towards this end.26 While the need to accept asylum seekers into a country may found very strong moral arguments, the country however has overriding obligations to ensure the security of its people is not compromised at all times. The moral obligations for asylum seekers cannot be allowed to override very elaborate international obligations for states.

Comparative Analysis of Australian and USA Restrictive Immigration Laws

The enforcement of restrictive immigration laws in both the United States of America as well as in Australia are not only similar in approach, but are also geared towards the realization of the same objectives. This can be illustrated in a number of ways such as are shown here below;

The primary issue that compares favorably between the two countries’ enforcement of restrictive immigration laws has to do with the history that informed the establishment of such laws in the first place. This is largely when considered against the background of the fact that for both countries, the facts that precipitated the need for the laws are pretty much similar and that the drive towards the formulation of such legislation was put in motion just around the same time.

Firstly, while the signs of the putting in place of restrictive immigration laws started showing as early as the 1986 like has been demonstrated above, the zenith of such a drive however occurred in the early years of this century.27 While the reasons advanced by the different countries differed as to the justifications for the two legislations, the ease and excuse for their enactment ensued from the direct events of the terrorist attacks against the USA. The two legislations were enacted just soon after the 2001 attacks. The fear and rage against international terrorism formed a fertile ground through which the respective countries’ governments could easily pass legislations with far reaching consequences in terms of would be immigrants’ rights.28

Secondly, the laws were reactionary, rather than being proactive in nature. This is because in both instances, the amendment and the enactment of the legislations in question were directed at sealing a loophole that was noted from the acts of the terrorists, rather than identifying future shortcomings and then aligning the relevant legislations towards that end. The Australians amended their Act to validate the government’s policy of interception and deflection of the asylum seekers to the Pacific States. On the other hand, the Immigration Act and USA Patriot Act were intended to seal labor loopholes and security fears of the US.

The third way in which the two countries application of restrictive immigration laws compare is that both countries utilize the interception mode to intercept their respective asylum seekers. The Australians have for instance perfected the policy of interception of the refuges while still in the high seas and then deflecting them to the neighboring Pacific States. The US on its part has packed its common boarder with the boarder patrols to ward off the Mexican, and indeed other Latino immigrants from entering the US. Unlike Australia which deflects the asylum seekers to the neighboring states, the US most likely sends them back to their respective countries.29

Conclusion

This paper sought to consider restrictive migration and the attendant challenges as its justifications. The paper has outlined that, among others, most Western countries have had to resort to the use of restrictive migration legislations from the desire to control the influx of refugees and asylum seekers for various reasons. Chiefly among these reasons is the countries’ attempt to keep out from their territories, persons whom they consider as posing potential security threats to their nationals. Besides, the restrictive legislations have been favoured by protectionists because of the need to protect the job market for the citizens. On the other hand, arguments posed by opponents of restrictive migration have been considered. It is noted that key among the reasons offered as being contrary to the enforcement of restrictive migration laws is because of the need to minimize spending on boarder manning personnel. Besides, the said restrictions more often than not stand in conflict with the provisions of certain international instruments like the UDHR discussed hereinbefore. However, this notwithstanding, this paper has adopted the view that even with its shortcomings, restrictive migration laws have a positive role that they play in the world of immigration.

Bibliography

Bullon, S. (Managing Editor) 2003, Longman Dictionary of Contemporary English, Pearson Education Limited, New York, NY.

Dugard, John 2006, International Law A South African Perspective, 3rd ed. Juta Legal and Academic Publishers, Cape Town.

Felbermayr Gabriel, Geis Wido and Kohler Wilhelm, 2008, ‘Restrictive Immigration Policy in Germany: Pains and Gains Foregone?’
Deutsche Bundesbank Eurosystem. Retrieved from .de/download/volkswirtschaft/dkp/200918dkp.pdfbundesbankwww.

Garner, Bryan, A, (Editor) 2004, Black’s Law Dictionary, (8th edition), Thompson West, MN.

Hoppe, Hans-Herman 1998, ‘The Case for Free Trade and Restricted Immigration’ Journal of Libertarian Studies, 13 (2), 221-233.

Islam M. Rafique, 2006, The Sudanese Darfur Crisis and Internally Displaced Persons in International Law: The Least Protection for the Most Vulnerable, Oxford University Press. Retrieved from http://www.ijrl.oxfordjournals.org

Katz, Anton, ‘Refugees’ in John Dugard, International Law – A South African Perspective, 3rd Edition (2006).

Massey, Douglas & Sanchez, Magaly, R. ‘Restrictive Immigration Policies and Latino Immigrant Identity in the United States of America,’ MPRA Paper 19226, University Library of Munich, Munich.

Nasra M. Shah, ‘Restrictive Labour Immigration Policies in the Oil Rich Gulf: Effectiveness and implications for sending Asian Countries’ United Nations Expert Group Meeting on International Migration and Development in the Arab Region. Retrieved from http://www.un.org/esa/population/meetings/EGM_Ittmig_Arab/P03_Shah.pdf

Nwokocha, Paschal, O 2008, ‘American Employment Based Immigration Program in a Competitive Global Marketplace: Need for Reform’ William Mitchell Law Review, 1, pp. 38-67

Obhof Larry, J, 2003, ‘The Irrationality of Enforcement? An Economic Analysis of U. S. Immigration Law’ Immigration Law

Odhiambo-Abuya, E 2003, ‘Refugees and Internally Displaced Persons: Examining Overlapping Institutional Mandates of the ICRC and the UN High Commissioner for Refugees’ Singapore Journal of Comparative Law, 7, pp. 236-266

Office of the United Nations High Commissioner for Human Rights. Universal Declaration of Human Rights (2006). Retrieved from http://www.unhchr.ch/udhr/index.htm

Papademitriou G, Demetrios, Meissner Doris, Rosenblum R, Marc and Sumption Madeleine, 2009, ‘Aligning Temporary Immigration Visas with the US Labor Market Needs: The Case for a new system of provisional visas’ Migration Policy Institute

Legislation

Commonwealth Migration Act of 1958

United States of America (2001). Patriot Act. Retrieved from http://www.ratical.org.ratville/CAH/USAPA.html

1 Bullon, S. (Managing Editor) 2003, Longman Dictionary of Contemporary English, Pearson Education Limited, New York, NY

2
Garner, Bryan, A, (Editor) 2004, Black’s Law Dictionary, (8th edition), Thompson West, MN. p. 1052

3
Katz, Anton, ‘Refugees’ in John Dugard, International Law – A South African Perspective, 3rd Edition (2006). p. 341

4
Odhiambo-Abuya, E 2003, ‘Refugees and Internally Displaced Persons: Examining Overlapping Institutional Mandates of the ICRC and the UN High Commissioner for Refugees’ Singapore Journal of Comparative Law, 7, pp. 236-266

5
Massey, Douglas & Sanchez, Magaly, R. ‘Restrictive Immigration Policies and Latino Immigrant Identity in the United States of America,’ MPRA Paper 19226, University Library of Munich, Munich

6
Odhiambo-Abuya, E 2003, ‘Refugees and Internally Displaced Persons: Examining Overlapping Institutional Mandates of the ICRC and the UN High Commissioner for Refugees’ Singapore Journal of Comparative Law, 7, pp. 236-266

7
Massey, Douglas & Sanchez, Magaly, R. ‘Restrictive Immigration Policies and Latino Immigrant Identity in the United States of America,’ MPRA Paper 19226, University Library of Munich, Munich

9
Odhiambo-Abuya, E 2003, ‘Refugees and Internally Displaced Persons: Examining Overlapping Institutional Mandates of the ICRC and the UN High Commissioner for Refugees’ Singapore Journal of Comparative Law, 7, pp. 236-266

10
Ibid, p. 249

12
Hoppe, Hans-Herman 1998, ‘The Case for Free Trade and Restricted Immigration’ Journal of Libertarian Studies, 13 (2), 221-233.

14
For a similar argument, see also Nasra M. Shah, ‘Restrictive Labour Immigration Policies in the Oil Rich Gulf: Effectiveness and implications for sending Asian Countries’ United Nations Expert Group Meeting on International Migration and Development in the Arab Region. Retrieved from http://www.un.org/esa/population/meetings/EGM_Ittmig_Arab/P03_Shah.pdf

15
Hoppe, Hans-Herman 1998, ‘The Case for Free Trade and Restricted Immigration’ Journal of Libertarian Studies, 13 (2), 221-233.

16
Obhof Larry, J, 2003, ‘The Irrationality of Enforcement? An Economic Analysis of U. S. Immigration Law’ Immigration Law

17
Odhiambo-Abuya, E 2003, ‘Refugees and Internally Displaced Persons: Examining Overlapping Institutional Mandates of the ICRC and the UN High Commissioner for Refugees’ Singapore Journal of Comparative Law, 7, pp. 236-266

18
Massey, Douglas & Sanchez, Magaly, R. ‘Restrictive Immigration Policies and Latino Immigrant Identity in the United States of America,’ MPRA Paper 19226, University Library of Munich, Munich.

19 Hoppe, Hans-Herman 1998, ‘The Case for Free Trade and Restricted Immigration’ Journal of Libertarian Studies, 13 (2), 221-233

21 Article 1, UDHR

22 Article 2, Universal Declarations of Human Rights

23 See e.g. the provisions of USA Patriot Act

24 Article 6, UDHR

25
Islam M. Rafique, 2006, The Sudanese Darfur Crisis and Internally Displaced Persons in International Law: The Least Protection for the Most Vulnerable, Oxford University Press. Retrieved from http://www.ijrl.oxfordjournals.org

26 Dugard, John 2006, International Law A South African Perspective, 3rd ed. Juta Legal and Academic Publishers, Cape Town

27 Consider the amendment of the Australian Commonwealth Migration Act of 1958 and the enactment of the USA Patriot

28
Papademitriou G, Demetrios, Meissner Doris, Rosenblum R, Marc and Sumption Madeleine, 2009, ‘Aligning Temporary Immigration Visas with the US Labor Market Needs: The Case for a new system of provisional visas’ Migration Policy Institute

29
Nwokocha, Paschal, O 2008, ‘American Employment Based Immigration Program in a Competitive Global Marketplace: Need for Reform’ William Mitchell Law Review, 1, pp. 38-67. See also Felbermayr Gabriel, Geis Wido and Kohler Wilhelm, 2008, ‘Restrictive Immigration Policy in Germany: Pains and Gains Foregone?’
Deutsche Bundesbank Eurosystem