Migration flows are increasingly differentiated.

This paper will demonstrate the effects different migration flows have upon the regulation and management of global migrations. This will be done by reviewing asylum flows and considering whether effective controls are in place for dealing with this type of migrant. Consideration will also be made as to how this complicates our analysis of global migrations and their regulation.

States have the authority to regulate the movement of foreign nationals across their borders and consequently have the power to decide what persons can be admitted and for what length of time. Nevertheless, in order to regulate migration flows effectively, greater concern needs to be placed upon the dynamics that drive, facilitate and inhabit migration (Compas, 2013, p. 1). It is arguable whether this is easily attainable given that “international migration is incredibly diverse, fluid and fast changing” (Boswell and Geddes, 2010, p. 3). Various laws and regulations have been enacted, which are primarily intended to govern entry into and exit from the territories of states, yet some are more restrictive than others (Guild and Minderhoud, 2011, p. 166). The fact that states have the ability to refuse entry to persons from different jurisdictions is said to allow states to maintain their sovereignty. This was recognised by Adelman (1998, p. 19) when it was pointed out that: “even if a state has absolute sovereign authority to control the entry of refugee claimants, they must preserve international order which is in everyone’s self interests.” Yet, it is important that those fleeing from persecution are provided with adequate protection from the State in which they enter. Therefore, although states generally have the ability to control migration flows, they may also have to adhere to their international obligations (Human Rights Education Association, 2011, p. 2). This often produces problems since it is not always easy to establish whether a person has fled from persecution or left voluntarily. These uncertainties produce much difficulty and although states must protect the human rights of migrants (The International Covenant on Economic, Social and Cultural Rights), it is evident that the protection of migrants is currently inadequate (Amnesty International, 2009, p. 1).

Migrants are not receiving the support they need from states and national laws and procedures currently act as a barrier to the rights of migrants. This is largely due to the different migration flows that exist and the inability to address mixed migration flows effectively (Betts and Loescher, 2010, p. 320). The treatment of those claiming asylum in the UK provides a clear example of the difficulties that arise when it comes to analysing and regulating global migration. Thus, refugees often use the same routes and means of transportation when entering states as other migrants and because of this, it is extremely difficult to distinguish between them (Gibney, 2004, p. 12). As a result, “refugee was a term increasingly associated with dishonesty in the notion of ‘bogus’ asylum seekers” (Ryan and Webster, 2008, p. 3). This has an overall impact upon the proper regulation of migration, which is evident in the UK where asylum seekers are required to attain citizenship. Hence, a British Territories Overseas Citizenship or British Overseas Citizenship must be established, yet as contended by Bussutil (1990, p. 286): “claims cannot be decided with any ease, and great difficulties may be experienced.” This occurs in relation to the ‘qualifying period’ of five years and the additional ‘probationary citizenship’ period that is required prior to qualification for naturalisation. Although this accurately reflects the contemporary relationship between those people subjected to legal regulation and the state, it is questionable whether this relationship is appropriate in modern day society where states are callable of realising their international obligations.

It is extremely difficult to ensure the proper regulation of global migration, yet “the Government started to respond to the increase in asylum applications in the 1980’s” (Sales, 2007, p. 1953). Nation States have since made great attempts to regulation immigration to their countries through “imposition of employer sanctions, phasing in and out of temporary foreign worker admission policies, legislations, measures against human trafficking, and measures concerning refugees and asylum seekers” (Castles and Miller, 2009, p. 205). The Immigration, Asylum and Nationality Act 2009 seeks to ensure that the UK is fully implementing its international obligations, but given that the five year requirement can be waived by the Secretary of State is required, it is evident that each case can be decided on its own facts. Regardless, constraints and limits are still being placed upon liberal government in relation to those claiming asylum in the UK and as noted by Adelman (1998, p. 19): “even if a state has absolute sovereign authority to control the entry of refugee claimants, they must preserve international order which is in everyone’s self interests.” He also added that: “a liberal state does not, however, have absolute sovereign authority, not only with respect to its own members, particularly in areas such as providing aid to refugees, but also with respect to stateless individuals or individuals who come from states which have failed to provide protection.” Arguably, it is evident that although the UK is capable of regulating domestic obligations in respect of asylum seekers, international order must still be preserved. It is questionable whether such international obligations are currently being preserved given that asylum seekers are restricted by domestic legislation. It is argued by Ellermann (2009, p. 2) that: “illegal immigrants often succeeded in preventing the state from exercising its sovereign powers” since those who have no claims against the state are most likely to be able to frustrate state control. Arguably, state sovereignty is often undermined by international obligations as states are required to allow immigrants to cross their borders if it is considered to be in their interests.

The new Points Based System (PBS) in the UK was introduced in order to regulate and control the existing mixed migration flows. Previously, citizens could apply for Indefinite Leave to Remain in the UK after spending five years living there, yet it is now a requirement under the Act that five years residence will only lead to “probationary citizenship” which would be capable of leading to full citizenship once a number of “points” have been earned. This new system is beneficial for the economy as it prevents migrants from becoming dependent on the State and enables a distinction to be made between the different types of migrants. As Woolas (2010, p. 1) believes: “Migration only works if it brings benefits and these measures will ensure that only those migrants that make a positive impact on their local community will be able to stay in the UK.” The Act will consequently prevent those migrants who are not beneficial to the UK’s economy from acquiring citizenship since “unlimited migration places unacceptable pressure on public services, school places, and the provision of housing, causing problems for certain local communities” (Home Office: 2010). Too much restriction should not be placed upon the flow of migrants, however since “migrant workers in recent years have provided a significant boost to UK economic growth” (Balakrishnan, 2006, p. 2). Essentially, it is thereby important that a balance is struck between giving migrant workers the ability to acquire citizenship and preventing those that seek to rely on the State from being admitted unless they are genuinely fleeing from persecution.

In Omojudi v United Kingdom Application No. 1820/08, 24 November, 2009 it was held by the court that a violation of the rights of immigrants under international law can only be justified if the aims being pursued are proportionate in view of the breach that has occurred. A justification will, as put by Stone (2010; p. 352); “require that the differential treatment has a legitimate aim and that there is a reasonable relationship of proportionality between the means employed and the aim pursued.” Therefore, unless a State has a legitimate aim for refusing migrants citizenship, then this will not be justified. This certainly allows greater fairness to be ensued. In Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 it was held that a refusal would need “very weighty reasons” before a violation of any rights under the European Convention of Human Rights 1951 could be justified. Difficulties still exist in relation to border control, nonetheless, and it seems as though greater emphasis needs to be placed upon “exit checks and proper border controls” (Huhne: 2010, p. 2). The UK is the most vulnerable State that attracts migrants and because of this, it is even more important that the flow of mixed migrants is being controlled and managed effectively. It was stated by Shah (2002, p. 315) that: “the complexity of immigration control has therefore to keep pace with a highly mobile world where global communications at all levels and in all forms are easily exploited by criminal gangs and desperate individuals.”

Overall, it is often very difficult for states to properly regulate and manage migration flows because of the fact that they are increasingly differentiated. This is widely due to the problems that are caused by trying to distinguish between the different types of migrants. In addition, even when a distinction can be made, domestic legislation often conflicts with international obligations. As such, states are required to preserve international order in cases of confliction which often prevents them from implementing proper regulatory practices. In order to manage migration flows effectively, it is necessary for all states to co-operate and establish a common approach to migration management. This will ensure that that the rights of migrants are being protected, whilst also preserving national security. Hence, because of the problems that are caused by the lack of certainty surrounding refugee’s and asylum seekers, it is necessary for clearer guidance to be provided, which will enable a distinction to be made between the different types of migrants. This is necessary in certifying on the one hand that the rights of migrants are protected, and on the other than an overflow of migrants does not occur.

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