tag:theconversation.com,2011:/uk/topics/migration-law-14910/articlesMigration law – The Conversation2023-04-27T15:17:13Ztag:theconversation.com,2011:article/2045832023-04-27T15:17:13Z2023-04-27T15:17:13ZIllegal migration bill: can the government ignore the European court of human rights?<p>The illegal migration bill has been <a href="https://www.theguardian.com/world/2023/apr/26/controversial-uk-asylum-bill-passes-third-reading-in-commons">approved by MPs</a> and now moves to the House of Lords. The controversial bill would make it so that anyone who arrives in the UK irregularly (for example, by small boat) can be removed to their country of origin or a third country (for example, Rwanda). </p>
<p>The bill passed the Commons with a number of amendments, including one that allows the government to disregard “interim measures” issued by the European court of human rights. </p>
<p>The court typically uses <a href="https://echr.coe.int/documents/fs_interim_measures_eng.pdf">interim measures</a> to temporarily suspend an expulsion or extradition of an asylum seeker until their case can be properly heard by the court. These measures are used sparingly, and when the court suspects that sending someone to a particular country could risk violating their right to life, or put them in danger of torture or inhumane treatment. They are not the final say in a particular case – they just ensure that the court has a chance to consider all the evidence before someone is removed.</p>
<p>It is this sort of measure that <a href="https://theconversation.com/rwanda-deportations-what-is-the-european-court-of-human-rights-and-why-did-it-stop-the-uk-flight-from-taking-off-185143">blocked the first deportation flight</a> to Rwanda from taking off in June 2022. </p>
<p>If the bill becomes law in its current form, the UK would be the only country in Europe that legally gives ministers permission to disregard the legally binding order of the European court of human rights.</p>
<p>According to the court’s rule 39, interim measures <a href="https://www.echr.coe.int/documents/pd_interim_measures_intro_eng.pdf">can be used</a> in cases where the victim is facing an imminent and serious threat to their human rights. For instance, the court can ask a state to transfer a prisoner from a prison hospital to the civil one if they cannot be treated properly in the former. Or, to order a state not to discontinue medical treatment if it might violate a patient’s right to life. </p>
<p>The most widespread use of interim measures is in immigration cases. The court can temporarily prevent a migrant from being deported while deciding whether the deportation complies with human rights. If the court finds that the deportation is legal, the interim measures will be lifted and the applicant can be deported. </p>
<p>However, if the court decides that the applicant should not be deported, interim measures ensure that this can actually be carried out – if someone is deported to a country where they face threat of harm, it could be difficult to bring them back. </p>
<p>The court has ruled that failure to comply with <a href="https://hudoc.echr.coe.int/eng?i=001-68183">interim measures</a> violates a state’s obligations under the European convention on human rights (and therefore, international law). The convention, to which the UK is a party, states in Article 34 that parties must ensure the court can effectively deal with applications from alleged victims of human rights violations. Disregarding interim measures would disrupt this.</p>
<h2>Complying with the court</h2>
<p>Despite regular <a href="https://www.dailymail.co.uk/news/article-11703793/We-need-ditch-ECHR-tackle-Channel-migrants-crisis-Brexit-backing-MPs-say.html">criticism of the European court of human rights</a>, the UK has a good record of compliance with the court’s interim measures and final judgments. </p>
<p>Only once has it been condemned for failure to follow an interim measure. In a 2010 <a href="https://hudoc.echr.coe.int/eng?i=001-97575">case</a>, two alleged terrorists arrested by UK troops in Iraq were transferred to the Iraqi authorities despite a court-ordered interim measure preventing it. However, in this case, the government argued that there was no objective opportunity for them to comply. The amendments in the illegal migration bill would give power to the minister to disregard international law by setting aside the court’s interim measures.</p>
<p>More generally, interim measures are very well complied with. To keep compliance high, the court uses them rarely and only when it is strictly necessary. There are <a href="https://hudoc.echr.coe.int/eng#%7B%22documentcollectionid2%22:%5B%22GRANDCHAMBER%22,%22CHAMBER%22%5D%7D">fewer than 50 cases</a> where the court found a state violated the convention by failing to comply with an interim measure. </p>
<p>Russia, which was <a href="https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe">recently expelled</a> from the Council of Europe, is still the leader in this unfortunate ranking, with around 20 judgments delivered against it. Although Russia has regularly failed to comply with interim measures, this practice isn’t part of Russian legislation.</p>
<p>There are some notable instances of compliance with interim measures even in Russia. For instance, when opposition leader Alexei Navalny <a href="https://ukhumanrightsblog.com/2020/08/24/alexei-navalny-evacuated-to-germany-european-court-of-human-rights-orders-interim-measures-against-russia/">was poisoned</a>, the European court of human rights ordered Russian authorities to transfer him to Germany for medical treatment, which they did. </p>
<p>Generally, states take interim measures seriously, and even in cases of failure to comply, usually argue in court that they could not enforce them due to some objective reason. </p>
<h2>Can they do that?</h2>
<p>Put simply, states cannot just disregard valid and ongoing international obligations, such as the UK’s obligations under the European convention on human rights.</p>
<p>However, sometimes states do that. The example of Russia again comes to mind, when its parliament ruled that in certain circumstances the Russian Constitutional Court can set aside the judgments of the European court of human rights. This decision was widely criticised by <a href="https://www.echrblog.com/2016/04/the-russian-response-to-prisoner-voting.html">academics</a>, <a href="https://www.amnesty.org/en/latest/news/2020/06/europerussia-venice-commission-denounces-putin-constitutional-amendments-which-avoid-execution-of-ecthr-rulings/">and international human rights organisations</a>.</p>
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<img alt="Home Secretary Suella Braverman walking outdoors in front of a black car, holding a red minister's folder under her arm" src="https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/523207/original/file-20230427-681-mzys49.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The law would allow ministers to ignore the European court of human rights’ interim measures.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/london-united-kingdom-november-22-2022-2285216867">ITS/Shutterstock</a></span>
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<p>The European court of human rights is part of an international judicial system that only works if all parties agree and comply. According to the <a href="https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf">Vienna convention on the law of treaties</a> states cannot use their domestic laws to avoid international treaty obligations. This is exactly what the illegal migration bill now does. </p>
<p>The fact that interim measures are usually complied with shows that they are a respected tool that allows the court to effectively deal with important cases of human rights. They are temporary and can be lifted when a judgment is delivered, but still hold states to binding international obligations. Adopting a legal clause that allows the government to ignore such obligations is a very dangerous precedent that could easily backfire, for example, if the court were to issue interim measures in respect to another member state that the UK government would be in favour of.</p>
<p>To use the football metaphor, imagine a team in the English Premier League suddenly decides not to abide by the offside rule, and introduces this in their team’s statute. This would not work in a match, and the team’s reputation would suffer so much that it would have much less of a say if, for example, a rival team decided to allow players to use their hands.</p><img src="https://counter.theconversation.com/content/204583/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kanstantsin Dzehtsiarou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The European court has ruled that interim measures are legally binding under international law.Kanstantsin Dzehtsiarou, Professor in Human Rights Law, University of LiverpoolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1846112022-06-09T12:42:15Z2022-06-09T12:42:15ZMigration to the US is on the rise again – but it’s unlikely to be fully addressed during the Summit of the Americas, or anytime soon<figure><img src="https://images.theconversation.com/files/467814/original/file-20220608-19-3keq8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Migrants from Latin America are traveling through Mexico as part of a caravan heading to the U.S. </span> <span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/migrants-from-latin-america-taking-part-in-a-caravan-towards-the-picture-id1241163983?s=2048x2048">Isaac Guzman/AFP via Getty Images</a></span></figcaption></figure><p>An estimated <a href="https://www.bbc.com/news/world-us-canada-61685118">6,000 Latin American migrants</a> are traveling together through Mexico to reach the U.S. by foot and car, marking the largest caravan yet in 2022 of migrants traveling to the U.S. border. </p>
<p>Their journey coincides with the ninth <a href="https://www.as-coa.org/articles/what-you-need-know-about-ninth-summit-americas">Summit of the Americas</a>, a regional meeting of country leaders from North, South and Central America that happens about once every three years. This forum grants political leaders an opportunity to discuss regional issues, like democracy and trade agreements, as a group. This year, the summit is taking place in Los Angeles and runs June 8-10. </p>
<p>Migration is a major issue that attendees, including President Joe Biden, will take up during the meeting, following calls for regional leaders to address the growing problems associated with it. </p>
<p>“These are countries collapsing from poverty and violence,” <a href="https://www.aljazeera.com/news/2022/6/6/us-bound-migrant-caravan-leaves-southern-mexico">caravan organizer Luis Garcia Villagran said</a> recently. “We strongly urge those who attend the summit … to look at what is happening, and what could happen even more often in Mexico if something is not done soon.” </p>
<p>As <a href="https://havel.fiu.edu/about-us/people/jack-maguire/">a migration expert</a> who has spent five years researching undocumented immigrants and other immigrants with different kinds of legal protection in the U.S., I think it is important to understand what the Biden administration has done to address migration, and how this has affected U.S. foreign relations with Latin American countries.</p>
<p>Here are three points that can help make sense of migration trends along the U.S.-Mexico border and their influence on regional politics.</p>
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<a href="https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Antony Blinken is pictured at a long table with other men in suits, sitting in front of flags from Latin America." src="https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=355&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=355&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=355&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=447&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=447&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467820/original/file-20220608-22-9m4bcx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=447&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">U.S. Secretary of State Antony Blinken speaks at the Summit of the Americas meeting on June 8, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/secretary-of-state-antony-blinken-speaks-at-the-summit-of-the-of-picture-id1241179042?s=2048x2048">Frederic J. Brown/AFP via Getty Images</a></span>
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<h2>Why is migration a hot topic during the Summit of the Americas?</h2>
<p>Migration across South, Central and North America is on the rise – and has a significant effect on almost every country in the Western Hemisphere. These effects range from the money that migrants send back to their families in their country of origin to the role they play in labor markets. </p>
<p>Migration in the Americas has dramatically increased over the past decade due to <a href="https://www.hrw.org/news/2022/01/13/latin-america-alarming-reversal-basic-freedoms">deteriorating</a> political, economic and humanitarian conditions in several countries, particularly in <a href="https://www.hrw.org/world-report/2021/country-chapters/venezuela">Venezuela</a>, <a href="https://www.unrefugees.org/emergencies/central-america/">El Salvador, Guatemala, Honduras</a> and <a href="https://www.hrw.org/world-report/2022/country-chapters/haiti">Haiti</a>.</p>
<p>High rates of crime, corruption, poverty, environmental degradation and violence all influence people’s decisions to migrate. The power of drug cartels, which can <a href="https://www.justice.gov/opa/pr/juan-orlando-hern%C3%A1ndez-former-president-honduras-indicted-drug-trafficking">be embedded</a> in government institutions like the police, also plays a key role in prompting migration. </p>
<h2>What’s the latest on migration to the US?</h2>
<p>The rate of migrants crossing the U.S.-Mexico border into the U.S. has grown at <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters?language_content_entity=en">a faster pace</a> during the Biden administration than in recent years under the Trump administration. </p>
<p>Immigration officials encountered <a href="https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters?language_content_entity=en">more than 1.7 million migrants</a> along the U.S. border in 2021, three times the number they reported in 2020. </p>
<p>Government agencies have reported encountering more than 1.2 million migrants along the border in 2022. However, this number is being <a href="https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border">inflated</a>, because migrants often make repeated attempts to cross the border. Every “encounter” is recorded as a separate incident, even if the migrant had previously been apprehended and deported.</p>
<p>One significant reason for the uptick in migration is the COVID-19 pandemic, which initially caused a brief lull in migration in 2020. But the pandemic’s social and economic aftershocks <a href="https://www.hopeborder.org/noquedadeotra">worsened already-fragile</a> living conditions for many people in the Americas, pushing them to migrate. </p>
<p>Most of the migrants now arriving at the U.S.-Mexico border are from <a href="https://www.migrationpolicy.org/news/2021-migration-us-mexico-border">four countries</a>: Mexico, Honduras, Guatemala and El Salvador. </p>
<p>But the countries of origin of migrants entering the U.S. have <a href="https://www.migrationpolicy.org/article/evolving-and-diversifying-nature-migration-us-mexico-border">changed</a> over the past decade. Now, large numbers of migrants from other countries like Cuba, Haiti and Venezuela – as well as <a href="https://www.forbes.com/sites/zacharysmith/2022/04/18/over-3000-ukrainians-encountered-at-us-mexico-border-in-march-amid-migration-surge/?sh=694e209776ed">migrants from Ukraine</a> fleeing the war – routinely try to cross into the U.S. from Mexico. </p>
<h2>What’s happened to migration under Biden?</h2>
<p>During his presidential campaign in 2020, Biden <a href="https://www.pbs.org/newshour/show/biden-vowed-to-fix-americas-immigration-system-heres-what-he-achieved-in-his-first-year">pledged to undo</a> former President Donald Trump’s immigration actions, and to adopt a more humane approach. Shortly after Biden took office in January 2021, he stopped construction on the U.S.-Mexico border wall and ended travel bans on people from specific countries. </p>
<p>The Biden administration has tried to keep its commitments to voters and immigrants’ rights activists, while also <a href="https://thehill.com/latino/600074-biden-budget-accelerates-shift-from-trump-policies-on-immigration/">increasing spending </a> on the Border Patrol and other government agencies focused on tracking, apprehending and processing migrants once they cross the border.</p>
<p>The Biden administration has attempted, but failed, due to <a href="https://www.dhs.gov/migrant-protection-protocols">court</a> <a href="https://www.politico.com/news/2022/05/20/judge-blocks-biden-administration-from-lifting-title-42-border-policy-00034195">rulings</a>, to lift asylum restrictions that the Trump administration implemented. </p>
<p>One of these asylum restrictions is an obscure public health order <a href="https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border">called Title 42</a> that was enacted in March 2020, ostensibly to curb the spread of COVID-19 into the U.S. This allows migration enforcement to rapidly deport migrants at the U.S.-Mexico border, without allowing them to access their legal right to apply for asylum to stay in the U.S.</p>
<p>Over <a href="https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border">1.8 million</a> deportations have taken place under Title 42. However, that number <a href="https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border">does not </a>reflect the total number of individual people deported since 2020, as the same people crossing the border multiple times drives up the total number of reported deportations.</p>
<p>A second asylum restriction was a Trump-era program that requires asylum seekers to wait in Mexico while their claims are processed. In December 2021, the U.S. and Mexico announced <a href="https://www.texastribune.org/2021/12/02/immigrants-remain-in-mexico-policy-restart-asylum/">they would restart</a> that program in compliance with a <a href="https://www.dhs.gov/migrant-protection-protocols">U.S. court order</a>that blocked the Biden administration’s attempt to end it.</p>
<p>The Biden administration is also trying to <a href="https://www.washingtonpost.com/national/biden-border-migrants-expulsion-flights/2021/08/06/1acd2762-f6f5-11eb-83e7-06a8a299c310_story.html">increase</a> cooperation with <a href="https://www.reuters.com/world/americas/mexican-president-says-discussed-labor-migration-with-us-official-2022-03-14/">Mexican</a> and <a href="https://www.theguardian.com/us-news/2021/apr/12/biden-migration-security-deal-mexico-guatemala-honduras">Central American</a> authorities to stop migrants before they reach the United States. </p>
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<a href="https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A Customs and Border Protection pick up truck is shown in front of the US-Mexico border wall. A man stands next to the wall." src="https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/467821/original/file-20220608-26-adtwu6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A U.S. Border Patrol agent walks nearby a border wall between the United States and Mexico in Yuma, Arizona, on June 1, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/border-patrol-agent-walks-between-a-gap-along-the-border-wall-between-picture-id1241135212?s=2048x2048">Patrick T. Fallon/AFP via Getty Images</a></span>
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<h2>What, if anything, could come out of this meeting?</h2>
<p>On June 7, U.S. Vice President Kamala Harris <a href="https://www.aljazeera.com/news/2022/6/7/us-begins-summit-of-the-america-week-with-funds-to-stem-migration">announced $1.9 billion </a> in commitments from companies to provide jobs for people in Mexico, Central and South America – and to potentially dissuade them from migrating to the U.S. </p>
<p>Migration is set to be the focus of discussions at this forum on June 10. </p>
<p>But the meeting, so far, has mostly attracted public attention because the U.S. <a href="https://www.reuters.com/world/americas/us-excludes-cuba-venezuela-nicaragua-americas-summit-sources-2022-06-06/">did not invite</a> the autocratic leaders of Venezuela, Nicaragua and Cuba to the event, citing human rights concerns. In response, the presidents of Mexico, Honduras and Guatemala are boycotting the forum. </p>
<p>Some experts have criticized the U.S. for <a href="https://twitter.com/RichardHaass/status/1534139107504541696">not bringing a clear immigration</a> policy proposal to the table at the meeting.</p>
<p>Regardless of any outcome regarding immigration during this Summit of the Americas, migration to the U.S. will continue. </p>
<p>The conditions driving migrants to the U.S. – like violence, <a href="https://theconversation.com/how-climate-change-is-driving-emigration-from-central-america-121525">climate change</a> and limited work opportunities – are simply too big to solve through any one agreement or set of policy decisions.</p><img src="https://counter.theconversation.com/content/184611/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jack Maguire does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The US is convening Latin American countries in Los Angeles this week to discuss major regional issues. An expert explains 3 key things to know about one top concern – migration.Jack Maguire, Ph. D Candidate, Florida International UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1822252022-05-13T12:14:38Z2022-05-13T12:14:38ZA court case against migrant activists in Italy offers a reminder – not all refugees are welcome in Europe<p>As many European countries <a href="https://www.npr.org/sections/goatsandsoda/2022/05/05/1095466197/whats-a-good-word-for-the-welcome-given-to-ukrainian-refugees-in-europe-generous">welcome Ukrainians</a> fleeing war, recent charges against a migrant advocate in Rome offer a reminder that popular <a href="https://www.dw.com/en/anti-immigrant-attitudes-rise-worldwide-poll/a-55024481">anti-migration sentiments</a> persist across Europe.</p>
<p>Andrea Costa, the president of Rome-based migration nonprofit <a href="https://baobabexperience.org/">Baobab Experience</a>, was <a href="https://www.infomigrants.net/en/post/40301/baobab-chief-risked-18-years-for-helping-migrants-acquitted">recently acquitted</a> on charges of facilitating <a href="https://www.criminaljusticenetwork.eu/it/post/usi-ed-abusi-delle-disposizioni-contro-il-favoreggiamento-dellimmigrazione-clandestina-in-italia">illegal migration</a> – a form of <a href="https://ec.europa.eu/home-affairs/policies/migration-and-asylum/irregular-migration-and-return/migrant-smuggling_en">migrant smuggling</a>. </p>
<p>Costa and two volunteers with Baobab Experience faced up to 18 years in prison after they purchased bus tickets for African migrants trying to travel from Rome to Genoa in 2016. </p>
<p>An Italian judge dropped charges against <a href="https://www.infomigrants.net/en/post/40301/baobab-chief-risked-18-years-for-helping-migrants-acquitted">Costa and his co-workers</a> on May 9, 2022, because the <a href="https://www.ansa.it/english/newswire/english_service/2022/05/03/rome-migrant-centre-head-cleared-of-illegal-immigration-5_a0400d10-c872-400c-97d0-a60957380e00.html">“crime was nonexistent</a>.” </p>
<p>Migrant activists are celebrating the recent court decision as a victory for groups like Baobab that offer help to people in transit trying to find safety in Europe. But <a href="https://scholar.google.com/citations?user=83Lb0dwAAAAJ&hl=en">as a scholar</a> of Mediterranean migration and asylum in Europe, I think it is important to keep in mind that the smuggling allegation still sends a message that authorities in Italy – and across Europe – view providing humanitarian assistance as potentially criminal.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A man in a blue shirt speaks into a voice amplifier while rows of people sit behind him on steps" src="https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462560/original/file-20220511-14-onuxo2.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Andrea Costa, director of the migrant rights group Baobab Experience, protests with migrants in Rome in August 2017.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/migrants-and-a-group-of-volunteers-of-the-garrison-organized-by-in-picture-id827371216?s=2048x2048">Andrea Ronchini/NurPhoto via Getty Images</a></span>
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<h2>Migrant homelessness</h2>
<p>More than <a href="https://www.bbc.com/news/world-europe-34131911">1 million migrants</a> crossed the Mediterranean Sea in 2015, fleeing violence and political and economic instability in Africa and the Middle East in hopes of finding refuge in Europe. </p>
<p>Since 2015, migrants have continued to journey to Europe from other unstable regions, with Ukraine as the latest – and largest – <a href="https://www.atlanticcouncil.org/blogs/ukrainealert/un-ukraine-refugee-crisis-is-europes-biggest-since-wwii/">displacement in Europe</a> since World War II. </p>
<p>The increase in arrivals in 2015 became known globally as Europe’s <a href="https://www.unhcr.org/en-us/news/stories/2015/12/56ec1ebde/2015-year-europes-refugee-crisis.html">“refugee crisis</a>.” The large influx of people tested European Union countries’ migration and refugee policies, and <a href="https://rm.coe.int/annual-report-on-ecri-s-activities-covering-the-period-from-1-january-/16808ae6d6">racist, anti-immigrant sentiments</a> grew throughout Europe. </p>
<p>European Union countries also <a href="https://publications.iom.int/system/files/pdf/ch16-over-troubled-waters.pdf">scaled back rescue operations</a>, leaving <a href="https://www.thenewhumanitarian.org/news-feature/2021/01/12/migration-central-mediterranean-timeline-rescue">thousands of migrants to drown</a> at sea. </p>
<p>In the meantime, <a href="http://aei.pitt.edu/80163/1/LSE_No_94_DocumentingMigration.pdf">migrant homelessness</a> increased across Europe. </p>
<p>In Italy, some migrants chose to live on the streets rather than stay in <a href="https://www.ohchr.org/en/stories/2016/08/italys-migrant-hotspot-centres-raise-legal-questions">overcrowded reception centers</a>, some of which had <a href="https://www.theguardian.com/news/2018/feb/01/migrants-more-profitable-than-drugs-how-mafia-infiltrated-italy-asylum-system">ties to organized crime</a>. </p>
<p><a href="https://www.unhcr.org/4a9d13d59.pdf">European Union policy</a> mandates that migrants register their asylum claims in the country where they first enter the region. For many, their first stop was Italy, where migrants live in <a href="https://www.vuesdeurope.eu/en/brief/an-overview-of-reception-conditions-for-asylum-seekers-across-european-countries/">reception centers</a> while authorities process their claims. At these centers, migrants receive meals and basic aid, but they have limited options for working or for integrating socially while waiting on their cases. The asylum process is slow, and migrants can wind up living in <a href="https://asylumineurope.org/reports/country/italy/reception-conditions/short-overview-italian-reception-system/">reception centers</a> for two years while waiting to hear if they can get legal protection and stay in Europe. </p>
<p>In 2016, the health nonprofit Doctors Without Borders documented <a href="https://www.msf.fr/communiques-presse/out-of-sight-informal-settlements-2nd-edition">at least 10,000 migrants</a> living in <a href="https://gsdrc.org/topic-guides/urban-governance/key-policy-challenges/informal-settlements/">informal settlements</a> throughout Italy. </p>
<h2>The case in question</h2>
<p>Through my research at migrant <a href="https://journals.sagepub.com/doi/full/10.1177/1536504218776959">camps</a> and Italian migrant <a href="https://www.fmreview.org/recognising-refugees/paynter">reception centers</a>, I have observed how local nonprofits play an important role in meeting migrants’ basic needs when national and local governments fail to do so. </p>
<p>In 2016, Baobab Experience operated an <a href="https://lavocedinewyork.com/mediterraneo/2016/07/25/campo-profughi-citta-migranti-via-cupa/">unofficial encampment</a> in a street called Via Cupa in Rome, where homeless migrants could stay in tents, and where volunteers provided them with free meals, medical care and legal aid.</p>
<p>In October 2016, police closed down the camp, leaving residents without shelter. Rome’s reception centers were already overcrowded. Nine Chadian and Sudanese migrants who had been living in Via Cupa decided to travel to a <a href="https://www.infomigrants.net/en/post/10248/rise-in-migrants-in-ventimiglia-red-cross-camp">Red Cross migrant camp</a> in Ventimiglia, along the French border. </p>
<p>Costa and two other volunteers purchased these migrants bus tickets to Genoa in October 2016. One volunteer accompanied them there and then farther west to the camp in Ventimiglia. </p>
<p>Italy’s Anti-Mafia Directorate, a national investigative body that combats organized crime and has <a href="https://theintercept.com/2021/04/30/italy-anti-mafia-migrant-rescue-smuggling/">handled cases related to trafficking in immigration since 2013</a>, alleged that the ticket purchase constituted migrant smuggling. Rome prosecutors <a href="https://nowheadline.com/migrants/baobab-chief-risked-18-years-for-helping-migrants-acquitted/">charged Costa</a> and his colleagues with aiding and abetting illegal immigration.</p>
<p>The aid workers earned nothing from the exchange, nor did they transport anyone across an international border. But <a href="https://www.criminaljusticenetwork.eu/en/post/uses-and-abuses-of-the-anti-smuggling-law-in-italy">under Italian law</a>, investigators do not have to prove that someone profited off of migrants to charge them with smuggling. </p>
<h2>Criminalizing aid in Europe</h2>
<p>In recent years, local and national authorities in France and <a href="https://www.vice.com/en/article/93yk55/decade-of-hate-italy-matteo-salvini">Italy</a> and <a href="https://ecre.org/malta-intensifies-crackdown-on-rescuing-organisations-while-deaths-in-the-mediterranean-are-on-the-rise/">Malta</a> have brought criminal charges against groups providing humanitarian assistance to migrants. </p>
<p>Since 2017, for example, some nonprofit rescue ship crews who <a href="https://www.dw.com/en/italy-ngos-argue-over-migrant-rescue-code-of-conduct/a-39825332">refused to sign</a> an Italian government recommended <a href="https://deeply.thenewhumanitarian.org/refugees/community/2017/08/16/expert-views-should-rescue-ngos-sign-mediterranean-code-of-conduct">code of conduct</a> allowing armed police to board their vessels have faced <a href="https://www.theguardian.com/global-development/2021/mar/04/refugee-rescuers-charged-in-italy-with-complicity-in-people-smuggling">charges of working with human smugglers</a>. </p>
<p>This political shift has created a culture of uncertainty, where humanitarian assistance comes with legal risk. Other cases also speak to this trend.</p>
<p>In Greece, for example, Irish citizen Seán Binder and Syrian refugee Sara Mardini <a href="https://www.nytimes.com/2022/03/02/magazine/greece-migration-ngos.html">face a long list of charges, including money laundering, espionage and trafficking</a>, for their work helping migrants with the Greek search-and-rescue nonprofit Emergency Response Center International. </p>
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<a href="https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two men wearing life jackets and masks sit with small children in a motorboat at sea." src="https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=394&fit=crop&dpr=1 600w, https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=394&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=394&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=495&fit=crop&dpr=1 754w, https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=495&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/462567/original/file-20220511-13-jkc5nb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=495&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Children were among the stranded migrants rescued by a search-and-rescue boat in French waters on May 9, 2022.</span>
<span class="attribution"><a class="source" href="https://media.gettyimages.com/photos/migrants-are-rescued-by-crew-members-of-the-abeille-languedoc-ship-picture-id1240573049?s=2048x2048">Sameer Al-Doumy/AFP via Getty Images</a></span>
</figcaption>
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<h2>A moment in European politics</h2>
<p>The acquittal of the Baobab Experience president and volunteers comes at a moment that has revealed contradictory ideas of who deserves refuge in Europe. </p>
<p>In early April, Costa and a group of volunteers returned from Moldova to Italy, bringing with them several people fleeing Ukraine. “We crossed five international borders … to the applause of authorities,” Costa said at an April 14 <a href="https://www.facebook.com/watch/live/?ref=watch_permalink&v=297985892517022">press conference</a>. </p>
<p>A few weeks later, Costa’s 2016 bus fare purchase for migrants from Africa’s Sahel region risked landing him in prison, as the case had just reached a judge in May 2022.</p>
<p>Some migration aid groups are trying to highlight this discrepancy and hold national authorities accountable for policies that they say result in migrants’ dying. </p>
<p>Italian far-right politician Matteo Salvini, for example, faces federal charges of kidnapping in Palermo for his <a href="https://www.france24.com/en/europe/20211023-italy-s-former-interior-minister-salvini-stands-trial-on-migrant-kidnapping-charges">attempts to close ports to rescue ships</a> in 2019. Charges allege that Salvini’s “closed ports” policy prevented the Open Arms ship from bringing rescued migrants to safety, essentially holding them hostage at sea. <a href="https://www.france24.com/en/europe/20211023-salvini-s-moment-has-passed-fading-champion-of-italy-s-right-wing-on-trial-for-migrant-kidnapping">Several migration</a> groups are serving as civil parties in the <a href="https://mediterranearescue.org/en/news-en/mediterranea-civil-party-in-the-case-against-salvini/">case against Salvini</a>. In Italy, civil groups can sign on to a criminal case to support legal charges. </p>
<p>Costa’s case now joins other recent court cases in Europe that involve rescue and humanitarian groups and have also resulted <a href="https://www.aerzte-ohne-grenzen.de/sites/default/files/2018-italy-report-informal-refugee-settements.pdf">in dropped</a> charges.</p>
<p>In France, Cédric Herrou, a farmer charged with smuggling after he drove migrants across the border from Italy, was <a href="https://www.nytimes.com/2018/07/06/world/europe/france-migrants-farmer-fraternity.html">cleared of wrongdoing</a> in 2018. </p>
<p>Italy brought charges against German national Carola Rackete, captain of the Sea Watch rescue ship, but eventually dropped them. Rackete was arrested in 2019 after she <a href="https://www.theguardian.com/world/2019/jul/02/more-than-1m-raised-for-rescue-ship-captain-carola-rackete-italy">entered Italian waters without permission</a> to disembark 40 rescued migrants in the port of Catania. </p>
<p>Cases like these give hope to migrant rights and aid groups. But the allegations still send a broader political message that not all assistance is welcomed.</p>
<p><a href="https://www.bbc.com/news/world-africa-60492918">Migrants themselves</a> are confronting <a href="https://www.borderline-europe.de/unsere-arbeit/kheiraldin-abdallah-und-mohamad-paros3-zu-ingesamt-439-jahren-haft-verurteilt-weil-sie?l=en">extreme sentences</a> on smuggling charges. Rescue crews also face <a href="https://iuventa-crew.org/2022/03/10/italy-launches-its-biggest-trial-against-sea-rescue-ngos/">similar allegations</a> – meaning that European groups helping migrants continue to operate in uncertainty about whether they will be able to continue their work.</p><img src="https://counter.theconversation.com/content/182225/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eleanor Paynter has conducted ethnographic research in camps operated by Baobab Experience.</span></em></p>Italian aid workers charged with helping migrants travel through the country were acquitted in May 2022. But migrants are often not well received in Europe, despite a welcome of Ukrainian refugees.Eleanor Paynter, Postdoctoral Associate in Migrations, Einaudi Center for International Studies, Cornell UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1574542021-11-09T10:03:17Z2021-11-09T10:03:17Z‘We have nothing left’ – the catastrophic consequences of criminalising livelihoods in West Africa<p>We were in Obalende: a bustling working-class neighbourhood of office buildings, shops and residential areas, on Lagos Island, Nigeria. During the day, the neighbourhood teems with small market stalls selling all manner of things, from fruit and vegetables to electronics, tailored clothes and everyday household items.</p>
<p>In the evenings, new stalls spring up to cater for commuters queuing for buses, and noisy street-side bars open to provide distraction and refreshment for people coming back from a long day at work. </p>
<p>But we weren’t there to buy an iPod or have a drink. We were in Obalende, in August 2019, to explore the clandestine world of Tramadol dispensing.</p>
<figure class="align-center ">
<img alt="Birds-eye view of an African street packed with market stalls." src="https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=383&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=383&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=383&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=481&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=481&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427485/original/file-20211020-18-8k44y4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=481&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A busy street in Obalende, Lagos, Nigeria.</span>
<span class="attribution"><span class="source">Gernot Klantsching</span>, <span class="license">Author provided</span></span>
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<p>Our <a href="https://www.cairn.info/revue-politique-africaine-2021-3-page-85.htm">research</a> examined what happens when previously informal – and legal – activities are criminalised, and heavy-handed state regulations blur the lines between what is considered legal and illegal. Specifically, <a href="https://tnocwestafrica.blogs.bristol.ac.uk">our project</a> looked at how the criminalisation of Tramadol in Nigeria, and stricter rules governing the movement of people and goods in the Sahara region, were affecting people and society.</p>
<p>We chose the trade of Tramadol and the transport of migrants in west Africa because they had both attracted widespread policy and media attention. Both activities have also been directly linked to a supposed rise in organised crime, along with other activities, such as sex work or <a href="https://www.reuters.com/article/us-gold-mining-artisanal-explainer-idUSKBN1ZE0YU">artisanal</a> (small-scale) gold mining. Our aim was to question these media and policy portrayals – and instead provide an insider’s view of these activities.</p>
<p>In both cases, it seemed new restrictive laws had, almost overnight, turned people once thought to be earning an “honest living” into organised criminals. We discovered that policy changes – in particular, criminalisation – often do not have their intended impact and there is little consideration of the wide-reaching effect criminalising livelihoods has on communities that have sometimes relied on them for centuries. </p>
<p>We conducted a total of 40 in-depth interviews in Nigeria and Niger. These included 21 in Lagos, Nigeria, with local sellers of Tramadol, as well as official pharmacists selling the drug legally. We spoke with national and local agency workers, including the United Nations Office on Drugs and Crime (<a href="https://www.unodc.org/">UNODC</a>) and Nigeria’s National Drug Law Enforcement Agency (<a href="https://ndlea.gov.ng/">NDLEA</a>). </p>
<p>In Agadez, Niger, we conducted 19 interviews, including with former migrant transporters (or “passeurs”) and local and international humanitarian organisations working in the region, such as the International Organization for Migration (<a href="https://www.iom.int/">IOM</a>), the <a href="https://www.icrc.org/en">International Red Cross</a> and <a href="https://alarmephonesahara.info/en/">Alarme Phone Sahara</a>. </p>
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<img alt="" src="https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=600&fit=crop&dpr=1 600w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=600&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=600&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=754&fit=crop&dpr=1 754w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=754&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/288776/original/file-20190820-170910-8bv1s7.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=754&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<p><strong><em>This story is part of Conversation Insights</em></strong>
<br><em>The Insights team generates <a href="https://theconversation.com/uk/topics/insights-series-71218">long-form journalism</a> and is working with academics from different backgrounds who have been engaged in projects to tackle societal and scientific challenges.</em> </p>
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<h2>‘Doctor’ will see you now</h2>
<p>Back in Obalende, a contact explained to us that Tramadol was still being sold and consumed openly, despite the restrictions.</p>
<p>Tramadol is a synthetic opioid, providing almost immediate relief for moderate to severe pain. It is not illegal to sell Tramadol in Nigeria, but since 2018 it has been heavily regulated by the government, and now should only be available through licensed pharmacies – doses above 100mg per tablet <a href="https://www.unodc.org/documents/nigeria/Tramadol_Trafficking_in_West_Africa.pdf">are also prohibited</a>. </p>
<p>As a result, its availability is restricted to only a few licensed medical authorities and pharmaceutical dispensers. This was intended to curb its abuse, turning the informal selling of the drug into a criminal activity.</p>
<p>Our contact arranged for us to have a meeting with a Tramadol retailer, known locally as “Doctor”. Doctor, aged in his late twenties, agreed to meet us later that evening at his shop. </p>
<p>Constructed from a cheap wooden shed, Doctor’s shop operated like a kiosk, with a seating area for himself and his customers, from which he sold small retail items, and a variety of pharmaceutical products, including Tramadol. He needed to attend to the throng of customers queueing outside his shop, before he would be able to make time for a conversation. This gave us the opportunity to people-watch and observe him interacting with his regulars. </p>
<figure class="align-center ">
<img alt="A busy nighttime street packed with market stalls." src="https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427486/original/file-20211020-23-1jyuide.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Obalende at night, 2018.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/26th-october-2018-obalende-one-busiest-1453408370">Shutterstock/Joshua Akinyemi</a></span>
</figcaption>
</figure>
<p>Customers approached Doctor and told him they had particular ailments, after which he would recommend a drug, which they would then buy. So, in one sense, it operated like a lawful pharmacy. But sometimes a customer knew exactly which drug they wanted and we witnessed some requests for illegal Tramadol.</p>
<p>Nonetheless, Doctor’s dispensing of Tramadol and other drugs to buyers was not done surreptitiously. Some of Doctor’s patrons even wore shirts that indicated they were employees of the Nigeria Police Force, and the shop itself was near a police barracks.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1154101013051256832"}"></div></p>
<p>When we finally got a chance to talk, Doctor told us that he had previously worked as a farmer in northern Nigeria, before relocating to Lagos. He had moved in search of better job opportunities, but a lack of stable employment had led him into the drug business. </p>
<p>While people like Doctor are being increasingly categorised by the state as criminals, our conversation with Doctor didn’t feel like a meeting with a drug dealer, as his work was conducted openly and was regarded as legitimate in the eyes of both him and his customers. </p>
<h2>Moral panic</h2>
<p>So how did Nigeria end up in this situation? Despite the fact that Tramadol has been imported into Nigeria for more than two decades, it only recently was propelled into the spotlight, partly because of the opioid crisis in America and partly because of a codeine cough syrup ban by the Nigerian government. </p>
<p>The cough syrup ban followed the release of a 2018 BBC documentary, <a href="https://www.bbc.co.uk/news/world-africa-43982302">Sweet, Sweet Codeine</a>, which reported that millions of bottles of codeine were being consumed daily across Nigeria. The government’s response to the situation was to ban the production of <a href="https://bmcpublichealth.biomedcentral.com/articles/10.1186/s12889-019-8074-5">codeine cough mixture</a>.</p>
<p>Another 2018 BBC report then claimed that a Tramadol crisis was “fuelling death, despair and <a href="https://www.bbc.co.uk/news/world-africa-44306086">Boko Haram</a>” in Nigeria. This echoed reports published by the <a href="https://www.unodc.org/westandcentralafrica/en/2017-12-11-unodc-warns-tramadol-use.html">UNODC</a> and the <a href="https://www.who.int/news-room/events/detail/2018/11/12/default-calendar/forty-first-meeting-of-the-expert-committee-on-drug-dependence">World Health Organisation</a>, as moral panic about Tramadol increased, too. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/NItPXrvNZ5U?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>Again, in 2018, the Nigerian government responded with a ban, restricting the sale of Tramadol to only a very limited number of approved dispensers and cracking down on the production of high dosage pills. The state’s clampdown on unlicensed Tramadol dispensers was arguably harsh and forced sellers onto the black market.</p>
<h2>Healthcare and unemployment</h2>
<p>But the government’s Tramadol crackdown didn’t account for the fact that Nigeria – the most populous country in Africa – lacks adequate and affordable healthcare. Indeed, the thriving black market in pharmaceuticals is inextricably tethered to this lack of adequate health infrastructure for the nation’s population of 211m, encouraging the normalisation of self-medication by a large majority of the country’s <a href="https://pure.york.ac.uk/portal/en/publications/fake-drugs-health-wealth-and-regulation-in-nigeria(264db0b0-b146-44a0-95b6-7ad55a2e25e9).html">underprivileged citizens</a>.</p>
<p>Then there is the fact that a third of the population is <a href="https://theconversation.com/a-third-of-nigerians-are-unemployed-heres-why-159262">unemployed</a>. So for Tramadol sellers like Doctor, the clandestine work provides a stable source of income. Bashir*, Another Tramadol seller we met, told us:</p>
<blockquote>
<p>We are just involved in this trade because we want to survive, because there are no jobs in the country…</p>
</blockquote>
<p>Bashir said he tried to sell only to a loyal group of customers, in order to avoid being arrested, but explained that Tramadol was his most sought-after product. </p>
<h2>Saharan migrant transport</h2>
<p>In Agadez, the problems aren’t drug-related. But the issues surrounding state regulation were the same. Agadez is the fifth largest city in Niger with a population of approximately 110,000 people. It is located in the Sahara desert, and lies at the crossroads of major Sahelian and Saharan migration routes.</p>
<figure class="align-center ">
<img alt="Arial view of the desert city of Agadez." src="https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427508/original/file-20211020-21-yis7sq.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Aerial shot of the desert city of Agadez in 2019.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/agadez-niger-022019-arial-shot-desert-1537010993">Shutterstock/Nicole Macheroux-Denault</a></span>
</figcaption>
</figure>
<p>Agadez has been an important trading hub in Africa since the 16th century, providing a critical source of income to the <a href="https://theconversation.com/sahel-region-africa-72569">Sahelian region</a> – <a href="https://www.un.org/africarenewal/magazine/august-november-2017/new-face-sahel">one of the poorest in the world</a>. But Niger’s migration policy has dramatically evolved to curtail the movement of people and goods through the region. This was formalised through the passing of a statute <a href="https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/05/smuggling">in 2015</a>. This change came on the back of growing political and media debates concerning the so-called “migrant crisis” and, in particular, concerns about the trafficking of migrants from west Africa to Algeria, Libya and on into Europe.</p>
<p>Niger is a member of the Economic Community of West African States, which supposedly guarantees the free movement of people across its 15 member countries. Yet the new legislation essentially criminalised migration from Niger across the Sahara to north African countries.</p>
<p>This has radically transformed the socioeconomic structure of Agadez. Before 2015, migration from Agadez to Algeria and Libya, and for some on into Europe, was commonplace, particularly boosting the local economy in Agadez across various sectors. The economic benefits were felt across the entire country.</p>
<p>At the grassroots level, local businesses in Agadez thrived due to the steady flow of travellers through the city. But today, any visitor familiar with its history as a Saharan hub of exchange will regard Agadez as a ghost town. </p>
<figure class="align-center ">
<img alt="Empty store front on quiet road." src="https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=340&fit=crop&dpr=1 600w, https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=340&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=340&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=427&fit=crop&dpr=1 754w, https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=427&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/427546/original/file-20211020-13-1j1vcgk.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=427&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">A transport business in ‘ghost town’ Agadez in 2020.</span>
<span class="attribution"><span class="source">Ini Dele-Adedeji</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>After the fall of Muammar Gaddafi’s Libyan regime in 2011, Niger experienced strong external pressure from the European Union to <a href="https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2020/05/smuggling">prevent migration northwards</a>. The EU purportedly promised to implement specific initiatives to ameliorate the loss of income to ex-transporters and introduce alternative means of income (as did the Nigerien government). </p>
<p>But according to former transporters we interviewed in Niger, these promises have yet to be fulfilled and many informed us of the devastating impact the law has had on their ability to sustain a livelihood. One ex-transporter, Abdul*, told us:</p>
<blockquote>
<p>There’s nothing we can do. We have no activity … it has totally destroyed us, we have nothing left.</p>
</blockquote>
<h2>Dying in the desert</h2>
<p>Like the Tramadol ban in Nigeria, the criminalisation of transporting migrants has not totally ended the practice. In response, transporters have been forced to foster stealthier strategies for remaining in the trade and evading the authorities. This has inevitably resulted in transporters taking more perilous routes through the Sahara to avoid arrest, routes which previously were centred around water points. </p>
<p>While transporters we spoke to boasted of their reliability in getting people across the Sahara safely, interviews with humanitarian agencies, including the International Organization for Migration, reported that an increasing number of migrants are being abandoned in the desert, which can be attributed to the use of less-familiar travel routes by transporters. The risks transporters are compelled to take have been significantly compounded by the criminalisation of migration across the Sahara. The director of one humanitarian organisation working in the region told us:</p>
<blockquote>
<p>Many people disappear in the desert, many people die, and now there are military patrols chasing people in the desert… The drivers can throw the passengers outside of the car… in case they are arrested.</p>
</blockquote>
<p>Local initiatives have been implemented to assist with the reintegration of ex-transporters and humanitarian agencies have operations on the ground to assist with extricating stranded migrants in the Sahara. Nevertheless, the region continues to suffer as a result of the legislation and those who do continue in this previously legal activity are now deemed “human traffickers”. Another ex-transporter told us:</p>
<blockquote>
<p>It wasn’t illegal… we were taking an official route… we paid taxes, we did everything according to the regulation and what we were supposed and then the men came and made this migration criminal. They said we are criminals, that we are trafficking people.</p>
</blockquote>
<p>Foreign government agencies and NGOs claim they are prioritising the safety of vulnerable migrants. But we found that these legislative changes actually steer formerly legal workers into more precarious situations and devastate regional economies that have very limited forms of employment. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1143466064392495104"}"></div></p>
<h2>What now?</h2>
<p>These measures need to be entirely reconsidered. Pressure from international agencies and foreign governments have contributed to the governments of both Nigeria and Niger resorting to harsh, punitive measures in seeking to address the challenges of Tramadol distribution and trans-Saharan migration. </p>
<p>But what these impoverished communities need is more protection and less criminalisation.</p>
<p>NGOs and local organisations are doing important work in seeking to address these issues on the ground. For example, the International Rescue Committee, International Red Cross and Alarme Phone Sahara help stranded migrants in the Sahara and with the reintegration of ex-transporters. In Nigeria, meanwhile, there are several national initiatives seeking to address substance abuse, including awareness campaigns (<a href="https://www.pulse.ng/news/local/in-lagos-government-launches-lagos-state-kicks-against-drug-abuse-campaign/st9lb06">Lagos State Kicks Against Drug Abuse</a>) and support groups promoting youth-orientated alternative projects like <a href="https://youthriseng.org/">Youth Rise Nigeria</a>.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1395306141845004288"}"></div></p>
<p>But uncertainty about future economic survival continues to affect the vast number of people who are unemployed or in precarious employment. And this uncertainty drives them to exploit opportunities to create employment, whether “legal” or otherwise. As Doctor explained before we left him to deal with his customers: </p>
<blockquote>
<p>There is nobody to say they will help me and give me money… I am just managing myself like this, I am managing and pushing my goods around…</p>
</blockquote>
<p>*<em>All names have been changed to protect the anonymity of those involved.</em></p>
<hr>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=112&fit=crop&dpr=1 600w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=112&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=112&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=140&fit=crop&dpr=1 754w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=140&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/313478/original/file-20200204-41481-1n8vco4.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=140&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
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<p class="fine-print"><em><span>This article is based on a research project on the 'Hidden narratives of transnational organised crime in West Africa', funded by the UK Economic and and Social Research Council. We would like to thank Dr Elodie Apard (IFRA-Nigeria) and Dr Philippe Frowd (University of Ottawa), the two Co-Investigators on the project, for their help in refining this article. </span></em></p><p class="fine-print"><em><span>Amanda Schmid-Scott and Ini Dele-Adedeji do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Livelihoods which communities have relied on for centuries are being criminalised by heavy-handed state restrictions.Ini Dele-Adedeji, Research Associate, University of BristolAmanda Schmid-Scott, ESRC Postdoctoral Fellow, Newcastle UniversityGernot Klantschnig, Associate Professor in International Criminology, University of BristolLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/958172018-05-02T08:53:59Z2018-05-02T08:53:59ZSix ways Sajid Javid can make British migration policy more humane<p>Britain’s increasingly brutal regime of “migration control” has come to a head. After almost two years as home secretary, <a href="https://www.amberrudd.co.uk">Amber Rudd</a> resigned on April 29, apologising for misleading <a href="https://www.theguardian.com/politics/2018/apr/29/amber-rudd-resigns-as-home-secretary-after-windrush-scandal">parliament</a> of deportation targets, amid <a href="https://www.parliament.uk/business/committees/committees-a-z/commons-select/petitions-committee/news-parliament-2017/windrush-amnesty-debate-17-19/">public revulsion</a> at the <a href="https://www.aljazeera.com/news/2018/04/uk-windrush-generation-scandal-180418074648878.html">treatment</a> of British people who had come from the Caribbean half a century ago. The prime minister, who <a href="https://theconversation.com/hostile-environment-the-uk-governments-draconian-immigration-policy-explained-95460">introduced many of those policies</a>, remains in post. </p>
<p>In distancing himself from Rudd, her replacement Sajid Javid <a href="https://www.independent.co.uk/news/uk/politics/sajid-javid-theresa-may-new-home-secretary-immigration-rhetoric-hostile-not-british-a8330151.html">expressed an intention</a> to focus on making Britain’s immigration system not “hostile” but “compliant”. To make it more humane too, here are six things he should think about.</p>
<h2>1. Don’t use migration control as an excuse</h2>
<p>When migration control stops being about crossing external territorial borders and turns instead to who gets access to particular services, people can be <a href="https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/02/migration-policy">displaced without moving</a>. And that’s dangerous. It resulted in unknown numbers of the “Windrush generation”, who were living normal lives for decades, suddenly being threatened with exclusion from British society unless they could prove otherwise. The label “migration control” must not be used to justify activities that are not about controlling migration.</p>
<p>And the proper reach of “migration control” should be considered when negotiating the future of citizens of other EU countries currently living in the UK, and UK citizens elsewhere in the EU. Such individuals may have migrated a while ago, but now they are members of their communities. Making sudden changes to what access they have to services within those communities would not be about migration control. It would be about displacement.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/sajid-javid-the-son-of-a-pakistani-bus-driver-who-became-britains-home-secretary-95884">Sajid Javid: the son of a Pakistani bus driver who became Britain's home secretary</a>
</strong>
</em>
</p>
<hr>
<h2>2. Human rights must be for everyone</h2>
<p>In the UK today, many human rights have become dependent upon documentation and status and this has mostly become socially acceptable. In the <a href="https://documents-dds-ny.un.org/doc/UNDOC/GEN/G17/192/15/PDF/G1719215.pdf?OpenElement">latest review</a> of the UK by the UN Human Rights Council, many concerns were raised about the effects of migration control. </p>
<p>Policies are putting human rights out of reach for some in the UK. For example, some visas make employees <a href="https://www.theguardian.com/global-development/2017/oct/19/absolutely-unacceptable-uk-accused-of-failing-to-protect-domestic-workers">dependent</a> upon employers and unable to complain about abuse. <a href="https://www.independent.co.uk/news/uk/home-news/doctors-home-office-immigration-enforcement-border-guards-nhs-doctors-of-the-world-a7693461.html">Healthcare providers</a> are being asked to police access. Irregular immigrants are forbidden from both work and welfare, and some may even be prevented from accessing <a href="https://theconversation.com/homeless-people-could-avoid-life-saving-services-if-theres-a-risk-of-deportation-92907">homelessness support</a>, leaving no legal access to food and shelter. </p>
<p>These are all framed as “migration control”, but their focus is on controlling access to human rights, not controlling migration. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/217024/original/file-20180501-135803-1ekutim.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Doctors have been asked to act as de facto border guards.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTUyNTE5ODg0OCwiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfNDEzMjQyNzMyIiwiayI6InBob3RvLzQxMzI0MjczMi9tZWRpdW0uanBnIiwibSI6MSwiZCI6InNodXR0ZXJzdG9jay1tZWRpYSJ9LCJwcGpHZnhPYXY3ZEoxWWtOKytSV2lYRktJUG8iXQ%2Fshutterstock_413242732.jpg&pi=33421636&m=413242732&src=-lghKAvtNOAd5y8XLvSPmw-1-45">from www.shutterstock.com</a></span>
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</figure>
<h2>3. Make British citizenship a reliable and equal status</h2>
<p>Naturalised British citizenship can currently be revoked <a href="https://www.thebureauinvestigates.com/stories/2014-03-17/my-british-citizenship-was-everything-to-me-now-i-am-nobody-a-former-british-citizen-speaks-out">while a person is overseas</a> if there is a concern that their presence is “not conducive to the public good”. A 2015 Supreme Court <a href="https://www.supremecourt.uk/decided-cases/docs/UKSC_2013_0150_Judgment.pdf">ruling</a> confirmed that this would be acceptable under British law even if it leaves someone with no citizenship at all. Without citizenship, a person may be <a href="https://rli.blogs.sas.ac.uk/2017/09/11/statelessness-and-the-global-compact-for-migration/">unable</a> to work, travel, or marry anywhere on Earth.</p>
<p>And yet, Britain is party to the <a href="http://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf">1961 Statelessness Convention</a> which forbids the creation of statelessness. This policy also creates further inequality among British citizens – since only naturalised citizens are at risk – and undermines Britain’s ability to criticise other countries that illegally strip their citizens of citizenship.</p>
<h2>4. Assumptions of exclusion must be questioned</h2>
<p>As the hostile environment has become entrenched, wider circles of people have been affected by the assumption of exclusion and by the need to prove eligibility for membership of British society. Recent scandals have focused on redressing this in cases involving <a href="http://www.bbc.co.uk/news/uk-england-manchester-43782463">doctors</a>, <a href="https://www.independent.co.uk/news/education/education-news/durham-university-academics-deportation-home-office-mexico-petition-a8263901.html">academics</a> or those who arrived on the Windrush. But we should not ignore the countless others denied rights in the UK in the name of migration control, whose cause has created less outrage.</p>
<p>For example, it might be hardest to empathise with foreign nationals convicted of crimes. But for over a decade, foreign nationals who have served UK custodial sentences have been at increasing risk of arbitrary indefinite detention, even deportation – no matter how long they have been in the UK. In 2009 one individual <a href="http://detentionaction.org.uk/wordpress/wp-content/uploads/2011/10/Detained-Lives-report.pdf">described</a> leaving a prison, believing they were going to be freed and without explanation arriving at a detention centre. </p>
<p>Since then, increasing categories of people have been subject to administrative detention, including irregular migrants, <a href="http://www.migrationobservatory.ox.ac.uk/resources/briefings/immigration-detention-in-the-uk/">asylum seekers (the largest group currently in detention)</a>, <a href="https://www.statelessness.eu/resources/protecting-stateless-persons-arbitrary-detention-united-kingdom">stateless persons</a>, <a href="https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/01/not-enough">children</a> and <a href="https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/01/truth-about">people who arrived in the UK as children</a> and it even played a role in the <a href="https://amp.theguardian.com/uk-news/2018/feb/22/caribbean-diplomats-ask-uk-for-more-compassion-for-citizens">Windrush scandal</a>. It’s now time for arbitrary immigration detention to stop, along with the assumption that people can be excluded from British society unless they can prove otherwise.</p>
<h2>5. Hold open discussions about demographic change</h2>
<p>There are many reasons why the distribution of people in the UK is always changing. One is migration. This has implications. In areas where there are more working-aged people, there may be more people available to work but also more demand for jobs. In areas where there are more elderly people, there may be a need for more social support, including home care and hospital beds. Where there are more children, schools need increased funding. </p>
<p>Where policy has not responded to the changing make up of the population and politicians have not listened to local concerns, <a href="https://theconversation.com/history-offers-britain-an-important-lesson-on-shutting-down-immigration-65840">there has been conflict</a>. There needs to be open public discussion about the changing needs of communities and a fair distribution of resources. </p>
<h2>6. Make Britain a global leader on migration</h2>
<p>Javid becomes UK home secretary at a crucial juncture for global policy around migration. The UK is not the only country that has been cultivating a hostile environment and using the label of “migration control” to sanction an increasingly broad range of measures – look for example at <a href="https://theconversation.com/mould-levels-seen-at-nauru-detention-centre-are-enough-to-cause-serious-health-problems-92429">Australia</a> and the <a href="https://www.theguardian.com/us-news/2017/aug/03/donald-trump-malcolm-turnbull-refugees-australia-phone-call">US</a>.</p>
<hr>
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<strong>
Read more:
<a href="https://theconversation.com/why-rights-must-trump-politics-if-new-global-plans-on-refugees-and-migrants-are-to-make-a-difference-88597">Why rights must trump politics if new global plans on refugees and migrants are to make a difference</a>
</strong>
</em>
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<p>UN member states are currently negotiating a <a href="https://refugeesmigrants.un.org/migration-compact">global compact for safe, orderly and regular migration</a>, to be launched at a <a href="https://refugeesmigrants.un.org/intergovernmental-conference-2018">UN intergovernmental conference</a> at the end of 2018. The <a href="https://refugeesmigrants.un.org/sites/default/files/180205_gcm_zero_draft_final.pdfhttps://refugeesmigrants.un.org/sites/default/files/180205_gcm_zero_draft_final.pdf">initial drafts</a> of this compact set out to reframe migration policy away from control. The UK has the opportunity to demonstrate how this reframing can occur in practice.</p><img src="https://counter.theconversation.com/content/95817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Tendayi Bloom does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Where to start dismantling the UK’s hostile environment policy on immigration.Tendayi Bloom, Lecturer in Politics and International Studies, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/738992017-03-29T01:44:38Z2017-03-29T01:44:38ZThe rise of anti-immigrant attitudes, violence and nationalism in Costa Rica<figure><img src="https://images.theconversation.com/files/163011/original/image-20170328-3819-u1inbo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Workers wash freshly harvested bananas on a banana plantation near Parrita, Costa Rica.</span> <span class="attribution"><span class="source">AP Photo/Kent Gilbert</span></span></figcaption></figure><p>Costa Rica is often thought of as the “Switzerland of the Americas.” </p>
<p>With a stable democracy and no standing army, the small Central American country of 4.8 million is often referred to as the <a href="http://www.tandfonline.com/doi/abs/10.1080/13569320701682542">“exception”</a> to the conflict, violence and poverty faced in other Latin American countries. In particular, Costa Ricans pride themselves on their strong health care and education systems.</p>
<p>But Costa Ricans have increasingly faced social and economic challenges that threaten their exceptional status. In response, many Costa Ricans have projected their anxieties onto immigrants. </p>
<p>In 2005, a Costa Rican congressman named Ricardo Toledo gave <a href="http://onlinelibrary.wiley.com/doi/10.1111/imre.12073/full">a passionate speech</a> criticizing immigrants who “come to kill our women; many of them come to rob our banks; to rob our sons and daughters in the streets.” </p>
<p>He called on Costa Rica to close its borders to Nicaraguan immigrants.</p>
<p>In response to this kind of anti-immigrant attitude, the National Assembly passed a <a href="http://www.pgrweb.go.cr/scij/Busqueda/Normativa/Normas/nrm_texto_completo.aspx?param1=NRTC&nValor1=1&nValor2=56050&nValor3=79756&param2=1&strTipM=TC&lResultado=3&strSim=simp">law</a> that restricted residency, increased enforcement and limited immigrants’ opportunities for integration.</p>
<p>That same year, a 25-year-old Nicaraguan immigrant named Natividad Canda was mauled to death by two <a href="http://wvw.aldia.cr/ad_ee/2005/noviembre/11/sucesos0.html">Rottweilers</a>. According to some reports, several onlookers who witnessed the attack <a href="http://www.ticotimes.net/2006/01/27/probe-says-police-could-have-stopped-fatal-dog-attack">did nothing to help him</a>. Many Costa Ricans praised the dogs and condemned the victim as an alleged criminal and “illegal” immigrant.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=411&fit=crop&dpr=1 600w, https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=411&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=411&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=516&fit=crop&dpr=1 754w, https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=516&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/163012/original/image-20170328-3782-9ociz0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=516&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Approximately 1,000 mostly Nicaraguan families were being evicted from land they have been squatting on, 2005.</span>
<span class="attribution"><span class="source">AP Photo/Kent Gilbert</span></span>
</figcaption>
</figure>
<p>While Costa Rica has since stepped back from the worst of its explicitly xenophobic legislation, the discriminatory spirit that led to that law being passed still continues today. </p>
<p>In my <a href="http://onlinelibrary.wiley.com/doi/10.1111/plar.12136/abstract">research</a> with Nicaraguan immigrants in San Jose, Costa Rica, I find that Nicaraguans continue to face widespread discrimination and major barriers to legal status and access to social services. <a href="http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/glossary/xenophobia/">Attitudes and behaviors</a> that reject, vilify and exclude immigrants often solidify national identity when that identity is in <a href="http://www.tandfonline.com/doi/abs/10.1080/01419870.1997.9993946">crisis</a>.</p>
<h2>Decades of ‘us versus them’</h2>
<p>In Costa Rica, Nicaraguans make up <a href="http://www.inec.go.cr/censos/censos-2011">75 percent</a> of immigrants and represent around 7 percent of the total population. They often work in agriculture, construction and service sectors. </p>
<p>Nicaraguan migration to Costa Rica is not new, but attitudes toward Nicaraguans have become more prejudiced since the mid-20th century. Where Nicaraguans are seen as inherently violent, Costa Ricans see themselves as peace-loving. Where Nicaraguans are seen as poor, illiterate and uncultured, Costa Ricans see themselves as middle-class and educated. Where Nicaraguans are mestizo and dark-skinned, Costa Ricans are “white.” </p>
<p>The sense of difference and superiority felt by many Costa Ricans has been reinforced by stereotypes of Nicaraguans developed over decades of migration.</p>
<iframe src="https://www.google.com/maps/embed?pb=!1m18!1m12!1m3!1d7929305.717903751!2d-88.67147164556586!3d13.974592506838244!2m3!1f0!2f0!3f0!3m2!1i1024!2i768!4f13.1!3m3!1m2!1s0x8f92e56221acc925%3A0x6254f72535819a2b!2sCosta+Rica!5e0!3m2!1sen!2sus!4v1490722424255" width="100%" height="450" frameborder="0" style="border:0" allowfullscreen=""></iframe>
<p>Nicaraguan migration to Costa Rica goes all the way back to colonial and 19th-century regional economic <a href="https://books.google.com/books?hl=en&lr=&id=EPyPSrFkO0YC&oi=fnd&pg=PR5&dq=patricia+alvarenga+costa+rica&ots=R48ot-zORU&sig=SLd7bZ8AXvJ718gRXUfiE_6ljvU#v=onepage&q=patricia%20alvarenga%20costa%20rica&f=false">developments</a>. Nicaraguan workers were instrumental to the rise of the Costa Rican coffee industry, the construction of its railroad and the establishment of the multinational banana industry. Later, during the Sandinista Revolution and Contra war in the 1980s, Nicaraguans <a href="https://www.brown.edu/Research/Understanding_the_Iran_Contra_Affair/timeline-nicaragua.php">fled</a> to Costa Rica for both political and economic reasons.</p>
<p>After the Fall of the Sandinistas in 1990, economic migration to Costa Rica increased dramatically. In 1998, <a href="https://www.ncdc.noaa.gov/oa/reports/mitch/mitch.html">Hurricane Mitch</a> devastated Nicaragua, leaving millions homeless and destroying infrastructure and the harvest.</p>
<p>As Nicaraguan migration increased in the ‘90’s, Costa Rica’s exceptional welfare system was weakened by cuts in public funding. <a href="http://www.nacion.com/nacional/educacion/">Crowded classrooms</a> and long waits for <a href="http://www.nacion.com/nacional/salud-publica/Caja-lleva-resolver-listas-espera_0_1508649137.html">health services</a> were compounded by <a href="http://www.latinobarometro.org/latNewsShow.jsp">perceptions</a> of rising crime and economic downturns. As Costa Ricans began to feel their privileges as citizens decline, they <a href="http://onlinelibrary.wiley.com/doi/10.1111/j.1548-1387.2009.01074.x/abstract">projected</a> their anxieties onto <a href="http://www.ohioswallow.com/book/Threatening+Others">Nicaraguan immigrants</a>.</p>
<p>Nicaraguan migration began to represent a demographic, cultural and racial threat to Costa Rican exceptionalism.</p>
<h2>Barriers in everyday life</h2>
<p>Although Costa Rica has stepped back from the most xenophobic of its immigration policies, legal restrictions and widespread attitudes of rejection continue. Nicaraguans still face discrimination and barriers to services and legal status.</p>
<p>For example, my colleague <a href="https://repub.eur.nl/pub/94392/">Koen Voorend</a> and I have found that Nicaraguan immigrants report being sent extra paperwork or conflicting directions to access <a href="http://onlinelibrary.wiley.com/doi/10.1111/plar.12136/abstract">health care</a> or enroll children in school. Young people report hiding their Nicaraguan origins from classmates because of fear of being teased or bullied.</p>
<p>In health clinics, Nicaraguans say they are often treated as ignorant or stupid by <a href="http://www.tandfonline.com/doi/full/10.1080/13648470.2015.1004503">doctors and nurses</a>. Clinic staff ask for extra documentation or refuse them care.</p>
<p>They also face discrimination, if not outright violence, on the streets. Nicaraguan immigrants often avoid speaking in public to avoid revealing their accent. They worry about being harassed on the bus. They stick close to home or work to avoid attracting the attention of immigration authorities. </p>
<p>Meanwhile, civil society organizations, academics and activists are working to create change. For example, “What Unites Us” is a <a href="https://loquenosune.org/category/campana-en-accion/costa-rica/">campaign</a> against xenophobia in Latin America and the Caribbean led by <a href="http://theret.org">RET International</a>, an organization that works to protect vulnerable young people through education. </p>
<p>The campaign is enlisting young people to discuss what brings immigrants and citizens together. In emphasizing what unites foreigners and nationals, the campaign breaks down the dividing line between deserving and undeserving, citizens and immigrants.</p>
<p>However, seeing what unites citizens and immigrants will not eliminate xenophobia. Citizens still feel that their way of life is under threat. When prized institutions fail to address people’s real social and economic problems, blaming immigrants serves as a useful distraction – one that may gain traction in the U.S. too.</p><img src="https://counter.theconversation.com/content/73899/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Caitlin Fouratt received funding from the Wenner-Gren Foundation and the Institute of International Education.</span></em></p>While Costa Ricans pride their country for being an oasis of stability in Latin America, the nation has struggled with restrictive laws and social attitudes toward immigrants from Nicaragua.Caitlin Fouratt, Professor of International Studies, California State University, Long BeachLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/709052017-01-10T00:01:04Z2017-01-10T00:01:04ZA ‘tougher’ citizenship test should not be used to further divide and exclude<figure><img src="https://images.theconversation.com/files/152064/original/image-20170109-4307-e9cpkv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Peter Dutton says he would like to see criteria tightened to deny citizenship to those who have not integrated into Australia.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Immigration Minister Peter Dutton <a href="http://www.news.com.au/lifestyle/real-life/news-life/peter-dutton-calls-for-tougher-citizenship-test-in-australia/news-story/45b026d1ccd711c7dc7833085ab40e2b">recently raised</a> the prospect of changing the law around acquiring Australian citizenship.</p>
<p>He acknowledged the vast majority of migrants are well-integrated, and should be fast-tracked for citizenship. However, Dutton would like to see criteria tightened to deny citizenship to those who have not integrated into Australia. While details are unclear, he <a href="http://www.minister.border.gov.au/peterdutton/2017/Pages/interview-2gb-4bc-02012017.aspx">referred to</a> people involved in serious crime, those who are welfare-dependent, or who have links with extremism. </p>
<p>Dutton was also concerned about people who don’t undertake English lessons or prevent their children from being educated. </p>
<h2>What’s the point of citizenship?</h2>
<p>Permanent residents in Australia enjoy almost the full range of civil and political rights as citizens. They have access to the welfare system (after initial waiting periods), Medicare, and education.</p>
<p>Citizens alone are able to vote and have a greater security of residence. They are subject to removal only if they have <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s35.html">fought for</a> the armed forces of an enemy country or, since 2014, if they are <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s35aa.html">involved in</a> activity defined to be linked with terrorism.</p>
<p>Citizenship is important for people to feel fully connected and committed to Australia. For some – in particular refugees – the increased security of residence is of extremely high importance, given they are unable to return to their countries of origin for fear of persecution. </p>
<p>For those who came to Australia by boat, citizenship is the only pathway to sponsoring family members to join them.</p>
<h2>The pathway to citizenship</h2>
<p>Citizenship is the final step in a process of becoming a full member of the Australian community. There are many checks along the way.</p>
<p>When Australia admits permanent residents, the expectation is that they will stay permanently and take up citizenship at some point in the future. When permanent residents become citizens it is a marker of their successful integration. </p>
<p>Knowing that permanent residents are likely to be future citizens, Australia makes difficult policy choices around the balance of skilled, family reunion and humanitarian migration. </p>
<p>The government sets a target for the maximum number of new residents each year, and visa-holders are subject to rigorous checks to ensure they meet the criteria for those visas. These checks <a href="https://www.border.gov.au/about/corporate/information/fact-sheets/79character">include</a> detailed security and character assessments.</p>
<p>By the time a permanent resident is in a position to apply for citizenship, they must have lived in Australia for four years and have remained of good character during that time. If they do not remain of good character, their visa may be cancelled and they can be removed to their country of origin. </p>
<p>The immigration minister regularly exercises this power – even, controversially, in relation to long-term permanent residents with children in Australia. </p>
<p>Also, as part of eligibility for citizenship, a person must be of <a href="http://www.border.gov.au/Citizenship/Documents/acis-june-2016.pdf">“good character”</a> and must provide national police checks. The Department of Immigration can also request Interpol and overseas police checks.</p>
<h2>Are citizenship tests the best way?</h2>
<p>In 2007, the Howard government <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2FM98H6%22">introduced</a> a citizenship test to help determine whether applicants satisfied <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/aca2007254/s21.html">two further requirements</a> for citizenship. They must have:</p>
<ul>
<li><p>a “basic knowledge” of English; and </p></li>
<li><p>“an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship”. </p></li>
</ul>
<p>Citizenship tests are not well-suited to testing an applicant’s “values”. They are also a crude measure of an applicant’s level of English.</p>
<p>Australia’s test <a href="http://www.abc.net.au/am/content/2008/s2426953.htm">no longer</a> contains questions about cricketer Don Bradman, after it was reviewed in 2008. It now focuses on knowledge of the institutions of government, and of basic constitutional values such as free speech. </p>
<p>Being able to rote learn these values is not an indication that a person lives by them. And the language of values and rights is complicated, and not a useful test of basic English literacy skills.</p>
<h2>Can we test for ‘integration’?</h2>
<p>Questions remain as to whether it is possible to test for successful integration into Australia.</p>
<p>A recent <a href="http://www.pc.gov.au/inquiries/completed/migrant-intake/report/migrant-intake-report.pdf">Productivity Commission report</a> framed integration as both economic integration and social inclusion. It is not just the skills and efforts of individual migrants that are key to promoting integration, but the societal attitudes, and government policies and programs that support settlement and removing barriers to integration.</p>
<p>The most important benefit of citizenship for migrants is the sense of inclusion and acceptance into their adopted community. Requirements for citizenship should therefore promote inclusion, not exclusion. </p>
<p>Discussions that focus on exclusion have the potential to alienate sectors of the community. They are a hindrance to people obtaining a sense of connection in Australia.</p>
<p>As Dutton observed, there are good reasons to encourage permanent residents to take up citizenship: for one, it enhances their integration in the community. </p>
<p>To the extent that poor English and poor understanding of Australian values is a barrier to this integration, the government needs to increase its efforts to educate prospective citizens – not look for ways to exclude them.</p><img src="https://counter.theconversation.com/content/70905/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alex Reilly has received research fundng from Horticulture Innovaion Austalia and the Fair Work Ombudsman. He is on the Management Committee of the Refugee Advocacy Service of South Australia which offers pro bono migration assistance to asylum seekers in South Australia. </span></em></p><p class="fine-print"><em><span>Mary Anne Kenny has received funding from the Australian Research Council. She receives sitting fees from the Department of Immigration and Border Protection.</span></em></p>The most important benefit of citizenship for migrants is the sense of inclusion and acceptance into their adopted community.Alex Reilly, Deputy Dean and Director of the Public Law and Policy Research Unit, Adelaide Law School, University of AdelaideMary Anne Kenny, Associate Professor, School of Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/547352016-02-16T18:23:50Z2016-02-16T18:23:50ZWhat will happen to baby Asha?<figure><img src="https://images.theconversation.com/files/111583/original/image-20160215-6548-gt2jg0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Protesters outside Brisbane's Lady Cilento Hospital show their support for the doctors refusing to release baby Asha until she has somewhere safe to go. </span> <span class="attribution"><span class="source">AAP/Dan Peled</span></span></figcaption></figure><p>Doctors at Brisbane’s Lady Cilento Children’s Hospital are <a href="http://www.theguardian.com/australia-news/2016/feb/13/baby-asha-and-nauru-protests-held-as-hospital-staff-oppose-transfer">refusing to discharge</a> a 12-month-old asylum seeker baby from their care, fearing her return to Nauru. </p>
<p>The hospital has stated that the child will be discharged only once “a suitable home has been identified”. </p>
<p>The child, known as Asha, was born in Australia to parents who arrived by boat. She was previously removed to Nauru in June 2015, and has been allowed returned to Australia for medical treatment after she was accidentally burnt by boiling water. </p>
<p>Refugee advocates are asking the government to allow the baby to stay. The government <a href="http://www.theage.com.au/federal-politics/political-news/turnbull-government-plotting-to-revoke-72hour-notice-period-for-nauru-asylum-seekers-lawyers-20160216-gmv62v.html">has agreed</a> to give the baby a 72-hour notice period prior to removal, after the Human Rights Law Centre filed emergency proceedings in the High Court. </p>
<p>Prime Minister Malcolm Turnbull <a href="http://www.theguardian.com/australia-news/2016/feb/15/baby-asha-malcolm-turnbull-says-no-ones-health-put-in-peril">has stated</a> that the government would not “imperil the health or security of any individual”, but remains steadfast that “ruthless” people smugglers not be “given an inch of encouragement”. Meanwhile, former immigration minister Scott Morrison has <a href="http://www.skynews.com.au/news/top-stories/2016/02/15/fed-govt-adamant-baby-asha-can-t-stay.html">ruled out</a> making exceptions to allow the baby to stay. </p>
<p>The standoff between the doctors and the government raises a number of ethical and legal questions. </p>
<p>So, how might this play out? </p>
<h2>The law on removals</h2>
<p>Under the Migration Act, a person who arrives in Australia by boat is deemed to be an <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s5aa.html">“unauthorised maritime arrival”</a> (UMA) and <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s198ad.html">must be transferred</a> to an offshore processing centre. </p>
<p>In 2014, the Migration Act <a href="https://www.comlaw.gov.au/Details/C2014A00135/Html/Text#_Toc406590862">was amended</a>, with retrospective effect, to provide that any child born in Australia to UMAs is deemed also to be a UMA. Unless the government intervenes, baby Asha must be <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s198ah.html">removed from Australia</a> once she no longer requires medical treatment. </p>
<p>The amendment had the support of both major political parties. The <a href="http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r5346_ems_a065619e-f31e-4284-a33e-382152222022/upload_pdf/14209b01EM.pdf;fileType=application%2Fpdf">government’s rationale</a> for these laws was that if children born in Australia to boat arrivals were not subject to offshore processing: </p>
<blockquote>
<p>… then this may undermine the government‘s offshore processing policies, both in respect of the children and the children‘s family members … it is important to maintain consistency within the family unit and ensure families are not separated by the operation of the Migration Act.</p>
</blockquote>
<p>The act offers no exceptions to this rule on compassionate grounds. If the parents are subject to offshore processing, so too is the child. </p>
<p>As this case demonstrates, removal provisions do not sit well with doctors’ duty of care to their patients under common law or their ethical obligations under the Hippocratic oath. Nonetheless, it remains the case that statute law trumps common law to the extent of any inconsistency. </p>
<p>Further, to the extent that the Commonwealth legislation conflicts with any other state legislation that may govern the administration of hospital services, the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s109.html">Australian Constitution</a> requires that the Commonwealth legislation prevails to the extent of any inconsistency. </p>
<p>So it appears that government can forcibly remove baby Asha to Nauru. But whether it should is another matter. </p>
<h2>The politics are complex but the ethics are clear</h2>
<p>Turnbull and Morrison’s seemingly contradictory messages suggest the issue may be causing some unrest within the government. This is an important decision in the context of what is likely to be an election year. </p>
<p>Allowing baby Asha to stay would represent a precedent for others and, seemingly, a softening of the government’s hard-line approach to offshore processing. On the other hand, sending her back would repudiate growing public sentiment as well as the offers of help <a href="http://www.theguardian.com/australia-news/2016/feb/06/victoria-will-take-refugee-children-says-premier-daniel-andrews">from state premiers</a> and <a href="http://www.abc.net.au/news/2016-02-04/churches-offer-sanctuary-to-asylum-seekers/7138484">churches</a>. </p>
<p>While the politics and legalities may not be straightforward, the ethics and morality are clear: detention is no place for children. It is not possible to send baby Asha back to Nauru in a “compassionate” manner. </p>
<p>We have known for a long time now that <a href="https://theconversation.com/detained-children-risk-life-long-physical-and-mental-harm-37510">prolonged detention</a> causes severe mental and psychological harm. We know that the medical facilities on Nauru <a href="http://www.theguardian.com/world/2013/dec/19/revealed-doctors-outrage-over-unsafe-refugee-patients">are inadequate</a>. As far back as August 2012, the report of the <a href="http://artsonline.monash.edu.au/thebordercrossingobservatory/files/2015/03/expert_panel_on_asylum_seekers_full_report.pdf">Expert Panel on Asylum Seekers</a> – which recommended the re-establishment of offshore processing – was cognisant that:</p>
<blockquote>
<p>There should be provision for IMAs [irregular maritime arrivals] in Nauru who are determined to have special needs, or to be highly vulnerable, or who need to be moved for other particular reasons, to be transferred to Australia. The panel recommends that such IMAs come to Australia on a temporary visa.</p>
</blockquote>
<p>If the government wishes to ensure family unity, the panel’s recommendation should be given effect. Children and their parents should be able to remain in Australia with access to appropriate services until their applications for asylum are determined. </p>
<h2>The bigger battleground</h2>
<p>Irrespective of whether baby Asha will be allowed to stay as a one-off exception, offshore processing will remain a political and policy battleground after the <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2016/1.html">High Court’s</a> ruling that it is constitutionally valid. </p>
<p>The fight still needs to be had on the transparency of Australia’s offshore processing arrangements, the secrecy provisions of the Border Force Act, and the lack of medical and other facilities on Nauru.</p>
<p>Until these issues are resolved and the necessary reforms achieved, the Human Rights Commission’s <a href="https://www.humanrights.gov.au/publications/forgotten-children-national-inquiry-children-immigration-detention-2014/2-findings-and">recommendation</a> that “no child be sent offshore for processing unless it is clear that their human rights are respected” should be given effect.</p><img src="https://counter.theconversation.com/content/54735/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Khanh Hoang does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Doctors at Brisbane’s Lady Cilento Children’s Hospital are refusing to release a 12-month-old asylum seeker, highlighting a murky intersection of politics, ethics and law.Khanh Hoang, Associate Lecturer, ANU College of Law - Migration Law Program, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/429892015-06-09T20:05:40Z2015-06-09T20:05:40ZExplainer: what is ‘judicial review’? How does it apply to citizenship?<figure><img src="https://images.theconversation.com/files/84288/original/image-20150609-8736-5mrjga.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Immigration Minister Peter Dutton will have the sole power to strip dual nationals of their Australia citizenship if they are believed to be involved in terrorist activities.</span> <span class="attribution"><span class="source">AAP/Dave Hunt</span></span></figcaption></figure><p>One of the safeguards in the government’s plan to <a href="https://theconversation.com/proposals-to-strip-citizenship-take-australia-a-step-further-than-most-42398">strip citizenship</a> from dual nationals involved in terrorist activities is that such a decision – to be made by the immigration minister alone – would be subject to <a href="http://www.sbs.com.au/news/article/2015/06/05/dutton-flags-citizenship-law-details-dual-national-terrorists">judicial review</a>.</p>
<p>This might sound reasonable to those unfamiliar with the extremely narrow grounds available in judicial review in migration law. However, the reality is that simply having judicial review for this contentious power, without independent merits review, is far from reasonable.</p>
<p>Judicial review is different to merits review. And what the government is proposing is judicial review only – no merits review. That means a case which is unfairly decided may have a reasonable chance at independent merits review – but unless you can find error in the application of the law, no judicial review will succeed.</p>
<h2>Evolution of judicial review in Australia</h2>
<p>In 2001, the Howard government introduced a privative clause into the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/">Migration Act</a> in an attempt to effectively end any proper judicial review in migration matters. The stated justification was the volume of appeals to the federal courts.</p>
<p>A privative clause is a law which attempts to prevent any form of judicial review. It can still be seen in <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s474.html">Section 474</a> of the Migration Act. </p>
<p>On its face, it prevents any judicial review. However, the High Court <a href="http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/2003/2.html?">read down</a> the clause in early 2003. Judges do not like being excluded from exercising their role in implementing the rule of law. The High Court ruling meant that applicants had to establish “jurisdictional error” in order to win their case, otherwise their decisions were unable to be reviewed.</p>
<p>Since then, there have been many cases claiming “jurisdictional error” as a reason for review, but not many win. Despite the privative clause, the volume of appeals to the courts still remains high in migration.</p>
<p>Non-migration appeals to the federal courts are covered by the old <a href="http://www.comlaw.gov.au/Details/C2015C00006">Administrative Decisions (Judicial Review) Act</a>. The Fraser government introduced the act in 1977 as part of a major overhaul of Australian Administrative Law. Its review grounds remain wider than the grounds in migration cases. </p>
<h2>How it might apply to citizenship revocation</h2>
<p>The proposal to allow judicial review for a citizenship cancellation is not surprising. It would be required under <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s75.html">Section 75(v)</a> of the Constitution. Appeals to the courts from decisions of the executive exist because of the Constitution and could only be removed by constitutional change.</p>
<p>However, the grounds of review – “jurisdictional error” – are very narrow. These grounds include asking the wrong question in law; taking into account irrelevant considerations or failing to take into account relevant considerations; and a limited form of procedural fairness to allow someone to comment on adverse information.</p>
<p>The immigration minister’s carefully constructed decision letter is likely to survive judicial review. The case’s merits cannot be challenged or even considered. This is why an independent merits review, such as by the Administrative Appeals Tribunal, is a critical part of a fair and just system of review. </p>
<p>In merits review, new information can be considered by a reviewer. The reviewer has all the information before the decision maker, and any new information. Independent merits review’s strength is that the reviewer is not bound by the findings of the original decision maker and they can substitute a totally different decision if it is in accord with the law. In judicial review, no new information can be raised by an applicant. So, by restricting review to judicial review only, the minister increases their chances of not being overturned on review. </p>
<p>Such limited review already exists in migration cases, such as personal refusals or ministerial cancellations on character grounds, and in cases where the minister has a trumping power – such as the Migration Act’s <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501a.html">Section 501A</a> or the new <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s133a.html">Section 133A</a>, which enables a minister to overturn a decision of a review tribunal without having to take the matter to court. Further review is limited to jurisdictional error only – a very narrow gate.</p>
<p>Another major concern is that citizenship cancellations are likely to be done on the basis of security reports. The contents of such reports are unlikely to be made available to someone to comment on. Such a draconian power already <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s503a.html">exists</a> in migration law. This protects confidential information provided by law enforcement or intelligence agencies provided in the context of character decisions.</p>
<p>I have seen cases where the immigration department has written to an applicant telling them there are grounds to refuse or cancel their visa on character grounds, but then the letter refused to state what those grounds are because of Section 503A. Essentially, it reads thus:</p>
<blockquote>
<p>The minister is considering refusing/cancelling your visa on character grounds. Please comment.</p>
</blockquote>
<p>You will get no information as to the grounds, not even a hint. It makes it almost impossible for someone to reply when they do not know the details of accusations against them.</p>
<p>While there is a need to protect sensitive security information, this must be balanced against the right to be able to reply to the case against you.</p>
<p>The details of the legislation to strip citizenship are yet to be presented to parliament. But the <a href="http://www.theaustralian.com.au/national-affairs/tony-abbott-isolating-ministers-over-citizenship-says-bill-shorten/story-fn59niix-1227382716786">bravado</a> of the debate, together with the already existing extraordinary powers of the immigration minister, make it likely that the proposed laws will be extensive and minimise the scope for judicial review.</p><img src="https://counter.theconversation.com/content/42989/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kerry Murphy is affiliated with the Immigration Advice and Rights Centre in Sydney and the Jesuit Refugee Service. He is a partner in a specialist immigration law firm.</span></em></p>Simply having judicial review for the contentious power to strip citizenship from dual nationals suspected of involvement with terrorism – without independent merits review – is far from reasonable.Kerry Murphy, Lecturer, Migration Law Program, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/375242015-02-12T04:50:20Z2015-02-12T04:50:20ZAustralia needs resources, not more laws, to beat migration fraud<figure><img src="https://images.theconversation.com/files/71818/original/image-20150212-16609-s8m2e9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Detecting migration fraud remains a massive challenge for minister Peter Dutton's Department of Immigration.</span> <span class="attribution"><span class="source">AAP/Paul Miller</span></span></figcaption></figure><p>Immigration Minister Peter Dutton has <a href="http://www.theguardian.com/australia-news/2015/feb/12/peter-dutton-links-sydney-terrorism-suspect-labor-migration-policy">asked for an urgent review</a> into the circumstances of two Sydney men, Omar Al-Kutobi and Mohammad Kiad, who are accused of plotting a terrorist attack on Australian soil. It is suspected that one of those men may have come to Australia, by plane, using a false passport in 2009.</p>
<p>Prime Minister Tony Abbott has also urged immigration authorities to be <a href="http://www.sbs.com.au/news/article/2015/02/12/pm-wants-more-vigilance-migrants">“more vigilant”</a> in assessing future migrants to Australia. Dutton has criticised the previous government’s policy. He also <a href="http://www.sbs.com.au/news/article/2015/02/12/terror-suspect-used-false-docs-dutton">said</a> that there were about:</p>
<blockquote>
<p>50,000 people who also arrived on boats around that time, hampering intelligence agencies’ ability to check every person thoroughly.</p>
</blockquote>
<h2>Laws sufficiently wide to combat migration fraud</h2>
<p>Questions have been raised about the adequacy of Australian laws in combating migration fraud. However, current laws provide ample powers to guard against fraudulent conduct. Whether enough resources are being devoted to enforcing the laws is another matter.</p>
<p>For a long time, the <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/">Migration Act</a> has provided the power for the immigration minister to cancel a person’s visa if <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s109.html">incorrect information is supplied</a> in connection with a visa application. </p>
<p>The minister also has the power to cancel or refuse a visa application on <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html">“character grounds”</a>. This includes on the basis that minister reasonably suspects a “risk” that a person entering Australia may engage in criminal conduct, or represent a danger to the Australian community.</p>
<p>Fraud provisions were further strengthened in 2011. <a href="http://www.immi.gov.au/Live/Pages/document-fraud.aspx">Public Interest Criterion (PIC) 4020</a> was inserted into the Migration Act. This allows the minister to refuse a visa on the basis that fraudulent or misleading information has been provided in the visa application. The criterion was initially confined to general skilled migration visas, but has now been extended to cover a wide range of visas. </p>
<p>In addition, since March 2014, applicants must satisfy the minister of their identity in order to meet PIC 4020. A refusal of a visa on the basis of not meeting the identity requirement in PIC 4020 results in a ten-year ban on the applicant being granted another visa.</p>
<p>PIC 4020 is a wide provision. It applies whether or not a person had knowledge that the document or information they have provided is false or misleading.</p>
<h2>More resources are necessary</h2>
<p>Detecting migration fraud remains a massive challenge for the Department of Immigration. Fraud exists in many circumstances and across the wide range of visa classes. There are known cases of <a href="http://www.sbs.com.au/news/article/2014/01/29/marriage-scams-uncovered-amid-crackdown-partner-visa-fraud">fraudulent relationships</a> concocted for the purposes of obtaining a partner visa, or fraudulent skills assessments and qualifications to obtain <a href="http://www.smh.com.au/national/facing-up-to-fraud-20120727-22zoc.html">skilled visas</a>.</p>
<p>Given limited resources, the challenge for the department is deciding which areas of fraud to focus on. Dutton suggests that intelligence agencies were hampered in 2009 because of 50,000 people who arrived by boat. But figures from the Australian Customs and Border Protection Service given to the Parliamentary Library suggest that for the year 2009-10, there were only <a href="http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1314/QG/BoatArrivals">5609 arrivals</a> by boat in Australia. </p>
<p>Whatever the numbers, given that Australia’s permanent migration program provides <a href="http://www.immi.gov.au/media/statistics/statistical-info/visa-grants/">190,000 permanent visas</a> and millions of temporary visas each year, it is impossible to ensure that every single one of those visa applications is not subject to fraud. At best, the risk can be mitigated by adequate resourcing and funding of the Department of Immigration and intelligence bodies to ensure general compliance across the range of visa classes.</p>
<p>A number of internal departmental reports have <a href="http://mininglink.com.au/story/leaked-report-reveals-majority-of-skilled-migrant-visas-may-be-fraudulent">previously warned</a> that visa fraud is “business as usual yet remains largely untreated” because investigation and enforcement capabilities have collapsed.</p>
<p>The merger between the Department of Immigration and Border Protection and the Australian Border and Protection Services will create a new <a href="http://www.customs.gov.au/webdata/resources/files/Australian-Border-Force.pdf">Australian Border Force (ABF)</a>, which will be responsible for monitoring and compliance of fraud matters. This is an opportune time for the government to provide much needed funding and resourcing to shore up the Department’s ability to combat migration fraud.</p><img src="https://counter.theconversation.com/content/37524/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Khanh Hoang does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Immigration Minister Peter Dutton has asked for an urgent review into the circumstances of two Sydney men, Omar Al-Kutobi and Mohammad Kiad, who are accused of plotting a terrorist attack on Australian…Khanh Hoang, Associate Lecturer, ANU College of Law - Migration Law Program, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.