Blog post written by Kees Groenendijk (Radboud University) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
International Covenant on Civil and Political Rights, Article 23: The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. The right of men and women of marriageable age to marry and to found a family shall be recognized.
International Covenant on Economic, Social and Cultural Rights, Article 6(1): The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 52(1): Migrant workers in the State of employment shall have the right freely to choose their remunerated activity, subject to the following restrictions or conditions.
The Final Draft of the Global Compact for Migration in Objective 5 deals with four categories of regular migration: labour migration, family migration, migration due to climate change and academic mobility. As to the first and second categories, the text, during the negotiations in 2018, clearly has turned vaguer and elements supportive of migrants’ rights were deleted.
Free movement regimes, visa liberalisation or multiple-country visas and labour mobility cooperation frameworks, familiar instruments in EU law and policy discourse, should be “facilitated” according to point 21(b) rather than rather than “harmonised” as in previous versions. Promotion of “skills matching” has been added in 21(c) and in the new 21(d). New references on ensuring “market responsive contractual labour mobility” and consultation with “the private sector” have been added in those two points as well, possibly reflecting a tendency to grant employer demands more leverage. However, the important sentence on “allowing flexible visa status conversions”, present in the Zero Draft and the May 2018 version, was deleted in the final version. The large corpus of binding International Labour Organization (ILO) rules is only mentioned as a possible source in the development of labour mobility agreements: states should be “drawing on relevant ILO standards, guidelines and principles” rather than applying those legally binding international standards.
Here all clues to a possible perspective on a right to family reunification of migrants have been removed. In the first sentence of point 21 the commitment to regular migration that “reunites families” has been replaced by “upholds the right to family life”. The latter right, guaranteed in Article 8 of the European Convention on Human Rights and less explicitly in Article 23 of the International Covenant on Civil and Political Rights, only in exceptional cases entails a right to family reunification. The commitment to facilitate “family reunification”, still present in May 2018, has been replaced by facilitating “access to procedures for family reunification”. Moreover, the reference to “the right to family unity” has been deleted from 21(i).
The EU negotiators were instructed that the text of the Compact “should avoid (…) inclusion of family reunification as effective integration tool” (see the EU Council of Ministers draft negotiation position on the Compact, Council document 6192/1/18rev of 27 February 2018, p. 15, only available to the public after the Compact has been signed). This mandate was successfully fulfilled. The mandate was surprising, since the EU Family Reunification Directive 2003/86 grants a right to family reunification to the spouse and minor children of lawfully resident nationals of non-EU countries with the explicit aim of promoting immigrant integration.
Migration due to natural disasters or climate change
The Compact distinguishes between migrants compelled to leave their country of origin due to “sudden-onset natural disasters and other precarious situations” and those leaving due to “slow-onset natural disasters, the adverse effects of climate change and environmental degradation, such as desertification, land degradation, drought and sea level rise”. In the first case, according to point 21(g), states should develop existing national and regional practices for admission and stay of appropriate durations by providing “humanitarian visas, private sponsorships, access to education for children and temporary work permits”. In the latter case, migration due to slow-onset natural disasters, point 21(h) only mentions planned relocation and visa options. In the final version of both points an exclusion clause was added, restricting their scope to cases where “adaption in or return to their country of origin is not possible”.
The clause on academic mobility added in the May 2018 version, ended unchanged in the final version, suggesting states to expand existing facilities for academic exchanges such as scholarships for students and academics, visiting professorships, joint training programmes and international research opportunities. There is nothing new in this point 21(j) and the adhortation is clearly restricted to students and academics working in higher education. If this suggestion will have any effect in practice, it will stimulate ‘brain drain’ and assist developed countries in their search for highly skilled workers.
Follow-up and Review
There is little news in the section on follow-up and review, full of dialogue and informal exchange of information. The current High-level Dialogue on International Migration and Development will be renamed “International Migration Review Forum”. But the relationship between migration and development is mentioned throughout the Compact, especially in the objectives 19-23. is abandoned. The word ‘development’ does not appear in the Compact at all. The new Forum will meet every four years beginning in 2022. In two new points states are encouraged to develop “as soon as practical, ambitious national responses for the implementation of the Global Compact” and to conduct “regular and inclusive reviews of progress at the national level” (point 53). Systematic peer review between states is conspicuously avoided. In the final point 54 the President of the UN General Assembly is requested to launch and conclude in 2019 “open, transparent and inclusive intergovernmental consultations” to determine the precise modalities and organisation of the International Migration Review Fora. This begs the question how these intergovernmental consultations will become more “open, transparent and inclusive” than the consultations on the Global Compact itself?
In October 2018 two anti-immigrant parties in the Dutch Parliament asked the minister responsible for immigration to follow the example of Hungary and the USA and withdraw from the negotiations, claiming that Austria, Denmark and Poland were also considering withdrawal. The fear of these Dutch parties, who at first got little support in Parliament, was that the Compact would stimulate migration and that national courts would read a right to migration in the document. A few weeks later the centre-right Dutch government instructed lawyers at the Ministry of Justice to scrutinise the Compact as to the possibility that migrants could possibly rely on it in court. Considering the status of the Compact as a primarily political document, the repeated statements that the Compact is not legally binding and the references to sovereignty of the states (in points 7, 15 and 23), in my view, it is far more likely that, at least in Europe, the Compact will legitimise restrictive immigration policies rather than courts interpreting the Compact as creating rights of migrants or binding obligations for states that courts should take seriously. Objective 5, according to its title is about enhancing availability and flexibility of pathways for regular migration. But after the removal of references to the right to family reunification and to flexible visa status conversions, the level of aspiration of the text is clearly below the level of rights granted in the current EU migration directives to migrants from outside the EU. Hence, the Compact could be used to legitimise restrictive immigration policies in the EU, however much drafters of the Compact, reasoning from a universal rather than a regional perspective, may have had the opposite objective in mind.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.