Europe

Solving immigration within the existing legal framework: A call for the proper application of international law


By Professor Milos Ivkovic

Imagine the following: you are hiking up a mountain and a massive, life-threatening snowstorm begins to cut off your safe path back down to the valley. Just a few steps away is a cabin on private property with a big sign that reads, ‘Trespassers will be Prosecuted’. 

If your life were in immediate danger, you would have to break into the cabin to survive – and you would not be prosecuted for trespassing. In this case, our criminal laws are suspended to protect a life – a value recognized by all civilized nations. 

However, if we remove the life-threatening element that creates a reasonably imminent fear, then the entry into the cabin must be prosecuted. The criminal law could also be applied in the case of entering another cabin on the same night, even if the second option is larger and more luxurious than the first. 

It is important to remember that the rules are there to protect life, not to increase comfort.

Now international law defines the grounds for asylum as a well-founded fear of being persecuted for reasons limited to race, religion, nationality, membership in a particular social group, or political opinion. If all elements are genuinely and independently met, it would be inappropriate to impose criminal consequences, even for illegal border crossing. 
In such a case, asylum protection could and should be afforded. 

However, would a subsequent border crossing by the same individual to a third country be equally permissible? In most cases, the answer is likely: no. 

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For a subsequent asylum claim to be recognized under international law, the asylum seeker must demonstrate that they were persecuted in the “transit” country for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Alternatively, the asylum seeker must demonstrate that they faced an imminent danger of refoulement (illegal deportation to the country of origin) in the “transit” country. 

If neither argument is substantiated, the matter would be legally reclassified as pertaining to immigration rather than asylum. 

The authority to regulate immigration is typically vested in individual countries, which is reflected in their national laws. These laws set out the rules for legal border crossings, visas, and residency requirements, as well as the criminal consequences for violations of those rules. If countries intend to relax their immigration laws to allow for a higher level of entry or if they want to pursue a more restrictive approach, it would be within their sovereign right to do so and would unlikely contravene their international legal obligations.

More specifically and reduced to the level of the EU, the sovereignty of EU member states has not disappeared, and states today have significant tools to address and regulate immigration of non-EU nationals in line with the expectations of their people. 

Criminal law is also largely left to the individual EU Member States to enforce and legislate.

Thus, both of the following options are arguably equally available and permissible:

On the one hand, countries have the option of increasing the level of rights granted to foreign nationals. After all, international law does not suspend any action that grants more rights than international law requires. 

This means that an EU Member State can effectively endorse an open border policy, free access to employment and state benefits, as examples. through its own national laws. 

On the other hand, states may choose to restrict immigration to a level that is only in some respects limited by very specific provisions of EU law or exceptionally, asylum protections. It could be argued that an absolute ban on immigration of non-EU nationals (as opposed to asylum) is generally legally permissible under international law. 

What is important to note in both cases is that national laws do not have cross-border application and that forcing another state into compliance without that state’s consent would generally amount to a breach of sovereign equality between states.

It seems clear from the above that the decision on immigration of non-EU nationals is largely open to democratic procedures in individual countries. If we recognize that sovereignty of EU Member States still exists over this issue, perhaps we could de-escalate tensions over immigration, remove petty politics from it, and reduce the artificial pressure on people on both sides of the divided political spectrum. 

This may be the only way to have meaningful discussions and results. 

It is possible that in some cases this will lead to a number of EU member states taking a firm stance on the immigration of non-EU nationals, with the aim of establishing a common coordinated application of criminal sanctions. However, it would be unwise to vilify or generally accuse these states of violating human rights, since there is no general human right to immigrate to another country of one’s choice. 

It is widely accepted that legal immigration can be beneficial, as it can lead to growth. However, it is important to recognize that it cannot be removed from the rule of law. 

Without the rule of law, we have failed as a society. 

Similarly, it is crucial to stop conflating asylum and immigration, as this can better serve our societies and those who are truly in need of protection. 

Asylum is about protecting a life from imminent danger; immigration is primarily about securing an economic advantage. 

Asylum may take precedence over some national laws; immigration cannot.

Milos Ivkovic is an international arbitrator and advisor on matters of international law, based in Austria. He teaches international criminal law and human rights as an adj. professor at the Washington University School of Law. Milos has testified as an expert witness on child labor, slavery, and critical minerals supply chain before the U.S. Congress.

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