International Migration Law

Whether or not they are lawyers, people interested in migration should know the basic national and international migration law.

In this article we will outline the basic international migration law, the EU’s migration rules and the national migration law of Germany and the Netherlands, the destination countries we take as examples. We will also briefly touch on the key points of the legal framework for migration in Turkey (such as Law No. 6458 on Foreigners and International Protection).

At international level there are many agreements and institutions aimed at protecting the rights of migrants and refugees. The most important of these are:

Geneva Refugee Convention (Convention Relating to the Status of Refugees, 1951)

The 1951 Geneva Refugee Convention is regarded as the most important document of international refugee law. It clearly defines who qualifies as a “refugee” and what obligations states have towards these people.

Under the Convention, a refugee is a person who is persecuted, or has a well-founded fear of persecution, for reasons of race, religion, nationality, membership of a particular social group or political opinion. This definition forms the basic framework of modern refugee law.

One of the document’s most important principles is the principle of non-refoulement. It guarantees that a refugee cannot be returned to a country where they are likely to face persecution. States are therefore obliged to ensure the safety of asylum seekers and to protect their fundamental rights.

Turkey, for its part, became a party to the Convention with a geographical limitation. As a result, only applicants coming from Europe are recognised as “refugees”, while those coming from outside Europe are considered under “conditional refugee” status. This has created a distinctive area of practice in Turkey’s migration and asylum system.

1967 Protocol

The 1967 Protocol is a complementary instrument that removes the temporal and geographical limitations of the 1951 Geneva Refugee Convention. While the 1951 Convention covered only people who had become refugees as a result of events occurring before 1 January 1951, and allowed states parties to limit protection to events in Europe, the 1967 Protocol removed these restrictions (while allowing states that had already chosen the geographical limitation to maintain it). The scope of protection was thus extended in time to current events and to all regions of the world.

This protocol is the main reason refugee protection can be applied globally today. Thanks to it, most countries apply refugee law within a universal framework. Turkey is also a party to the 1967 Protocol, but continues to maintain its geographical limitation. As a result, only asylum seekers from Europe are recognised as “refugees”, while those from outside Europe are considered under “conditional refugee” status and are allowed to stay in Turkey until they are resettled in a third country.

UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990)

The 1990 UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families is one of the most comprehensive international texts aimed at guaranteeing the fundamental human rights of both regular and irregular migrant workers. The Convention stresses that migrant workers are not only economic actors but also individuals with dignity and rights.

The Convention contains core provisions such as the protection of workers’ rights, recognition of the right to family reunification, fair working conditions, safeguards against discrimination and protection against exploitation. However, because becoming a party imposes certain obligations on states, and especially because of sensitivities about recognising the rights of irregular migrants too, many developed countries have not become parties to it.

EU countries are not parties to this Convention; Turkey ratified it in 2004. The reasons for not becoming a party are usually political and economic concerns that the Convention “could impose burdens” or encourage irregular migration. Nevertheless, in migration advice this Convention should be known as one of the strongest human rights instruments of the international normative framework and should form part of advisers’ perspective.

UN Global Compact for Migration (Global Compact for Safe, Orderly and Regular Migration, 2018)

It is an international document that is not legally binding but sets out guiding principles for states. The main aim of the Compact is to encourage the orderly, safe and humane management of migration and to strengthen international cooperation in this field. It aims in particular to share good practice on visa facilitation, integration policies and the protection of migrants’ rights. The Compact offers states a comprehensive framework by addressing migration not only as a security issue but also from the perspectives of human rights, development and social cohesion.

UN Global Compact on Refugees (Global Compact on Refugees, 2018)

Like the Global Compact for Migration, it is a document that is not legally binding but offers states a strong roadmap. The main aim of the Compact is to strengthen responsibility-sharing in refugee crises and to ensure that refugees are not seen as a burden on the shoulders of only a few countries. In this framework, special importance is given to education, health services, access to the labour market and durable solutions (for example resettlement or voluntary return).

The Compact also aims both to support host communities and to facilitate refugees’ integration into economic and social life in the countries where they live. Refugees are thus seen not only as recipients of aid but also as people who contribute. This approach also offers a critical perspective for people interested in migration: it reminds them to consider not only legal procedures but also refugees’ long-term integration and quality of life.

UN Convention against Torture (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT, 1984)

This Convention is one of the most important international human rights instruments, imposing clear obligations on states to prevent and prohibit torture. One of its most critical provisions is the absolute prohibition on returning a person to a country where they would face a risk of torture or inhuman or degrading treatment. This principle is one of the international foundations that strengthen the principle of “non-refoulement” in asylum and protection cases.

CAT is of particular importance in files where a risk of persecution or torture is raised in an asylum application. When preparing an asylum application, reference can be made to this Convention to emphasise the protection afforded by international law. In this respect the Convention serves as a strong legal basis not only for states’ obligations but also for legitimising asylum seekers’ claims for safety.

Convention on the Rights of the Child (CRC, 1989)

This Convention (CRC, 1989) is one of the most widely ratified human rights conventions in the world and guarantees the special protection rights of children who are migrants or refugees. It stresses not only that children have needs different from those of adults but also that they are rights holders.

Under the CRC, states are obliged to guarantee children’s rights to education, health, family unity and shelter. Moreover, migrant or asylum-seeking children may be detained only as a last resort and for the shortest possible time; the general approach is that children’s liberty should not be restricted. In this framework, the CRC provides a strong legal basis especially on issues such as family reunification, unaccompanied children, detention practices and the right to education.

Convention relating to the Status of Stateless Persons (1954)

The 1954 Convention relating to the Status of Stateless Persons is one of the most important international instruments aimed at protecting the basic rights of stateless people. It guarantees that stateless people are not discriminated against in areas such as education, employment and health services, and enables them to live a life of at least minimal human dignity within society. It also contains provisions on travel documents, the right of residence and legal protection.

For people who are going to migrate, statelessness (also known as “heimatlos”) is an important risk factor. It is critical for advisers to warn applicants of the possibility of becoming stateless and to give legal advice especially on matters such as citizenship applications, dual citizenship or deprivation of citizenship. Statelessness often results in a lack of documents, a ban on working or obstacles to accessing basic rights.

For example, under Dutch law a person who acquires the citizenship of another country may automatically lose Dutch citizenship. If the other country later revokes its citizenship, or the person cannot obtain it for a technical reason, the person may become stateless. In that case the person is a citizen neither of the Netherlands nor of the other country. This example shows how critical it is for migration advisers to anticipate the risk of statelessness and make clients aware of it in citizenship procedures.

Convention on the Reduction of Statelessness (1961)

The 1961 Convention on the Reduction of Statelessness is one of the most fundamental instruments developed by the international community to prevent statelessness. It focuses on preventing new cases of statelessness and aims in particular to close gaps in nationality laws.

One of its most important provisions concerns acquiring nationality by birth. States parties are obliged to ensure that children at risk of being born stateless acquire a nationality at birth. Likewise, restrictions are placed on states to prevent people from becoming stateless in procedures such as deprivation or renunciation of citizenship.

So while the 1954 Convention regulates the rights stateless people should have in their current situation, the 1961 Convention focuses on preventing new cases of statelessness. This Convention is an important reference for protecting against the possibility of statelessness those who want to migrate or have migrated, or their children.

Here we have covered the basic international migration law, and in our next article we will look at “the European Union and Migration Law”.