INTRODUCTION
Immigration laws and human rights have long been intertwined, often resulting in conflict and controversy. The intersection between the two is complex and nuanced, and finding a balance between the two can be difficult. This blog will explore this intersection and how it affects people’s lives. In recent years, the topic of the meeting between immigration laws and human rights has become increasingly important. Immigration laws regulate the movement of people across international borders, while all individuals, regardless of their legal status or nationality, are entitled to fundamental human rights. However, the enforcement of immigration laws can impact the ability of immigrants, refugees, and asylum seekers to enjoy these rights.
The interplay between immigration laws and human rights is intricate and creates significant difficulties. Striking a balance between regulating immigration and safeguarding the rights of individuals presents a challenge. Policies that prioritize border control and restrict the entry of migrants may violate their rights, such as family separation, inhumane living conditions, and denial of access to essential services, including healthcare and education. International law serves as a protective shield for all individuals, irrespective of their immigration status. Nonetheless, the implementation of these rights may be hindered by state actions. Many states perceive immigration enforcement as a matter of national security and prioritize their interests over the human rights of migrants.
INDIVIDUALS SEEKING ASYLUM
Immigration law pertains to regulating the movement of individuals across borders, including the duration and circumstances of their stay. In contrast, human rights are fundamental entitlements to which every person is inherently entitled, regardless of their background. Although immigration laws should ideally safeguard a nation’s welfare while respecting the rights of entrants, they often violate human rights in practice. One prominent example is the inadequate treatment of asylum seekers and refugees, who are legally allowed to seek asylum in another country if they fear persecution in their homeland.
For example, the previous administration in the United States implemented a policy requiring asylum seekers to wait in Mexico while their cases were processed. This policy, known as the Migrant Protection Protocols, or “Remain in Mexico,” exposed asylum seekers to dangerous conditions, including violence and exploitation, and violated their right to seek asylum. One of the case laws in the USA is Zadvydas v. Davis (2001) – In this US Supreme Court case, the court ruled that non-citizens who have been ordered removed from the country cannot be detained indefinitely. The court held that such detention would violate the Due Process Clause of the Fifth Amendment.
Similarly, in Europe, many countries have closed their borders to refugees and migrants, leaving thousands stranded in overcrowded camps with little needs like food, water, and medical care. This violates their right to seek asylum and puts their lives at risk. European Convention on Human Rights (ECHR) protects fundamental human rights and freedoms in Europe, including the right to life, liberty, and security and the prohibition of torture, slavery, and discrimination. The ECHR has been used in several cases involving immigration and asylum.
UNDOCUMENTED IMMIGRANTS
Another area where immigration laws and human rights intersect is the treatment of undocumented immigrants. Many countries have imposed harsh penalties for those who enter or remain in the country without proper documentation, including detention and deportation. While governments have the right to regulate their borders, these policies often violate the human rights of immigrants, particularly those living in a country for many years, and have established roots in their communities.
DETENTION POLICIES
Finally, another area where immigration laws and human rights intersect is in the treatment of migrants who are detained while awaiting deportation. Many countries have put in place harsh detention policies that violate the rights of detainees, including the right to freedom of movement, adequate medical care, and due process.
Boumediene v. Bush (2008) -This US Supreme Court case held that non-citizens detained at Guantanamo Bay could challenge their detention through a writ of habeas corpus. The court found that the Suspension Clause of the US Constitution applied to non-citizens arrested by the US government.
OVERVIEW OF IMMIGRATION LAWS
Immigration laws are designed to regulate individuals’ entry, exit, and residency across international borders. Sovereign states create and enforce these laws based on factors such as national security, economic needs, and social and cultural concerns. Immigration laws can be classified into two broad categories: (i) substantive laws that define the rights and obligations of immigrants and (ii) procedural laws that govern the processes by which immigration decisions are made. Refugee Convention (1951) and Protocol (1967) – The Convention and Protocol provide a framework for the protection of refugees and establish their rights and obligations. They also define who qualifies as a refugee and give a set of standards for their treatment.
Substantive immigration laws include laws related to citizenship, residency, and immigration status. Citizenship laws determine who is considered a citizen of a particular country and the rights and obligations that are associated with citizenship. Residency laws define the conditions under which an individual can reside in a specific country. Immigration status laws regulate the entry and exit of individuals from a particular country. Procedural immigration laws include laws related to the procedures and processes by which immigration decisions are made. These laws have the criteria for admission, the procedures for applying for visas, the requirements for granting asylum, and the procedures for deportation.
OVERVIEW OF HUMAN RIGHTS
Fundamental rights inherent to all individuals, regardless of their legal status or nationality, are human rights. International human rights law is designed to protect and recognize these rights, which include civil, political, economic, social, and cultural freedoms. The primary goal of these rights is to ensure that all individuals are treated with dignity and respect and provided with a basic standard of living, regardless of their circumstances. Civil and political rights refer to individuals’ fundamental entitlements, such as the right to be free from torture and slavery, the right to a fair trial, and the freedom of expression and assembly. On the other hand, economic, social, and cultural rights include the right to education, healthcare, housing, and adequate nutrition, which are critical for individuals to live with dignity and participate in their community, regardless of their economic or social status.
CHALLENGES FOR STATES
The intersection between immigration laws and human rights presents a significant challenge for states that enforce immigration laws. Conditions must strike a delicate balance between enforcing immigration laws and respecting and protecting the human rights of immigrants, refugees, and asylum seekers. This task can be challenging when there are competing interests and priorities.
The protection of the human rights of migrants is a critical aspect of international law. This field establishes essential principles and guidelines for the treatment of migrants and refugees and also enforces compliance with these standards. The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are two significant international human rights instruments that play a crucial role. Both documents emphasize the inherent worth of all human beings and assert that everyone is entitled to fundamental rights and freedoms.
Regarding immigration, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) holds considerable importance. This convention acknowledges the entitlements of migrant workers and their families and sets forth fundamental criteria for their fair treatment. The pattern ensures various rights, including the right to move freely, the right to work, the right to social security, and the right to a decent standard of living. Despite these international human rights instruments, many countries continue to violate the rights of migrants and refugees. In some instances, states may be motivated to protect their borders or maintain national security. In some other cases, they may be motivated by racism or xenophobia. Regardless of the motivation, the outcome is often the same: vulnerable populations are denied access to fundamental human rights.
CONCLUSION
The interplay between immigration laws and human rights is intricate and multi-dimensional. States have a legitimate interest in regulating immigration and maintaining border control, but all individuals, irrespective of immigration. International law serves a vital role in reconciling these conflicting interests by defining basic standards for treating migrants and refugees and ensuring state compliance. However, the effectiveness of international law in this area is contingent on the state’s willingness to adhere to its obligations under international law and the international community’s ability to hold them accountable when they do not. Ultimately, the protection and respect of the rights of migrants and refugees will require a collective effort by all stakeholders, including states, civil society, and international organizations.
Author(s) Name: Siddhartha Gupta (Advocate)
