Introduction: Global Issues in Immigration Law

This is the Introduction to Global Issues in Immigration Law, the latest book in the West Academic Publishing Global Issues Series. The Introduction provides a descriptive overview of the book’s coverage. The goal of the book is to provide both comparative and international immigration law emerging from changing political contexts, primarily for a U.S. audience. It can serve as a textbook supplement for an advanced course in immigration law in law schools in the United States or in other countries seeking to introduce comparative and international perspectives to the study of immigration law and policy. Survey immigration law courses may also utilize the book as this area of law grows more international with the changing world order.The International Organization on Migration (IOM) estimates that there are 214 million migrants in the world, 3.1 percent of the world’s population. If migrants were given their own geographic enclave, they would make up the fifth largest country on earth. Instead, they are living in every part of the globe. Astonishing as they might seem, the figures on migration do not even begin to tell the story about the scale of modern day movement of persons across international frontiers. Such crossings could be voluntary or forced, permanent or temporary. And, because persons move for a wide variety of reasons, a pattern is difficult to delineate. Some move for business, education, visits, family reunions, others are trafficked and smuggled, still others flee to seek refuge from persecution.The cross border movement of persons constitutes an international phenomenon that is largely unaddressed by international law. The current debate over the role of liberalizing the movement of natural persons across borders recaptures the debate over liberalizing the international flow of goods and services some 200 years ago. Since the industrial revolution, advances in technology and transportation coupled with the uneven growth of population around the world, disaggregated sovereignty and the means of production and caused the emergence of a sophisticated international legal regime for the regulation of cross border movement of goods and services. This system, however, has remained largely unaccompanied by an equivalent regime for the regulation of cross border movement of natural persons. In the words of the World Trade Organization (WTO) Secretary General, Pascal Lamy, “[t]here are world organisations for trade, health, the environment, telecoms, food. There are two black holes in world governance: finance...and migration.” Unlike international trade law, which regulates the movement of goods across borders in great detail, there is no systematic and coherent body of international law that governs the movement of persons. The regulation of the cross border movement of persons essentially remains a sovereign prerogative.With very few exceptions, each sovereign state prescribes rules for the admission, exclusion, conditions of residence, and expulsion of noncitizens, deciding who may come into its territory and who must depart. The only way international law meaningfully trenches on national decisions about who to admit and who to expel is by protecting refugees from being sent back to their country of persecution. The situation is, however, changing slowly. Bilateral and regional migration and international trade and investment treaties are beginning to offer some structure to the cross border movement of persons. The United Nations (UN) has begun a dialogue about coordination of migration regimes. Europe, the International Labour Organization (ILO), and the United Nations (UN) have all made treaties protecting the rights of migrant workers. International law and practice is also increasingly becoming more responsive to international trafficking. There is also a growing international effort to harmonize domestic immigration laws to facilitate the movement of persons.Today, while the traditional economic and associated socio-political dilemmas persist, new migratory patterns are creating more serious dilemmas. For settler societies such as the United States, Canada and Australia, considerations of demographic shift and self-understanding are pitting communitarian and nationalistic values against bona fide economic and humanitarian interests. For countries of the European Union, the conflict between increased liberalization within the union and more restrictions from developing countries in the face of population decline is deforming immigration law and policy. For countries in the Global South, attracting and maintaining skilled labor, while containing and reversing ‘brain drain’ for the purpose of managing increasingly integrated and sophisticated knowledge-based economic conditions, on the one hand, and the ever-increasing share of remittances as a part of foreign currency source on the other, are disorienting immigration law and policy. These factors have caused several ill-understood migratory patterns to emerge: (1) outbound immigration, i.e., the immigration of skilled labor from the developed world to the developing world; (2) reverse immigration, i.e., the return of skilled labor to countries of the Global South; (3) unrestricted labor mobility in the context of regional integration; (4) South-to-South countries’ mobility; (5) secondary migrations; and (6) increased irregular mobility. As well, new security, arms trading, trafficking, human rights, uneven development, welfare and related economic and geopolitical considerations are adding several layers of complexity. It is fair to say that issues involving cross border movement of persons have never been as interrelated and complicated as they currently are. There is now immense traffic in more directions than one for different purposes, subject to different rules and regulations and affecting more and more people. That makes the understanding of more than one system a necessary component of understanding immigration law in any single legal system. It suggests, as well, the ripeness-for-reconsideration of sovereignty and borders and the development of cross-border norms to address these mass movements. These new phenomena are increasingly dislodging immigration law from its traditional municipal roots, hence this book as a part of the Global Issues series.