Regulatory frameworks – how should migration be regulated?

As a general rule, the management of migration takes place within a legal context that includes (see International migration law for more):

• The State’s constitution or other foundational instrument;
• National laws (including criminal codes, labour codes, immigration and asylum laws);
• International treaties;
• Conventions or agreements;
• Other instruments to which the State has subscribed;
• Customary international law governing various aspects of international migration.

It may be guided by bilateral and regional agreements; the European Union and Mercosur regional agreements govern key aspects of regional mobility, for example.

In the policy adoption stage, the legal implications of the policy solutions that were proposed in the policy formulation stage (see The phases of policy formation) will be revisited and the recommended changes (if necessary) adopted.

While not all migration policy requires direct government regulation, a sound legal and regulatory framework is an indicator of effective migration governance.

Legal frameworks support coherence and transparency across migration policy domains. In terms of the migrant’s experience, a sound and properly implemented legal framework is more likely to provide predictable processes and decision-making and to prevent any risk of arbitrariness in how their case is dealt with or violation of their rights.

The function of migration legislation is also to define roles and responsibilities. This fosters legitimate public expectations regarding the behaviour of all those who are involved in the migration process and creates accountability. The legal framework also defines the domains in which the authorities can exercise some discretion. This can help introduce some flexibility in the decision-making process when needed.

Legal frameworks also establish accountabilities regarding migrants’ rights and obligations; specifically, what would happen if their rights are violated either as a result of the policy or when the policy itself is violated. For example, what would be the legal remedy should a migrant parent be forcibly returned, creating a separation that violates the rights of a child? Or a migrant’s national documentation is withheld preventing separation from an exploitative employer? It is a State’s responsibility to ensure that individuals can formally pursue an effective remedy if their rights have been violated, including before a court, tribunal, or other impartial mechanism. In addition, a legal framework can include criminal or administrative penalties for actors who violate a policy, and establishing the appropriate enforcement actions available to the State.

Although the legal framework provides context for all public policies, some domains of migration policy may not be regulated in detail by law. A fit-for-purpose approach to policy regulation will take into account the needs for predictability, flexibility, transferability and the government’s ability to effectively monitor policies. For example, integration and reintegration policies may be regulated through education and information instruments that inform, encourage and incentivize engagement in programmes such as language or skills training. Self-regulation can also be useful, for example in the regulation of migration intermediaries such as migration agents that assist with migration processes. Self-regulation or quasi-regulation can empower the industry to formulate and enforce entry standards and codes of practice, as it is in the interests of the industry to preserve the integrity of their profession.

In most circumstances, a combination of instruments would be appropriate. For example, in the case of migration agents, self-regulation could be combined with economic instruments such as charges and licence fees and some direct government regulation to ensure robust consequences for serious breaches including legal consequences such as penalties, sanctions, and potentially criminal liability. For central-government-level policymakers, it is tempting to be drawn to direct government regulation because it provides the comfort of control. It may be unrealistic, however, if there is little capacity to oversee, and to exercise the controls.