Legal categories of cross-border migration

In the previous step of this course week we discussed the demand, expressed in the Migration Charter proclaimed by theologians in Switzerland, that there should be free establishment for all. We also stated that the reality is very different. Among the reasons for this are not least legal rules that distinguish between different categories of migrants, depending on the legal framework and the reason for which they are moving from one country to another. The present article deals with this issue.

As for the legal framework, a common distinction is that between orderly and irregular migration. In the glossary of key migration terms of the International Organization for Migration, these are defined as follows:

Orderly migration – The movement of a person from his or her usual place of residence to a new place of residence, in keeping with the laws and regulations governing exit of the country of origin and travel, transit and entry into the destination or host country.

Irregular migration – Movement that takes place outside the regulatory norms of the sending, transit and receiving countries. There is no clear or universally accepted definition of irregular migration. From the perspective of destination countries it is entry, stay or work in a country without the necessary authorisation or documents required under immigration regulations. From the perspective of the sending country, the irregularity is for example seen in cases in which a person crosses an international boundary without a valid passport or travel document or does not fulfil the administrative requirements for leaving the country. There is, however, a tendency to restrict the use of the term ‘illegal migration’ to cases of smuggling of migrants and trafficking in persons.

Asylum seeker – A person who seeks safety from persecution or serious harm in a country other than his or her own and awaits a decision on the application for refugee status under relevant international and national instruments. In case of a negative decision, the person must leave the country and may be expelled, as may any non-national in an irregular or unlawful situation, unless permission to stay is provided on humanitarian or other related grounds.

Depending on the result of the asylum procedure, the person thereafter may gain the status of recognised refugee, beneficiary of subsidiary protection or of temporary protection. We will return to these terms in subsequent steps in this course week.

As for persons migrating for other reasons, these reasons may include, for example, economic need (eg poverty, lack of employment opportunities) or fleeing from the consequences of climate change. There are also persons who do not migrate out of need, such as pensioners who have decided to move to another country because of its favourable climate or workers who have found particularly interesting work in another country. In fact, your lead educator in this course, Prof. Tobler, is an example for the latter category. When she took up employment at the Law Faculty of Leiden University in the Netherlands, it was not out of need but out of choice. When Prof. Tobler gave her inaugural lecture, the news service of the University called her a kennismigrant, which is Dutch for ‘knowledge migrant’.

Obviously, the case of refugees is very different. As we will see further in our course work of this and the following week, the legal treatment in particular of persons migrating because they are in need of international protection, on the one hand, and of persons migrating for other reasons, differs markedly. However, before we go into these regimes, we will look into an example from Switzerland, involving a popular vote on curbing immigration. This is the subject of our next step.