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Immigration law and policy

Immigration law and policy in a number of national States is made up of legislation which sets out the rights of migrants to enter the country, their treatment on entering and procedures to be followed to ascertain their status. Legislation may be implemented through governmental policy, which sets out details of such treatment, subject to change within the remit of the law in force. Migrants wishing to travel to a particular State for the purposes of employment would need to consult government policy in order to make an application, in certain cases they must do so from their country of origin, or request an employer to make an application on their behalf. Individuals seeking protection under international law must do so on the territory of the national State.

In a number of States mechanisms are in place to exclude certain applicants’ protection claims from substantive consideration. For example the European Union Dublin Convention, and its replacement Regulation allows for the transfer of asylum applicants to the EU Member state responsible for the processing of their claim. A number of European Union member states may therefore exclude such person’s claims from substantive consideration prior to their transfer. Other claims may also be excluded from substantive consideration on the basis that individuals have travelled to the country of asylum through a safe third country or a that they have come from a country considered to be a safe country of origin.

The European Union are also at present in the process of establishing minimum standards in the area of immigration and asylum under Article 63 of the Treaty of Amsterdam. The Dublin Regulation mentioned above was adopted under this provision. Article 63 also includes in relation to asylum minimum standards on procedures, qualification and reception of asylum seekers. The latter Directive was adopted in January 2003. Article 63 also includes provisions on immigration law, these are: conditions of entry and residence, and standards on procedures for the issue by member states of long term visas and residence permits, including those for the purpose of family reunion; illegal immigration and illegal residence, including repatriation of illegal residents; and measures defining the rights and conditions under which nationals of third countries who are legally resident in a member state may reside in other member states. Measures adopted include a Council Regulation of 13 June 2002 laying down a uniform format for residence permits for third-country nationals and a Council Directive of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals.

The most prevalent United Nations legal instrument that has significantly affected asylum law and policy is the Convention Relating to the Status of Refugees, (1951) and its accompanying Protocol of 1967. The Convention sets out the international law framework on the recognition of refugees and the responsibility of States towards them. Many countries have legal mechanisms in place to recognise individual rights under the Convention and a number of States have enacted legislation explicitly recognising the primacy of the Convention. Article 3 of the European Convention on Human Rights (1950) is a provision, which has been held by the European Court of Human Rights to have extraterritorial effect. A number of signatories to the ECHR have implemented national provisions to provide complimentary forms of protection to individuals who are at risk of a violation of their rights under Article 3 if returned to their country of origin.

Analysis provided by Anisa Niaz, LLM (Public Law), United Kingdom.

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