Rethinking Regular Pathways

The discussion about regular pathways was one of the key touchstones during the negotiations for the Global Compact on Safe, Orderly and Regular Migration (GCM). Much of the uneasiness among governments centered around sovereignty issues, driven by concerns that commitments on regular pathways might undermine states’ prerogative to regulate which individuals are deemed to have a valid reason to enter and stay on their territory. Although the GCM does not provide clear definitions or distinctions between “deserving” and “undeserving” migrants, the compact nonetheless makes frequent references to those with regular and irregular status, reflecting many governments’ preference to make migrants’ access to certain services dependent on these distinctions. At the same time, the GCM places a consistent emphasis on states’ pre-existing obligations to respect, protect and fulfil everyone’s human rights, regardless of status.  

This mixture of unconditional and conditional access to rights has allowed the significance of migrants’ protection to recede, becoming a somewhat marginal issue in the ensuing discussions about the GCM’s implementation. This was exacerbated by persisting debates about the mandates of different UN agencies regarding human rights and other protections owed to particular groups of people on the move. 

Links between irregular migration and regular pathways 

One of the central tenets and points of contention underlying the Migration Compact is that, in certain key ways, the lack of availability of regular pathways leads to a growth in demand for irregular migration, which not only threatens the safety and rights of migrants, but also undermines the viability of existing migration regimes. One example of this during the COVID-19 pandemic has been the emergence of routes across the North Atlantic to enter the EU in the Canaries. 

When the SARS-CoV-2 virus first appeared and COVID-19 became a global pandemic, states quickly reinforced sovereignty-focused border behaviour, responding by implementing strict controls over access, closing borders outright or invoking limitations to condition regular entry. As a result, the COVID-19 pandemic, through governments restricting regular movements and often excluding migrants (especially those in irregular status) from support measures, has had a disproportionate impact on this group, including and particularly on migrant women, who have been affected in in many detrimental ways.  

From the beginning, the pandemic had a negative effect on the availability of pathways for migrants in situations of vulnerability. One of the early characteristics of state responses to COVID-19 were international borders closing on an unprecedented scale, including for people in need of protection. For instance, some countries have denied disembarkation for migrants and refugees while others have pushed them back or actively returned them. The United Nations High Commissioner for Refugees (UNHCR) stated that, at the height of the pandemic, 168 countries fully or partially closed their borders, with 90 of them making no exception for people seeking asylum. Many migrants were stranded and abandoned at borders. Heightened security at border points and the policing of lockdowns also led to migrants being locked in detention centres. Thus, COVID-19 has exacerbated the pre-existing crisis of protection, including the erosion of the right to seek asylum. The restrictive measures adopted by states during the pandemic have been linked to more dangerous irregular migration and higher trafficking risks, lending evidence to the above observations that tighter controls often lead to less safe and more irregular migration. 

Even though regular pathways for admission have been severely limited and, in many cases suspended altogether, it is important to note that positions of governments differ with regards to making pathways available. 

At the same time, there have been more nuanced, and sometimes innovative, approaches to pathways for stay within countries, specifically regarding the use of regularisation.   

Rethinking pathways: The potential of regularization and extending temporary measures 

Some countries recognised the specific situations of migrants in light of border closures and movement restrictions, implementing opportunities with regards to pathways for stay. Even though this has mostly included temporary measures, they often focused on extending the stay of migrants unable to leave, and in some instances, countries also regularised migrants more broadly, by legalising the presence of migrants who are currently in a country in contravention to immigration laws, including amnesty for those in the country irregularly.  

The governments in Portugal and Italy took a holistic approach that tried to create pathways or grant amnesty to irregular migrants. The case of Italy, deservedly praised for its aim to ensure migrants are part of the COVID-19 response and recognised for their essential work, has still been shown to be flawed, both due to limitations in eligibility and issues with the implementation of measures.. Another example worth highlighting is the recent case of Colombia, where the government is granting regular status to more than 1.7 million Venezuelan migrants. The government framed this decision to provide a 10 year residency to Venezuelans around humanitarian and practical considerations, including the need of the government to identify and assist those most in need. 

Less proactive countries have taken smaller steps to accommodate migrants, but have limited these to migrants with already regular status. Recognising that movement restrictions and limited functioning of government services (such as visa services) could trigger irregular status inadvertently, many extended visas or renewed residence permits to avert such situations. Countries that introduced such measures included Thailand, Azerbaijan, Finland, Korea, Zimbabwe, Spain and Tunisia, amongst many others. Other countries have created new visa types such as the COVID 19 visa in Australia, which offers the opportunity to extend the stay of migrants already in the country, as long as they meet certain conditions.  

Although several countries including the UK, Australia, Thailand, New Zealand, Italy and others have used some of the approaches towards regularization outlined above, they have also actively narrowed pathways by restricting eligibility to certain categories of migrant workers. In these countries, migrants in the healthcare, agriculture, domestic work and care sectors were designated as eligible for residence permits and/or visa extensions. In general, therefore, although such measures sought to include migrants, many of them migrant women, who have historically been over-represented in these sectors, this focus on “essential workers”, has also served to highlight the harmful distinction between “desirable” and “undesirable” migrants. 

The above approaches to regularisation have two key variables: (1) eligibility criteria (or inclusiveness) of measures and (2) limitation (often duration) of stay. These two issues are at the heart of the distinction between regular and irregular migrants, and in many ways, the COVID-19 pandemic did not create this distinction, nor the difficulties in providing clear, well-implemented models. Instead, COVID-19 created a situation of often contradictory pressures and opportunities. Some governments, under the guise of the health emergency, securitised borders and deported irregular migrants identified during the policing of lockdowns. There were also widespread premature terminations of contracts for many migrant workers in places where the pandemic led to an immediate economic slowdown (for example in the Middle East), exposing them to devastating hardships upon being forced to return home empty-handed, having lost their investment in migrating. In many cases this was compounded by wage theft on the part of employers – another common pre-COVID injustice, brought into sharp focus by the pandemic. Other governments actively included migrants, both regular and irregular, in their response plans, trying to ensure that their work in essential services is recognised and migrants have their rights protected – although there were marked differences in how effectively this was followed up with actual access to rights and services. A proactive approach to the protection of migrants (as well as the communities in which they live, and to which they contribute) need to guarantee broad eligibility and minimal limitations to ensure that migrants can not only continue to stay, but are also able to navigate new, restrictive environments successfully. 

The pandemic offers a clear opportunity to promote measures that provided pathways to regularisation (even if limited in eligibility and time) as promising practices and tools to ensure that pathways are expanded more proactively in the longer term. A failure to capitalise on this opportunity presents a serious danger of allowing the pandemic to become an excuse for continued and increased criminalisation of migrants and for maintaining restrictive border regimes and migration policies. This is particularly significant in view of the fact that we have yet to see more large-scale, meaningful advances on regular pathways for migrants in countries of origin and transit. Lack of progress in these areas would not only increase the vulnerability of migrants settled in countries of destination, but would also severely affect those migrants that will face greater risks en route as they migrate, possibly as a result of COVID-19 related impacts in their home countries, in particular women migrants. 

Vaccine nationalism increases inequality in access to mobility 

Looking beyond the current measures that are continuously being revised in the face of new waves and variants of the virus, it is clear that a new type of mobility restriction may be on the horizon linked to the vaccine rollout. In spite of improvements by the COVAX initiative to make access to the vaccines more equitable, the current vaccination rates remain uneven across and within countries, reproducing pre-existing inequalities and patterns of discrimination, which have been called out by the World Health Organization (WHO). There have been indications that once levels of vaccination have been reached that are deemed attainable, governments may begin to make border crossings contingent on travelers’ ability to document their vaccination status. This is likely to produce a system of exclusion that will reinforce existing patterns of discrimination, making it even harder for those on the move to access protection or pursue livelihoods to sustain their families – unless effective countermeasures are taken now. The likely outcomes of such restrictions, especially if poorly managed, include an increase in more dangerous and irregular migration. 

Recommendations 

In light of the COVID-19 pandemic, the road ahead on the development and implementation of regular pathways is facing new challenges and seeing emerging opportunities at the same time. Initial takeaways from the COVID-19 experience point towards the need to: 

1. Put in place safeguards for more effectively preventing further restrictions on people’s mobility, in particular when they find themselves in situations of vulnerability, to prevent a further erosion of the right to seek asylum and to promote right-based implementation of relevant provisions in the GCM (including in Objectives 2, 5, 7, and 12), which should ultimately lead to more regular pathways, including for migrants in countries of origin and transit. 

2. Promote the institutionalisation of positive responses to the needs of people on the move, including women in migration during the pandemic, including through the use of regularization, multistakeholder learning and exchange.

3. Document the outcomes of key positive examples of regularisation and regular pathways to ensure that the benefits, during and beyond the pandemic, are well evidenced.

4. Advocate for long lasting policy change building on opportunities from the temporary measures during the pandemic, providing migrants with clarity about their status and knowledge of their rights and protection. 

5. Ensure that global inequalities in access to vaccines do not exacerbate  situations of vulnerability for migrants through the use of vaccination status as a determining factor in the right to enter a country.
    

Authors

Carolina Gottardo is the Executive Director of the International Detention Coalition. She also serves on the board of the Asia Pacific Refugee Rights Network (APRRN) and the Global Coalition on Migration (GCM).

Christian Wolff is the Programme Manager for Migration & Displacement at the ACT Alliance secretariat in Geneva. He is also a member of the board for the Global Coalition on Migration (GCM).

This article is part of a series of articles by the Global Coalition on Migration and the Friedrich-Ebert-Stiftung on international migration during the COVID-19 pandemic. they analyse the impact of the pandemic on international migrants protection highlighting the various human rights instruments, international law, the global compact and treaties that protect the rights of migrants. The articles focus on various topics such as; gender, labor, regularization,race, xenophobia, security, borders, access to services and detention.