A more pragmatic migration regime for millions: Regularisation, regional free movement and permanent residence

Diego Acosta (Professor European and Migration Law, University of Bristol)

In their thought-provoking kick-off, Jelena Dzankic and Rainer Bauböck propose the creation of a new international passport that would allow certain individuals, such as temporary labour migrants or environmentally displaced persons, to enjoy mobility rights based on necessity rather than on nationality. This would create a new legal category under international law and would offer the respective individuals a right of entry to the territory of other states as well as some limited access to their labour markets. In this respect, this proposal would go beyond both the UN Compact on Safe, Orderly and Regular Migration and the Model International Mobility Convention, which clearly recognise the right of states to determine who can enter into their territory.

The possibility for environmentally displaced persons to obtain residence in a second state is already enshrined in the legislation of some countries. For example in South America, both Bolivia and Ecuador have incorporated in their migration laws the possibility to grant humanitarian residence permits to those affected by climate disasters. The emigration of Haitian nationals accelerated as a result of the 2010 earthquake, and thousands have been able to apply for residence permits at Brazil´s Consulate in Porto Principe during the last few years. In the European Union, countries such as Finland, Sweden or Denmark either have specific admission routes based on environmental displacement, or have granted such permits in the past under the more general umbrella of humanitarian status. Nothing would impede the EU from proposing a Directive in order to harmonise the definition and rights of environmentally displaced people. The same is true for temporary labour migration and numerous countries have signed bilateral agreements making such mobility possible. A major problem, as Dzankic and Bauböck highlight, has been the lack of access to permanent residence in many of these treaties, as well as the poor observance of basic labour rights in some instances.

In my view, out of the four options advocated by Dzankic and Bauböck, it is the second, namely the further deepening of regional free movement regimes, that offers a better promise to accommodate those who find themselves in a situation of “necessary flight” due to environmental or socio-economic needs. I define regional free movement of people law as encompassing the set of regional rules, bilateral agreements, domestic provisions and non-binding norms that facilitate the entry, stay, rights during stay, and protection from expulsion of migrants coming from a particular group of countries in a region. Despite being generally poorly investigated by scholars, there is not a single year in the last two decades where one or various agreements facilitating free movement at regional level have not been adopted, and most countries at the global level are part of either regional or bilateral agreements on free movement of people. For example, in May 2021, the Andean Community adopted the Andean Migratory Statute which not only offers the right to reside, work and equal treatment with nationals to Andean citizens and members of their families, but also extends such rights to non-Andean citizens who permanently reside in one of the four member states.  

Regional free movement agreements facilitate not only the mobility of workers in regions like Eurasia, but can also in many instances offer options to those who are affected by an environmental disaster. For example, between 2008 and 2018, more than 8.5 million new displacements – both internal and external – occurred as a result of hurricanes and earthquakes in the Caribbean. While the regional legal frameworks on free movement in the Caribbean are not devised to deal with mobility related to environmental disasters, the fact that persons can access other territories in the region and obtain a residence permit meant that these regimes were used during the 2017 hurricane season, which led to the displacement of more than two million people. This exemplifies the ways in which free movement regimes can offer choices to those affected by environmental change, with potential implications for regions such as the Pacific Islands.

Whilst intra-regional mobility exceeds inter-regional movement, it is true that regional free movement regimes do not offer pathways towards residence to those who fall outside their scope. For example, Venezuela never ratified the MERCOSUR Residence agreement. This means that the circa five million Venezuelan nationals who have emigrated since 2015 do not enjoy a right to enter, reside and work in other South American states. However, there is nothing impeding the unilateral and non-reciprocal extension of regional free movement rights and this has happened on various occasions in South America. Indeed, Argentina, Brazil and Uruguay have unilaterally extended the scope of the agreement to also include Venezuelans. This was also the case in Ecuador until 2020 and between 2017 and 2019, close to a 100 thousand Venezuelans obtained a residence permit in the country.

In cases where individuals fall outside a regional agreement, regularisation becomes an important policy tool. Whilst organisations like the EU now treat regularisation as a taboo in their policy discourse, the same is not true in many countries around the world, such as the US, European ones like Spain, or entire regions like South America. In early 2021, Colombia adopted a residence permit for Venezuelan nationals, which will in practice function as a regularisation mechanism for the majority of 1.7 million that reside in the country. Apart from offering a residence permit, one of the most interesting features of the Colombian approach is the fact that permits are granted for ten years. Although this does not amount to permanent residence, ten years represents, on paper, a sufficiently lengthy period to facilitate access to other more stable permits.

In fact, access to permanent residence, and potentially citizenship, is the third pillar to ensure protection of rights and mobility. The recognition that at least some of those who migrate will eventually decide to permanently settle has to be accepted as a normal reality. This is even true in countries like the Gulf states where, whilst permanent residence is excluded on paper, it still happens in practice. Permanent residents could then enjoy certain mobility rights in a given region such as in the Andean Community example mentioned above, or in the case of long-term residents in the European Union. To conclude, the opening of further and wider migration paths to those who are in need of movement because of environmental or socio-economic needs is a crucial endeavour that can be better advanced, at least initially, at the regional level by further deepening and improving the legal provisions and the implementation of existing instruments. A more global regime remains an option that countries that have endorsed the Global Compact for Migration are expected to pursue under its objective 5. If it were not so obsessed with return, the EU could lead the process of thinking alternative policy options. Some interesting developments in line with those advocated by Dzankic and Bauböck might derive from the ongoing review by the Biden administration of the links between climate change, migration and resettlement.