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This chapter compares and contrasts two recent European enactments on particular forms of temporary labour migration: seasonal work and intra-corporate transfers (ICTs). Both the Seasonal Workers Directive (SWD)1 and the ICT Directive (ICTD)2 were adopted in 2014. They are typical of the EU’s piecemeal approach to labour migration, which creates a multiplicity of distinct statuses.3 We frame the comparison in light of our previous work examining the impact of migration law on labour law (section II). By way of general contribution to this collection’s themes, we also offer some observations on the challenges of regulating temporary labour migration under current conditions of globalisation (section III), and seek to explain some of the specificities of the EU’s role in regulating immigration (section IV)
Europe’s extraordinary response to those fleeing the Russian invasion of Ukraine in February 2022 has prompted many criticisms of Europe’s treatment of other refugees, and indeed people of colour and members of ethnic minorities fleeing Ukraine. While stark, this differentiated response in not unusual: The global refugee regime treats different refugees differently, as a matter of course. Refugees often encounter racialized migration controls, and systems which privilege some refugees over others. The article seeks to clarify when these practices violate the international legal prohibitions on discrimination on grounds of race and nationality. To do so, it focuses on race discrimination in general international human rights law, clarifying the interaction between general human rights principles and instruments, and the specialist instrument in the field, the International Convention on the Elimination of all Forms of Racial Discrimination. We identify how differences in treatment on grounds of nationality may engage the prohibition on race discrimination both directly (in particular when nationality equates to national origin) or indirectly. Concerning nationality discrimination, the article focuses in particular on the added value of Article 3 of the 1951 Convention on the Status of Refugees, which obliges states to ‘apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin.’ We examine Article 3 both within the overall scheme of the Refugee Convention and as a source to guide interpretation of international human rights norms.
This chapter examines the caselaw of the European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) on access to protection, the Dublin system and presumptions of 'safety', and detention, in order to provide critical insights into the concept of effective judicial protection in Europe since the so-called 'refugee crisis' of 2015. The two courts have not provided effective protection in a transformative sense, in that they have not adopted progressive rulings to overcome the crisis-inducing elements of European asylum and migration law. Instead, they have deferred to governmental accounts of 'crisis' and accepted dubious factual and legal arguments. Against this backdrop, we note that the need for effective judicial protection in even a minimal sense, to hold the line on the most basic of rights in this field - protection against refoulement and arbitrary detention - is more acute than ever, and may also be in decline.
This collection has its origins in the recognition that there is a highly significant and under-considered intersection and interaction between migration law and labour law. It is the culmination of a collaborative project on ‘Migrants at Work’ funded by the John Fell Fund, the Society of Legal Scholars and the Research Centre at St John’s College, Oxford. The collection aims to shed light on the interactions between immigration, migration law, and labour law, in particular how migration status has a bearing on labour relations and the world of work. Contributors to the volume identify the many ways that migration law, as currently designed, divides the objectives of labour law, privileging employers’ interests in the supply of labour over worker-protective concerns. In addition, migration law creates a particular form of status, which affects labour relations, thereby dividing the subjects of labour law. While several contributions focus on the UK, other countries examined include Australia, Ireland, Israel, Italy, Germany, Sweden, and the US. References are also made to discrete practices in Brazil, France, Greece, New Zealand, Mexico, Poland, and South Africa. The collection identifies how migration law as currently configured jeopardizessome of the values and institutions of labour law.
This working paper aims to examine the ‘displacement regime complex’, displacement referring to both internally and externally displaced persons, taking into account the competing roles of UNHCR and IOM in both spheres of activity. The title of the paper ‘Reform for protection’, aims to outline institutional reforms that aim to increase protection for the displaced, informed by binding universal human rights standards, and institutional principles relating to accountability and participation of most affected populations.
This Article comparatively analyses how the prohibition of refoulement is interpreted by United Nations Treaty Bodies (UNTBs) in their individual decision-making, where we suggest they act as “soft courts.” It asks whether UNTBs break ranks with or follow the interpretations of non-refoulement of the European Court of Human Rights. This investigation is warranted because non-refoulement is the single most salient issue that has attracted individual views from UNTBs since 1990. Moreover, our European
focus is warranted as nearly half of the cases concern states that are also parties to the European Convention on Human Rights. Based on a multi-dimensional analysis of non-refoulement across an
original dataset of over 500 UNTB non-refoulement cases, decided between 1990–2020, as well as pertinent UNTB General Comments, the Article finds that whilst UNTBs, at times, do adopt a more
progressive position than their “harder” regional counterpart, there are also instances where they closely follow the interpretations of the European Court of Human Rights and, on occasion, adopt a more
restrictive position. This analysis complicates the view that soft courts are likely to be more progressive interpreters than hard courts. It further shows that variations in the interpretation of non-refoulement in a crowded field of international interpreters present risks for evasion of accountability, whereby domestic authorities in Europe may favor the more convenient interpretation, particularly in environments hostile to non-refoulement.
This chapter analyses IOM’s practices and policies on immigration detention from the 1990s to date, spanning a period of significant change in its approaches to detention. The chapter first distills pertinent international human rights law (IHRL) on migration-related detention, and then examines IOM’s normative statements concerning detention. It shows that while IOM generally emphasises international legal standards, it also tends to stress states’ ‘prerogative’ to detain, frame alternatives to detention (ATDs) as a desirable option rather than a legal obligation, and weave an operational role for itself, notably through assisted voluntary returns (AVRs). The chapter then interrogates IOM’s involvement in detention through four case studies. These reveal not only IOM’s changing role regarding detention, but its enduring part in a global system whereby powerful states and regions seek to contain protection seekers ‘elsewhere.’ The chapter concludes that, without constitutional and institutional change to ensure it meets its positive human rights obligations, and deeper critical reflection on its humanitarian duties, IOM’s practice risks expanding and legitimating detention.