{"id":4003,"date":"2017-05-31T00:00:00","date_gmt":"2017-05-31T13:20:03","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/the-michigan-guidelines-on-refugee-freedom-of-movement-or-how-explosive-existing-law-can-be\/"},"modified":"2020-12-09T13:22:13","modified_gmt":"2020-12-09T12:22:13","slug":"the-michigan-guidelines-on-refugee-freedom-of-movement-or-how-explosive-existing-law-can-be","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/the-michigan-guidelines-on-refugee-freedom-of-movement-or-how-explosive-existing-law-can-be\/","title":{"rendered":"The Michigan Guidelines on Refugee Freedom of Movement, or: how explosive existing law can be"},"content":{"rendered":"

The Michigan Guidelines<\/em><\/a> are a document in which legal scholars summarize the existing international laws of refugee protection on one particular aspect. They are \u201cjust\u201d an expert opinion – yet by no means insignificant in that capacity. They are used by courts interpreting the law and thus stand themselves at the threshold of the legal. At any rate the guidelines can frame debates about the legality of state actions in the area of refugee protection and migration control. They summarize the relevant provisions and offer an interpretation, which, although of course not undisputable, is grounded in a broad consensus and anything but eccentric.<\/p>\n

The Guidelines appear every two years on different topics, the ones of this year<\/a>\u00a0dealing with Refugee Freedom of Movement <\/em>\u2013 possibly the most pressing among the many pressing issues of the field at the moment. Free movement of refugees constitutes a subject area in which current state practices in several cases clash with existing international law: regarding the detention of refugees, restrictions on their mobility in the host state, or regarding measures of deterrence and border security.<\/p>\n

Not a one-sided scolding<\/strong><\/p>\n

That said, what the Guidelines are certainly not, is a one-sided scolding of state politics with reference\u00a0to legal provisions. They constitute an instrument\u00a0that\u00a0in the best sense strives for balance, which treats the law as a medium of rationalizing competing interests and viewpoints, and which correspondingly seeks to uncover its underlying normative considerations. In that vein, the Guidelines<\/a> set out in their introduction by stating that refugees\u2019 freedom of movement is essential for any\u00a0meaningful protection, and that it both underlies the 1951 Geneva Refugee Convention<\/a>\u00a0(GRC) and is supported by the International Covenant on Civil and Political Rights<\/a>. At the same time, they stress that this principle of freedom of movement meets other legally recognized interests: to conduct effective border controls, to respect concerns of receiving communities, to tackle human trafficking.<\/p>\n

The right to leave every country<\/strong><\/p>\n

The Michigan Guidelines <\/em>thus aim to clarify how the existing law reconciles competing interests, or to offer an interpretation that strives for such reconciling position. The first aspect\u00a0of refugee freedom of movement that is discussed is the right to depart. Article 12 of the International Covenant on Civil and Political Rights<\/a> (ICCPR) lays down the right to leave every country, including one\u2019s country of origin. It is in this regard that opposing state interests to restrict free movement have the least weight: Under special circumstances, national security, public health, or the protection of the rights of others can justify restrictions \u2013 but only as far as those are provided by law and proportionate to the aim pursued.<\/p>\n

The Guidelines specify some cases in which a restriction can accordingly not be regarded as lawful: concerns about the departing individual\u2019s life or safety cannot serve as a justification for preventing\u00a0his or her departure (para. 6). Neither\u00a0can the objective to deter human smuggling justify\u00a0restrictions on the right to departure: potential breaches of another state\u2019s migration laws do not fall under the ordre public<\/em> exception of Article 12 ICCPR (para.\u00a07). And even where the prevention of human trafficking is at stake, state measures must primarily be directed against the activities of traffickers and not against the individuals seeking to leave the country (para. 8).<\/p>\n

Those specifications are important with regard to states which restrict departure directly or indirectly. Eritrea, for instance, invariably requires citizens to obtain\u00a0an exit visa, which is granted under inconsistent and non-transparent conditions only (cf. a report by the UK Home office<\/a>). But the observations are also significant regarding the current migration policies of the European Union: Member states, for example in the Malta declaration<\/a> from February this year, put an \u201ceffective control of [the] external border\u201d and stemming of \u201cillegal flows into the EU\u201d first, thereby substantially\u00a0relying on cooperation with Libya as an important transit country. That Libya is committing massive human rights violations from the detention of migrants up to torture has been described by a report of the United Nations<\/a> last December. On the basis of the Michigan Guidelines<\/em>,\u00a0it can moreover be stressed: The aim of migration control by the European Union does not legitimate to systematically create in the cooperation with Libya incentives for hindering the departure of migrants from there.<\/p>\n

Access to protection<\/strong><\/p>\n

Equally explosive for the current orientation of EU migration policies\u00a0\u2013 and those of many other states \u2013 are the specifications regarding access to protection. In that vein, the above-mentioned conflict between a state’s interest in controlling access and the freedom of movement of asylum seekers reveals itself\u00a0the most pertinently: With the arrival on a state\u2019s territory, or from the moment of being under its jurisdiction, migrants hold the full range of rights from international human rights conventions. This has led to states increasingly trying to prevent this first contact, thus to a \u201cschizophrenic attitude\u201d (cf. Hathaway\/Gammelthoft-Hansen 2015<\/a>) of upholding high standards of protection while eagerly obstructing\u00a0the access to these very rights.<\/p>\n

The Michigan Guidelines <\/em>in that context firstly state that the duty of non-refoulement <\/em>applies on a state\u2019s territory as well as at its borders (para. 9). One of\u00a0the potentially most influential findings of the Guidelines is\u00a0the assessment that a state may not construct or maintain a man-made barrier without providing at the same time for reasonable access to the territory. In simple terms: no wall without gate. That might appear obvious, as it is essential to the normative idea of the refugee –\u00a0namely that refugees are the exceptional case in which the state does\u00a0not have full discretion to unilaterally decide about access. A\u00a0refugee protection that\u00a0has \u201centirely succeeded\u201d to shut itself off from all those in need of protection would not be worthy of that name anymore. Yet the seeming obviousness of that statement contrasts starkly with the reality in many places \u2013 for instance in Melilla<\/a>.<\/p>\n

The Guidelines <\/em>promise to be influential in that question exactly because they argue with a decidedness that does not generally mark the debate. For instance,\u00a0Moria Paz describes<\/a>\u00a0how the conflict between universal human rights and states\u2019 commitment to control migration crystallizes into the emergence of border walls, and argues that the adequate legal response is anything but clear. The Michigan Guidelines <\/em>by contrast draw – quite convincingly – on a \u201cgood faith understanding of the duty of non-refoulement<\/em>\u201d, which, they argue, requires states to provide in a reasonable manner for possibilities to actually claim the protection foreseen in international law.<\/p>\n

Liberty and free movement after arrival <\/strong><\/p>\n

Following the various aspects of freedom of movement on an international level, the Guidelines <\/em>also deal with the question of \u00a0freedom of movement once a\u00a0refugee\u00a0has\u00a0arrived in a host state. That concerns the conditions for detention as well as other restrictions on free movement such as the\u00a0residential obligation in Germany. Here again, the Guidelines <\/em>depict the normative compromise between freedom of movement and an interest of control: A limitation of free movement in the very earliest moments after arrival is permissible, as far as prescribed by law and proportionate in light of the aim pursued, for instance serving to\u00a0determine a person\u2019s identity (para. 15). Any detention at a later point has to be justified on an individuated basis and underlies strict requirements for justification (para.\u00a016).<\/p>\n

Not only detention but also any other limitation of free movement, be it a direct or indirect result of state action, is subject to\u00a0conditions (para. 19, 20). This standard applies not just once a claim for protection has been recognized, but equally to asylum seekers waiting for their application to be assessed (para. 18). The territorial restriction of the residence permit foreseen in German Asylum Law (\u00a7 56 AsylG<\/a>), in its blanket nature, hardly meets these requirements: A limitation to freedom of movement applicable only to asylum seekers contravenes the normative standard of Article 12 \u00a0ICCPR<\/a>\u00a0and\u00a0Article\u00a026 GRC<\/a> (para. 19). Also in that regard, the Michigan Guidelines on Refugee Freedom of Movement<\/em><\/a> demonstrate that international refugee law remains significant \u2013 and demanding.<\/p>\n

 <\/p>\n

Dana Schmalz<\/em><\/a> is a postdoctoral research fellow at the Max Planck Institute for the Study of Religious and Ethnic Diversity, G\u00f6ttingen. <\/em><\/p>\n

 <\/p>\n

A German version of the\u00a0text\u00a0is available here<\/a>.<\/p>\n

 <\/p>\n

\n

Cite as: Dana Schmalz, “The Michigan Guidelines on Refugee Freedom of Movement, or: how explosive existing law can be”, V\u00f6lkerrechtsblog<\/em>, 31\u00a0May\u00a02017, doi: 10.17176\/20170531-154147.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The Michigan Guidelines are a document in which legal scholars summarize the existing international laws of refugee protection on one particular aspect. They are \u201cjust\u201d an expert opinion – yet by no means insignificant in that capacity. They are used by courts interpreting the law and thus stand themselves at the threshold of the legal. […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[3575],"article-categories":[6000],"doi":[4700],"class_list":["post-4003","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-dana-schmalz","article-categories-article","doi-10-17176-20170531-154147"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20170531-154147"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4003","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4003"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4003\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4003"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4003"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4003"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4003"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4003"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4003"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}