In its proper sense, sovereignty is the capacity of a nation State to independently run its affairs, determine its future, assert and defend its national interests in foreign and domestic settings. Plus, securing the well-being and prosperity of citizens, ditto border security. The latter means determining who the State allows into, and who it does not allow into, its territory upon explicit or reserved grounds.
The determination of who a State allows within its borders, de facto immigration control, is the beating-heart of sovereignty, fundamentally because it impinges upon national security. No longer is immigration control purely an element of domestic statecraft. Thus, traversing the United States, United Kingdom, France, Ukraine, to Egypt, Sudan, Yemen, Nigeria, South Africa et al, immigration control, remains an electrifying issue. The subject is the epicentre of geostrategic, jurisprudential, political and populist discourse globally today. And, especially one, which sharply divides views, upends political orthodoxies and, depending on the political rhetoric around it, has the capacity to harm community cohesion with nasty consequences.
Why the seemingly endless mêlée over immigration control? To what extent does tougher immigration control breach international treaty obligations? Does political expediency oust morality, observance of the rule of law and judicial autonomy? What, if any, objectively rational safeguards are afforded the most vulnerable victims of persecution and war within the tougher borders’ policy, evident in the wealthier global north et al?
Either on a temporary or permanent basis, immigration entails the movement of persons intra-country or inter-country and, it is as old as humanity. Indeed, anthropological research establishes that the earliest human migrations occurred approximately 2, 000,000 (2Ma.) years ago, according to the authors Zhu, Z., Dennell, R. Huang W. et al, Nature 559, 608-612, (2018).
Multiple factors drive immigration in its natural sense. These include, on one spectrum, business/cultural exchange programmes, education, employment, family reunions, technical assistance, tourism; on the other, famine, natural disasters, war and persecution. Uganda’s August 1972 sudden expulsion of 80,000 Indian minorities, under the brutal Idi Amin dictatorship (1971-1979) vividly illustrates the latter. The reaction to the plight of the refugees demonstrated the best of humanity at effective global cooperation. Amongst those accounted for, 27,200 refugees emigrated to the UK, 6,000 to Canada; 4,000 to India, 2,500 to Kenya, Malawi and Pakistan. Then West Germany (now Germany), and the United States, each admitted 1,000 refugees.
More recently, the Russo Ukrainian conflict has spawned huge pan-European migration waves. UNHCR’s statistics as of q4 2022, established that Russia received 2.77 million Ukrainian refugees, Poland 1.5 million, Germany 1 million and the Czech Republic 0.5 million. Here, the central objective of immigration is one thing: sanctuary, underpinned by a better quality of life!
On the flip side, immigration, can be founded upon extreme venality. For example, drug running, organ harvesting, human trafficking, child labour, slavery, prostitution etc. The perverse objective is one thing: illicit profiteering. These are of course inherently criminal acts, which, rightly, attract robust criminal sanctions globally. The trans-border, Belgium, Thailand and United States’ sex trafficking ring evidences the point.
Thai national, Sumalee Intarathong or Alice Spencer Warren, was sentenced in April 2023 for her key role in the criminal enterprise in a matter prosecuted by the Justice Department, where victims paid so-called “bondage debts” with amounts ranging between USD 40,000 and USD 60,000.
Sovereignty, supra., includes asserting and defending a State’s national interest. Therefore, whether immigration’s of a noble or a criminal motive, the exercise of national sovereignty, de facto, and de jure, mean that immigration control falls within the remit of domestic policy. What, after all, is the meaning of sovereignty, if a State cannot independently control its borders by objectively determining who enters and who doesn’t? It follows that immigration control is a necessary element of statecraft inherent in the sovereignty of a nation states. And that’s especially so, given huge demographics shifts occasioned by the extremities of war, climate change, bad leadership and global economic volatilities. Seminally, no serious State wishes to admit its enemies, saboteurs nor terrorists. Accordingly, in an unstable world, effective immigration controls are plainly non-negotiable!
For context, the 2016 referendum on Britain’s membership of the European Union (EU), which ultimately resulted in the country’s withdrawal, “Brexit”, was largely driven by concerns (amongst “Brexiteers”!) around the country’s inability to independently exercise its sovereignty in the proper sense. Brexiteers’ key arguments were: one, the British Supreme Court was not supreme in the sense that its decisions could be vetoed/upended by the European Court of Justice. Two, the British Parliament was not sovereign in that UK Acts needed to be “harmonised” with European Union directives and regulations. Three, Britain was being subsumed into a federal Europe, which no one voted for. And, most fundamentally, the country could no longer freely control European immigration barring exceptions on national security grounds.
Brexit opponents, “Remainers”, advanced important counter arguments too. First, they argued that Britain is a small island and requires, for its lasting economic prosperity, the freedom to trade with its largest market, Europe. They point to OECD evidence affirming that since 2019, the UK’s economy shrunk by 0.4%; whilst Germany’s grown 0.3%, Japan’s 0.9%; France’s 1.1 0%; Canada’s by 3.0% and the USA’s, by 4.3%. Second, they contend that the UK did not vote to impoverish themselves, so Brexit is an economic disaster!
Third, European jurisprudence, directives, regulations, were formulated with proactive British participation at the highest levels. The notion that European jurisprudence were, somehow, imposed on Britain, was fanciful at best, and, nonsensical at worst. After all, the three pillars of the European Union member states, (common integration policy including immigration; common foreign and security policy and police and judicial cooperation in criminal matters) applied equally to all 27 EU nations.
So, how tough should immigration policies be? There is no consensus on the use of the adjective “tough” relative to immigration policies. Because what is considered tough in one State may well be the opposite in another country. Nonetheless, hair splitting semantic arguments only advance the discourse so far. The natural meaning of the word “tough” as explained in the Cambridge dictionary and thesaurus is an objective and useful aide memoire here. It means “strong or severe in limiting what is allowed or in punishing people who do not obey rules or laws”. Section 212 of the US Immigration & Nationality Act 1965 (as amended), outlining robust provisions on inadmissible aliens, is illustrative.
Ditto, the UK case: Rochelle Fernandopulle (Appellant) v Secretary of State Home Department (Respondent) [2018] UKAITUR HU033602017. The Appellant, was denied further “leave to remain” in the UK at the trial court on humanitarian grounds. That was anchored on the provisions of section 117 (b) of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) which equiparates, effective immigration controls and the public interest. The appellant was a minor, at 16, when she was brought into the UK and lived with her biological parents and younger sister, a minor. The Appellant had her secondary and university education in the UK and at the time of the appeal, was 26. The trial court held, notwithstanding that it would be “upsetting and tough”, the public interest test in denying her appeal overrode the humanitarian grounds of her appeal.
The humanitarian grounds of appeal were maintaining a cohesive biological family unit; especially the strong bond with her younger sister (a minor); within the meaning of Article 8 of the European Convention of Human Rights (ECHR). Article 8 establishes the right to private and family life and the mechanics of its invocation. The UK is of course a signatory to the Convention. The Appellate Court, however, overruled the trial court, on the grounds that insufficient weight had been given to the overriding best interests of the minor, the younger sister, within the cohabiting family unit. Granting the appeal, the Appellate Court further held, that removing the appellant would have amounted to a disproportionate interference with the minor’s right to family life within the meaning of the said Article 8 and amounted to a “material error of law”.
This case highlights striking constitutional principles. One, is the reinforcement of the rule of law and the important constitutional doctrine of separation of powers. The executive enacts policies consistent with their manifesto commitments whilst an independent judiciary interprets the law. Two, is the conflict of laws between domestic law -Article 117 b of the 2002 Act and, international law, evidenced by the Article 8 of the ECHR. Three, is the robustness of UK immigration policy and statutes. A ‘leave to remain’, issued by the Home Department is just that, a temporary permission, which is liable to revocation by the Home Secretary, a democratically elected Member of Parliament, or those acting pursuant to his/her delegation.
In sharper focus, are the provisions of the 1951 UN Geneva Convention and its allied 1967 Protocol. Article 1.A.2. of the Convention defines a refugee as any person who: “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. The 1967 Protocol further accords the Geneva Convention universality under international law in that it seeks to protect all persons (not only European refugees!) fleeing conflict and persecution.
Domestic immigration policies and statutes across the world, broadly accords priority to the citizens of each State upon the simplistic, albeit important, principle of charity beginning at home. However, if charity begins at home, and socio-economic conditions cannot optimally meet the legitimate needs of citizens on economic grounds, how can a State take on swathes of migrants without sparking domestic tension? Are the 1951 Geneva Convention and its 1967 Protocol fit for purpose, 72 and 56 years on, respectively? These are as much practical as they are philosophical questions, which demand imaginative thinking and rational cooperation across political and international divides.
Ending, balancing the fine line between honouring international law and treaty obligations and the demands for tougher immigration controls by some States, at the instance of their population, is a poisoned chalice. On the one hand, consistently adhering to the rule of law and treaty obligations risks such States being labelled by segments of their populace as “out of touch”, “soft on immigration” and “failing to take care of local people”. Conversely, adopting patently inhumane, and mediaeval approaches, to immigration control risks harming international relations, invoking trade embargoes and retaliatory actions by impacted States.
The quandary, therefore, can be resolved by adopting a sensible middle-ground which meets the legitimate, albeit, competing aspirations of effective migration control and basic humanitarian concerns. Without compromising nation States’ sovereignty, the recommendations are: (1) a time-bound UN-led review (not scrappage!) of the Geneva Convention to assess its fitness for purpose in the 21st century; (2) tough immigration controls in “host” States are symptomatic of failed or failing States where refugees emanate.
So, emphasis should be on addressing bad leadership; (3) intelligently tackling corruption, poverty, inequitable trade flows between the global north and global south; plus, sustained international collaboration on net zero emissions; and (4), the hallmark of a civilised society is decency. Yes, robust immigration controls are necessary however, they ought to be equitable, humane and proportionate. And Thomas Carlyle, the Scottish philosopher (1795-1881) was right: “Isolationism is the sum total of wretchedness to a man”.
Ojumu is the Principal Partner at Balliol Myers LP, a firm of legal practitioners and strategy consultants in Lagos, Nigeria.
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