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Irregular migration flows and the regulation-expectation paradox

Irregular migration flows and the regulation-expectation paradox
Published 23 Jun 2016 

The large irregular migration flows to Europe last year brought with them more than one million migrants, thousands of tragically avoidable deaths, and a truckload of analysis. It was a significant year and much has been written about the negatives; about the failures, about what should have been done and about what could have been done better. This is in some respects understandable for much of what we saw, heard and read left us all feeling various degrees of unease, frustration and, at times, shame.

There is room, however, for us to examine some of the positives. If Lebanon can acknowledge the benefits of mass displacement of 1.5 million Syrians into its country, then it behoves us to reflect on the positives out of the European crisis. Likewise, we must also critically examine aspects of the response within broader paradigms.

One of the most positive aspects of the response last year — and continuing this year — has been the groundswell of support of citizens spurred into action to assist in the humanitarian response.

Tremendous goodwill has been expressed in a multitude of ways, and not just through traditional channels. The tech community, for example, has worked with refugees and others in the development of apps like Refugermany and Arriving in Berlin as a practical way to assist people find services and support. Individuals have opened their homes for refugees in need of shelter, and hundreds have gravitated to arrival hotspots like the Greek island of Lesvos to help with rescue, medical services, food and shelter and registration.

Another positive has been a shift in the debate, which last year moved beyond the highly simplistic 'economic migrants' versus 'refugees' debate.  There is wide recognition and general acceptance that Syrians, Eritreans and others are prima facie refugees. The discussion has instead tended to turn on how to manage large-scale movements and, increasingly, the important aspects related to the long-term integration of refugees.

For the large part, however, the discourse has been polarised, negative and at times shrill. This is partly due to a long-standing and ever-increasing ‘regulation-expectation’ paradox.[fold]

The more States regulate aspects of social and economic life, the more they strengthen the perception that things can be regulated and controlled, even phenomena occurring transnationally and far beyond the direct control of national or regional regulators, like irregular migration. The pressure can then translate into more ‘innovative’ and extreme attempts at exerting greater control, such as the EU-Turkey deal, which can come at a very high price, financially, bilaterally and in humanitarian terms.

Increased regulation has become widespread in Europe and elsewhere, particularly since the 1970s, visible in education, health, environment, tax and security policy and other areas. Importantly, it has also affected the regulation of international migration. The original Australian Migration Act 1958, for example, was 35 pages long and provided significant discretion to delegated decision makers (although delegations were highly restricted). By 2005, the Migration Act 1958 had expanded to 744 pages with an additional 1993 pages of regulations.

Consequently, areas that had previously been left to the discretion of decision makers were increasingly prescribed, adding greater complexity. A glance at the increase in other federal regulation in Australia indicates that the migration act is unlikely to be a unique case. Similar graphic representations depict changes in other developed countries, including the US.

Number of pages of federal legislation passed in Australia, 1901 to 2006 

Source Berg 2008

Globalisation and the increasing transnational connectivity of non-state actors, such as migrant smugglers and human traffickers, is seriously challenging States and the ability to respond effectively. Some of the manifestations of the regulation-expectation paradox include the perceptions that political leaders are failing.

So where does that leave the evident ‘failure’ of political will in Europe in this ongoing debate? References to the failure of politics as the major issue in the current migration crisis do not adequately account for the more profound and fundamental mega-trends in play. The more pertinent aspects of analysis are in seeking to understand why there has been disunity, polarisation and fragmentation at the political level and, more importantly, what can be done about it. The regulation-expectation paradox needs to be recognised and understood as an integral part of this.  In some senses, the increased scale and sophistication (and complexity) of regulation has meant that developed countries have painted themselves into a corner, and the ability to control migration is perceived by citizens and many commentators as squarely within the remit of state regulators despite the significant changes in transnational connectivity and international migration.

Aside from seeking to manage expectations and reduce or simplify migration regulation, one means of dealing with this paradox is to recognise and adjust one of the key anomalies in the regulation of international migration. Currently, almost migration regulation is at national or sub-national levels. Supplementing national level migration regulation with aspects that could be regulated at a global level would take a monumental effort but would be a major step in the right direction. Moving beyond global dialogue to (some) global regulation would provide a pathway to safeguarding both migrants’ rights and state sovereignty for the longer term.

Photo: Anadolu Agency/Getty Images

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