Principles of Immigration Law

Migration, without a doubt, is a phenomenon that has been present in our world since time immemorial and today is more present than ever in our globalized world. Every day, many people seek new opportunities in other countries and cross borders in search of better jobs, greater security, and a better life for themselves and their families, among other reasons.

Regardless of the particular reason why they decide to leave their home country to settle in another, it is important to remember that migration to another country is regulated by a set of fundamental principles that govern immigration law. These principles are a guide that establishes the migratory conditions in the legal sphere.

Based on Resolution 04/19 approved by the Inter-American Commission on Human Rights on December 7, 2019, which deals with the “Inter-American Principles on the Human Rights of all Migrants, Refugees, Stateless Persons and Victims of Trafficking in Persons”, the following principles can be mentioned:

    1. Right to life: every migrant has an inherent right to life. No migrant shall be arbitrarily deprived of his or her life.
    2. Human dignity: all migrants have the right to respect for their human dignity, including their physical dignity and their sexual, psychological, and moral integrity, regardless of their migratory status or place of origin.
    3. Pro-persona: when there are two or more provisions that apply to a specific case or situation, States should use the provision that is most favorable to protect the rights of all migrants, regardless of their migratory status.
    4. Legal personality: every migrant, regardless of his or her migratory status, has the right to be recognized everywhere as a person before the law.
    5. Incentive to migratory regularity: States should encourage the regularization of migration by avoiding precarious working conditions and other consequences of irregular migratory status.
    6. Non-refoulement: no person shall be expelled, returned, extradited, or informally transferred or surrendered, in any manner whatsoever, placed at the frontiers of another country, whether or not of his nationality, where his life or liberty would be in danger or where he would be subjected to torture, cruel, inhuman or degrading treatment or punishment.
    7. Best interests of the child or adolescent: this principle implies that in all actions or decisions taken that affect or refer to children and adolescents, in all spheres of life, public or private social welfare institutions, courts, administrative authorities, or legislative bodies must consider and give priority to the interests of the child or adolescent.
    8. Non-discrimination and equal protection: all persons, including migrants, are equal before the law and are entitled to equal protection of the law without discrimination of any kind or on any ground, including migrant status.
    9. Personal integrity and prohibition of torture and cruel, inhuman, or degrading treatment: all migrants have the right to their physical and mental integrity. Therefore, they may not be subjected to torture or cruel, inhuman, or degrading treatment or punishment.
    10. Prohibition of slavery and servitude and their analogous conditions: every migrant has the right to be free from slavery, servitude, or forced or compulsory labor. No migrant shall be required to perform forced or compulsory labor or any practice similar to slavery, whether for profit or not.
    11. Right to work: every migrant has the right to work, which entails the possibility of obtaining the means to lead a dignified life by performing a freely chosen or accepted lawful activity.
    12. Guarantees of due process of law in immigration proceedings: every migrant has the right to due process before the courts, tribunals, and all other organs and authorities of the administration of justice in any legal process leading to the restriction or recognition of his or her rights, as well as before officials and authorities specifically responsible for determining his or her immigration status.

Although, taking the instrument as a basis, other equally fundamental principles could be pointed out, we have mentioned those that, in general, offer a fundamental vision of the regulations that States apply or should apply.

We can conclude that the principles of migration law establish a solid foundation that balances the interests of States with the inherent human rights of those who leave their native country in search of better opportunities in another. Migration will undoubtedly continue to be a relevant issue in our globalized world, and understanding these principles is fundamental to addressing the challenges and opportunities it poses.

The adoption of these principles by States and their applicability in national migration policies provide an opportunity to work towards a more humane and equitable approach to migration, recognizing the importance, richness, and diversity they bring to society.