Developing an Administrative Framework

Transcription

1 Developing an Administrative Framework Section 1.9 Topics: Models of Organizational Structure Two Case Studies: Australia and Canada Administration Issues Essentials of Migration Management Volume One: Migration Management Foundations

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3 Developing an Administrative Framework Developing an Administrative Framework Section 1.9 Earlier Sections in Volume One have dealt with concepts and practices related to the development of a comprehensive migration management policy and its legislative expression. In this Section, Topic One reviews issues relating to the administration of migration legislation and the machinery of government options that States need to consider in order to implement policy. Topic Two reviews a range of administrative models that can be used to implement migration management policies at the national level. Learning Objectives increase your knowledge of the administrative models States use to manage migration better understand the critical requirements for effective administration of migration-related laws and regulations Background There is no ideal organizational structure for managing migration. Each State will have different migration objectives and priorities, and therefore will require an organizational structure appropriate to its specific needs. A major choice facing all States, however, is whether or not to place migration-related matters under one ministry, or to assign different functions to different ministries within a coordinated structure. Given the wide range of public policy areas affected by migration, the core of migration management can be defined in various ways and given boundaries for the purpose of centralizing the migra- 3

4 Section 1.9 tion portfolio. For example, a migration ministry or department may or may not also cover refugee protection issues, citizenship, and labour migration. These are important issues. If there is no clearly articulated migration policy, backed up by authoritative legislation, the management of migration becomes diffused among a multitude of different departments and agencies of government. In such circumstances, migration objectives are unlikely to be spelled out clearly, and there will be little coherence or coordination in the migration management process. The public will be poorly informed about migration issues and may lose confidence in their government s competence to manage this important area of public policy. Guiding Questions 1 How well is the current machinery of government working to support your State s objectives for migration management? 2 Are there changes that need to be made to ensure more effective and efficient implementation of your State s migration management policies? 3 Do existing arrangements need to be modified or strengthened by introducing Memoranda of Understanding between different Ministries? 4 Is the requirement for an objective independent review and appeal mechanism adequately reflected in the government structure for managing migration? 5 Does the present migration management structure in your State adequately support the enforcement and control functions as well as the facilitation functions that are required for an effective migration management system? 4

5 Developing an Administrative Framework Each State will have different migration objectives and priorities, and therefore will require different organizational structures. All administrative structures must address the tension between migration control and enforcement and the facilitation of movement across borders. Each State will decide between centralization and decentralization and consider ways to achieve consistency in decision making and independence for review procedures. Terms and Concepts Centralization A mode of organization where authority is exercised from a central point such as a national headquarters, and other locations report to the central authority, are directed by it, and are accountable to it Decentralization A mode of organization where a significant level of discretion is delegated to distributed organizational units for the implementation of a set of general policy objectives Functional direction A form of organizational accountability where dispersed organizational units are required to follow the operational instructions developed by functional specialists in a headquarters unit Functional guidance A form of organizational accountability where dispersed organizational units are provided with advice and guidance from functional specialists in a headquarters unit, but are free to modify these operational instructions to suit local circumstances Machinery of government The system of organizational and administrative accountability established for the development and implementation of public policy Organizational culture A shared set of values and historical behaviour patterns that characterize a particular organizational structure Organizational structure A system of inter-related functions, activities, and work processes within a framework of responsibility and accountability 5

6 Section 1.9 Topic One Models of Organizational Structure The age-old organizational problem of centralization vs. decentralization of authority for operational delivery needs to be addressed in designing the migration management process. Immigration invariably encompasses all aspects of a country s inward and outward movements of people, including citizens of the country. It covers the management of regular and irregular migration, settlement and integration of migrants, and nationality/citizenship issues. These issues overlap foreign relations, national security, labour, trade, development aid, health, education, housing, welfare, and tax policies. Clearly, a whole of government approach is called for, whether it is administered/coordinated centrally or de-centrally. Centralization is intended to provide consistency. As a general rule, it would seem appropriate to ensure that the central body or headquarters maintain responsibility not only for policy formulation but also for major operational directives that relate to the migration management process, particularly the admission, refusal, or removal of migrants. However, management functions dealing with financial, personnel, and administrative matters can, where possible, be decentralized to regional or local authorities with appropriate mechanisms of reporting and accountability. States must choose whether or not to place migration-related matters under one ministry or to assign different functions to different ministries under some form of coordinating mechanism. If coordination between ministries is chosen, the coordination mechanisms need to be clear, workable, and timely. This is best accomplished at the highest executive level (Prime Minister s, President s or Chancellor s Office) and, if possible, expressed in law. If a single ministry structure is chosen, it is normally due to the importance that the State places on migration within its overall public policy framework. Examples of countries with a single structure for migration management are Canada and Australia, each of which has established one migration department responsible for all migration matters. These departments have their own Minister responsible to, and reporting to, the national Parliament. There is much to be said in favour of placing all migration activities under one roof. 6

7 Developing an Administrative Framework What You Need To Know About... A Single Ministry Structure Establishing a single ministry has the advantage of placing all migration functions within one organizational structure with one point of accountability. There is only one Minister to report to. In principle, this supports easier coordination of the multifaceted activities involved in managing migration. It also enables priorities to be more readily identified. With everything under one roof, financial and material resources directed to the achievement of established goals can be determined efficiently and adjusted as the need arises, thus avoiding delays that would otherwise be necessary due to consultation requirements with other agencies. Models of Organizational Structure A single organizational framework also tends to ensure that policy formulation is more closely linked to operational realities. There is a natural flow of information from the people working at the delivery level to those responsible for the development of policy. Officials working within the same department get to know each other and are familiar with the culture of the organization. Identification with the aims and objectives of the organization is helpful in facilitating the work to be done and avoids the problem of inter-departmental or inter-agency rivalry. Despite the inherent advantages of a single structure model, it does present some drawbacks. The functions of recruiting, selecting, and helping to integrate migrants can often run counter to the functions of migration control and enforcement. This can create tensions. The arrest, detention, and removal of irregular migrants are activities more closely related to law enforcement than to the positive aspects of a migration programme. These activities demand a different type of official and a different type of training and management style. When selection and facilitation activities are housed together with enforcement and control activities in the same organization, there is a risk that one area may receive higher priority, be better resourced, and possibly contribute to an unbalanced approach. What You Need To Know About... The Multi-ministry Model There is much to be said for having the enforcement and control activities separated from the migration department and located within a law enforcement ministry where the high costs associated with effective enforcement are less contentious and better understood. 7

8 Section 1.9 This multi-structure model is the norm in many countries where uniformed officers posted at ports of entry, and border guards, are not part of the organizational structure charged with managing migration. This is also true for functions relating to other migration-related issues including labour migration, integration of migrants, and development, which are often housed in the Department of Labour, the Department of Social Affairs, or the development assistance agency. To be effective, a multi-structure model needs to be supported by an effective coordinating mechanism. What Do You Think? Uniformed officers who deal with the enforcement of migration laws may form part of the law enforcement organization of the State. Although this form of organizational structure frequently suffers from problems of coordination and inter-service rivalry, it is less likely to experience problems of pressure or interference when the strict application of migration rules is not always politically acceptable or popular. However, good arguments can also be made for having the creative tension that comes from locating control and facilitation functions in the same Ministry. Apply What You Have Learned 1 How is the migration portfolio constructed in your State? 2 Which of the two approaches to administrative structure would work best in your State? 3 How well is the current machinery of government working to support your State s objectives for migration management? 4 Does the present migration management structure in your State adequately support the enforcement and control functions as well as the facilitation functions that are required for an effective migration management system? 8

9 Developing an Administrative Framework Topic Two Two Case Studies: Australia and Canada Australia In Australia, policy and the legislative and operational responsibility for immigration are fully centralized within the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA). This Department coordinates the legislative framework for immigration. The Minister for Immigration and Multicultural and Indigenous Affairs and his department are responsible for overall immigration policy, including primary and subordinate legislation, national and global immigration operations, refugees, border control, enforcement, integration, settlement, and citizenship. In carrying out this responsibility, the administration liaises closely with other departments, for example, those responsible for education, health, social welfare, labour issues, business, and overall legal, constitutional, and international policy. It also liaises with relevant industry bodies to ensure that its policies are appropriate. Two Case Studies: Australia and Canada Important Points 1 Immigration/visa decisions in Australia moved from one of broad discretion in the early 1980s (and before) to a heavily regulated system by This was influenced by landmark Court deliberations on decisions based on broad discretion. In the past, such cases could influence migration outcomes, and government control of the migration programme became problematic. The legislation sought to reduce the need for discretion by spelling out the criteria that had to be met before a visa could be granted. 2 The system put in place was designed to be transparent, consistent, and certain in its outcomes, both for those administering the system and for the applicants. 3 The efficient operation of this highly regulated immigration/visa system required the re-introduction of discretionary powers in the legislation. These powers are reserved to the Minister, who, by 9

10 Section 1.9 acting personally, may make affirmative decisions in appropriate cases, usually after applicants have had their cases unsuccessfully reviewed. 4 The legislation provides that the Minister cannot be compelled to use these powers. Applicants are not able to apply directly to the Minister to exercise his/her discretion. Administratively, a practice has grown where the Minister is asked to consider deserving cases on a regular basis. This approach ensures that immigration management/control remains with the Immigration Minister and his/her Department. What Do You Think? Arbitrary decision making by migration officials is no longer an acceptable practice, and most decisions are subject to review. The Australian case study shows that this can have implications for the administrative structures of migration management organizations. Canada For almost all countries, regardless of how migration management functions are organized domestically, functions carried out abroad are assigned to the Ministry of Foreign Affairs. This is not, however, a universal model. The Canadian immigration department, Citizenship and Immigration Canada (CIC), has its own Foreign Service officers operating abroad. This model is currently responding to new challenges and undergoing change. The Canadian example discussed here should be understood as a snapshot of an actual or possible administrative structure, one that is capable of evolving while its basic principles continue to direct decisions and design. Sections 2.8, Migration and Security, and 3.3, Border Management Systems, provide more information on the impact of security concerns on migration administration frameworks. Important Points 1 Canadian Foreign Service officers are recruited under the same entrance requirements as Canada s diplomatic corps but are employees of CIC. The individuals chosen for the immigration Foreign Service are career Foreign Service officers and are subject to rotation in the same way that other 10

11 Developing an Administrative Framework diplomats are. These Officers spend their time working either in overseas postings or at the home base in Canada. 2 Canadian Foreign Service officers manage and deliver Canada s overseas migration programmes. They recruit, select, and process migrants, refugees, visitors, students, and others who have applied to go to Canada. Because these officers live and work in a specific country for two to four years or more, they become familiar with the language, traditions, customs, and culture of the local people. This provides an opportunity to assess prospective migrants, or to make decisions about the bona fides of people applying for temporary entry. 3 The Canadian model includes specialized control officers Migration Integrity Officers (MIO) who gather intelligence about illegal migration, liaise with police and enforcement officers in the country where they are posted, and train airline staff and other airport officials about Canadian entry requirements. MIO positions are attached to the recently created Canada Border Services Agency. Officers filling these posts provide support to airlines in their interception of illegal migrants boarding aircraft bound for Canada and provide intelligence reports to headquarters about migrant smuggling patterns. 4 Immigration Foreign Service officers serving in Canadian diplomatic missions abroad are under the direct supervision of the Ambassador and report to him or her on a day-to-day basis. However, they receive functional direction from specialists in the headquarters of CIC or, in the case of the Migration Integrity Officers, the Canada Border Services Agency. The authority to accept or refuse applicants comes from the Immigration Act and Regulations. They receive logistical and administrative support from the Embassy but the costs involved are reimbursed to the Ministry of Foreign Affairs by the relevant department or agency. Two Case Studies: Australia and Canada 5 The advantage of this administrative framework is that it ensures migration issues are not neglected or undervalued by an Ambassador or by the Foreign Affairs establishment. One of the primary reasons why this arrangement has worked well has been the use of a formal memorandum of understanding (MOU) governing the arrangements between the two departments concerned. The MOU sets out the obligations and responsibilities of each department and clearly delineates the financial and reporting relationships essential to ensuring smooth operational effectiveness. The MOU also serves as an effective dispute settling mechanism between the two departments. It can be signed by the Ministers of the respective departments. 11

12 Section 1.9 What You Need To Know About... Administrative Frameworks The Canadian case study shows how government can regard migration management as an important activity, and as an integral part of Foreign Policy. Models in many countries are usually multi-structure ones, where diplomatic personnel, frequently not sufficiently trained or qualified to deliver the programmes adequately, are required to perform migration duties. Whether the structure is centralized or decentralized, partners are essential in the effective delivery of immigration programmes. These partners could include other departments (e.g., foreign affairs, health, labour, justice, industry, trade, human resources development), governments, international organizations, as well as provinces/states, municipalities, private sector, and non-profit organizations. The implications and impact of international agreements in constraining national sovereignty in the area of migration management are discussed in Section 1.6, International Migration Law. Apply What You Have Learned 1 How well does the policy framework in these case studies serve as a model for your State? 2 What checks and balances, required for an effective administrative structure, are present in the Canadian and Australian models? 3 What could be done to improve the administrative frameworks described in this Topic? 4 What can determine how important migration is for a government structure? 5 What would an ideal administrative structure look like in your setting? 12

13 Developing an Administrative Framework Topic Three Administration Issues Consistency of decision making is always an important factor in migration management. The decision about who gets in and who is to be kept out cannot be left to the whim of individual officers at the border or airport. Standard operating instructions based on migration legislation, and implemented in a standard fashion throughout the country, are essential to the effective delivery of migration programmes. With regard to the review process for migration decisions, independence of decision making at the review level would seem to be the obvious organizational choice. But there can be a high price for this adherence to fairness and equity. The cost can be measured not only in the speed of decision making always a critical factor in dealing with refusals and removals but also in the high costs involved when delays occur or where detention is involved. In some countries, officials who carry out the review of negative decisions are employed by the same organization that made the original decision, thus suggesting possible conflict of interest. In other countries, these functions are performed in separate agencies, thus ensuring the independence of the review agency. The following important points describe issues that concern the design of administrative structures for migration management. Important Points Administration Issues 1 Regional governments often have additional powers to determine the types and numbers of migrants to be selected for settlement in their territories. This may involve identifying the occupation and skill levels of the migrants concerned based on the particular needs of the area. In one model, the regional government may have a formal agreement with the central authority acknowledging the former s right to select migrants on a specific basis such as language skills. This model is used in Canada, where the Province of Quebec posts officials abroad to recruit and select migrants destined to Quebec. Other Canadian Provinces have also signed formal agreements with the central government setting out their specific migration interests. In all cases, however, it is the central government that ensures the basic admission requirements (health, criminality, and security) are met. 13

14 Section In the case of refugee claimants whose claim for asylum has been rejected, a strong argument can be made for having an independent and separate review procedure. A similar argument can be made for individuals whose removal might lead to imprisonment or mistreatment. In these cases, it would seem the better organizational choice is to have a separate review body at arm s length from the decision makers. 3 It is critically important, regardless of the type of structure chosen, to ensure that officials conducting the review are professionally trained and experienced officers. Professional expertise here becomes as important, if not more so, than the assurance of an independent review process. 4 It is up to the migration authorities in each country to decide what review structure is more suitable. However, in many countries there may no longer be a choice since the courts may well have already decided the matter. 5 The Constitution of a federal government may or may not specify what level of government has the paramount authority in migration matters. A good rule of thumb that seems to work for some federal States is to place the authority for deciding the basic admission requirements to be met by all migrants good health, clear criminal record, and security clearance with the Central authority. Normally, as well, the authority for setting out the rules for refusal and removal is retained by the Central government. 6 For a number of States, the events of 11 September 2001 tipped the balance in favour of organizational structures that enhance and stress the security aspects of migration control. Several countries have adopted a centralized approach to deal with immigration matters, including the effective handling of border control. 7 Whatever the administrative structure, there is no doubt that appropriate data collection is vital for quick and efficient immigration services. The ability to crosscheck passenger biodata with a range of lookout data helps protect both the integrity of immigration programmes and other areas of impact such as education, housing, labour, and the general security of a country. Section 3.10, Management of Operational Data, discusses data collection. 14

15 Developing an Administrative Framework The United States Immigration and Naturalization Service (INS), as well as the FBI, the CIA, and the consular services of the State Department were each severely criticized for failure to consult and share relevant information related to migration security matters. This resulted in the rapid creation, in the United States, of the Department of Homeland Security as an executive department of the United States government. The Department has as its primary mission the prevention of terrorist attacks within the US, the reduction of the vulnerability of the US to terrorism, and the minimization of damage and attendant costs from terrorist attacks that may occur in the US. One of the Department s primary responsibilities is border and transportation security. In providing for this, the Act establishing the Department transferred to the Secretary of Homeland Security the functions, personnel, assets, and liabilities of the Immigration and Naturalization Service of the Department of Justice including the functions of the Attorney General relating thereto. In carrying out this responsibility, the Act requires that the Under Secretary for Border and Transportation Security shall also assist the Secretary of Homeland Security by, inter alia: administering the immigration and naturalization laws of the United States, including the establishment of rules, in accordance with [the Act] governing the granting of visas or other forms of permission, including parole, to enter the United States to individuals who are not citizens or lawful permanent residents thereof; Under the Act, the Secretary of State may refuse a visa to a non-citizen if the Secretary deems such refusal necessary or advisable in the interests of the US. Administration Issues Prior to September 2001, Hungary had started to bring all immigration issues, including refugees and aliens administration, under the administration of an Office of Immigration and Naturalization (OIN). Since then, this process has developed further and, by the beginning of 2002, regional bodies were established under the OIN. At this time, legislation governing entry and stay of foreigners came into effect. The legislation also introduced restrictive measures for financial dealings and financial and trade to inhibit the growth of international terrorism. 15

16 Section 1.9 Russia has centralized the administration of immigration functions under a migration service incorporated as an arm of the Ministry of Interior. This service exercises control over foreign visitors (including the registration of incoming and outgoing visitors) through a network of regional departments. Apply What You Have Learned 1 How has the concern for security influenced administrative structures that deal with migration in your State? 2 What training and experience is required for officers that review migration decisions in your setting? 3 To what extent is the review procedure for migration decisions separate and independent in your State? 4 What is the most important administration issue in your setting? 5 To what extent is migration management centralized in your State? 6 What is the highest level of authority over migration matters in your State? 7 How consistently are migration decisions administered in your State? 16

17 Developing an Administrative Framework Concluding Remarks This Section identifies the primary models for the organization of government resources for migration management. Even when migration policy is clear and the legislation sound, there remains a challenge when it comes to implementing it and making it operational across the range of ministerial interests, jurisdictions, and responsibilities. Migration managers and policy developers can consider the relative merits of a single migration ministry versus the distribution of migration management functions. Issues related to centralization and decentralization must be examined, as well as different approaches to the creation of structures for appeal and review. Administrative structures must address the tension between migration control and enforcement and the facilitation functions of a migration management ministry. Resources Brubaker, W. R., 1989 Immigration and the Politics of Citizenship in Europe and North America: W.R. Brubaker, University Press of America. Cornelius, Wayne, Philip Martin, and James Hollifield, 1994 Controlling Immigration a Global Perspective, Stanford University Press. Hawkins, Freda 1989 Critical Years in Immigration- Canada and Australia Compared, McGill-Queens University Press. IOM, 2002 International Comparative Study of Migration Legislation and Practice, Commissioned by the Irish Department of Justice, Equality and Law Reform, April. Jordan, Barbara, 1997 United States Commission on Immigration Reform Report to Congress, Also known as the Jordan Report ; Barbara Jordan, Chair of the Commission; Susan Martin, the Commission s Executive Director; Available at: Zolberg, Aristide R., 1989 Escape from Violence- Conflict and the Refugee Crisis in the Developing World, Oxford University Press. 17

18 Section 1.9 Some Web sites of interest in this regard are: Center for Immigration Studies Web site: Citizenship and Immigration Canada Web site: Australian Department of Immigration and Multicultural and Indigenous Affairs Web site: United Nations High Commission for Refugees Web site: The Federation for American Immigration Reform (FAIR) web site: 18