Regularizing the status of irregular migrants in Morocco

by Mohammed Yachoulti

According to the Moroccan ministry of interior, between 25 000 and 40 000 irregular migrants live on the Moroccan territory1 . These irregular migrants are foreigners who have entered the country illegally without detection or the documents stipulated by law which allow the person to enter the country legally. They also include asylum seekers who are waiting for the recognition of their status by the Moroccan state. Indeed, under the Moroccan 2003 migration law n°02-03, foreigners who wish to enter Morocco should present themselves to the border checkpoints. The entry can be denied on the basis of the following:

If they do not submit a passport or any other document approved by the Moroccan state.

If they are unable to submit proof that they have sufficient means of support

If they are unable to present adequate guarantees for their return to their country of origin.

If the authorities find that their presence will pose a threat to the system,

If they had been previously deported or refused entry.

In the event of entry refusal, the law enables migrants to contact the person who had invited them, to notify him by any means, notify their country’s consulate or notify a lawyer of their choice. In case of the inability to fulfill any of these conditions, the foreigner can be jailed or fined if he or she attempts to enter the country in an illegal way2.

Irregular immigrants in Morocco are scattered all over the major cities and are living in difficult circumstances. Nearly all of them originate from sub-Saharan African countries. The numbers provided by the ministry of interior are very small in comparison with the existing numbers in the neighboring European countries like Spain or France. However, the fact that Morocco is a developing country and thus a sending country makes the existence of these irregular migrants on its territory an unusual phenomenon. Added to this, the absence of a clear migration policy has subjected it to sharp criticism for its ill-treatment of these migrants and its inability to address their daily tribulations within its territory. Actually, despite its potential costs, Morocco is required more than any time before to establish a policy of migration that focuses mainly on regularizing the status of these migrants. Any other alternatives such as providing incentive schemes to these migrants to go back home or returning them to their home countries forcibly are unlikely to solve the issue because of the political instability and the deteriorating economies of the counties of origin. In this regard, this policy brief aims to assess the new Sub-Saharan Moroccan migration policy and its potential outcomes. This will be achieved through comparing the new migration policy with the 2003 Law n°02-03 3 on the entry and stay of foreign nationals into Morocco.

Why does Morocco need a migration policy?

Currently, the need for a new migration policy in Morocco is turning into a necessity. The reasons can be traced to the social needs of the irregular migrants living on the territory of the country, the international and domestic legal obligations, the strategic choices of the state and the historical and moral obligations of Morocco.

a) Social needs of the irregular migrants in Morocco

Irregular migrants, in particular those in provenance from Sub-Saharan countries, have long been in Morocco and their numbers are multiplying day after day especially with the political instability in the countries hit by the Arab spring. In other words, willingly or unwillingly, Morocco is increasingly becoming a safe-haven for Sub-Saharan emigrants seeking a stable environment to flee poverty and live peacefully. Also, many of these irregular migrants are parents. Thus, they are calling for the regularization of their status and residence in Morocco to have access to necessities such as health-care and an educa- tion for their children.

b) International and domestic legal obligations of Morocco

Both the changing of migration policies of European countries since the early years of 2000 4 , and the political instability some North African countries are experiencing, make Morocco the best alternative destination of a large number of Sub-Saharan irregular migrants. Added to this, Morocco has ratified a number of international conventions and protocols as well as region al and bilateral agreements on the respect of human rights including the rights of migrants along with family members, and has now adopted a new ‘democratic’ constitution that has an enormous focus on human rights including the rights of migrants. This comes after the adoption of a very advanced family code that safeguards the right of women and their children.

c) Strategic choices of the state

Katharine Natter argues that “occupied with its southern enlargement and eastern neighborhood, the EU downgraded North-African countries to secondary partners, herewith pushing Morocco into relative geo-political isolation” 5 . Given this context, and in the light of the EU’s eagerness to cooperate with third-world countries on the issue of the control of irregular migrants, Morocco should use the diplomacy of migration as a strategic instrument to regain visibility on the international scene, recover its political weight in the region and its role as a pivotal partner 6 . Added to this, because of the security threat irregular migrants pose, a policy of migration will undoubtedly ensure security in the region, a fact which will enhance Morocco’s international visibility and position.

d) Historical and moral obligations of Morocco

Last but not least, Melliani Mohammed and El Chigueur Mohammed argue that “Idris 1st, the first king of Morocco who founded the Idrisi State, was a refugee chosen by the Northern Berber tribes as the king of the land in 788H. Likewise, Morocco was a safe haven for Jewish and Moslem migrants who were expelled from Europe and Andalusia in the fourteenth century. Again, throughout the nineteenth century and the beginning of the twentieth century, there was a major influx of Algerian nationals as a result of the French colonization of Algeria; as well as Spanish nationals who came fleeing the tyranny of the Franco regime. The same applies to the numerous Europeans who fled the domination of communist regimes founded in Eastern Europe from the beginning of the twentieth century. In addition to the flow of Europeans, Algerians and Arabs, there was an influx of Sub-Saharan African nationals over periods of time in the history of that country.

The Moroccans blended with the foreign settlers during those periods in its history, giving that country a special kind of roots, language, mores and customs” 7 . Having this fact in mind, establishing a regularization programme to legalize the status of irregular Sub-Saharan migrants is both a historical and moral imperative.

Regularizing programs: what parameters? ‘Regularization’ is a term usually used to describe programmes that give irregular immigrants already residing in a country the ability to gain a legal status on permanent or on temporary basis. Americans use the term ‘legalization’ to refer to the same process. ‘Amnesty’ is also a term used interchangeably with the previous term but is hardly used by the governments as it may seem to imply the inability of a state to control illegal entries 8 .

Regularization programmes are of many types; they include exceptional humanitarian programmes (residence permits to refugees, asylum seekers or individuals with serious health problems), family reunification programmes (allow a family member to reunite with his or her spouse and children living abroad), permanent or continuous programmes (offering a permanent residence status for an individual migrant who proves to live in the county for a number of years), one-off or one-shot programmes (provide temporary living and working permits to applicants that expire after a certain period of time) and earned regularization programmes (temporary residence and working permit that turns into a permanent one after completing certain criteria of integration: language, community activities, payment of taxes and a stable employment) 9 .

Despite their diversity, all regularization programmes set some criteria for illegal migrants when they apply for a legal residence permit. These criteria sometimes include:

Employment: The potential applicant must have a labour contract that proves his or her regular employment or in some cases a job offer

Family ties: Once a migrant settles in the host country to live and work, he or she can send for his or her spouses and children to join him or her.

Length of residence: The potential applicant must prove that he or she has resided in the host country for a specific amount of time, a fact which is hard or sometimes impossible to prove.

Evidence of integration efforts and payment of contributions to a social insurance fund: the potential applicant must prove that he or she has paid taxes or contributed to a community service.

Ethnic ties or nationality-based quotas: In some countries of immigration, a specified number of permits are granted to migrants originating from specific countries Lawmakers often specify certain grounds for exclusion or disqualifications. These elements of exclusion include a record of criminal behavior, appearance on security-watching lists or types of previous migration violations 10 .

Migration in Morocco: Between the past and present

Immediately after its independence, Morocco joined the international community by ratifying a number of international conventions and protocols as well as regional and bilateral agreements on the respect of human rights including the rights of migrants along with their family members. The best example that should be referred to in this regard is the international agreement no. 158/45 on the rights of all migrant workers and their family members. It was ratified by Morocco on June 21st, 1993 after it had been adopted by the UN General Assembly on December 18th, 1990 but its instruments were not implemented by Morocco until July 1st, 2003 11 .

The main goals of the covenant include:

The respect of the human rights of the migrants

Equal treatment of migrants and citizens of the host country

Widening the qualification of migrants workers, namely seasonal laborers, marine workers and workers accepted for specific jobs.

In the context of the significant flows of irregular sub-Saharan migrants arriving daily at the Eastern boarders of Morocco and settling on its territory, as well as the fear of terrorism related problems, the Moroccan government issued a new immigration law specifying the terms of entry, residence and deportation. On November 11th, 2003, the Moroccan government issued the Decree n ̊. 196.03.1 implementing the law n ̊.02.03 that concerns the entry and residence of foreigners in the kingdom including irregular immigrants 12 . A brief review of the articles of the laws shows that the goals are:

• “Introducing legal provisions penalizing violations related to clandestine migration.

Adapting the penalties for entry and residence of foreign nationals to the provisions of the Moroccan criminal law.

Taking great pains to ensure that Moroccan laws are in conformity with the principles of international agreements regarding the rights of migrants” 13 .

The law n ̊ 02.03 was promulgated to serve as the legal framework to curb the flows of irregular Sub-Saharan immigrants by subjecting them to deportation and severe penalties. Regrettably, the vastness of the Eastern boarders of the country and therefore the difficulty of controlling single entries has made deportation an attractive option for the state.

In 2013, the National Human Rights Council (CNDH) submitted a report on foreigners and their rights in Morocco

(Foreigners & Human Rights in Morocco: For a Radically New Asylum & Migration Policy) and the Moroccan King chaired a working meeting on September 10th 2013 to discuss various aspects of immigration with the aim to develop a new national migration policy. The meeting was attended by the prime minister, several ministers and senior officials. Based on the recommendations of CNDH, the King insisted on the need to adopt a humanitarian approach to the migrants residing in Morocco. He also stressed the need to tackle networks that traffic and trade in human beings. He urged the government to devise and implement without delay an appropriate strategy and action plan in partnership with CNDH and the various stakeholders in order to shape an overarching immigration policy.

On Monday, November 11th, 2013, the Moroccan govern-ment announced the programme to regularize the status of up to 40,000 irregular immigrants as part of a new migration policy initiated in September to comply with international agreements. The programme, which starts on January 1st, and lasts till December 31st 2014 targets:

850 immigrants considered as asylum-seekers by the UNHCR

Foreign spouses of Moroccan citizens who can prove they have resided with their partners for at least two years,

Immigrant couples who have lived together in Morocco consistently for at least four years

Children of both the above categories will also benefit from the measure.

Immigrants in possession of a valid work permit of at least two years’ duration,

Immigrants who can prove five years’ continuous residence in Morocco

Immigrants affected by a serious illness and who havebeen on Moroccan soil prior to 31 December 2013

To implement the programme, a bureau is set up in each prefecture and province across Morocco to receive and approve regularization requests. Also, a national appeal committee will be created, with the involvement of the National Human Rights Advisory Council (CNDH). Further, in order for the action to take place, a new legal and institutional framework will be developed to improve the legislation on migration, asylum and human trafficking. Finally, applicants whose files are turned down will have the possibility to re-apply at a national appeal commission. Applicants who receive a positive reply will be delivered one-year registration cards.

A brief assessment of this legalization programme shows that it does not cover the entire requirements necessary for the success of any regularization programme 14 . Specifically, it

lacks the following:

Inclusiveness: That is, the programme should include as many irregular migrants as possible. In the Moroccan case, priority is given to asylum seekers, married couples and their children and immigrants affected by serious diseases. In other words, the regularization programme is reduced to the process of legalizing the residency status of only a specific category of migrants, which includes a very small percentage of illegal migrants awaiting the normalization of their residence

status

Fairness: In the Moroccan legalization programme, no practical measures to alleviate the daily problems the migrants suffer are mentioned or made reference to.

Cost effectiveness: A look at the regularization programme adopted by Morocco shows the absence of exact or clear data concerning the costs and benefits of the programme

Self-enforcement: Is the programme likely to solve the issue of irregular migration and discourage any future illegal migrants? In fact, despite the penalties specified in the Moroccan migration law n ̊.02.03 that concerns the entry and residence of foreigners in the kingdom, it is difficult if not impossible to control every single illegal entry because of the vastness of Moroccan-Algerian border.

Policy benefits : a step in the right direction

Despite the limitations discussed above and its vagueness (lack of inclusiveness, fairness …etc), Morocco nevertheless is required to go ahead in its new migration policy that focuses on regularizing the status of irregular immigrants since the 2003 Law n° 02-03 on the entry and stay of foreign nationals into Morocco did not help in reducing the phenomenon of irregular immigrants (and specifically Sub-Saharan ones) in the country. Adopting this policy would be a step in the right

direction. It would

Contribute to a more coherent migration policy that would overcome the abovementioned imitations

Correct the human rights image of the country abroad, something which would encourage more foreign investments

Reduce the number of irregular migrants at a reasonable cost. Instead of interior enforcement which requires expenditures on the identification, detainment and the removal of these migrants, regularization usually tempts migrants to identify themselves voluntarily 15 .

Provide a larger and cheaper labour force particularly in the sectors no longer of interest to Moroccans

Establish a social cohesion by educating Moroccans to believe in difference and accept the other.

Prevent and control the spread of transmitted diseases. The procedures of the regularization programmes will definitely help in detecting HIV, AIDS and other diseaseholders and getting them treatment.

By moving immigrants from the informal economy to the formal one, regularization may result in wage increases and greater tax-payments, giving a boost to the economy and benefiting both native and foreign workers. Also, reducing the informal economy eliminates unfair advantages for those who hire unauthorized immigrants.

By regularizing their status, irregular immigrants will not be able to use fake identity documents; the regularization procedure will oblige them to register with the state’s agencies and provide law enforcement and intelligence services with reliable information. This will help in enhancing security and reducing crimes 16 .

Deter or reduce the rates of some growing social phenomena including violence, crime and begging.

The First Progress Report

Six months after launching the regularizing programme and distributing the first Residence Permits, the Moroccan state released the first progress report on June 27th, 2014. The report notes that some 14,510 applications were made, with nearly 3,000 applications already granted 17 . The report also notes that irregular migrants Morocco hosts originate from 96 countries but most applications were made by nationals from Senegal, Nigeria, Côte d’Ivoire, Guinea, Congo, Mali and Mauritania 18 .

Despite the progress made so far, a number of questions still need to be settled. Will the regularization programme be transformed into a permanent one? Will the state establish new laws to facilitate regular access to Moroccan residence and therefore minimize the increase of undocumented migrants and workers in Morocco?

Conclusion:

Policy suggestions to go further

Being the first to pioneer this regularization programme in the African and developing world, the Moroccan government may benefit from the following policy suggestions to boost its new migration policy and therefore assure its efficiency:

Morocco is required to look at and benefit from some countries of immigration that have already implemented regularization programmes so as to go ahead with new migration policy of normalization. The Greek experience is a useful example in this regard, both in its positive and negative results.

It is a necessity to establish a clear and global policy that engages all stakeholders to stop the influx of irregular Sub-Saharan migrants and the same time respect

their rights.

It is necessary to partner and include the European countries and avoid reducing their role to a mere financial help. Also, the neighboring countries should be engaged in this new policy so as to contain irregular migration-related problems like terrorism, crimes, drugpeddling and smuggling.

As a practical measure to reduce the number of irregular migrants, Morocco could introduce visa programmes through which migrants can be allowed to enter the country legally. This could be done through implementing a quota system for jobs which the native or citizen population does not want to take up (seasonal agriculture or farming, maid services… etc).

In parallel, Morocco is required to strengthen border security systems and enforce the migration law to sharplyreduce additional irregular immigration.

. Given the complexity of the issue, establishing a ministry or national institution that takes charge of the issue of migration in general and these migrants in particular is becoming a necessity.

. Provide practical solutions to facilitate the integration of these migrants in the Moroccan society namely after legalizing their residency status.

1ALI, Siham. November14,2013. “Morocco enacts migration reform”. Magharebia, http://magharebia.com/en_GB/articles/awi/features/2013/11/14/feature-02

2 MELLIANI, Mohammed and El CHIGUEUR, Mohammed (May, 2009) “Irregular migration in Morocco”. Oujda: Partners in Development for Research, Consulting and Training

3 Law n°02-03 strengthens legal penalties against people who facilitate or organize irregular entry into or exit from the country. It also penalizes irregular immigrants or emigrants, should they be foreign or national citizens. It has also doubled the number of permanent border guards and created the Direction of Migrants and Borders Surveillance (DMBS). On the other hand, it protects some foreign national categories from deportation namely pregnant women or minors.

4 In fact, through the 2005 EU-Morocco bilateral agreement, “Europe has sought to stem irregular migration flows into the region by extending the monitoring and exclusion of its boarders to Morocco and other countries of the Maghreb, repositioning them as the ‘new frontiers’ of Europe’’. For more details see CHERTI, Myriam and GRANT, Peter (10 June 2013) The myth of transit: Sub-Saharan migration in Morocco. A report by the Institute for Public Policy Research. http://www.ippr.org/publication/55/11051/the-myth-of-transit-sub-saharan-migration-in-morocco.

5 Natter, Katherine. ‘the formation of Morocco’s Policy Towards Irregular Migration (2000-2007)’: Political Rational and Policy Processes .

6 Ibid.

7 MELLIANI, Mohammed and El CHIGUEUR, Mohammed (May, 2009). Op,cit.

8 GLOBAL COMMISSION ON INTERNATIONAL MIGRATION. (May 2005). “Regularization programmes : an effective instrument of migration policy?” Global Migration Perspectives, No. 33. http://www.refworld.org/docid/42ce542a4.html [accessed 5 February 2014]

9 GREENWAY, John.( July 6, 2007). “Regularization programmes for irregular migrants”. A Report http://assembly.coe.int

10 ROSENBLUM, Marc R. (December 2010). “Immigration Legalization in the United States and Europe: Policy Goals and Program Design”. Policy brief. Migration policy institute. http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=11614&Language=EN

11 see MELLIANI, Mohammed and El CHIGUEUR, Mohammed. (May, 2009). Op, cit.

12 MELLIANI, Mohammed and El CHIGUEUR, Mohammed. (May, 2009). Op, cit. See the third footnote in this policy brief for details on law No.02.03

13 MELLIANI, Mohammed and El CHIGUEUR, Mohammed. (May, 2009). Op, cit.

14 For further in formation see ROSENBLUM, Marc R. (December 2010). “Immigration Legalization in the United States and Europe: Policy Goals and Program Design” Migration policy institute

15 ROSENBLUM, Marc R. (December 2010). Op,ct.

16 ROSENBLUM, Marc R. (December 2010). Op,cit.

17 Benmehdi, Hassan. (July 2nd, 2014). “Morocco checks immigration reform progress”. Magharebia. Retrieved from http://magharebia.com/en_GB/articles/awi/features/2014/07/02/feature-03

18 Ibid

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