Understanding the Legal Framework That Shapes Migration Governance
Migration governance is often viewed through political, economic, or humanitarian lenses. In fact, balanced migration governance begins with an understanding of the basic legal framework that regulates the movement of people across international borders.
This brief outlines four widely recognised legal principles that shape migration governance and influence policy development, border management, and country risk assessments. Together, these principles provide the foundation for understanding how states seek to balance sovereign authority with their domestic and international obligations.
1. State Sovereignty
Under customary international law, every sovereign state has the authority to determine who may lawfully enter, remain within, and depart from its territory. This principle underpins national immigration systems and affirms that border management is a core function of the state.
ICJ, Nottebohm Case (1955); Customary International Law.
2. Irregular Migration
The International Organization for Migration defines irregular (or illegal) migrants as foreign nationals who enter or reside in a country without the legal documentation or authorisation required under the laws of the receiving state. The term describes an individual’s immigration status rather than their personal characteristics.
International Organization for Migration (2019).
3. Lawful Entry and Residence
In South Africa, the Immigration Act provides the legal framework governing the entry and residence of foreign nationals. Entry into, and residence within, the Republic is lawful only through designated ports of entry and in accordance with the applicable legislative and regulatory requirements.
Immigration Act 13 of 2002
4. Refugee Protection
International refugee law recognises that individuals fleeing persecution may require international protection. The principle of non-refoulement, established under the 1951 Refugee Convention, prohibits states from returning refugees or asylum seekers to territories where their life or freedom would be threatened.
Refugee Convention (1951).
A Balanced Approach to Migration Governance
These principles should not be viewed in isolation or as competing legal concepts. Effective migration governance requires balancing state sovereignty, immigration control, refugee protection, and the rule of law. Sound policy and informed decision-making depend on recognising how these principles operate together within a coherent governance framework.
Country Risk Perspective
Migration governance has direct implications for border security, regulatory compliance, and regional cooperation. Monitoring developments in migration governance enables governments and businesses to better anticipate emerging risks and adapt to changing policy and regulatory environments.
Lunga Dweba
GI Advisory – The Information You Can Defend
This Brief forms part of GI Advisory’s Country Risk Assessment and is intended to provide a balanced and realistic perspective on migration governance. It does not constitute legal advice or legal interpretation.
