‘High Value’ Migration and Complicity in Underdevelopment and Corruption in the Global South: receiving from the attic

Abstract

Through a focus on the UK's ‘High Value Migrants’ programme, this article directs attention to how commercial migration laws and policies of developed countries could negatively affect the global South. Drawing mainly on insights from criminology and development studies, it investigates how the commercial migration laws and policies, specifically the aspects that deal with encouraging or attracting ‘high-value’ foreign entrepreneurs and investors, make the state potentially complicit in corruption and underdevelopment in the global South. There is an important need to address the implicated migration laws and policies as a critical and integral part of international efforts to combat corruption and promote peace and development in the global South. Reform of such laws and policies is in the long-term interest of all stakeholders.

Notes

 1 West African idiom on crime and the complicity of the accomplice, who covers up by receiving the loot.

 2 HP Glenn, ‘The future of the future’, in S Muller, S Zouridis, M Frishman & L Kistermaker (eds), The Law of the Future and the Future of Law, Oslo: Torkel Opsahl Academic EPublisher, 2011, pp 385, 392; and N H Camerer & M Camerer, ‘Introduction’, in J Werve & Global Integrity (eds), The Corruption Notebooks 2006, Washington, DC: Global Integrity, 2007, p 1.

 3 S Zouridis, ‘The rule of law in the 21st century: bridging the compliance deficit’, in Muller et al, The Law of the Future and the Future of Law, p 89.

 4 See bbc Global News, The World Speaks 2011—A Major New Annual Poll from bbc Global News, London: bbc World Service, 2011, p 6.

 5 Ibid, p 10.

 6 Ibid.

 7 Thus, for instance, corruption ranked as the seventh issue of concern in the UK and Germany, eighth in Japan and ninth in Mexico, out of 14. See bbc Global News, The World Speaks 2011, p 6.

 8 M Ould-Mey, ‘Currency devaluation and resource transfer from the South to the North’, Annals of the Association of American Geographers, 93(2), 2003, pp 463, 463.

 9 Global Witness, International Thief: The Complicity of British Banks in Nigerian Corruption, London: Global Witness, 2010.

10 See, for instance, BA Jacobs, ‘Deterrence and deterrability’, Criminology, 48(2), 2010, pp 417, 441.

11 See J Gardiner, ‘Defining corruption’, in A Heidenheimer & M Johnston (eds), Political Corruption: Concepts and Contexts, New Jersey: Transaction, 2002, p 25; and S Rose-Ackerman, Corruption and Government: Causes, Consequences and Reforms, Cambridge: Cambridge University Press, 1999, p 91.

12 HO Yusuf, ‘Rule of law and politics of anti-corruption campaigns in a post-authoritarian state: the case of Nigeria’, King’s Law Journal, 22(1), 2011, p 60.

13 Ibid.

14 Ibid.

15 M Philp, ‘Conceptualising political corruption’, in Heidenheimer & Johnston, Political Corruption, pp 42–58; and JI Ross, The Dynamics of Political Crime, Thousand Oaks, CA: Sage, 2003, p 93.

16 I Amundsen, ‘Political corruption’, U4 Brief, 6, 2006, p 5.

17 Ibid.

18 R Palmer, ‘Profiting from corruption: the role and responsibility of financial institutions’, U4 Brief, 31, 2009, p 1.

19 N Ryder, Financial Crimes in the 21st Century: Law and Policy, Cheltenham: Edward Elgar, 2011, p 10.

20 Rose-Ackerman, Corruption and Government, p 190.

21 B Unger The Scale and Impacts of Money-Laundering, Cheltenham: Edward Elgar, 2007, p 4.

22 Ryder, Financial Crimes in the 21st Century, pp 12–13.

23 C Dauvergne, ‘Sovereignty, migration and the rule of law in global times’, Modern Law Review, 67(4), 2004, pp 588, 589.

24 Ibid.

25 A Damais, ‘The Financial Action Task Force’, in WH Muller, C Kand & JG Goldsmith (eds), Anti-Money Laundering: International Law and Practice, Chichester: John Wiley, 2007, pp 63, 79.

26 P Lilley, Dirty Dealing—The Untold Truth about Global Money Laundering, International Crime and Terrorism, London: Kogan, 2007, p 3.

27 P Reuter & EM Truman, Chasing Dirty Money: The Fight against Money Laundering, Washington, DC: Institute for International Economics, 2004, p 149.

28 Rose-Ackerman, Corruption and Government, p 190.

29 For a discussion of this ambivalence, see D Nelken, ‘White-collar and corporate crime’, in M Maguire, R Morgan & R Reiner (eds), The Oxford Handbook of Criminology, Oxford: Oxford University Press, 2007, pp 733–770.

30 Global Witness, International Thief.

31 Amundsen, Political Corruption, p 3.

32 Ibid.

33 Ibid.

34 United Nations Office on Drugs and Crime (unodc), Crime and Development, New York: unodc, 2005, p 91.

35 Palmer, ‘Profiting from corruption’, p 1; and Global Witness, International Thief.

36 A Fontana, ‘“What does not get measured, does not get done”: the methods and limitations of measuring illicit financial flows’, U4 Brief, 2, 2010, p 1, at http://www.u4.no/document/publication.cfm?3720=what-does-not-get-measured-does-not-get-done, accessed 26 April 2011.

37 Ibid.

38 unodc, Crime and Development, p 91.

39 oecd, A Profile of Immigrant Populations in the 21st Century: Data from oecd Countries, Paris: oecd Publishing, 2008.

40 Dauvergne, ‘Sovereignty, migration and the rule of law in global times’, p 588.

41 C Dauvergne, Making People Illegal: What Globalization Means for Migration and Law, Cambridge: Cambridge University Press, 2008, pp 1–2.

42 Dauvergne, ‘Sovereignty, migration and the rule of law in global times’, p 588.

43 Part 10 of the Act provides for a new immigration status for ‘designated’ foreign nationals convicted of terrorism or other serious criminal offences and their families who are liable to deportation under the migration laws but cannot be removed from the UK because of the operation of Section 6 of the Human Rights Act, 1998. See Sections 130–137 and schedule 27 of the Criminal Justice and Immigration Act 2008. There are also other immigration or immigration-related provisions in Sections 27, 33 34, 93 to 96 and 146 of the Act. Part 10 has yet to come into force.

44 Some of the other key laws are the British Nationality Act 1981, the Immigration Act 1988, the Asylum and Immigration Appeals Act 1993, the Asylum and Immigration Act 1996, the Immigration and Asylum Act 1999, the Nationality Immigration and Asylum Act 2002, the Immigration and Nationality Act 2006 and the UK Borders Act 2007. For a discussion on the interplay of the legislation, see I Macdonald & R Toal, McDonald’s Immigration Law and Practice, Edinburgh: Lexis Nexis, 2008, Supplement, pp 1–10.

45 Commercial immigration law also extends to those who migrate for work purposes and includes all types of economic migrants. See ibid, pp 582–664 on the UK categorisation.

46 S Richardson & L Lester, A Comparison of Australian and Canadian Immigration Policies and Labour Market Outcomes, Adelaide: National Institute of Labour Studies, Flinders University, 2004, pp 14–17.

47 For Australia and Canada, see S Yale-Loehr & C Hoashi-Erhardt, ‘A comparative look at immigration and human capital assessment’, in M Crock (ed), Nation Skilling—Migration, Labour and Law in Australia, Canada, New Zealand and the United States, Sydney: Desert Pea Press, 2002, pp 18–48.

48 These are referred to as Tier 1 (Entrepreneur) and Tier 1 (Investor), respectively in the Immigration Rules. There is an ancillary group known as ‘Self-Employed Persons/Individuals’ that is not of further interest here.

49 See Yale-Loehr & Hoashi-Erhardt, ‘A comparative look at immigration and human capital assessement’; and Richardson & Lester, A Comparison of Australian and Canadian Immigration Policies and Labour Market Outcomes.

50 UK Border Agency, Statement of Policy: Changes to Tier 1 of the Points Based System, March 2011, pp 2–3, at http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2011/march/39-entrepreneurs-investors.

51 For a discussion of how the operation of various international human rights and humanitarian law instruments has mediated state sovereignty and migration, see D Jacobson, Rights Across Borders—Immigration and the Decline of Citizenship, Baltimore, MD: Johns Hopkins University Press, 1997. On the rights of refugees, asylum seekers and migrant workers, see J Rehman, International Human Rights Law, Harlow, UK: Pearson, 2010, p 641.

52 Ministerial statements have become more important as an aid to determining the intention of the UK Parliament in legislation This flows from the decision in Pepper (Inspector of Taxes) v Hart [1993] AC 593. See, for instance, A Singh, Criminal Justice and Immigration Act 2008—Ministerial Statements, London: ilpa, 2008, p 5, at http://www.ilpa.org.uk/, accessed 23 May 2011.

53 For an extensive discussion of this, see Mcdonald & Toal, Mcdonald's Immigration Law and Practice, pp 391–520. For the view that human rights has done little for illegal immigrants, see Dauvergne, Making People Illegal, pp 21–28.

54 Mcdonald & Toal McDonald’s Immigration Law and Practice, pp 774–973.

55 Ibid, p 582

56 UK Border Agency Statement of Policy, p 1.

57 Home Office, Tier 1 and 2 Immigration Rules, Settlement and Asylum, 16 March 2011, p 1, at http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2011/march/39-entrepreneurs-investors.

58 D Ley, ‘Seeking Homo economicus: the Canadian state and the strange story of the business immigration program’, Annals of the Association of American Geographers, 93(2), 2003, p 426.

59 Ibid.

60 See Paragraph 235DB.

61 Part 9, Paragraphs 320–324.

62 See Paragraphs 321 and 322.

63 See, for instance, UK Border Agency, General Reasons for Refusing—Section 1 of 5, 2011, pp 8–48.

64 Ibid, p 19.

65 On the application of the provision, see Dr Zakir Naik v Secretary of State for the Home Department & Anor [2010] EWHC 2825 (Admin).

66 The five-part document is entitled General Reasons for Refusing and altogether runs to 321 pages. See the Border Agency webpage, at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/, accessed 13 September 2011.

67 Unger, The Scale and Impacts of Money-Laundering, p 12.

68 See D Hopton, Money Laundering: A Concise Guide for All Business, Aldershot: Gower, 2006, pp 14–16.

69 These are Santander, Bank of Tokyo–Mitsubishi–ufj, Barclays, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, hsbc, JP Morgan Chase, Société General and ubs.The group was set up in 2000 at a meeting held at the Château Wolfsberg, Switzerland. See http://www.wolfsberg-principles.com/, accessed 5 September 2011.

70 These include the ‘Wolfsberg Statement on Monitoring Screening and Searching’, September 2003; ‘Guidance on a Risk Based Approach for Managing Money Laundering Risks’, 2006; and ‘aml Guidance for Mutual Funds and Other Pooled Investment Vehicles’, 2006. See: http://www.wolfsberg-principles.com.

71 For an account of the history and development of the principles, see M Pieth & G Aiolfi, ‘The private sector becomes active: the Wolfsberg principles’, Journal of Financial Crime, 10(4), 2003, pp 359–365.

72 Available at: http://www.wolfsberg-principles.com/pdf/Wolfsberg%20Anti%20Corruption%20Guidance%20Paper%20August%2018-2011%20%28Published%29.pdf, accessed 5 September 2011.

73 ‘Information Paper on Financial Intelligence Units and the Egmont Group’, at http://www.egmontgroup.org/library/egmont-documents, accessed 5 September 2011.

74 See the discussion in section two above.

75 There is a number of successive (revoking or amending) legislative measuares in this regard, including the Terrorism (United Nations Measures) Order 2001 (SI 2001/3365); The Terrorism (United Nations Measures) (Channel Islands) Order 2001 (SI 2001/3363); The Terrorism (United Nations Measures) (Isle of Man) Order 2001 (SI 2001/3364); The Terrorism (United Nations Measures) (Overseas Territories) Order 2001 (SI 2001/3366); The Terrorism (United Nations Measures) Order 2006 (SI 2006/2657); The Terrorism Act 2008; The Terrorism (United Nations Measures) Order 2009 (SI 2009/1474); and The Terrorist Asset-Freezing (Temporary Provisions) Act 2010.

76 This piece of legislation either amends or revokes at least 18 other laws on or relating to the issue. See Schedules 1 and 2 of the Act.

77 Terrorist Asset-Freezing (Temporary Provisions) Act 2010, Section 2.

78 N Ryder, ‘Charities and terrorist funding: where does your donation go?’, New Law Journal, 2006, at http://www.newlawjournal.co.uk/nlj/content/terror-funds, accessed 27 October 2011.

79 Lilley, Dirty Dealing, p 149.

80 S Veitch, Law and Irresponsibility: On the Legitimation of Human Suffering, Abingdon: Routledge-Cavendish, 2007.

81 oecd, ‘Members and partners’, at http://www.oecd.org/pages/0,3417,en_36734052_36761800_1_1_1_1_1,00.html, accessed 25 April 2011.

82 About the Organisation for Economic Co-operation and Development (oecd)’, at http://www.oecd.org/pages/0,3417,en_36734052_36734103_1_1_1_1_1,00.html, accessed 5 September 2011.

83 These include the Inter-American Convention against Corruption, adopted by the Organization of American States on 29 March 1996; the Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, adopted by the Council of the European Union on 26 May 1997; the Criminal Law Convention on Corruption, adopted by the Committee of Ministers of the Council of Europe on 27 January 1999; and the African Union Convention on Preventing and Combating Corruption, adopted by the Heads of State and Government of the African Union on 12 July 2003.

84 Adopted by the United Nations General Assembly by Resolution No 58/4 of 31 October 2003, and entered into force on 14 December 2005. It had 151 state parties and 140 signatories as at 26 April 2011.

85 J Shen ‘Designing the role of international institutions in raising the standard of living in the developing world’, in J Shen & D Sapsford (eds), Global Development and Poverty Reduction: The Challenge for International Institutions, Cheltenham: Edward Elgar, 2005, p 31.

86 unodc, Crime and Development, pp 80–84.

87 Multi-Stakeholder Dialogue: Putting Anti-Corruption Commitments into Practice—Transparency, Participation and Rule of Law, Rabat, 9–10 June 2011.

88 unodc, Crime and Development, p 92.

89 Ibid, p 87.

90 Ibid, p 20.

91 Ibid, p 29.

92 TR Gurr, MG Marshall & D Khosla, Peace and Conflict 2001—A Global Survey of Armed Conflicts, Self-determination Movements and Democracy, College Park, MD: Center for International Development and Conflict Management, 2001, p 13.

93 MG Marshall & TR Gurr, A Global Survey of Armed Conflicts, Self-Determination Movements, and Democracy, College Park, MD: Center for International Development and Conflict Management, 2005, pp 55.

94 P Collier, L Elliot, H Hegre, A Hoeffler, M Reynal-Quernol & N Sambanis, Breaking the Conflict Trap Civil—War and Development Policy, Washington, DC: World Bank/Oxford University Press, 2003, p 176.

95 For some of the debate on what should be the nature of and limitations on liability of public authorities for negligence in particular and state liability for tort in general under English and French Law, see S Bailey, ‘Public authority liability in negligence: the continued search for coherence’, Legal Studies, 26(1), 2006, p 155; D Brodie, ‘Compulsory altruism and public authorities’, in D Fairgrieve, M Andenas & J Bell, Tort Liability of Public Authorities in Comparative Perspective, London: British Institute of International and Comparative Law, 2002, p 541; and D Fairgrieve, State Liability in Tort—A Comparative Law Study, Oxford: Oxford University Press, 2003.

96 Home Office, Tier 1 and 2 Immigration Rules, Settlement and Asylum, p 1.

97 UK Border Agency, Statement of Policy, p 2.

98 Ibid, p 6.

99 Ould-Mey, ‘Currency devaluation and resource transfer from the South to the North’, p 465.

100 Ibid.

101 R Munck, ‘Globalisation, governance and migration: an introduction’, Third World Quarterly, 29(7), 2008, pp 1227, 1228.

102 About the Organisation for Economic Co-operation and Development (oecd)'.