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Immigration Law and Climate Change

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    Executive summary

    Climate change will create challenges for immigration law through the response to rising sea levels, changing weather patterns and increased frequency of extreme weather events. Individuals are already being forced to flee and many more will be displaced in the coming decades as a result of climate change. Immigration law in its current form is ill-equipped to deal with the challenges posed by climate change and as a result runs the risk of exacerbating the problems faced by those affected by the worst climate-related impacts. There are several reasons for this, including the fact that no provision is made for climate-induced migration in international refugee law or the UK’s domestic immigration laws. In fact, many proposed reforms to the UK’s immigration law could make it more challenging for climate-induced migrants to seek refuge.

    There are many ways in which immigration law can respond to the challenges posed by climate change, including by accommodating climate refugees within domestic legislation, and through building resilience abroad through remittances and financial support. There are also ways in which immigration law can assist the UK in achieving net zero, particularly through granting work visas to increase national output including in sectors that reduce emissions. Furthermore, steps can be taken to ensure that immigration pathways and facilities are sustainable and carbon neutral.

    Key points in this section:

    • Climate change’s impacts are likely to drive significant migration, though much of this will be internal and there are research gaps in this area.
    • People migrating due to climate change impacts may be classified as refugees under existing international frameworks but the term ‘climate refugee’ has not received widespread legal endorsement. The gradual nature of some climate impacts and lack of clearly-defined sources of these harms has made it difficult to reconcile some climate migration with international refugee law.
    • Courts in other jurisdictions, for example New Zealand, have considered climate-related migration issues and this may indicate a direction of travel for the UK. Statements from bodies such as the UN Human Rights Committee may further inform the way that these issues are treated by the law in the UK.  
    • There is significant international interest in reforming migration law to account for climate-related migration, but disagreement as to the best way of doing so, for example whether to expand existing definitions or creating specific classes of ‘climate refugees’.
    • The UK may seize climate-related migration opportunities by planning to efficiently process and integrate climate migrants, and through both new and existing visa programmes that could help attract high- and low-skilled migrants in fields that will help drive the net zero transition.

    How climate change has impacted immigration law

    General impact

    The International Organization for Migration (IOM) has projected that there will be an estimated 1 billion environmental migrants in the next 30 years. In order to survive climate change, there will need to be a planned migration of a kind not seen before,[1] and accordingly, immigration law will need to adapt. These impacts will impact some parts of the world more than others, with areas like the Bay of Bengal, the Sahel and Small Island Developing States being disproportionately impacted by rising sea levels, food insecurity and desertification. Northern latitudes may need to host millions of migrants while they themselves adapt to climate change,[2] thereby impacting the UK’s immigration system.

    Studies have revealed that long-term climatic changes will potentially have the most severe and far-reaching implications for migration.[3] Furthermore, experts observe that the majority of climate-induced displacement will be internal.[4] Notably, evidence on how sea level rise will impact migration is lacking and a minimal number of studies in this area analyse the existing impacts of long-term temperature and precipitation changes on migration.[5] There is also little evidence on environmental pull factors and climate mitigation.[6] It is therefore likely that the true picture of climate-induced migration will become clearer once research outputs increase.

    Legislative framework

    The UK is signatory to the 1951 Refugee Convention which defines a “refugee” as a person who has crossed an international border “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and is unable to return. Climate related harms are not recognised under the Convention and as a result, in the majority of cases, those who move because of climate-related harms cannot prove that they have a well-founded fear of persecution.[7] These definitional issues have led to a protection gap between refugees whose claims fall under existing legislation and those who fall victim to this legal lacuna.[8]This is relevant to the principle of non-refoulement. Notably, no courts have definitively determined the issue of whether returning a person to the site of a climate-induced disaster would constitute refoulement.[9]

    Whether the international refugee framework should recognize climate refugees has been debated, as discussed below. The term “climate refugees” was first introduced in 1985 when UN Environmental Programme (UNEP) expert, Essam El-Hinnawi defined climate/environmental refugees as people who have been “forced to leave their traditional habitat, temporarily or permanently, because of marked environmental disruption”.[10] The extent of the definition still causes confusion. Others have suggested that the definition should include a broader range of people, namely ‘“anyone who has been impacted by disruption in their society that could somehow directly or indirectly be related to short- or long-term change in the environment”.[11]

    As mentioned, the majority of climate-induced displacement will be internal. The rights of forcibly displaced migrants are regulated by the UN’s Guiding Principles on Internal Displacement. However, as they are not binding, these principles are often poorly implemented. Furthermore, the slow onset of climate harms muddies the water between voluntary and forced migration. Problematically, only forced migration brings individuals under the remit of the Guiding Principles, leaving migrants to be protected instead by international and domestic human rights law.

    Litigation

    Some litigation has considered the link between climate change and immigration law. Most significantly, the test case of Ioane Teitiota being a “climate” refugee in New Zealand exemplifies the kind of litigation which may be brought before the UK courts.[12] In this case the applicant claimed that returning to Kiribati was impossible due to climate change. The case was later communicated to the UN Human Rights Committee who held that the New Zealand courts did not violate his right to life as sufficient protection measures were put in place. Nevertheless, the Committee made a range of useful findings. First, it stated that asylum seekers are not required to prove that they would face imminent harm if returned to their countries. Second, the Committee clarified that both sudden and slow onset events can prompt individuals to cross borders to seek protection from climate change-related harm. Finally, and most significantly, the Committee considered that climate change may trigger non-refoulement obligations of receiving states, and that given that there is a risk that entire countries may become submerged in water, such conditions would be incompatible with the right to life under Article 6 of the International Covenant on Civil and Political Rights (ICCPR).[13]

    Despite the UNHRC not endorsing the term climate refugees, they conceded that there would be instances where persons displaced because of climate change would meet the criteria under the Refugee Convention. This can occur where the effects of climate change are compounded by armed conflict or violence. This therefore means that in order to broaden the scope of application of protection for climate induced migrants, countries will need to reframe conditions caused by climate change as a threat to human rights, despite these threats not always feeling as immediate as the dangers faced by those fleeing war.[14] While this precedent serves as a warning to states that they must consider the effects of climate change when evaluating refugee and asylum claims, practitioners should note that the threshold to trigger Article 6 ICCPR remains high.[15]

    Practitioners in the UK should also note that the case of Duarte Agostinho and Others v Portugal[16] before the European Court of Human Rights has raised Article 2 and Article 8 rights in the context of countries failing their climate responsibility. Depending on the judgment in this case, it could have important implications for future ECHR climate-related right claims given that the ECHR has previously ruled on immigration measures including deportation, family reunification, asylum conditions, and collective expulsion. This will be especially true if the Court recognises a right to a healthy environment separate from Articles 2 and 8 as requested by the Council of Europe Commissioner for Human Rights in her intervention.

    How can immigration law help to address climate change

    While immigration tends to be treated as relevant to climate adaptation rather than mitigation, immigration law, particularly with certain reforms, could assist the UK in achieving net zero. This part will discuss how current legal frameworks may change to accommodate climate-induced migration before considering ways in which immigration law can assist the UK in achieving net zero.

    Amending current refugee and immigration legal frameworks to deal with climate refugees

    Displacement due to climate-related impacts can and will be permanent, with the eventual submersion of small island nations serving as a poignant example.[17]. To mitigate the definitional issues regarding the grounds on which people can claim to be refugees, some authors have suggested expanding the definition of a refugee.[18] However, others have highlighted several issues with this proposition. First, there is the challenge of separating the root cause of migration and distinguishing between climate-induced disasters and slow-onset degradation. If it is challenging to distinguish between the reasons for one’s migration and to determine whether someone’s movement is linked to climate change, it could make enforcing an updated convention challenging.[19] Second, expanding the scope of the Convention could undermine its force. This is especially the case as states already narrowly interpret the Convention’s provisions.  Second, there is the complex issue of explicitly defining the term ‘climate refugee’ considering existing discourse surrounding this issue along with the language of the Refugee Convention.[20] Moreover, as mentioned, most climate-induced migration takes place internally. Finally, the ‘persecution’ requirement requires harm to emanate from the state in which the displacement occurs; however the causes of climate change do not always stem from where an individual’s safety is under threat.[21]  Indeed, often states that are poorest and least culpable for climate change are most severely affected.

    A new international treaty on climate-induced migration would create binding international law. However, determining who and what would be covered by the treaty would be complex, not to mention the difficulties inherent in agreeing new international agreements concerning refugees. Adding a Protocol to the United Nations Framework Convention on Climate change to include climate-induced migration is another suggestion for improving the plight of climate migrants. Similarly, adapting regional conventions according to the specific needs of various regions could be an effective way of filling gaps in legal protection afforded to climate migrants. An example of this in practice is illustrated by the Kampala Convention which concerns internal displacement and explicitly mentions climate change.

    At the international level there are also ways in which voluntary compacts can be used to support climate refugees and protect their rights.[22] The 2030 Sustainable Development Goals (SDG) seek to address both migration and climate change.[23] SDG 13 on climate action outlines several targets that address the climate crisis including aiming to strengthen resilience and adaptive capacity to climate-related hazards and natural disasters in all countries. SDG 13.2 seeks to integrate climate change measures into national policies, strategies and planning, while SDG 13.3 aims to improve education, awareness raising, and human and institutional capacity on climate change mitigation, adaptation, impact reduction and early warning. Finally, SDG 10.7 provides for signatories to ‘facilitate orderly, safe and responsible migration of people, including through implementation of planned and well-managed policies’. Despite not explicitly linking climate change and migration, the SDGs could be used in tandem with other measures including international and domestic human rights law to strengthen the protections afforded to climate refugees and migrants. To effectively meet these goals, more bilateral and multilateral action would need to focus development assistance on these targets.[24]

    Other solutions include expanding the Guiding Principles on Internal Displacement to account for slow onset degradation as it currently only protects those affected by ‘natural or human made disasters’. A Global guiding framework could also assist states in determining the best course of action towards climate-induced migration.

    Reforms to UK immigration law

    An alternative to establishing new international instruments is to improve existing migration mechanisms in national immigration laws. In the UK, the Climate Change and Migration Coalition challenges the lack of long-term strategies to support and protect people at risk of displacement linked to environmental change.[25]The controversial Nationality and Borders Act 2022 introduced in April 2022 has created additional hurdles for those seeking asylum, including those whose migration is induced by climate change. Several potential reforms may align the UK’s immigration policy with the net zero transition.

    While climate change will inevitably lead to large movements of people, such migration does not need to be considered a crisis. Indeed, early planning and local investments can help to prepare for such migration and may contribute to achieving more vibrant economies and communities.[27] In the absence of essential planning, migration could become an unnecessary challenge. Adequate resource provision, adaptation and resilience are central to ensuring that the negative impacts of climate-induced migration are mitigated. This far-sighted planning could also help ensure that families stay together, instead of being separated or split up in cases of rapid displacement.[28]

    There are multiple ways in which the UK may better facilitate climate migrants.[29] The Global Mayors Action Agenda on Climate and Migration has outlined several steps aimed at including those most affected by climate displacement in the just transition. These include the creation of green job programs for urban migrants and displaced people. The UK may incorporate similar programmes within its immigration system. Furthermore, under the Global Talent visa scheme, priority could be given to climate experts and those working to improve existing systems in various industries, from manufacturing to farming, in order to assist the UK in decreasing total emissions and in achieving its net zero target.

    While dealing with climate-induced migration, the UK may seek to ensure that this does not exacerbate the climate crisis further. The UK could therefore establish green migration pathways and ensure that when resettling climate-induced migrants that this is done in a sustainable way. Immigration law may make provision for migrants to be accommodated in sustainable buildings, for travel routes to be environmentally-friendly, and for migrants to stay in accessible locations to reduce reliance on transport infrastructure. This way the UK can not only lead on climate change mitigation, but also on adaptation measures.

    The Government’s Authorised Exchange visa (Temporary Work) scheme makes provision for migrants to come to the UK for several purposes, one of which is to work in areas where there are labour shortages. In addition to mitigating the impacts of an aging society and skill shortages, this scheme could bolster UK manufacturing as among the occupations where there is a shortage of skilled workers include welding and several types of engineers. This scheme could not only increase the UK’s self-sufficiency, but it could assist in reducing the UK’s carbon footprint and in achieving net zero considering that half of the UK’s carbon footprint emanates from the invisible cost of imports.[30] It may also channel labour into the industries required to realise net zero ambitions, such as renewable energy and decarbonised infrastructure.

    There is also more that immigration law could do to facilitate visas for unskilled workers, particularly in the farming industry, which could improve sustainable agriculture and reduce food wastage. In August 2022, National Farmers Union reported that £60m of food has been wasted in 2022 on farms because of labour shortages, including at least £22m of fruit and vegetables.[31] The emissions that result from wasted food at all stages of production contributes to climate change. For example, food taken to landfill releases methane into the atmosphere, which is more damaging than the release of CO2.[32]

    The Seasonal Worker visa scheme sought to mitigate some of these difficulties by offering short-term visas to those helping with food production. Although up to 38,000 visas have been made available under the seasonal workers scheme in 2022, the farming industry reported that it needs 70,000 alone.[33] Therefore increasing the amount of visas made available through this scheme could similarly reduce the UK’s reliance on imports, reduce food wastage and ensure that the UK remains on target to achieve net zero.

    [1] Gaia Vince, ‘The century of climate migration: why we need to plan for the great upheaval’ (The Guardian, 18 August 2022) <https://www.theguardian.com/news/2022/aug/18/century-climate-crisis-migration-why-we-need-plan-great-upheaval> accessed 10 October 2022.

    [2] Gaia Vince, ‘The century of climate migration: why we need to plan for the great upheaval’ (The Guardian, 18 August 2022) <https://www.theguardian.com/news/2022/aug/18/century-climate-crisis-migration-why-we-need-plan-great-upheaval> accessed 10 October 2022.

    [3] Jan Selby and Gabrielle Daoust, ‘Rapid Evidence Assessment On The Impacts Of Climate Change On Migration Patterns’ (2021) Foreign, Commonwealth and Development Office < https://www.gov.uk/research-for-development-outputs/rapid-evidence-assessment-on-the-impacts-of-climate-change-on-migration-patterns> accessed 10 October 2022.

    [4] UK Climate Change and Migration Coalition, ‘Creating Legal Protection: options for protecting people who move in the context of environmental change’ (2014) <https://climatemigration.org.uk/wp-content/uploads/2014/01/Creating_legal_protection.pdf> accessed 10 October 2022.

    [5] UK Climate Change and Migration Coalition, ‘Creating Legal Protection: options for protecting people who move in the context of environmental change’ (2014) <https://climatemigration.org.uk/wp-content/uploads/2014/01/Creating_legal_protection.pdf> accessed 10 October 2022.

    [6] Jan Selby and Gabrielle Daoust, ‘Rapid Evidence Assessment On The Impacts Of Climate Change On Migration Patterns’ (2021) Foreign, Commonwealth and Development Office < https://www.gov.uk/research-for-development-outputs/rapid-evidence-assessment-on-the-impacts-of-climate-change-on-migration-patterns> accessed 10 October 2022.

    [7] UK Climate Change and Migration Coalition, ‘Creating Legal Protection: options for protecting people who move in the context of environmental change’ (2014) <https://climatemigration.org.uk/wp-content/uploads/2014/01/Creating_legal_protection.pdf> accessed 10 October 2022.

    [8] Sharmistha Michaels, ‘Climate Refugees: A 21st Century Crisis – Sharmistha Michaels – The New Law Journal’ (Five St Andrew’s Hill, 13 December 2021) <https://www.5sah.co.uk/knowledge-hub/articles/2021-12-13/climate-refugees-a-21st-century-crisis-sharmistha-michaels-the-new-law-journal> accessed 12 October 2022.

    [9] UK Climate Change and Migration Coalition, ‘Creating Legal Protection: options for protecting people who move in the context of environmental change’ (2014) <https://climatemigration.org.uk/wp-content/uploads/2014/01/Creating_legal_protection.pdf> accessed 10 October 2022.

    [10] Zurich, ‘There could be 1.2 billion climate refugees by 2050. Here’s what you need to know’ (27 September 2022) <https://www.zurich.com/en/media/magazine/2022/there-could-be-1-2-billion-climate-refugees-by-2050-here-s-what-you-need-to-know> accessed 10 October 2022.

    [11] Ibid.

    [12] Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment [2015] NZSC 107.

    [13] UNHRC, ‘Historic UN Human Rights case opens door to climate change asylum claims’ (UNHRC, 21 January 2020) < https://www.ohchr.org/en/press-releases/2020/01/historic-un-human-rights-case-opens-door-climate-change-asylum-claims> access 11 October 2022.

    [14]  Zurich, ‘There could be 1.2 billion climate refugees by 2050. Here’s what you need to know’ (27 September 2022) <https://www.zurich.com/en/media/magazine/2022/there-could-be-1-2-billion-climate-refugees-by-2050-here-s-what-you-need-to-know> accessed 10 October 2022.

    [15] Adaena Sinclair-Blakemore, ‘Teitiota v New Zealand: A Step Forward in the Protection of Climate Refugees under International Human Rights Law?’ (Oxford Human Rights Hub, 28 January 2020) <https://ohrh.law.ox.ac.uk/teitiota-v-new-zealand-a-step-forward-in-the-protection-of-climate-refugees-under-international-human-rights-law/> accessed 10 October 2022.

    [16] Duarte Agostinho and Others v Portugal and Others (2020) App no 39371/20.

    [17] The World Bank, ‘On the Frontlines of Climate Change, Small Island States Can Lead in Resilience’ (The World Bank, 11 April 2022).

    [18] Sreyas Adiraju, ‘What is a “Refugee”? Expanding the UN Refugee Convention in the Face of Climate Change’ (Columbia Undergraduate Law Review, 7 February 2022) <https://www.culawreview.org/journal/what-is-a-refugee-expanding-the-un-refugee-convention-in-the-face-of-climate-change> accessed 10 October 2022.

    [19] UK Climate Change and Migration Coalition, ‘Creating Legal Protection: options for protecting people who move in the context of environmental change’ (2014) <https://climatemigration.org.uk/wp-content/uploads/2014/01/Creating_legal_protection.pdf> accessed 10 October 2022.

    [20] European Parliament, ‘The concept of ‘climate refugee’ Towards a possible definition’ (February 2019) <https://www.europarl.europa.eu/RegData/etudes/BRIE/2018/621893/EPRS_BRI(2018)621893_EN.pdf> accessed 10 October 2022.

    [21]Sharmistha Michaels, ‘Climate Refugees: A 21st Century Crisis – Sharmistha Michaels – The New Law Journal’ (Five St Andrew’s Hill, 13 December 2021) <https://www.5sah.co.uk/knowledge-hub/articles/2021-12-13/climate-refugees-a-21st-century-crisis-sharmistha-michaels-the-new-law-journal> accessed 12 October 2022.

    [22]Mohd Rameez Raza and Raj Shekhar, ‘Climate Crisis, Migration and Refugees: Bridging the Legal Protection Gap for a Sustainable Future’ (Refugee Law Initiative, School of Advanced Study University of London, 29 July 2020) <https://rli.blogs.sas.ac.uk/2020/07/29/climate-crisis-migration-and-refugees-bridging-the-legal-protection-gap-for-a-sustainable-future/> accessed 12 October 2022.

    [23] Ibid.

    [24] Ibid.

    [25] UK Climate Change and Migration Coalition, ‘Creating Legal Protection: options for protecting people who move in the context of environmental change’ (2014) <https://climatemigration.org.uk/wp-content/uploads/2014/01/Creating_legal_protection.pdf> accessed 10 October 2022.

    [26] Jed Pennington, ‘What’s happening in the Rwanda legal challenges?’ (Free Movement, 11 October 2022) < https://freemovement.org.uk/whats-happening-in-the-rwanda-legal-challenges/#:~:text=There%20are%20a%20number%20of,%E2%80%9Can%20asylum%20partnership%20arrangement%E2%80%9D> accessed 12 October 2022.

    [27] Mayors Migration Council, ‘Brief: Climate Migration in Mexican and Central American Cities’ (February 2022) available at <https://www.mayorsmigrationcouncil.org/news/climate-migration-mexican-central-american-cities> accessed 14 October 2022.

    [28] Mohd Rameez Raza and Raj Shekhar, ‘Climate Crisis, Migration and Refugees: Bridging the Legal Protection Gap for a Sustainable Future’ (Refugee Law Initiative, School of Advanced Study University of London, 29 July 2020) <https://rli.blogs.sas.ac.uk/2020/07/29/climate-crisis-migration-and-refugees-bridging-the-legal-protection-gap-for-a-sustainable-future/> accessed 12 October 2022.

    [29] Melia Dal Pra, Helen Dempster and Mariam Traore Chazalnoël, ‘How Can the UK Better Facilitate Environmental Migration?’ (Center for Global Development, 14 December 2021) <https://www.cgdev.org/blog/how-can-uk-better-facilitate-environmental-migration> accessed 12 October 2022.

    [30] Fiona Harvey, ‘Half UK’s true carbon footprint created abroad, research finds’ (The Guardian, 16 April 2020) <https://www.theguardian.com/environment/2020/apr/16/britain-climate-efforts-undermined-failure-imports-carbon> accessed 10 October 2022.

    [31] Sarah Butler, ‘Up to £60m in UK crops left to rot owing to lack of workers, says NFU’ (The Guardian, 15 August 2022) < https://www.theguardian.com/environment/2022/aug/15/pounds-60m-in-uk-crops-left-to-rot-lack-of-workers-nfu-farming> accessed 12 October 2022.

    [32] Net Zero Scotland, ‘Eating Greener’ <https://www.netzeronation.scot/take-action/eating-greener> accessed 12 October 2022.

    [33] Sarah Butler, ‘Up to £60m in UK crops left to rot owing to lack of workers, says NFU’ (The Guardian, 15 August 2022) < https://www.theguardian.com/environment/2022/aug/15/pounds-60m-in-uk-crops-left-to-rot-lack-of-workers-nfu-farming> accessed 12 October 2022.