As highlighted in Module 5, individuals are generally prompted to migrate irregularly due to difficult, unstable conditions in their countries of origin. Misperceptions as to the causes of irregular migration may lead to migrants being given substandard assistance, which jeopardizes not only their human rights but also, in some cases, successful investigation and prosecution of their smugglers. Smuggled migrants may also be asylum-seekers, refugees, stateless persons and victims of crime, notably trafficking in persons. It is critical to accurately identify the specific protection needs of migrants to ensure they receive appropriate assistance. This requires not only adequate legislative measures but also suitable training of professionals, robust identification processes, strengthened referral procedures and follow-up mechanisms to ensure that processes and procedures are carried out in accordance with best practice. In identification procedures it is extremely important to pay careful attention to persons with special needs, for example those attributable to their age or gender. These efforts require full respect and application of the international human rights framework, as previously explained.
As noted in Module 1, there has been a tendency to promote the interception of smuggling ventures before actual arrival in the intended destination State, described by some as "externalization of borders". In general, article 11(1) of the Protocol against the Smuggling of Migrants stresses that border controls aimed at preventing and detecting smuggling of migrants are to be "without prejudice to international commitments in relation to the free movement of people". Article 19(1) requires that border control measures take into consideration other international obligations imposed on the State party concerned, including those in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, while paragraph 2 requires respect of the principle of non-discrimination in the implementation of the Protocol against the Smuggling of Migrants.
Against this background, exit and entry procedures must not discriminate in respect of race, religion, sex or disability. UNHCR advocates the use of so-called "protection-sensitive" entry systems. These are systems that take into account protection needs and the duty of States to respect their obligations under international human rights and refugee law, including the principle of non-refoulement. Protection-sensitive entry systems ensure that legitimate control measures are not applied arbitrarily and allow asylum-seekers, and other groups with specific protection needs, to be identified and granted access to a territory where their needs can be properly assessed and addressed. Thus, human rights and humanitarian obligations should be considered by those working on border control and identification procedures, mostly because they are likely to be the first State officials encountering smuggled migrants. Relevant rights in this context include the right of all persons to leave any country, including their own, and the right of all persons to seek asylum and other means of international protection. Claims for protection must be properly assessed on a case-by-case basis. Hence, once again, the importance of streamlined and efficient identification and referral procedures.
The fact that cases of migrant smuggling may easily turn into situations of trafficking in persons further speaks to the importance of effective identification procedures. Frontline officers or border officials will not necessarily have the capacity to immediately differentiate between the various categories of smuggled migrants (for example, asylum-seekers and victims of trafficking). They will, therefore, need to refer them to appropriate authorities that have the capacity to carry out identification promptly and effectively. To this effect, it is crucial to develop robust guidelines, standard operating procedures and training measures, complemented by strong institutional arrangements that ensure efficient cooperation and coordination between all relevant actors.
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If the human rights of people labelled as 'smuggled' are not recognized, it follows that some non-identified trafficked people are not either. We cannot ignore the anti-smuggling measures that are affecting the people with whom we work. Global Alliance against Traffic in Women (GAATW), Human Rights in Migrant Smuggling (2011) |
Protection Gap: identifying migrants in vulnerable situationApart from migrants with critical medical conditions, very few migrants were afforded immediate assistance and special medical attention and referrals. The process of identification was largely based upon visibly identifiable vulnerabilities, i.e. visibly pregnant women and persons with visibly apparent disabilities were able to access necessary support, while women who were in the early stages of their pregnancy, persons with psychosocial disabilities, and survivors of trauma or sexual and gender-based violence who did not have easily visible scars and were hesitant to self-identify, were often not. Many reported that the authorities' questions often had the sole objective of establishing a possible asylum claim and in some countries were undertaken with haste and with little meaningful information made available to migrants. In addition, the teams observed that identification procedures were not carried out consistently in all countries or facilities and there was a lack of established procedures and/or guidance on applicable standards. The teams thus found that mechanisms to identify migrants in vulnerable situations were predominantly inadequate. An additional obstacle to carrying out adequate vulnerability screenings was a scarcity of trained staff dedicated to conduct vulnerability screenings and assessments and to respond appropriately to protection needs. The teams found that in many cases insufficient numbers of qualified staff resulted in a lack of adequate physical and mental health care, including psychosocial assistance and counselling and accessible sexual and reproductive health services (e.g. emergency contraception and abortion services, maternal health care). OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017) |
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Participation of smuggled migrants in legal proceedings
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