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Short-, mid- and long-term measures: responsibilities, roles and accountability

To make sure the rights of migrants are properly protected, States must adopt a variety of measures, with different time projections. For instance, the adoption of legislation, while it may per se be a short or mid-term process, can have a long-term impact. The provision of emergency health care will, in principle, be a short-term measure. However, basic health care must be provided as long as smuggled migrants remain in the country. Protective measures will also vary in length. Where the destination State is prohibited from returning smuggled migrants due to, for example, the principle of non-refoulement, it must provide measures necessary to enable migrants to legally remain in the country. This could be achieved through the use of mid- or long-term residence permits. The implementation of training programmes or language courses to help smuggled migrants support themselves is likely to be a mid-term endeavour. In short, the State is to adopt the short-, mid- and long-term measures necessary to make sure that rights existing on "paper" are fully implemented "in practice". Critically, States must ensure that smuggled migrants are fully informed about the rights they are entitled to and the avenues of assistance available to them. Smuggled migrants must be made aware of the authorities in charge of providing such information and the timing thereof. Furthermore, smuggled migrants must be directed as soon and as efficiently as possible to relevant service providers.

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Protection Gap: lack of information

While some authorities noted that information measures had been put in place, many migrants reported that they had not received any meaningful information concerning their situation and relevant procedures. They were unaware of what would happen to them next; why they were being held, moved, or left stranded in a particular place; what services were available to them; or the options they had within the legal procedures for family reunification, asylum, relocation or return. Concerning the Calais camp eviction, migrants had not received any specific information regarding the location of the centres where they were to be sent or where relatives or friends would be located. In Bulgaria, migrants interviewed were unaware that they had been criminally prosecuted for irregular border crossing or that a second such offence would result in a prison term of one year or more.

In Greece, unaccompanied children held in separately enclosed sections within the facility complained that they had repeatedly asked for information about what was to happen to them; they were terrified that they would be deported to Turkey and wanted to know why they were being detained.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)

It is further necessary to create mechanisms to monitor and supervise all State agents, institutions, private partners who deliver services to smuggled migrants, to ensure they correctly carry out their duties in full compliance with the law. Avenues of redress (whether civil, administrative and/or criminal) should be clearly established and effective, in order to remedy any breaches of migrants' rights and hold accountable those responsible, including public officials.

Likewise, the State must put in place a framework to ensure efficient coordination between all stakeholders and governmental institutions involved in assisting and protecting smuggled migrants. Tasks and roles must be clearly defined. Smooth communication channels and procedures must be developed so that information is not lost, personal data of migrants is safeguarded and safely stored (under robust regulations concerning use, processing, access and sharing thereof) and proper action is taken promptly. Individuals, including smuggled migrants, should enjoy equal protection under the law without discrimination. This obligation requires close monitoring.

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[A]rticle 26 does not merely duplicate the guarantee already provided for in article 2 but provides in itself an autonomous right. It prohibits discrimination in law or in fact in any field regulated and protected by public authorities. Article 26 is therefore concerned with the obligations imposed on States parties in regard to their legislation and the application thereof. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.

Committee on Civil and Political Rights, General Comment No.18: Non-discrimination (1989), Paragraph 12
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International human rights treaties adopted since 1945 confer legal form on inherent human rights and have developed the body of international human rights law. In ratifying them, governments undertake to put in place domestic measures and legislation compatible with their treaty obligations and duties. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual complaints or communications are available at regional and international level to help ensure that international human rights standards are indeed respected, implemented, and enforced locally. Human rights treaty bodies are committees of independent experts that monitor implementation of these core treaties. They do this by reviewing reports submitted periodically by States Parties on steps taken to implement treaty provisions. Treaty Bodies also adopt General Comments and convene thematic discussions on particular subjects to provide substantive guidance on implementation of the treaty in question.

OHCHR, Working with the United Nations Human Rights Program - A Handbook for Civil Society (2008)
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Protection Gap

The [OHCHR] teams were concerned at the absence in all countries of robust mechanisms for systematic independent monitoring of the human rights situation of migrants at borders, including, but not limited to, detention centres, reception conditions and arrangements, border screening and interview procedures, relocations and evictions, and procedures related to access to protection and assistance services. Where monitoring was carried out, there was no formal mechanism to ensure recommendations were implemented and followed up on. For instance, one national human rights body informed the team that its recommendations to the government were repeatedly ignored. The teams also observed that access for civil society organizations carrying out human rights monitoring activities had been increasingly restricted and sometimes completely denied. Furthermore, the teams noted that accessible mechanisms enabling migrants or others to lodge complaints about violations or abuses of human rights were either unknown or not available. Migrants were either not informed about the possibility of making a complaint or feared repercussions if they did. In some places official complaints channels were not established or were too complex or cumbersome to access. On other occasions migrants were hesitant to access complaints channels as they were viewed as not sufficiently independent, often on the basis of prior negative experiences with public officials.

Good Practice

The teams noted positively that national human rights and/or ombudsperson institutions in some countries were vested with powers to monitor detention facilities, including immigration detention centres, sometimes in cooperation with civil society. In Italy, the Senate Extraordinary Commission on Human Rights had also conducted monitoring of the hotspots, and made important recommendations. In France, the ombudsperson for human rights (Défenseur des Droits) had monitored parts of the eviction process in Calais at the end of 2016.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)
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