The fence around the Spanish enclave of Melilla in 2006. Sara Prestianni for Noborder Network/Flickr. (CC 2.0 by)Migration is not just a phenomenon or a ‘mega-trend’, nor merely a means to achieve development or alleviate demographic pressures, although these goals are laudable.
At its heart, migration is fundamentally about people, individual human beings. And even a cursory glance at migratory routes and communities around the world reveals the human cost of migration today.
Of course, many migrants are able to move in safety and dignity, truly able to benefit and contribute in the prized (albeit often mythical) ‘win-win-win’ scenario. Yet millions more are compelled to move in unsafe, irregular and (necessarily) disorderly ways, often leaving their homes because that is the only way they see to survive, and subject to human rights violations in transit and at destination.
No one counts them, so for these migrants we do not have an equivalent of the infamous figure of 65 million forcibly displaced persons. Their vulnerability can be difficult to articulate and often remains uncategorised, so they live clandestine lives in the shadows constantly at risk of further abuse.
Migrants who fall outside the refugee definition
The understanding of who is a ‘migrant’ is contested. The UN Human Rights Office, in recognition of the lack of a universal legal definition has described the category as an umbrella term for those people who cross international borders and lack a citizenship attachment to their country of destination. For the purposes of this article, however, and in keeping with the logic of the Global Compact for safe, regular and orderly migration (GCM) which applies only to ‘non-refugees’ in order to mark a difference with the Global Compact on Refugees, this article is directed only to those people who would not meet the definition of a refugee within the 1951 Refugee Convention.
Arguably, the foremost contribution of the GCM lies in its recognition that people must be at its centre, and accordingly in its promise to alleviate the risks and vulnerabilities that migrants face by respecting, protecting and fulfilling their human rights. Protection of human rights also runs as a central thread through the New York Declaration, in which Member States of the United Nations pledged to combat with all the means at their disposal the abuses and exploitation suffered by countless refugees and migrants in vulnerable situations (emphasis added).
The predicament of migrants in vulnerable situations, especially in the context of so-called ‘mixed movements’, often makes them, in reality, undistinguishable on the ground from refugees. ‘Mixed’ migration could be described as the cross-border movement of people who have a variety of protection profiles, reasons for moving and needs but who move along the same routes, use the same forms of transport or means of travel, and often travel irregularly.
There is a compelling need to address critical gaps in ensuring the human rights of migrants who fall outside the refugee definition. In this respect there is a real danger of these individuals falling into the growing space that is opening up between the two Compacts. The rationale for enhanced attention to this group is provided both by the desperate circumstances of such migrants, as well as the imperative of the human rights framework to shine most light on those people in our societies who are marginalized, at risk of abuse, and in danger of being “left behind”.
Migrants in vulnerable situations
These migrants are people who could be leaving their countries out of necessity, rather than free choice, and for some of whom return is neither desirable nor feasible. Some move to escape adverse drivers such as poverty, food insecurity, denial of the right to health or access to justice, or the effects of climate change and environmental factors, or indeed a combination of these factors.
Migrants who may have started their journeys whole and healthy can arrive at their destination having suffered profound trauma and abuse. Migrants can also be particularly at risk because of their personal circumstances; because they are pregnant, children, older persons, in poor health or persons with disabilities.
States can fulfil their duty of care to migrants in vulnerable situations through a comprehensive and practical response strategy, which would include:
1) a dedicated focus on saving lives, reducing suffering and protecting rights while people are on the move;
2) putting in place mechanisms and allocating resources to ensure that the legal status of all migrants can be assessed individually and with due process, as a complement to asylum determination mechanisms; and
3) developing pathways to stay for; on the one hand those who, under obligations related to international human rights law, cannot be returned to their home countries or be removed from the host country; or on the other hand those cases where return would not be desirable from the point of view of the needs of the individual or broader societal considerations.
While recognising and understanding that migration per se is not a problem to be solved, the migration governance crisis out of which the New York Declaration was born must surely mean that the GCM should devote necessary attention to solutions where they are needed, with a focus particularly on the need for pathways in the context of entry, stay and return.
It is worth recalling again the human rights premise of the GCM. While all migrants are affected by the limited channels available for mobility, it is important to recognise that it is those individuals with fewer resources, those who are poor and marginalized and those who suffer discrimination, who are disproportionately affected by the critical lack of regular channels for migration, as well as by barriers obstructing access to those pathways that do exist.
For the global governance of migration to be meaningfully addressed, the GCM will need to challenge dominant methodologies of migration management that rely overwhelmingly on punitive regimes of returns and deportations.
This challenge should be two-fold. In the first place, it is important to make clear that States are obliged to respect the fundamental principle of non-refoulement, as well as a range of other human rights which may be at risk by returning or removing migrants from their territory.
Secondly, and while acknowledging the sovereign prerogative of States to conduct removals in those cases where doing so would not result in an infringement of rights, it is evident around the world that a singular focus on returning migrants without due attention to the reasons why they left and the conditions to which they will return, is likely only to result in repeated cycles of precarious migration.
So, the GCM can commit States to implement appropriate administrative and legislative mechanisms to grant legal status to migrants who cannot return, in the form of temporary, long-term or permanent protection mechanisms designed to uphold international human rights law.
These protection mechanisms would be supplementary to the asylum regime. Where return is legally possible but not a desirable option, solutions could also include developing discretionary humanitarian visas, or education and family reunification channels, as well as labour migration pathways at all skills levels. In many cases, the GCM will not have to look far to provide promising examples of practice which can be built on and expanded.
Systems of migration governance
Even as it places the individual migrant at the centre of its analysis and response, the Global Compact must therefore focus on systems of migration governance. Structural and systemic policies, not any inherent deficiency on the part of migrants, are resulting in vulnerability and risks to human rights. The narrative on irregular migration and irregular migrants, overwhelmingly constructed around notions of criminality and abuse by migrants of borders, welfare and asylum systems, is a case in point.
The majority of migrants in irregular situations enter their countries of destination through regular channels and only subsequently acquire irregular status, for instance by overstaying their permits. Some will remain in these countries for decades, and most are bound to the societies in which they live through ties of family, work, and social, cultural and religious integration.
In some circumstances, a migrant may find that she is in both a regular and an irregular situation, for example if she entered a country on a visa to join family members but is subsequently compelled to work irregularly. Migrants may seek out irregular channels because that is their only way to reunite with family or seek protection of their human rights. Children born to migrant parents often inherit their irregular status.
Enduring fictions robustly challenged
An enduring fiction is that no legal framework exists that provides for the protection of migrants, and particularly in the case of those migrants who move or stay in irregular or ‘disorderly’ ways. This is, quite simply, entirely incorrect.
All migrants are entitled to the respect, protection and fulfilment of international human rights law, including the provisions of the Universal Declaration of Human Rights and the two human rights Covenants. Migrant workers are specifically entitled to the protections laid out in the Migrant Workers’ Convention. The Convention on the Rights of the Child provides protection to all children in the context of migration, without exception. Migrants who are at risk of, or have suffered, torture can turn to the Convention against Torture for protection.
In their concluding observations, general comments and other authoritative guidance, the supervisory mechanisms of these treaties have provided guidance to Member States on how to ensure this protection in practice.
So, we look to the GCM to provide a robust challenge to the damaging narrative on migration, not only by reminding States and their publics of the contributions of migrants, but by reminding them of their humanity.
Its objectives could commit States to de-criminalize irregular migration and institute concrete measures to ensure the delivery of public services and access to justice separately from immigration enforcement activities.
And by doing so, the GCM would empower migrants, it would increase inclusion and understanding between migrants and the communities in which they live, and it would go a long way towards breaking down barriers of stigma and intolerance.