5 Refugee Studies Centre, Forced Migration Review No. 34, 62 (Issue No. 34, February

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2 Introduction Ci siamo accorti dell esistenza di un diritto ad avere diritti (e ciò significa vivere in una struttura in cui si e giudicati per le proprie azioni e opinioni) solo quando sono comparsi milioni di individui che lo avevano perso e non potevano riacquistarlo a causa della nuova organizzazione globale del mondo. H. Arendt 1 Recently, the phenomenon of so-called irregular migration has become an issue of international concern, highlighting several critical issues pertinent to the intersection of protecting migrants in these circumstances and implementing international human rights law. All around the world this phenomenon, which is finding its definition in the irregularity of its being, increasingly attracts media attention through the dissemination of information, denunciation of abuses, and violations of migrants rights. Just to illustrate my argument I cite the case of Burundi, where numerous incidents (around 800) of arbitrary expulsion and detention of foreigners from different countries raised concerns. 2 Collective expulsion and deportation has taken place in Angola and Congo. 3 The issue of irregular migrant workers is also growing in Thailand, where civil society is seeking increased respect for these migrants basic human rights against employers abusive practices. 4 Violent attacks 1 HANNAH ARENDT, LE ORIGINI DEL TOTALITARISMO (Giulio Einaudi Editore, 2009). 2 SRHRM, Report submitted by the Special Rapporteur on the human rights of migrants, Jorge A. Bustamante, Addendum, Communications sent to Governments and replies received, at 4, U.N. Doc. A/HRC/14/30/Add.1 (May 25, 2010). 3 Id. at 10 and Human Rights Watch, From the Tiger to the Crocodile Abuse of migrant workers in Thailand, February

3 against foreign nationals have occurred in South Africa 5 and in Kuwait. 6 Xenophobic attitudes and related intolerance are also targeting irregular migrants in the Dominican Republic and in Mexico. 7 Irregular migration is now a relevant topic on the agenda of the international community. 8 In this regard, there has been a lack of recognition on the part of international organizations that irregular migration and human rights protection are a concern for everyone. 9 Irregular migration was considered only as a matter of a domestic nature or an internal matter of states. However, this attitude has been changing recently, as it has moved gradually from being treated as a domestic matter to a full-fledged human rights issue. By 2005, the Global Migration Group (chaired in 2011 by the United Nations High Commissioner for Human Rights, Navanethem Pillay), was openly acknowledging that 10 5 Refugee Studies Centre, Forced Migration Review No. 34, 62 (Issue No. 34, February 2010). 6 See SRHRM, supra note 2, at Id. at DAUVERGNE CATHERINE, JURISPRUDENCE FOR AN INTERCONNECTED GLOBE, Ashgate Press, Burlington (2003). 9 Navanethem Pillay stated: Through its leadership of the GMG in the coming months, OHCHR seeks to promote and mainstream a human rights approach to migration within the United Nations system, highlight key migration and human rights themes at the international level, Press Release, OHCHR, Joint hands to protect the human rights of all migrants (Sep. 8, 2010) <www. ohchr.org/ EN/NewsEvents/Pages/GMG.aspx> (last visited Jun. 20, 2012). 10 The Global Migration Group (GMG) brings together several international agencies that cooperate in the field of migration (for instance ILO, IOM, World Bank, WIPO, UNDP, UNESCO, and UNHCR, United Nations Children s Fund). The GMG was established in 2006 recognizing that that international migration is an important, complex and multi-dimensional issue, and that, properly managed, in full respect for the human rights and international legal principles at issue, migration benefits individuals and societies, and can make an important contribution to the early achievement of the internationally agreed development goals and objectives, including the Millennium Development Goals, see GMG, Terms of Reference, available at <www. globalmigrationgroup.org/uploads/what-is-gmg/final%20gmg%20terms% 20 of%20reference_prioritized.pdf> (last visited Jun. 20, 2012). 16

4 Too often, States have addressed irregular migration solely through the lens of sovereignty, border security or law enforcement, sometimes driven by hostile domestic constituency. Although States have legitimate interests in securing their borders and exercising immigration controls, such concerns cannot, and indeed, as a matter of international law do not, trump the obligations of the State to respect the internationally guaranteed rights of all persons, to protect those rights against abuses, and to fulfill the rights necessary for them to enjoy a life of dignity and security. 11 This explicitly highlights the role that national policies and legal measures play in ensuring that all migrants whether regular or irregular enjoy basic human rights. This is particularly relevant if we consider actual bordercrossings in the Euro Mediterranean region. 12 At the United Nations, particular attention has been paid to this issue, especially through the mandate and work of the former UN Special Rapporteur on the Human Rights of Migrants, prof. Jorge Bustamante. Bustamante observed that the general trend is an increase in the abuse of irregular migrants through the migration process (in the countries or territories of origin, transit, and destination). 13 In fact the irregular migratory flows into and out of each country are complex and, in some instances, the issue of political asylum tends to become linked with irregular movement. In response to these complex patterns of human mobility, maintaining a clear distinction between refugee protec- 11 Press Release, OHCHR, Statement on Protecting the Human Rights of Irregular Migrants (Sep. 30, 2010). 12 NINNA NYBERG SORENSEN (ED.), MEDITERRANEAN TRANSIT MIGRATION (Danish Institute for International Studies, 2006). 13 SRHRM, Promotion and protection of all Human Rights, civil, political, economic, social and cultural rights including the right to development, Report of the Special Rapporteur on the human rights of migrants, Jorge Bustamante, U.N. Doc. A/BRC/7/12 (Feb. 25, 2008). On this vein, the prof. François Crépeau, the new SRHRM launched in March 2012 a one-year Regional Thematic Study: Management of the External EU borders and its impact on the human rights of Migrants. This study will assess the current challenges in protecting the rights of migrants, particularly in irregular situation, focusing on the Euro Mediterranean Region. 17

5 tion imperatives and migration control strategies becomes a challenge. 14 This book will highlight some of the human rights violations perpetrated against irregular migrants in transit countries, beginning with the examination of the pattern and dynamics of transit migration towards Morocco and the European countries, because the dynamics of unauthorized migration have received extensive media coverage but little academic attention. In particular the research will focus on the national legal practice of Morocco in the context of identifying the exact scope of states obligations relevant to irregular migration with regard to migrants protection. I will argue that the responsibility of third countries in the field of asylum and migration to take measures to prevent such violations must be assessed against the broader framework of state obligations derived from the interaction of different legal orders, both universal and regional in scope. Today a growing number of people across international borders by choosing routes that fall outside of the so-called legal channels. These irregular movements may occur by land, by sea, or by air, and in most cases qualify as South North or South South movements, although there is growing evidence that they cannot be traced from developing countries. 15 The push factors which compel thousands of people to migrate are often mixed and complex, many individuals who take irregular paths hardly fit into any of the categories into which legal or political construction tries to crystallize them. 16 Sometimes several reasons impel individuals to leave their countries and cross national borders, or a set of interrelated factors may contribute to increase the incentives and imperatives that drive these individual to 14 Ibrahim Awad, Keynote Speech at the Meeting of Experts and Policymakers on Irregular Migration into and through Southern and Eastern Mediterranean Countries, European University Institute, January 2009, available at < (last visited Oct. 25, 2010). 15 GMG, International Migration and Human Rights, Global Migration Group, Geneva, 2008, at FRANK DUVELL (ED.), ILLEGAL IMMIGRATION IN EUROPE, BEYOND CONTROL (Palgrave, 2005). 18

6 move, sometimes within their region and sometimes between continents. 17 This situation applies not only to the case of violations of admission rules, but also if sudden changes occur to the national regulations addressing the status of foreigners: it could happen that migrants themselves are not aware that they are violating domestic laws. 18 For instance, immigration policy reforms may contribute to the increase of so-called irregular migration by expanding the definition of irregular migrants to include tolerated migrants. 19 Public debates and political agendas treat this topic as a legal or security issue, paying scant heed to the needs of migrants for protection and increasing their vulnerability to different forms of abuse and violations. 20 Irregular migrants are a heterogeneous group: they may have specific needs and, in some cases, they are entitled to access to the protection afforded by the international human rights framework. Firstly, more and more individuals cross borders and are in need of protection because of the critical political situation or national conflicts in their countries of origin that make impossible for them to go back. 21 Secondly, it is relevant to note that migration is a dynamic 17 Alexander Betts, Towards a Mediterranean Solution? Implications for the Region of Origin, 18 INTERNATIONAL JOURNAL OF REFUGEE LAW 652, 656 (2006); ILO, International Labour Migration: a rights-based approach, ILO, Geneva, 2010, at CATHERINE DAUVERGNE, MAKING PEOPLE ILLEGAL: WHAT GLOBALI- SATION MEANS FOR MIGRATION AND LAW 19 (Cambridge University Press, 2008). 19 See for instance in Jordan 2007, the legal status of more than 200,000 Egyptian migrant workers suddenly changes as a result of legal reform which undermined the migrants capacity to legally stay in the country. Mohamed Olwan, Irregular Migration in Jordan A Policy of No Policy (CARIM Analytic and Synthetic Notes 2008/60, 2008). 20 ELSPETH GUILD, SECURITY AND MIGRATION IN THE 21 ST CENTURY 1 3 (Polity Press, 2009). 21 Frank Düvell, The Pathways in and out of Irregular Migration in the EU: A Comparative Analysis, Special Issue, 13 EUROPEAN JOURNAL OF MIGRATION LAW 275, 288 (2011). 19

7 process and in some cases the protection needs raised by the individuals are direct consequences of that dynamic nature. Beyond the individual reasons that push a person to leave his or her country of origin, migrants may be facing situations of abuse and rights violations during the migratory process. 22 There are several groups of people who illustrate this: 1) stranded migrants may be exposed to the worst forms of violation or abuse linked with the uncertainty of their stay, such as being deprived of any legal opportunity to leave the country, making them trapped; 2) victims of trafficking, who are forced to move and are subjected to physical abuses and exploitation; 3) smuggled migrants and people suffering other kinds of abuse during their travel, who may be in need of psychological assistance; 23 4) individuals subject to removal orders may be exposed to violence or inhuman treatments if sent back to their countries of origin or to their transit countries GMG, Background Paper, Rooting migration policies in human rights: ensuring the rights of all migrants and improving human development outcomes, Global Migration Group, May ICMC raised the need to develop international and national mechanisms to provide satisfactory conditions of medical assistance, nutrition, and hygiene to individuals affected. ICMC, Improving responses to boat people and other migrants injured or traumatized crossing borders, Geneva, April See Betts, supra note 17, at 656. Exemplary is the case of Congolese migrants expelled from Angola to Congo. Between 2003 and 2009, around 3000 Congolese were expelled. Their conditions of deportation were unacceptable, they were subjected to sexual violence, including rape, and deprived of any kind of assistance and protection. OCHA, Congolese expelled from Angola, DR Congo Situation Report No. 1, 21 July As confirmed by the report submitted by SRHRM, see SRHRM, supra note 2, at