PRINCIPLES, SUPPORTED BY PRACTICAL GUIDANCE, ON THE HUMAN RIGHTS PROTECTION OF MIGRANTS IN IRREGULAR AND VULNERABLE SITUATIONS AND IN LARGE AND/OR MIXED MOVEMENTS Background Around the world, many millions of migrants 1 and refugees are in a precarious human rights situation in the context of large 2 and/or mixed movements; such movement is rarely entirely voluntary in the true sense of that term. While migration per se is not a problem, it is increasingly clear that everyone who moves in this perilous manner is in need of some form of protection. In particular situations of vulnerability are those individuals who are compelled to move in large-scale, irregular and perilous movements, many of whom have lost their lives on dangerous migratory routes, or are stranded in precarious transit or border locations. Although they fall outside the specific legal category of a refugee, other migrants in these mixed movements are nonetheless also in need of specific protection interventions as a result of the conditions they are leaving behind and/or the circumstances in which they are compelled to move. As rights-holders, migrants are entitled to the equal protection of international human rights law and related standards. It is these people and these situations that are the focus of the current Principles and Practical Guidance. Even as technological advances have made travel faster and safer, for many migrants, the journey towards their intended destination could take weeks, months or even years. Some might never reach this destination at all. Their route, means of transportation and even their intended destination can change at different phases along the migration trajectory and migrants often fall in and out of various legal categories as they move. An individual s need for protection can change often dramatically - in the course of their journey. During their journey and at destination, the needs and rights of people travelling together will often be the same; they will face many of the same vulnerabilities and risks and share the same need for protection and assistance, even if they do not share the same profile/ immigration status or original reason for leaving their home countries. Children on the move, for example, will often share similar risks and can be vulnerable to the same violations. At the 1 In the absence of a universal, legal definition, OHCHR has defined an international migrant as any person who is outside a State of which he or she is a citizen or national, or, in the case of a stateless person, his or her State of birth or habitual residence. See OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders (2014) chap. I, para. 10. IOM defines a migrant as any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is. 2 The Secretary General s report on addressing large movements of refugees and migrants asserts that Whether a movement is characterized as large depends less on the absolute number of people moving than on its geographical context, the receiving States capacities to respond, and the impact caused by its sudden or prolonged nature on the receiving country. (Para. 11) 1
same time, it is important to uphold existing protections for specific groups established in international law. In this regard, note is made that refugees 3 are entitled to specific protection under international refugee law, including protection from return to persecution under Article 33 of the 1951 Refugee Convention. The particular needs of other groups of non-nationals such as trafficked persons, migrant workers and persons with disabilities have similarly been recognised in specific international instruments. 4 When the international community adopted the Universal Declaration of Human Rights (UDHR) on 10 December 1948 it was accepted as a common standard of achievement for all peoples and nations', spelling out for the first time in human history the minimum civil, political, economic, social and cultural rights that all human beings should enjoy. The international bill of rights (Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights) makes exceptions between nationals and non-nationals in respect of only two rights, and only then in limited circumstances; freedom of movement and political participation. 5 Simply put, all human beings have all human rights. Human rights are universal, inalienable, indivisible and interdependent. Further, the international human rights framework is clear that in order to give effect to these rights and to uphold the fundamental principle of non-discrimination, the unique and individual circumstances of each person must be considered by duty-bearers. 3 Article 1 A(2) of the 1951 Refugee Convention defines a refugee as a person who owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 4 Specifically, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children of 25 December 2003, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, and the Convention on the Rights of Persons with Disabilities. 5 The ICCPR in article 25 reserves to citizens the right to vote and take part in public affairs, and in article 12 reserves the right to freedom of movement within a country to foreigners who are lawfully present within the country. However, in its General Comment No. 15, the Human Rights Committee has guided that a foreigner may enjoy the protection of article 12 of ICCPR even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise. 2
By becoming parties to international human rights treaties, States assume obligations and duties under international law and undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. While it is clear that all migrants are rights-holders, it is increasingly apparent that the precarious nature of contemporary large and/or mixed movements places migrants in particular situations of vulnerability. 6 The trauma and human rights violations and abuse experienced by migrants during their journey and at destination can be exacerbated by the conditions that they are compelled to leave in their places of origin. 7 The standards of protection to which migrants moving in large numbers and/or in mixed movements are entitled, as well as how States can operationalize these standards in practice, have been revealed as a significant gap, particularly in the course of recent events at international borders and in large movements of migrants and refugees around the world. Principles and practical guidance Listed below is a concise draft set of principles and practical guidance on protection of human rights in large and/or mixed movements, with a particular emphasis on the human rights protection gaps experienced by migrants in vulnerable situations who are not entitled to claim refugee status and who will not benefit from refugee protection. In other words, the framework below attempts to respond primarily to the situation of those persons who are not moving chiefly to escape persecution or conflict, but who are nevertheless not moving voluntarily or in a protected manner. The principles are anchored in international human rights law and standards including in relation to the particular rights of specific groups in such movements including children, persons with disabilities, women at risk and LGBTI individuals. The principles are derived directly from international human rights law 6 The High Commissioner for Human Rights has noted of the Mediterranean crossings that [h]uman rights violations form the backdrop of these desperate sea voyages. We have repeatedly underscored that no one who has food to eat, who is safe from torture, and rape, and from falling bombs, who has healthcare for his family, education for her children, decent and productive work would readily embark on these perilous journeys. Amidst all the talk of 'pull factors,' let us understand that these are the 'push factors,' and let us be clear that today s movements across the Mediterranean are rarely entirely voluntary, in the true sense of the term. Callous EU politics on migrants costing lives Zeid, 20 April 2015. 7 The Secretary General s report notes in this regard that The gradual expansion of refugee protection notwithstanding, many people are compelled to leave their homes for reasons that do not fall within the refugee definition in the 1951 Convention, including disasters or the erosion of livelihoods as a result of the adverse impacts of climate change and food insecurity. A/70/59, para. 18. 3
and related standards (including international labour law, refugee law, criminal law, humanitarian law, and law of the sea). The development of principles and practical guidance is without prejudice to the specific rights of refugees (under the 1951 Convention on the Status of Refugees and its 1967 Protocol) or victims of trafficking (United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children) who are also part of such movements. The principles and practical guidance are designed to assist States and other stakeholders with regard to the development, strengthening, implementation and monitoring of measures to protect migrants in vulnerable situations and in large or mixed movements. Each principle identified below is followed by a set of related practical interventions that could be taken by States, and other stakeholders as relevant, to give practical effect to the principle and address protection gaps in this regard. 4
FIFTEEN PRINCIPLES, SUPPORTED BY PRACTICAL GUIDANCE, ON THE HUMAN RIGHTS PROTECTION OF MIGRANTS IN IRREGULAR AND VULNERABLE SITUATIONS AND IN LARGE AND/OR MIXED MOVEMENTS PRINCIPLE 1. Ensure that the principle of non-discrimination is at the centre of all responses to large movements of migrants. PRACTICAL GUIDANCE a. Elaborate and implement legal measures, in conformity with international human rights standards, that protect migrants from discrimination. b. Create or strengthen institutions and mechanisms, such as specialised national bodies, to monitor and report on discrimination against migrants. 2. Enable the access of all migrants to justice. a. Strengthen or establish official mechanisms and/or procedures to monitor and provide adequate and effective remedies for human rights violations and abuse. b. Implement measures that uphold due process such as the right to an individual examination, a judicial and effective remedy, and the right to appeal. c. Develop procedures and standards on the establishment of firewalls between law enforcement and criminal justice actors and immigration enforcement authorities or private actors. 3. Protect the lives and safety of all migrants in transit and at international borders, and ensure rescue and immediate assistance to all migrants in distress. a. Establish, operate and maintain adequate, effective and disability, age- and gender-responsive rescue services at all international borders, including search and rescue at sea services in coastal States; b. Provide assistance without discrimination and in a culturally appropriate manner to all migrants in large movements, including medical 5
care, adequate food and water, blankets, clothing, sanitary items and opportunity to rest. c. Implement agreements with national protection bodies and other relevant actors to ensure timely and effective referrals for migrants in particular situations of vulnerability. d. Put in place measures to respond to the special needs of children, whether they are traveling alone or with family/guardians. 4. Ensure that human rights are at the centre of the governance of migration at international borders, including upholding the principle of non-refoulement and the prohibition of collective expulsion, as well as the right to seek asylum. a. Develop mechanisms in the context of entry and expulsion decisions to assess the individual situation of all migrants, without discrimination, in order to properly assess individual vulnerabilities; and allow adequate time to conduct this assessment. b. Implement measures to prevent or suspend their expulsion until such an assessment has been completed or an appeal against any negative decision has been completed. c. Provide training for border authorities on their obligations under international human rights law, using human rights-based and age- and gender-sensitive border specific training materials. 5. Ensure that returns from all areas where the State exercises jurisdiction or effective control, including extraterritorially, are only carried out in full respect for the human rights of migrants and in accordance with international law. a. Make every effort to secure the sustainability of returns, including gender and child-specific reintegration programmes. b. Decisions on return of children (including unaccompanied or separated children) should be informed by a determination of their best interest which is performed not exclusively by immigration authorities. Any returns of children should only take place when it is determined to be in the best interest of the child and there is adequate safe reception in their country 6
of origin. c. Institute mechanisms for independent monitoring of forced returns. 6. Guarantee the human rights of all children in the context of migration, and ensure that they are treated as children first and foremost. a. Provide guidance based on international law and best practice on the operationalization of the principle of the best interests of the child for migrant children. b. Establish or strengthen qualified and independent guardianship mechanisms for all unaccompanied and separated children. c. Develop measures to ensure the non-separation of migrant families with children, in accordance with the best interest of the child. d. Ensure the effective provision of birth registration for all children in the context of migration. 7. Protect all migrants from violence and sexual, physical and mental abuse, and exploitation, including labour exploitation and forced and child labour, whether inflicted by institutions, officials or by private individuals and entities or groups. a. Take preventative measures to protect migrants from abuse and exploitation. b. Develop or strengthen existing measures, with the support of legal aid and assistance, to ensure that survivors of violence and exploitation are able to access justice, including access to effective remedies such as compensation, c. Provide guidance on referrals to appropriate services including medical and psycho-social services to assist in recovery and rehabilitation. d. Strengthen law enforcement and criminal justice responses to violence against migrants. 8. Protect the human rights of all migrant women. a. Ensure that temporary as well as long-term reception facilities adhere 7
to sexual and gender-based violence prevention standards. b. Provide ongoing and accessible sexual and reproductive health services encompassing access to rights-based, comprehensive and integrated sexual and reproductive health information and services 9. Ensure the right to health of all migrants in large movements. a. Provide information on the medical services available to migrants along migratory routes. b. Deliver non-discriminatory and culturally-appropriate health and medical screenings and treatment which are tailored to the needs of migrants in large movements. c. Develop strategies to ensure adequate care for the management of long-term or chronic health needs as well as mental healthcare. d. Develop procedures and standards on the establishment of firewalls between public health service providers and immigration enforcement authorities or private actors. 10. Guarantee the right of all migrants to decent work. a. Ensure access to equality of treatment and non-discrimination with nationals in respect of wages, rights in the workplace, trade union rights, recognition of skills and qualifications, and social protection. b. Strengthen or make provision for adequate supervision by the competent authorities/duly authorized bodies, such as labour inspection services, of working conditions of migrants. 11. Uphold the right of all migrants to liberty through making targeted efforts to end immigration detention of migrants. Never detain migrant children on account of their migration a. Establish a presumption against immigration detention in law. b. Ensure that administrative detention is only ordered, as a measure of last resort, and that the reasons for this detention are clearly defined in law, 8
status or that of their parents. of limited scope and duration, necessary and proportionate, and that the reasons for such detention are clearly explained to migrants. c. Enforce the principle of non-detention for immigration purposes of all children, regardless of their status or the status of their parents. d. Develop national plans to end immigration detention and to implement human rights-compliant, non-custodial, community-based alternatives to detention. e. Provide guidance on best practices for temporary reception facilities in order to uphold the right to liberty and avoid unnecessary detention. 12. Safeguard the right of all migrants to an adequate standard of living. a. Make provisions for the access of migrants in transit locations to adequate housing, including adequate water and sanitation b. Develop procedures and standards on the establishment of firewalls between public service providers and immigration enforcement authorities or private actors. c. Where detention has been determined to be absolutely necessary as a last resort, ensure human rights compliant conditions of detention. 13. Protect the right of all migrants to education, including primary and secondary education as well as higher education and vocational and language training. a. Develop procedures and mechanisms to ensure the access of all school-aged migrant children to adequate and appropriate education. b. Develop procedures and standards on the establishment of firewalls between schools and other education service providers and immigration enforcement authorities or private actors. c. Implement measures to recognise migrants diplomas and qualifications and transfer educational achievements. 9
d. Introduce curriculum content that fosters intercultural dialogue and understanding and addresses discrimination. 14. Improve the collection of age and sex disaggregated data as well as data disaggregated on other grounds as relevant, such as migratory status, disability and/or minority status - on migrants. a. Produce qualitative research on migrants experiences of transit. b. Collect specific data on the number of migrants killed, injured or victims of crime while attempting to cross maritime, land or air borders. c. Collect specific data on occupational mortality and injury suffered by migrants in the context of large and/or mixed movements. 15. Institute multi-stakeholder partnerships and cooperation at the local, national, regional and international levels to protect the freedom of information and uphold the human rights of all migrants. a. Ensure that migrants are provided accessible, reliable, relevant and accurate information on their situation and rights, including child-friendly information for migrant children. b. Improve knowledge, build capacity and sensitize media professionals and outlets on the situation and human rights of migrants. c. Empower local authorities and other actors, such as trade unions, civil society organizations, the private sector/employers and others to protect and promote the human rights of migrants. d. Support the Secretary General s initiative for a global campaign on confronting xenophobia against refugees and migrants, and devise locallyrooted campaigns targeted at the general public, which focus on telling the stories of migrants and those who are affected by migration and which aim to build empathy and confront prejudice, stigmatisation and exclusion of migrants. GMG Working Group on Human Rights and Gender, June 2016: Please do not quote or disseminate 10