HUMAN RIGHTS COUNCIL
Agenda item 3
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*
Conclusions and Recommendations for the
Protection of Irregular Migrants
60. The Special Rapporteur encourages States to view irregular migration as an administrative offence, reversing the trend toward greater criminalization, and to incorporate the applicable human rights framework into their bilateral and regional arrangements for managing migration flows and protecting national security interests, as well as to harmonize their national laws and policies with international human rights norms. At the core of immigration policies should be the protection of migrants, regardless of their status or mode of entry. As such, the Special Rapporteur offers the following recommendations for the formation or reform of regional and bilateral cooperation mechanisms and agreements, as well as the enhancement of national training and analysis programmes and policy measures.
Incorporating a human rights framework
61. States should incorporate the applicable human rights framework into their bilateral and regional arrangements for managing migration flows and protecting national security interests. Specific attention should be paid to detainees, smuggled migrants, victims of trafficking, children, women, asylum‑seekers and other vulnerable groups. Policies designed for the readmission and reintegration of returnees should ensure that migrants seeking international protection are not forcibly returned without guaranteeing their rights to seek aslyum.
62. States should incorporate international human rights norms into their national immigration laws and policies. In this context, States who have not yet done so should ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the first comprehensive international treaty focusing on the protection of migrant workers' rights and on the link between migration and human rights; it provides very useful guidance for States on how to ensure that migration takes place in humane and equitable conditions. In particular, States should review their expulsion procedures and harmonize them with the Convention, which offers the most comprehensive protection for non‑nationals in this regard.
63. States should review their national policies to harmonize them with existing regional and subregional agreements on labour mobility. This should be done with a view to evaluating which national policies are restrictive in this sense, and what practical implications restrictive national frameworks have for the human rights of migrants, both documented and not, as well as for the obstacles it places on promoting the free movement of labour which might have positive consequences for the national economy.
64. All cases of persons involved in the interception of migrants at sea, whether irregular migrants or those involved in the rescue or transport of migrants found to be irregular, should be treated on an individual basis and granted the basic right to due process. Persons believed to be smuggled or trafficked should be brought before an independent judge without the involvement of the country of origin; States should renew their cooperation in protecting witnesses and victims who assist in identification and prosecution of smugglers and traffickers. Persons claiming international protection should be allowed to enter the national asylum procedure without delay.
65. States should take measures to review their national laws applicable to the detention of migrants to ensure that they are harmonized with international human rights norms that prohibit inhumane treatment and ensure due process. States should take measures to ensure that detention of irregular migrants is not arbitrary and that there is a national legal framework to govern detention procedures and conditions. States should develop and implement systems of alternatives to detention in the context of flows of undocumented migration ‑ which could provide strong procedural safeguards including the obligation to have a judge decide on the legality of detention and on the continuing existence of reasons for detention ‑ and generally permit detention only as a last resort.
Building national capacities
66. States should further develop and implement training and awareness‑raising programmes for border authorities, officials at detention centres, police and military officers, and government officials on the human rights afforded to irregular migrants during all phases of the migration stage including, inter alia, interception and rescue at sea, detention and expulsion, and smuggling and trafficking, where applicable.
67. States should consider establishing an independent body at the regional level that can help monitor the effectiveness of certain policies contributing to the externalization of border controls. This might be in the form of enhancing the capacity of an already existing academic or policy institute or by forming stronger ties with the data and monitoring sections of existing regional systems of human rights protection (e.g. the Inter‑American System for Human Rights, the Council of Europe, or the African Commission on Human and Peoples' Rights), where applicable.
68. States should take measures to further promote legal migratory channels to encourage regular labour mobility flows, including schemes for temporary and circular migration and the movement of skilled and semi‑skilled labour under regional mechanisms for the free movement of labour. Where provisions for the free movement of persons already exist at the regional level, States should take measures to ensure the proper institutional structures are in place to implement such provisions, with particular regard to the human rights protections afforded to migrants.
69. States should take all measures to inform officials involved in potential interdiction at sea operations of the rights and protections afforded to migrants in transit, including those that are irregular. The rescue of persons in distress at sea is not only an obligation under maritime law but also a humanitarian necessity, regardless of the legal status of those found or their reasons for travelling by sea. Trafficked persons and other vulnerable groups such as separated children and asylum‑seekers should receive specific assistance, including necessary health care at reception.
70. States should take measures to inform potential migrants about the risks associated with smuggling and trafficking operations, as well as the rights afforded to migrants even if in an irregular situation, particularly if detention is used. Particular attention should be paid to the gender‑specific stigmatization associated with irregular migration and to the exploitation of children in all forms.
71. States should take measures to further understand and inform border officials, detention centre officials, and police and military officers about the distinctions between smuggled migrants, victims of trafficking, and other irregular migrants who potentially fall into both categories. All efforts should be made to fully and without prejudice investigate cases on an individual basis, provide due process guarantees and consular assistance, and to provide assistance to irregular migrants in their safe return, where applicable.
Data and analysis
72. States should bolster their ability to analyse data about migration policy. In support of individual States' domestic policies, laws and practices that have cross‑border effects, an observatory could be established to compile accurate statistical and related data and to provide independent, impartial and expert analyses of key aspects of migration policy in order to discern their successes and deficiencies.
73. States should take further measures to enhance annual quantitative data on labour demand by host countries, which is the driving force behind economic migration, in an effort to better regulate the supply of labour migrants with the needs of host countries. Host countries and countries of origin each need to identify, respectively, current and projected labour supply shortages and surpluses by economic sector, occupation, region and province; furthermore, differentiation between labour shortages that are structural and those that are seasonal or otherwise temporary is important for designing and implementing effective labour migration policies.
74. States should devise plans for policymakers to explore the relationship between labour supply and demand and xenophobia at the institutional and community levels. Further consideration needs to be given to better integrating statistics into flexible, inclusive, and sustainable decision‑making processes to govern admission, employment and residence status of migrants, as well as communication/education campaigns on the benefits of migration to the local and national economy. Recognition of demand‑driven labour migration should mitigate the potential for anti‑immigrant sentiments and rhetoric.
75. States should take measures to review, compile and share information on irregular maritime migration. For bilateral and multilateral agreements to restrict irregular maritime migration States, relevant intergovernmental organizations and non‑governmental actors should establish mass information campaigns to inform those in transit of the risks associated with such travel and improve communication among officials when migrants are intercepted at sea, including the risks associated with overland travel en route to the prospective embarkation point. Empirical data on the scale and scope of irregular maritime migration, interception, rescue at sea, disembarkation and treatment of persons who have disembarked should be harmonized and more systematically compiled by Governments and international agencies.