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Protecting the Human Rights of Forced Migrants in an Era of "Migration Crises"
Idil Atak and Vanessa C. Wachuku
Editor in Chief and Assistant Editor, International Journal of Migration and Border Studies
Migration is an integral part of the history of civilization. As one of the main manifestations of globalization, the phenomenon involves some 244 million international migrants and is closely connected with policy areas such as development, security and, most importantly, human rights. Today there is general recognition of the importance of addressing international migration through a comprehensive and balanced approach. Countries of origin, transit and destination have responsibility for promoting and protecting the human rights of all migrants (Declaration of the High Level Dialogue on International Migration and Development, 2014). Over the past decades, universal and regional human rights protection bodies have greatly contributed to this broad conceptualization of migrants' rights.
Despite these positive developments, we also live in a global context of "migration crises". Forced migration as a result of persecution, conflict, violence or human rights violations is continuing to grow, exacerbated by climate change, poverty and struggles for scarce resources. According to the United Nations High Commissioner for Refugees (UNHCR) (2017), 65.6 million people were forcibly displaced in 2016, including 40.3 million individuals displaced in their own countries. Conflicts like those in Syria, Afghanistan and Iraq that have caused large refugee outflows are lasting longer, pushing the number of refugees in the world steadily upward from 10.4 million in 2012 to 22.5 million in 2016. Alarmingly, children constitute about half of the refugee population. In addition, a growing number of migrants in a precarious socioeconomic and legal situation experience marginalization and are victimized in several countries around the world.
The Criminalization of Forced Migrants
One of the main challenges migrants face is the criminalization of migration, which involves the increasing use of criminal law measures, negative public discourse, and other policies and practices that stigmatize migrants and refugees and/or diminish their rights. In fact, since the 1980s, countries in the global North have imposed criminal penalties on forced migrants, including refugees, for entering or staying in their territory in an irregular manner, for using false documents or for unauthorized employment. Transport companies, employers and other persons who come in contact with or try to help forced migrants have become the targets of criminal sanctions. Border controls have been strengthened and international cooperation has increased in order to better identify potential security and criminal threats as well as irregular migration movements. Asylum systems have become stricter for refugee claimants arriving in the destination countries with the help of smugglers.
The Detention of Forced Migrants
Against this backdrop, countries adopt immigration detention as a measure to restrict the unauthorized movement of migrants and to protect their borders and sovereignty. This policy, which has been increasing over the past 20 years (Guia et. al., 2016), is highly problematic as countries detain immigrants irrespective of their national and international obligations to uphold the human rights of this population. The practice of detention of forced migrants and refugees in predominantly deplorable living conditions traumatizes and exacerbates the physical and mental health of migrants and deprives them of their liberty. Universal and regional human rights protection bodies such as the Office of the High Commissioner on Human Rights (OHCHR), the UNHCR, the International Detention Coalition (IDC) and the Global Detention Project (GDP) recognize these problematic aspects of immigration detention which cause severe suffering. There have been numerous calls for countries to consider alternatives to immigration detention. In a recent report, the United Nations Special Rapporteur on the Human Rights of Migrants (2016) recommended that states should consider developing and implementing rights-based alternatives to detention in order to protect the human rights of migrants.
Canadian Developments and Unintended Consequences of Restrictive Policies
Canada has been highly praised for its commitment to resettling refugees. Indeed, more than 40,000 Syrian refugees were resettled between November 2015 and February 2017, including 14,274 as privately-sponsored refugees (Government of Canada, n.d., #Welcome Refugees). However, in line with the above-mentioned global trends, Canadian refugee policy has become increasingly restrictive under the previous Conservative government. Following the widely publicized arrivals of two boats of Tamil asylum seekers on Canadian shores in 2009 and 2010, Canada introduced the Protecting Canada's Immigration System Act (2010) and the Balanced Refugee Reform Act (2012), which amended the Immigration and Refugee Protection Act (IRPA 2001). This legislation contains a number of extraordinary measures that apply to asylum seekers and include expedited refugee claim hearings, lack of appeal process for some groups of claimants, and growing use of legal and socioeconomic deterrents, notably mandatory detention. Moreover, Canada introduced "safe country of origin" criteria, which authorize the Minister of Citizenship and Immigration to presume that refugee claimants from designated countries do not face risks of persecution, torture or similar abuse. This expedites removal, as refugee claimants are processed through accelerated procedures.
These extraordinary measures were taken by authorities in Canada in order to enhance security, deter irregular migration and prevent abuse of the asylum system. These are legitimate objectives from a State's sovereignty point of view. However, research shows that these sorts of measures produce a wide range of unintended policy consequences. They can actually increase security risks, as stricter border controls lead migrants to employ criminal networks to better their lives. European figures suggest that the implementation of repressive measures do not serve as a deterrent and do not reduce irregular migration (Triandafyllidou and Ambrosini 2011; Schuster 2011). Border cooperation diverts migration movements but does not stop them in a lasting manner. Such policies have the effect of driving further underground attempts to reach destination countries and making these journeys even more dangerous. The IOM estimates that over the last two decades, more than 60,000 migrants have died trying to reach their destinations - and this only includes deaths for which there is some record (IOM 2016). Critical analyses of United States border control policies have shown that increased restrictiveness has also had the unexpected result of turning temporary migrant workers into permanent settlers of an irregular status, due to the high risks of repeated border crossing (Castles 2011; Massey, Duran and Pren 2016).
Protecting the Human Rights of Migrants
These sorts of extraordinary measures also have considerable negative impacts on the human rights of migrants. National and regional tribunals - including the European and Inter-American Courts of Human Rights, the European Court of Justice and the United Nations specialized committees - have on numerous occasions found that States have infringed the rights of asylum seekers. There are several court decisions and independent studies on the risk of serious human rights violations posed by harsher measures, which also result in the weakening of procedural safeguards and the penalization of vulnerable claimants such as victims of torture or human trafficking, and children and women.
The urgent nature of the problems faced by migrants is acknowledged in the New York Declaration for Refugees and Migrants adopted by the UN General Assembly on 19 September, 2016, which reaffirmed the need to protect the rights of refugees and migrants. World leaders also agreed in New York to work on two global compacts (Global Compact on Refugees and Global Compact for safe, orderly and regular migration) to be adopted in 2018. This comprehensive framework will include a set of common principles and guidelines on the treatment of migrants in vulnerable situations. It also aims to achieve a more equitable sharing of the burden and responsibility of hosting and supporting the world's refugees.
Against this background, we believe that research and knowledge mobilization play a vital role in documenting and critically analysing the experiences of migrants and other stakeholders; examining laws, policies and practices; and exploring innovative approaches, theories, concepts and methods in the field of forced migration, borders, settlement and integration, developed within traditional disciplines or along interdisciplinary lines. The International Journal of Migration and Border Studies (IJMBS) is a peerreviewed journal which offers a forum for disciplinary and inter-disciplinary research concerning conceptual, theoretical, empirical and methodological dimensions of migration and border studies. IJMBS addresses the whole range of technological, human/social, political, policy, organisational and managerial issues related to migration and border studies. It aims to bring together a diverse range of international scholars and practitioners to advance knowledge, improve practice and act as a definitive source on migration and border issues.
Balanced Refugee Reform Act, S.C. 2010, c. 8.
Castles, S. 2004 "Why migration policies fail", Ethnic and Racial Studies, 27(2): 205-227.
Government of Canada. (n.d.). #Welcome Refugees. Key Figures. Retrieved from http://www.IRCC.gc.ca/english/refugees/welcome/milestones.asp
Guia, M. J., Koulish, R. E., & Mitsilegas, V. (2016) Immigration detention, risk and human rights: Studies on immigration and crime Springer.
Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27.
IOM (International Organisation for Migration) (2016) Fatal Journeys Volume 2: Identification and tracing of dead and missing migrants. Geneva.
Massey, D. S. and Pren, K. A. 2012 "Unintended consequences of US immigration policy: explaining the post-1965 surge from Latin America", Population and Development Review, 38(1): 1-29.
Protecting Canada's Immigration System Act, S.C. 2012, c. 17.
Schuster, L. 2011 "Turning asylum seekers into 'illegal migrants': Afghan asylum seekers in Europe, Ethnic and Racial Studies, 34(8): 1392-1407.
Triandafyllidou, A. and Ambrosini, M. 2011 "Irregular immigration control in Italy and Greece: strong fencing and weak gate-keeping serving the labour market", European Journal of Migration and Law, 13: 251-273.
UN General Assembly (3 October 2016) New York Declaration for Refugees and Migrants : resolution A/RES/71/1.
UN General Assembly (2014) Declaration of the high-level dialogue on international migration and development, Resolution adopted on 3 October 2013, A/RES/68/4, 21 January.
UNHCR (2017) Global trends forced displacement in 2016. Geneva.
Office of the High Commissioner on Human Rights 20 July 2016 Report of the Special Rapporteur on the human rights of migrants. Advance Unedited Version. A/71/40767. Retrieved from http://www.lan.ohchr.org/Documents/Issues/SRMigrants/DevelopingGlobalCompactOnMigration.pdf
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