States' Interests and Migrant Rights: A Legal Dilemma?

By Stephanie Fitzgerald
Interstate - Journal of International Affairs
2012, Vol. 2011/2012 No. 2 | pg. 1/3 |

The strict regulations for immigration fuels the smuggling of irregular migrants, however, amongst the irregular migrants are genuine asylum seekers in search of protection. If party to the Convention Relating to the Status of Refugees,1 States are obliged to abide by certain requirements that grant asylum and enforce the principle of non-refoulement.2 Yet, these obligations are ambiguous, open to interpretation and can sometimes be overlooked when irregular migrants are involved, due to State attitude towards migrant smuggling and its impact on State security.

The balance between a robust and acceptable migration policy against the States internal security is a constant dilemma for governments. Failure to get this balance right jeopardises both the safety of the migrant and the State. Security threats, as well as social issues, have led States to cooperate with each other in regards to tightening up border controls, applying strict restrictions to visa applications and issuing severe fines and punishment for those contributing to the illicit transportation of migrants. Various States, geographically unfortunately placed, receive inequitable amounts of irregular migrants, a large proportion of whom seek asylum.

These States struggle to cope with the masses of migrants and have sought help from the international community to help address this problem. A practice of burden sharing has developed in order to help combat migration pressure for States through various pieces of international legislation, but most notably through the international obligation to cooperate. One identified method that enables States to share the burden of migration is the physical burden sharing of migrants between States. A further method is the provision of financial aid to States struggling with migration flows.

However, this burden sharing scheme has evolved into a process of burden shifting. Agreements have been made to shift the burden of irregular migration and the processing of asylum applications onto other States, whether they are willing participants, or have simply been refused help and forced to bear the burden alone. States are reluctant to assess asylum claims by irregular migrants, consequently seeking alternative ways to detach themselves from this burden. The reluctance to assist irregular migrants is problematic for genuine asylum seekers, who have used illicit migrant smuggling to escape a place of persecution. The genuine asylum seeker can suffer from the states willingness to transfer asylum seekers to further States who are not party to the Refugee Convention, or various other human rights conventions. This act seems to breach international obligations to ensure protection for genuine asylum seekers, as non-party States not bound by the international conventions could in turn send the asylum seekers back to their country of origin, a further country of persecution or itself be a country of persecution.

Despite reluctance to deal with irregular migrants and asylum claims, there is evidence of cooperation to share the burden in situations of emergency. However, the emergency only comes about when States refuse to accept the burden alone. Surrounding States, then have a moral rather than legal obligation to assist its neighbours and take a share of the responsibility, otherwise the lives of refugees would be in jeopardy. This eventual result illustrates an understanding of the true extent of cooperation. The concept of burden sharing is present in legislation, although the obligatory nature of such a practice is uncertain, however, the consequences of State actions, brings about a moral obligation to share the burden of migration. Such a repetitive practice, if not interweaved into a binding convention through the establishment of a common asylum policy, may well over time become a part of customary law.

The Provocation of Migration and its Extent

People are ‘prompted to migrate irregularly ... for a variety of reasons’,3 a common cause being poverty,4 however other reasons may include, ‘civil strife, ethnic conflicts and violations of human rights’ as well as, environmental factors.5 Natural disasters have become frequent “push factors”6 for migration, with more and more being affected. 7 Environmental degradation is another factor increasingly effecting migration. This will also increase with the advance of global warming which may potentially leave millions victims of coastal flooding, droughts and disrupted rain falls.8 It has also been noted that biological disasters, destroying various food resources, as well as industrial accidents may also have an effect on migration,9 showing that where consequences are so grave, despite usual internal migration, external migration can occur.10 The demand for migrant labour can be seen as an additional push factor.11 However, due to security interests, national legislation has now been enacted in many States to prevent employers seeking such labour. This is carried out by increasing fines for industries employing irregular migrants at a reduced pay rate.12

A further reason for irregular migration could be ‘family reunification’, ‘should migration policies impede such reunification…there will be a natural tendency for the migrants and their families to look for reunification possibilities through irregular channels’. 13,14 A final factor many describe as economic want, ‘the urge to escape from economic distress and search for better opportunities’. 15 However, to leave everything behind to take up the status of an irregular person is not something looked at lightly, often economic migrants are pushed to do so because of one of the above factors, ‘people flee, primarily, not to wealth, but from poverty’.16 One Nigerian man stated that, ‘We seek freedom and opportunity to look after ourselves…if we cannot find that in our own country, then we must look somewhere else’.17 With these factors in mind, it has been suggested that an ‘effective strategy’ needs to address both the push and pull factors concurrently. 18 The current border and employment controls only address the immediate threat of smuggling and not the root causes of migration.19 ‘The criminal justice, immigration and refugee policies must be embedded in a national strategy’, that address the realities of irregular migration.20

Until such causes are addressed, migrant smuggling will persist as an organised crime for both irregular migrants and genuine asylum seekers. It is important to note that often irregular migrants and genuine asylum seekers flee countries together creating the ‘asylum-migration nexus’, where refugees and irregular migrants, through using the same routes, are often confused with one another and not always met with kindness by States.21 Asylum seekers are ‘forced to flee… because of war, violence or persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group’.22 Asylum seekers often use illegal means of escaping their country of origin due to fear of being found. Despite their legitimate nature, by using illegal means of transportation and fraudulent documents to bypass States’ border checks, they are initially met with hostility as States are reluctant to allow irregular migrants on to their territory, even to assess their asylum claims.

Difficulty arises when attempting to quantify the migrants who travel illicitly, as the migrants act clandestinely due to the criminal nature of smuggling. The United Nations Office on Drugs and Crime23 estimated ‘that each year, about 55,000 migrants are smuggled from Africa to Europe and that about 3 million people enter the USA illegally on the southern border with Mexico’.24 Reports on migrant smuggling indicate that those smuggled include political refugees, those fleeing persecution,25 as well as economic migrants.26 Widgren estimated that at its lowest, approximately 70,000 asylum seekers have been smuggled out of a total of 106,000 migrants.27 The United Nations High Commissioner for Refugees (UNHCR) has illustrated that, ‘at the end of 2010, some 43.7 million people worldwide were forcibly displaced due to conflict and persecution, the highest number in more than 15 years’.28 This number includes 15.4 million refugees, 27.5 million internally displaced persons and more than 837,500 awaiting their asylum application to be processed. 29

This highlights that current tactics have been unsuccessful, despite the cooperation to control borders. In order to reduce irregular migration, cooperation to the fullest extent is required. The UNHCR document advises that countries with strong economies should share in the burden of migration to a larger extent, as they are in better financial positions to host refugees.30 The report illustrates that developed countries are not taking their fair share of refugees. Pakistan in 2010 had the highest number of refugees, the Democratic Republic of the Congo had the second highest, whereas the first developed country to have the highest number of refugees was Germany, 25 places below Pakistan.31 In order for successful migration figures, equal distribution among all States is needed, cooperation through the practice of burden sharing.

International Cooperation and State Obligations

‘International cooperation’, grounded in the preamble and article 1 of the United Nations Charter,32 has a generally accepted meaning of ‘cooperation among States’, as well as ‘the sharing of burden and responsibilities … and neighbourliness’.33 In other words cooperation establishes an obligation to assist surrounding States when in need. This is significantly true within the ‘refugee regime’, 34 due to the fact that ‘refugee challenges are inherently transnational and cannot be addressed by any one State alone’.35 Often States are unable to cope with mass inflows of refugees, due to security, environmental or social reasons. This can be seen with the Yugoslavia conflict which led to over 850,000 refugees migrating from Kosovo to Albania, FYR Macedonia and Montenegro. Albania ultimately requested a system of international burden sharing, agreeing to only allow refugees into their State if they were to be evacuated to third States.36 In such cases if there is no international cooperation, ‘to ensure adequate assistance, protection and solutions to refugee[s]’, there may be an increased risk of refugees seeking irregular migration, through means of smuggling, to reach States of destination.37

Cooperation can take many forms such as burden sharing the distribution of migrants, financial aid, as well as social, environmental and political assistance to solve the root causes of migration. However, problems have arisen with regards to the physical sharing of migrants, as States, although engaged in cooperative agreements, are passing the burden of assessing asylum claims onto third States which may have lower standards of care for such migrants. This could be for a variety of reasons, however, State security seems to be the most significant. Despite the international obligations to cooperate and participate in burden sharing, many States are fearful of security risks. Milner emphasises that although burden sharing in migration and refugee protection is of high priority, the UN cannot forget about the serious security implications it brings. He gives the example of Tanzania, who as a State sharing in the burden of refugee protection, granted protection for the migrants fleeing the Rwanda civil war38. However, amongst the genuine asylum seekers were those responsible for the genocide, causing high security threats.39

This led to the closing down of refugee camps and reluctance to share in the burden of refugee protection. Similarly in the Balkans, specifically Macedonia, decisions were made to restrict asylum for Kosovar Albanians. This suggests that the granting of asylum40 may ‘become increasingly scarce in countries where hosting refugees is perceived to be a threat to State security’.41 This response to ensure security, most notably through increased border checks and visa policies, has become more prominent in recent times due to the increasing terrorist attacks and threats, such as the 9/11 terrorist attacks in New York City42 and the 7/7 bombings in London bombings.43 Nevertheless States have an international obligation towards refugees44 that, despite threats to security, should not be neglected.As well as security policies, ‘cooperative arrangements should not be considered a means for States to divest themselves of responsibility’.45 The increased flow of migration develops conflicts between obligations to cooperate and obligations towards refugees in two ways; the first is that due to increased smuggling of irregular migrants, States are working together to tighten border controls.

However, this in turn has negative effects on genuine asylum seekers who are then forced to use illegal means of entering other States for protection. The second point of conflict between the two obligations is that instead of burden sharing, States are burden shifting,46 thus moving migration flows on to other States willing to accept them, whether for benefit, political means, or simply allowing other States to suffer the burden alone.47 This is a precarious path as, in certain cases, States willing to accept the burden are not party to international legislation conferring certain rights on the asylum seeker, leaving genuine asylum seekers amongst the migration flow at risk of persecution and human rights violations. ‘To ensure that ‘burden sharing’ does not evolve into this type of ‘burden shifting’’, the international community needs to establish cooperative arrangements to control the redistribution of migrants between the States deemed safe under international law.

States’ Cooperation Regarding Border Control

Human smuggling is a ‘global phenomenon, no one country is unaffected’.48 Many irregular migrants seek help from organised groups to enter various States, whether the State of destination or a State of transit. These groups have the ability to pass through border controls undetected, undermining the State’s ability to protect its borders whilst weakening its integrity.49 This has had a great effect on security tactics, especially after the 9/11 terrorist attacks,50 as unauthorised people can enter States with objectives of causing harm to that State. This fear of threat against national security activates the doctrine of sovereignty, also enshrined in the UN Charter,51 which enables States to tighten restrictions and border controls. However, a balance must be struck between ‘the sovereignty and security interests of the nation State against the rights of individuals’.52

Many migration movements consist of a mixture of migrants ‘including asylum-seekers and refugees, victims of trafficking … and migrants in an irregular situation’. 53 The security measures in place to protect borders from irregular migrants may in turn adversely affect genuine asylum seekers gaining protection, 54 making asylum claims seem ‘somewhat illusionary’. 55 It seems that the ‘biggest threat posed by migration does not come from the smuggled migrant [the “potential terrorist”], or the large numbers of such migrants, but rather from the strengthening of organised crime syndicates and their ability to circumvent governance systems’. 56 However, State restrictions on immigration have been increased to such an extent that instead of curbing the illicit crime of smuggling, which was the original intent, it has had severe effects on potential refugees.

Migrant smuggling is considered a serious crime among States, with severe punishments. In the UK, two new offences were introduced for facilitating illegal entry into the UK, incurring a maximum sentence of 14 years imprisonment, 57 under the Nationality, Immigration and Asylum Act.58 However, ‘those who have little choice but to engage the services of smugglers as a result of restrictive immigration and asylum policies, are subject to further exclusion from…measures put in place to prevent smuggling’.59 Asylum seekers have no choice but to flee their country of origin illegally as they fear being caught, yet they are restricted by legislation aimed at preventing smuggling. If there were less restrictive measures, including border checks and punishment legislation, there would be no need for migrants to seek smuggling services. The increasing constriction of security measures, only feeds the smugglers what their illicit business needs to survive. Grewcock suggests that the tightening of border controls is not the answer, not only will it give smugglers more customers, the tighter the restrictions the more dangerous the smuggling becomes and the migrants are more likely to be at risk of exploitation.60

This is corroborated by Nadig, who describes this as a ‘vicious circle’,61 with smugglers thriving off the restrictive approach; more restriction means more customers, bringing smugglers more money to use more sophisticated measures to undermine State security. However, ‘an increase in irregular migration will, in turn, be the incentive for receiving States to further tighten their immigration procedures’.62 The restrictive immigration policies employed by States have negative effects on asylum seekers,63 denying ‘refugees the right of ever leaving their country of origin’, leaving them exposed to persecution or in the hands of smugglers.64

Although it has been recognised that States have a sovereign right to control their borders,65 when asylum seekers are concerned, this seems an inappropriate right to enforce as refusing protection violates international obligations.66 Nadig notes that international principles of human rights, refugee protection as well as State sovereignty, when considered in the sphere of migrant smuggling, all clash.67 It seems that currently in the sphere of migration, State sovereignty prevails over international cooperation requirements.68 There seems to be two victims with regards to migration; the country of destination and the potential refugees fleeing from danger. 69 When considering the State as a victim two areas are concerned. The first is social rights along with the constitution. This is illustrated by a ‘civil servant in the Netherlands Ministry of Justice’:70

‘These people come here for false reasons and misuse our social security system at our expense…This is bad for our society. We have a certain standard of living and we want to keep it that way. Misuse undermines our constitutional State’.71

Irregular migration ‘has been seen as a threat to the living standards and the cultures of the citizens of the rich, predominantly white, First World States’.72 This is illustrated by the EU Public opinion polls in 2001, which gave ‘race relations and immigration as the fourth most important problem facing both the UK and other States’.73 Initial citizen and irregular migrant rivalry was due to the belief that the migrants were ‘getting more than they were’ in areas such as accommodation, benefits and jobs.74 However, Barbara Roche, the British Home Office minister dealing with immigration in 2000 seems to recognise the benefits of migration:

‘Economic driven migrants can bring sustainable benefits both for growth and economy [due to the]… labour shortages in key areas’.75

However, despite what seems to be recognition of the advantages of migration, the ‘border checks and internal controls reflect States’ fears of the potential ill effects of irregular migration’.76 This conflicting approach towards migration can also be seen in a letter by, George Washington to John Adams:77

‘By an intermixture with our people [immigrants], or their descendants, gets assimilated to our customs, measure and laws: in one word, soon become one people’.78

However, in the same letter he cautioned that immigration should be limited,79 illustrating the recognition of the importance of migration, however, noting the fear present in States to allow such recognition to become an accepted reality.

The second victim to consider is the asylum seeker, who suffers greatly from restrictive immigration policies. Regardless of whether they are fleeing from harm or not, ‘valid travel and identification documents’ are needed, although difficult to obtain, ultimately forcing those in desperation to resort to the use of false documentation condemned by the States of destination. However, ‘it is ironic…that such requirements are imposed on precisely those countries producing refugees’.80 In certain cases, often ‘being smuggled is a reasonable alternative to bureaucratic; time consuming, and therefore life endangering legal migration’.81 A better approach to migrant smuggling may be to remove it from the security agenda and attach it to normal State policy; allowing better protection for refugees. Although as noted earlier, States are sceptical about this idea due to security issues that have arisen from terrorism.82

However, if member States ‘remove irregular migration and human smuggling from their national security agendas’, embracing pluralism, this would facilitate the development of a common asylum policy based on the principle of burden sharing through cooperation, thereby reducing the need for smugglers by providing more entry points.83 The relaxation of sovereignty, with regards to other international matters such as business trade, suggests that governments are using ‘migration control measures to demonstrate their sovereign control’, when in reality States need to accept that sovereignty is slowly being replaced with international cooperation.84

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