Blog post written by Idil Atak (Ryerson University) and Delphine Nakache (University of Ottawa) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 16(2): Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions.
Scope and Proposed Actions
Objective 7 focuses on vulnerabilities in the context of migration. It acknowledges that situations of vulnerability may take place everywhere (i.e., in countries of origin, transit or destination) and outlines a number of measures whereby States commit to respond to the needs of migrants in such circumstances, by assisting them and protecting their human rights. States are invited to pay particular attention to specific categories of “at-risk” migrants, such as children unaccompanied or separated from their families, victims of sexual and gender-based violence, workers facing exploitation and abuse. States also agree to uphold in all circumstances the best interests of the child principle, and to adopt a gender-based approach to address these vulnerabilities. Proposed actions include:
- Critically reviewing existing laws, policies and practices, with a view to eliminating those that create or exacerbate migrants’ vulnerability;
- Involving relevant stakeholders in the identification, referral and assistance of migrants in a situation of vulnerability;
- Improving access to legal services for vulnerable migrants and facilitating their transition to a more secure status;
States are also required to design and apply certain support measures in the case of “migrants caught up in situations of crisis”, such as consular protection and humanitarian assistance.
Nature and Significance of Changes
In the Final Draft (July 2018), Objective 7 is longer and contains stronger and more elaborate commitments than in the Zero Draft (February 2018). The introductory paragraph (par 23) has been slightly reworded and expanded upon, with an emphasis on States’ commitment to assist migrants and protect their human rights “in accordance with [their] obligations under international law.” This new reference to States’ international law obligations is most welcome. Objective 7 also now includes 12 points of actions, compared to 8 points earlier.
Overall, Objective 7 has been reorganised in the Final draft to allow for a better understanding of States’ specific commitments regarding the situation of migrants in a vulnerable situation. As an example, the previous version of Objective 7 (Zero Draft) contained a sub-paragraph at the very beginning that broadly referred to the operationalisation of the Global Migration Group (GMG) Principles and Guidelines: this part has been moved to the very end of Objective 7, with an undertaking from States to implement their relevant policies in light of these principles and guidelines.
There are new commitments in the Final Draft. One such notable commitment is sub par. h) and i) that enjoin States of destination to facilitate transitions from one status to another. This strengthens the pledge to develop appropriate procedures to prevent migrants from becoming irregular, and to proceed to an individual status assessment for those who have become irregular, with a view to enabling them to regularise their status. These measures are presented here as “an option to reduce vulnerabilities and as a means for States to ascertain better knowledge of the resident population” (sub par. i)). This is clearly a positive step on a politically sensitive issue; first, because the responsibility of States’ policies and practices in constructing the irregular status of migrants is highlighted; second, because the lack of legal status is acknowledged to be a factor creating migrants’ vulnerability. The focus on States’ duty to take preventative and corrective actions to remedy this situation is thus most welcome. Regrettably, the reference, in sub paragraph g) of the Zero Draft, to the establishment of firewalls between immigration enforcement and public services is absent from the Final Draft. The mention should have been kept as firewalls have proven an effective -albeit temporary- strategy to protect the fundamental rights –such as basic health care, primary and secondary education, and protection against violence- of migrants in an irregular situation in many countries. In addition, any irregular migrant who interacts with State representatives with a view to accessing these rights should be able to do so without fear of deportation. Therefore, “arbitrary expulsion” should be replaced by “expulsion” in sub par. h) because, even if a State is legally entitled to remove an irregular migrant from its territory, this should not happen in circumstances outlined in sub par. h) and i).
Another new action deals with migrant workers (sub par. d)). States agree to review labour laws and work conditions to identify and address workplace-related vulnerabilities among migrants at all skill levels. In doing so, they agree to seek cooperation with relevant stakeholders, particularly from the private sector. This point of action is a most welcome addition, especially as it also highlights the particular protection needs of domestic and irregular migrant workers. However, it would be important to make here a reference to immigration law: clearly, there are immigration rules (regarding closed-work permits or duration of work permits, for example) that are creating or exacerbating vulnerabilities and abuses against migrants. There is also too often a disconnect between immigration law, on the one hand, and labour law, on the other hand, and such disconnect needs to be accounted for as a factor of vulnerability.
A last important change is States’ pledge to take “specific support measures for migrants caught up in situations of crisis in countries of transit and destination countries,” such as access to consular protection and humanitarian assistance (sub par. j)). This is a laudable attempt, however, what is meant by “migrants caught up in situations of crisis” needs clarification for this commitment to be effectively implemented.
It is noteworthy that a list of migrants deemed to be in situations of vulnerability is added to sub paragraph b). It includes older persons, migrants with a disability, victims of violence, and members of ethnic and religious minorities. States pledge to establish policies and develop partnerships to identify, assist and protect these migrants. This list is an improvement compared with the Zero Draft in which only children and women were identified explicitly as a vulnerable group. Nevertheless, there are still two important problems with the list provided here. The first one is the failure to mention that this list is open-ended and necessarily non-exhaustive. With the current wording, there is a risk of leaving some groups of migrants -for instance, asylum seekers or stateless persons – outside of the scope of the protective measures. Second, the list was drafted without consideration of the various sources of vulnerability. Vulnerability may arise from an individual’s temporary or permanent characteristic, such as a disability or illness; it may result from external threats such as floods or earthquakes; migrants may also be rendered vulnerable by state authorities. This means that Objective 7 cannot be silent about the need for States to identify the sources of migrants’ vulnerability: this is extremely important because various sets of responses and state interventions are required to address each of these cases.
As in the Zero Draft, two sub paragraphs are dedicated to States’ commitments to address children’s rights and vulnerability. Sub par. e) deals with migrant children in general, whereas f) is about the protection of unaccompanied and separated children. Their wording is slightly revised and expanded compared with the Zero Draft. The commitment to “uphold the principle of the best interest of the child as a primary consideration” in situations concerning migrant children is a positive step in the right direction. Indeed, Art. 3.1 of the Convention on the Rights of the Child, which is the most globally ratified UN human rights treaty, states the right of children to have their best interests assessed and taken into account as a primary consideration in all actions or decisions that affect them. However, Art. 3.1 has also been interpreted as meaning that the best interests of the child must always prevail over any other considerations. This point still needs to be specified in Objective 7 so as to avoid any situation where the interest of a child is seen as an important element to be considered, but not as one that should outweigh other considerations.
Objective 7 remains heavily focused on the situation of children and migrant women. While it is important to emphasise the specific needs of these two groups, this should not promote the idea that other groups of migrants in situation of vulnerability are less deserving of assistance and protection. In fact, with the exception of the above-mentioned sub paragraph b), the actions somehow push the vulnerability experienced by groups other than children and women into the background of Objective 7. To give an example, sub paragraph c), which refers to women, girls and boys as target groups of gender-responsive migration policies, reflects a narrow understanding of ‘gender-based vulnerability.’ A broader conception is needed to encompass the needs of, for instance, LGBTQI and other migrants at risk of discrimination based on their gender identity and/or sexual preferences.
Finally, it is extremely problematic that States’ commitment to ensure access to psychosocial and health care services is only made towards children and migrant women, as all migrants in a vulnerable situation need such services to cope with their difficult condition.
The recognition that migrants face multiple forms of vulnerability is part of Objective 7’s strengths. So is the placement of human rights at the centre of States’ action, in particular through the commitment to adopt a child-specific and gender-oriented approach. Another positive element is the acknowledgment that there are legal and practical impediments within destination states that are conducive to work place abuses and to irregular migration, and that there needs to be policies in place to prevent such situations. Finally, the emphasis on partnerships with local authorities and other public and private stakeholders in assisting migrants in a situation of vulnerability is most welcome.
Several potential challenges may arise when Objective 7 is implemented. In addition to the challenges highlighted above, the term “vulnerability” needs greater clarity. A terminological confusion persists as Objective 7 refers interchangeably to “migrants in situations of vulnerability” and “vulnerabilities of migrants.” As well, although there are some positive changes, the wording of Objective 7 still does not stress enough the fact that the vulnerability in which migrants find themselves is mostly constructed by States through policies and practices, such as border controls, interception measures, restrictive migration and asylum rules. The non-acknowledgment of this fact effectively shifts the responsibility for the problems faced by migrants away from States. This, in turn, hampers efforts to design and implement adequate solutions to fulfill migrants’ most pressing needs.
Finally, States’ pledge to protect migrants in situations of vulnerability needs to be supported by effective mechanisms of accountability and independent oversight, and yet Objective 7 is silent on this point. It is thus unclear how States’ compliance with their commitments will be ensured.
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