Blog post written by Boldizsár Nagy (Central European University) 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.
Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations, Principle 5: Ensure that all border governance measures protect human rights.
Objective 12 aims to strengthen certainty and predictability in migration procedures via appropriate screening, assessment and referral. In its final form, it is much less ambitious, but much more streamlined than the original draft. Now it aims at ensuring that “migration procedures” will entail that appropriate and relevant information is communicated to all migrants and that victims of trafficking and “migrants in situations of vulnerability”, especially children, are identified early on in that procedure and get adequate attention and assistance, including referral to the competent, specialised institutions.
As with all other objectives, this one on screening, assessment and referral ought to be read in the context of the whole Compact, as procedural guarantees which are relevant at the border, at other entry points or whenever a migration procedure is started may appear in the context of other objectives. Eminently this is the case with detention that is the subject matter of Objective 13. Further important legal guarantees appear in the overarching principles of “rule of law and due process”, “human rights” and “child-sensitive” approach, listed in the Vision and Guiding Principles section of the Compact. Objective 5 suggests giving humanitarian visas to “migrants compelled to leave their countries of origin, due to sudden-onset natural disasters and other precarious situations”, Objective 7 deals extensively with vulnerabilities of migrants and calls for ensuring that “migrants have access to public or affordable independent legal assistance and representation in legal proceedings that affect them”. Objective 21 re-states the customary international law norm of non-refoulement. The broader context of smuggling and trafficking are “regulated” in Objectives 9 and 10 which also belong to the context of Objective 12.
Comparison of the drafts: Possible protection gaps for the sake of notional purity
Objective 12 was the site of a monumental struggle to achieve consistency (and probably to please some negotiating states) without losing sight of the complexity of large-scale movements, involving asylum seekers (refugees) and others not eligible for international protection. This struggle is reflected in the extremely large number of changes over the six months of negotiations and the conceptual turn taken.
Unfortunately, no records of the negotiations are in the public domain so non-participants have no insight into the positions of the states and the justifications of the suggested amendments of the text. The website on the negotiation process does not reproduce the country statements, except for a few with limited importance. But it is telling that of the eleven substantive words constituting the title of the final text only two were part of it in the Zero Draft.
Two major conceptual turns took place during the negotiations. The first and most important is that the text as it stands tries to exclude persons in need of international protection, whereas the original text was still incorporating references to asylum seekers, refugees, and asylum. The Zero Draft was faithful to the New York Declaration for Refugees and Migrants which took a holistic view, underlined “the importance of a comprehensive approach to the issues involved” and declared that “we will ensure a people-centred, sensitive, humane, dignified, gender-responsive and prompt reception for all persons arriving in our countries, and particularly those in large movements, whether refugees or migrants.” (Para 22) That position was reflected in the commitments listed in the declaration, applicable to both refugees and migrants.
Objective 12 excludes asylum seekers and refugees from its ambit. Para 4 of the Preamble states:
“Refugees and migrants are entitled to the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times. However, migrants and refugees are distinct groups governed by separate legal frameworks. Only refugees are entitled to the specific international protection as defined by international refugee law. This Global Compact refers to migrants and presents a cooperative framework addressing migration in all its dimensions.”
So the Global Compact for Migration assumes that “refugees” (and others in need of international protection) are not migrants. That is acceptable within the Compact in so far as in principle refugees are covered by the Global Compact on Refugees. However, in general this differentiation does not correspond to the understanding of the term ‘migrant’ in migration studies, demography, anthropology or sociology.
Theoretically the procedure leading to the recognition of refugee status or other form of international protection is different from all other procedures relating to the non-refugee migrants. Refugees (even when they are not yet recognised and therefore treated as asylum seekers) have a right not to be expelled, returned or rejected (refouled). That is a privilege those who do not seek international protection do not enjoy (though international human rights law remains applicable to all migrants, whether refugees or not). But, in practice, those who arrive irregularly comprise both groups, those in need of protection and those not. Therefore ‘first responders’ as they are referred to in the text must deal with ‘both groups’. The conceptual difference between a refugee and a returnable irregular migrant does now show: they look alike.
The second conceptual turn led to the abandoning of the idea of ‘status determination’. Whereas in March 2018 the chapeau of Objective 12 (para 27, then) of the Zero Plus draft still spoke of “mechanisms and procedures for the identification and status determination of all migrants, in order to ensure adequate and timely referral, and assistance at all stages of the migration cycle, as well as to distinguish clearly between migrants and refugees”, the first full revision dropped the reference to status determination. However, the second revision at the end of May brought back the issue in a rather obscure language: “We commit to increase legal certainty and predictability of migration procedures by developing and strengthening effective and protection-sensitive mechanisms for the adequate and timely screening and individual assessment of all migrants for the purpose of identifying and facilitating access to the appropriate determination and referral procedures, in particular where return would exacerbate risks and vulnerabilities, notably those recognized under international law.” The meaning of ‘protection-sensitive’ ‘assessment’ for the purpose of access to ‘determination procedures’, where ‘return’ would ‘exacerbate risks’ of those with vulnerabilities ‘recognised under international law’, could simply mean an euphemistic description of the identification of those who apply for international protection. The text of the third revision later became the final version, dropping all connotation to refugee status determination.
The encounter with the potential asylum seeker is relegated to the weak language of subpara e), which obliges states to effectively communicate the rights and obligations ‘on available forms of protection’ ‘in the context of mixed movements’. The term ‘mixed movement’ is only used twice in the text of the Compact, the other occurrence being in Objective 7 on vulnerabilities, so it remains unclear whether that was understood as including asylum seekers or not.
These conceptual transformations led to the only substantive change in the actions envisaged under Objective 12. Subpara a) of the Zero Draft considered instrumental to “[s]upport global efforts in situations of broader international protection challenges of mixed movements, such as the UNHCR asylum capacity support group, to promote effective and swift status determination, protection and referral of asylum seekers, refugees and migrants, including those displaced in the context of disasters and crisis”. That is clear language, covering ‘political’ refugees, persons displaced by natural disasters and others in need of protection due to crisis. This text of the first action gradually gave way to tasks related to communicating requirements on entry, stay, work, study and other ‘activities’ and processing of applications fast and cheap, omitting any reference to UNHCR, asylum seekers and refugees.
The other three actions (subparas b), c) and d)) became a bit more refined in detail but retained their essential content. The first requires a broad range of actors from border guards to consular officers to assist in the identification and referral of victims of trafficking, migrants in situations of vulnerability, especially unaccompanied or separated children and smuggled persons subject to exploitation and abuse. The second calls for the establishment of gender responsive and child sensitive referral mechanisms applying standardised operating procedures. The third guarantees that children be treated as such and unaccompanied or separated children be referred to the appropriate institutions and get an impartial legal guardian, whereas in cases of children with family, the unity of the family be protected.
Some of the criticism levelled against the Zero Draft seems to have been heard: the final text makes reference to culturally sensitive counselling and calls for training to recognise signs of trauma.
The major strength of the text is its intensive focus on persons with special needs or ‘migrants in situations of vulnerability’, reflecting in a compressed form ideas expressed in much more detail in the “Principles and Guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations” produced by the Global Group on Migration.
It is also laudable that the objective aims at producing certainty and predictability in all migration procedures, based on human rights and conducted in an effective, fast, individualised and non-costly way.
The objective sets useful standards in respect of the information to be made available for all migrants, including those awaiting return.
The challenge created by the objective’s final formulation is that it concentrates on an important, but still relatively small subset of all the migrants subjected to ‘screening assessment and referral’. In contrast to the guarantees concentrating on migrants with vulnerabilities and victims of trafficking, others, who may be in an irregular situation will hardly profit from these ‘actions’. There is no word about civil society presence at the border or in these procedures. The objective remains fully silent about access to legal representation and the preconditions of free legal aid. No word is devoted to the interview situation, language, interpreters, or procedural rights in this early phase of the migration procedure. The reception conditions (housing, food, clothing, access to communication channels, to medical care etc.) of those not applying for international protection but being in an irregular situation are not addressed either.
The lack of clear rules of cross reference within the Global Compact and with the Compact on Refugees as well as the lack on reference to the existing relevant rules in other international legal instruments, including human rights treaties combined with the indeterminacy of some of the concepts used will decrease the guiding power of the objective. What if large numbers of persons appear at the border due to a sudden onset natural disaster as mentioned under para 21 g) of the Compact? What if a person expressly applies for asylum? Which provision of the Global Compact on Refugees should replace this objective and govern the actions of the first responders? Are principles 6 and 7 on screening, interviewing, identification and referral of the Recommended Principles and Guidelines on Human Rights at International Borders produced by the UN High Commissioner for Human Rights to be applied in case this objective offers no guidance?
The aspiration to achieve notional purity and remove almost everything related to international protection but at the same retaining indeterminacy about the real target group of this objective (is it only irregular migrants in situations of vulnerability or also potential job-seekers or students or all migrants?) may have produced a text which will have less impact than it was hoped for in light of the Zero Draft.
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