Blog post written by Delphine Nakache (University of Ottawa) and Idil Atak (Ryerson University), and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Objective 7 of the UN Global Compact on Safe, Orderly and Regular Migration 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. Below we address the implementation of some of the Objective 7 principles, in line with international human rights law, and we suggest a number of indicators that can help States determine whether they achieve the goals set forth in Objective 7. We also include references to some relevant international principles.
1. Commitment to design and apply support measures in the case of “migrants caught up in situations of crisis” (ICCPR Art 6.1; Migrant Workers Convention Art 9; UN Convention on the Law of the Sea Art. 98; UN Trafficking Protocol Art 6.3)
This commitment is important as it is reflective of the fact that restrictive border regimes and other migratory controls have had the effect of driving further underground attempts to reach destination countries and of making the migration journey more and more dangerous and unpredictable. Indeed, dozens of thousands of people are said to have lost their lives on migratory routes around the world over the past decade. The rise in human trafficking is another threat that exacerbates the vulnerabilities of migrants.
States have an obligation to save lives of migrants attempting to reach their territories and to offer them humanitarian assistance to protect their right to safety and security. Migrants are entitled to an effective protection by States against violence, physical injury, threats and intimidation by governmental or private agents. Theirphysical, psychological and social recoveryshould be ensured. States’ protection responsibility extends beyond their own borders and they should work together, not only to protect the lives of migrants who undertake the perilous journey, but also to expand opportunities for safe pathways, such as resettlement and humanitarian admission.
Indicators to assess the implementation of this commitment may include:
- Do interception measures include adequate procedures to identify and to protect those in need? How?
- Do support measures sufficiently take into consideration the mobility challenges of specific groups of migrants, such as pregnant women, persons with disabilities, children or elderly people?
- Do stakeholders ensure an effective access to asylum procedures or, if migrants are fleeing a natural disaster, to other forms of temporary protection?
2. Commitment to improve access to justice for vulnerable migrants and their right to an effective remedy (ICCPR Articles 2.3 and 14, Migrant Workers Convention Articles 16 and 23; ILO Domestic Workers Convention Articles 15-17
A national legal system that can provide access to justice and effective remedies for violations of human rights is essential: this is the principal means through which beneficiaries can ensure that their rights are protected. However, migrants may find access to legal services and the judicial system difficult, inter aliadue to lack of knowledge of the local law, language barriers, cultural isolation and their precarious migration status. To that end, States should establish accessible complaint mechanisms. Barriers migrants experience in accessing justice should be removed to enhance their ability to seek and obtain a remedy through institutions of justice, without the fear of deportation or imprisonment. States should provide and properly fund social and legal services to ensure migrants’ access to legal proceedings, particularly when they seek international protection or justice for crimes and human rights violations committed against them. The police, border guards, immigration and other administrative and judicial authorities and personnel should receive the necessary training.
Indicators to assess the implementation of this commitment may include:
- Are migrants offered the opportunity to lodge an application and can they benefit from procedural guarantees? For example, are they informed in a language they understand of the procedure to be followed and of their rights; do they receive all the information they need and can they access the services of an interpreter and legal aid for submitting their case to the competent authorities?
- Given that the enforcement of rights is often difficult for migrants who may, in practice, lack the ability to raise concerns about their working and living conditions, have States taken all appropriate measures to address migrants’ fear of retaliation, isolation and lack of resources?
- Are migrants offered the opportunity to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin whenever their rights are impaired?
3. Commitment to improve the enjoyment of human rights without discrimination (ICCPR Articles 2.1, 4 and 26; ICESCR Art 2.2, 7, 11 and 12; Migrant Workers Convention Art 1.1, 8, 25 and 27; Convention on the Elimination of All Forms of Racial Discrimination Art 5; Domestic Workers Convention Art 6)
Migrants are entitled to civil, social, economic and cultural rights without any discrimination. Limitations to rights should be determined by law and are allowed only in so far as they may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. Migrants should benefit from equal protection of the law. Fundamental economic and social rights such as the right to work, the right to an adequate housing, the right to access medical care and social security, or again labor and occupational health and safety standards should be effectively implemented without any discrimination.
Indicators to assess the implementation of this commitment may include:
- Too often migrants are confronted with severe discrimination in the attainment of their socio-economic rights because laws/programs/policies discriminate against them or fail to address their specific needs and vulnerabilities. Do States properly identify and eliminate law/policy provisions or programs which discriminate against non-nationals? How?
- Do States take measures to ensure migrant workers are entitled to the same pay, hours of work, safety considerations and other workplace conditions that nationals enjoy? Do States identify and take appropriate measures to remove the legal, administrative and practical barriers that prevent migrant workers from enjoying the right to health, to an adequate standard of living (including housing, water and sanitation, and food), to education, to social security, to decent work and to just and favourable conditions of work, including fair wages?
- What are the concrete measures that States take to eliminate discrimination among public sector workers? Do they work in practice? In other words, do they effectively reduce prejudice and discrimination?
- Given that one of the key obstacles to migrants’ equal access to human rights in destination societies is persistent anti-migrant sentiments, what are the measures that States take to address these negative perceptions of migrants within destination communities?
- Are effective sanctions implemented against abusive employers and landlords? Is States’ pledge to protect migrants in situations of vulnerability supported by effective and transparent mechanisms of accountability and independent oversight?
4. Commitment to uphold, in all circumstances, the best interests of the child principle (ICCPR Art 24; UN Convention on the Rights of the Child Art 3.1)
All migrant children, including those who are unaccompanied or separated from their families, are among specific categories of “at-risk” migrants. The right of children to have their best interests assessed and taken into account should be a primary consideration in all actions or decisions that affect them. More specifically, the best interests of the child must always prevail over any other considerations.
Indicators to assess the implementation of this commitment may include:
- Is there a legislative prohibition against the detention of migrant children?
- Is there a differentiation in law among infants, young children, and youth, with respect to immigration proceedings affecting children?
- Is there a guardian to ensure that the best interests of children unaccompanied or separated from their families are protected?
- Is the principle of the best interests of the child a central concern in the legislations and policies of the State? In other words, does the best interest of the child always prevail over any other consideration, including security concerns?
Conclusion
The vulnerability in which migrants find themselves is mostly constructed by States through policies and practices, such as border controls, interception measures, restrictive migration, labour and asylum rules.There needs to be policies in place to remove the legal and practical impediments within transit and destination states that are conducive to abusive employment conditions and human rights violations and that are conducive to irregular migration. States should establish safe, regular, accessible and affordable migration channels that properly reflect labor market needs and reduce irregular migration. They should work towards the elimination of policies and practices that construct migrants’ vulnerability while reinforcing accountability mechanisms.
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