A/HRC/17/33
21.
The Special Rapporteur encouraged States to view irregular migration as an
administrative offence, reversing the trend toward greater criminalization, and to
incorporate the applicable human rights framework into their bilateral and regional
arrangements for managing migration flows and protecting national security interests, as
well as to harmonize their national laws and policies with international human rights norms.
At the core of immigration policies should be the protection of migrants, regardless of their
status or mode of entry. As such, the Special Rapporteur offered practical recommendations
for the formation or reform of regional and bilateral cooperation mechanisms and
agreements, as well as the enhancement of national training and analysis programmes and
policy measures.
22.
The Special Rapporteur focused again on the impact of the criminalization of
migration on the protection and enjoyment of human rights as a follow-up to his report to
the Human Rights Council two years before.1 The report highlighted the detrimental
consequences of such policies on groups that should not be considered as irregular
migrants, including victims of human trafficking, asylum-seekers and children. The report
also provided examples of good practices in the mainstreaming a rights-based approach to
migration and managing irregular migration without resorting to its criminalization.
23.
The Special Rapporteur had previously warned the international community of the
increasing criminalization of irregular migration and the abuses of migrants during all
phases of the migration process.2 Two years later, the Special Rapporteur observed with
deep concern that the trend towards increasing criminalization continued. In addition,
insufficient progress had been made in mainstreaming human rights into migration
governance. Yet, migration can be an essential component of development and prosperity
in countries of destination, transit and origin in all regions of the world, and migrant labour
continues to be vital, and in demand, in most countries around the globe. The Special
Rapporteur observed that disregard for human rights in migration management initiatives
had detrimental consequences not only for the protection of undocumented or irregular
migrants, but also for migrant populations as a whole and host societies at large.
24.
Migration policies, plans and programmes that aimed to address solely security and
border control concerns lacked human and protection approaches, had a detrimental impact
on the enjoyment of human rights by migrants and did not serve the purpose of deterring
irregular immigration or discouraging migrants’ smuggling and human trafficking. The
Special Rapporteur drew the attention of the international community to the dangers of
these policies, not only for migrants, but also for the migrants’ societies of transit and
destination. Research studies had already demonstrated that many enforcement mechanisms
designed to prevent irregular or unauthorized migration, including harsh policies of
interception, carrier sanctions and immigration control, were responsible for violence and
abuse and might have the side effect of encouraging the expansion of smuggling and
trafficking networks. The Special Rapporteur also observed with deep concern recent
initiatives of federated entities in some States which have taken steps to draft laws with
immigration provisions that are contrary to constitutional principles and whose competence
relies strictly on the central or federal Government.
25.
Criminalizing irregular migrants for the offence of being in a country without
adequate documentation made all migrants, regardless of immigration status, potentially
vulnerable to racist or xenophobic acts. As a result, migrants were often subject to
xenophobic outbreaks of abuse and violence. Migration management based on criminal law
tended to disregard a human rights dimension of migration and to focus solely on measures
1
2
6
A/65/222.
A/HRC/7/12.