A/HRC/17/33
may induce irregular migrants to take greater risks in circumventing the authorities. The
Special Rapporteur remained concerned about the number of deaths occurring throughout
the migration process.
16.
The Special Rapporteur observed that the increasing criminalization of irregular
migration, in cases of movement for economic purposes, did not adequately address issues
of demand-driven labour and the needs of the receiving economies. A predominant push
factor for migrating was perceived employment and, despite the reciprocal relationship
between economies that may be able to absorb additional migrants which move in search of
employment based on perceived demand in the host country, it is often the irregular migrant
who is penalized. Moreover, an inadequate understanding of the needs of a host society
could lead to xenophobic sentiments towards the migrant population, even if the migrants
are filling a labour gap which contributes to helping an ailing sector of the host economy.
17.
Despite the general agreement on the positive aspects of migration for development
and the evolution of international forums for cooperation, the focus of States has largely
been on the better management and control of the movement of migrants and their goods
and services, rather than on the articulation and protection of their rights. The Special
Rapporteur saw a trend toward viewing migrants as commodities, rather than as persons
with rights and duties afforded to them through the international human rights framework.
18.
Also, the Special Rapporteur focused on the phenomenon of migrants travelling by
sea in search of safety, refuge or simply better economic conditions. In an effort to restrict
these flows, destination States have increasingly resorted to interception practices within
the broader context of migratory control measures. In both cases reports indicated that
adequate protection safeguards and attention to the human rights of those rescued or
intercepted had not always been evident. The Special Rapporteur expressed concern about
reports received concerning migrants who had been intercepted, detained or who had lost
their lives at sea, in particular in the Mediterranean and Gulf regions.
19.
Migrants were and still are particularly vulnerable to detention, or to restriction of
their freedom of movement, including deprivation of their liberty, usually through enforced
confinement, either in the receiving country or during transit (by land or sea). In the
interception of migrants lacking documentation, many States employed administrative
detention of irregular migrants in connection with violations of immigration laws and
regulations, which were not considered to be a crime. These may include overstaying a
permit or non-possession of valid identification or visa documents. In some cases, however,
national immigration regulations are often made into measures that criminalized and
punished in an attempt to discourage irregular migration. Undocumented migrants therefore
become particularly vulnerable to criminal procedures, which are by definition punitive in
nature, for many of the same infractions as administrative detention encompass, such as
irregularly crossing a State border, leaving a residence without authorization, or breaching
or overstaying conditions of stay. With such diversity in national policy and law governing
detention and expulsion, it was important that irregular migration be seen as an
administrative offence and irregular migrants processed on an individual basis. Where
possible, detention should be used only as a last resort and in general irregular migrants
were not to be treated as criminals.
20.
The Special Rapporteur observed the continued abuse of irregular migrants who
were involved, whether deliberately or inadvertently, in smuggling and trafficking
operations. Over time the process of human trade has become more complex, whereby
smugglers and traffickers use a combination of deceptive, clandestine or even legal modes
of migration, switching strategies at different stages of the journey, and involving both
legitimate and illicit actors at the governmental and non-governmental levels.
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