A/65/222 of human rights by migrants and to draw attention to the disproportionate use of the criminal justice system to manage irregular migration and of detention in migration management, as well as the inappropriateness of labelling migrants as “criminals” or “illegal”, which, in turn exerts influence on the use of profiling 4 against migrants. 1. The disproportionate use of the criminal system of justice to manage irregular migration 18. Breaches of immigration law are considered as criminal offences by a number of countries. Such breaches include: situations of irregular entry; lack of residence authorization; overstay using an expired residence authorization or tourist visa; and unauthorized re-entry after a deportation and re-entry prohibition decision. Some countries also criminalize third party assistance to irregular or non-documented migrants, or oblige third parties to report migrants (or suspected) migrants in irregular situations, a measure that is increasingly being used to discourage migration in general and to deter irregular immigration in particular. 5 19. Migration management based on criminal law tends to disregard a human rights dimension of migration and to focus solely on measures to address irregular migration by strengthening border controls and criminalizing both the facilitators and the migrants themselves. The Special Rapporteur has shown in the course of his mandate that the use of criminal measures to manage migration undermines the human rights of migrants and can directly or indirectly curtail their access to basic social rights, particularly health care, education and housing, as outlined in his annual thematic report to the Human Rights Council. 6 In some instances, these measures also trigger multiple forms of discrimination and, in extreme cases, they have also endangered or violated the right to life. 20. In line with the above, the Special Rapporteur wishes to stress that the use of criminal law in the field of migration seldom serves the purpose of making migration safer, more secure or protected. As highlighted recently by the Commissioner for Human Rights of the Council of Europe, “criminal law is designed to punish individuals who harm other individuals or the society at large” and crimes of border crossing or stays on the territory of a State beyond a permitted period “are victimless crimes” and do not pose any harm to the society at large, but, if at all, “to the integrity of the State’s border and immigration control laws”. 7 21. The root causes of irregular migration are not addressed by resorting to its criminalization. Irregular migration is a complex phenomenon with multiple and interrelated causes, closely linked to three major triggers: the existence of increasingly restrictive controls in some countries of destination, as well as __________________ 4 5 6 7 10-47488 “Migrant profiling” is defined in the present report as the use of generalizations grounded in immigration status or, in the most common patterns of ethnicity, race, national origin or religious affiliations of migrants as the basis for making law enforcement and/or investigative decisions about who has been or may be involved in criminal activity. Profiling is accepted as a policing tool as long as the profiles used by police are based on specific information about an individual or factors that are objective and statistically proven to be significant indicators of criminal activity. See: Ethnic Profiling in the European Union: Pervasive, Ineffective and Discriminatory, Open Society Justice Initiative, New York, 2009. A/HRC/7/12. A/HRC/14/30. Criminalisation of Migration in Europe: Human Rights Implications, Commissioner for Human Rights, Issue Paper, 2010. 7