• E4J University Module Series: Trafficking in Persons & Smuggling of Migrants

• Module 12: Children as Smuggled Migrants and Victims of Trafficking

• Introduction and learning outcomes

• Key issues

• • Children on the move, smuggling and trafficking
  • Protecting smuggled and trafficked children: The international legal framework
  • Protection in practice
  • Children alleged as having committed smuggling or trafficking offences

• Exercises

• Possible class structure

• Core reading

• Advanced reading

• Other resources

• Student assessment

• Additional teaching tools

Published in May 2019 

  This module is a resource for lecturers  

Children on the move, smuggling and trafficking

All smuggling of children, and a significant proportion of child trafficking, occurs in the context of child migration. Children, including those who are alone and those accompanied by family members, comprise an increasing percentage of irregular migrants globally. While cross-border movements of children are difficult to measure, data from numerous organizations and governments illustrates the scale of the issue. Statistics by the Office of the United Nations High Commissioner for Refugees (UNHCR) show that more than half the world's refugees are children (2016). Compiling data from different regions, UNICEF (2017) - the United Nations Children's Fund - states, for example, 100,000 unaccompanied and separated children were apprehended at the United States-Mexico border and 170,000 such children applied for asylum in Europe.

Like flows of all irregular migrants, flows of child migrants are mixed. Some are asylum seekers and refugees while others are seeking economic and social opportunities. Some are victims of trafficking and other crimes, while others are smuggled migrants. Some are unaccompanied or separated from their families, while others travel with them. Not all these categories are exclusive; in many cases they may overlap. One child may be a smuggled migrant and a victim of trafficking (see Module 11 for the overlap between smuggling and trafficking), and that same child may also be seeking asylum. Some of these categories accrue specific protection under international and domestic laws, additional to those granted to children on account of childhood itself. For example, refugees have a right against refoulement, while States are obliged to afford victims of trafficking various assistance measures (see Module 8). International principles relevant to the protection of children are examined in this Module's section 'Protecting Smuggled and Trafficked Children: The International Legal Framework'.

Notwithstanding the categories, legal or not, that they fall into, all children are vulnerable to the dangers and risks of the migration process. Their particular vulnerabilities vary depending on their personal characteristics and circumstances, their reasons for leaving their countries of origin, and the conditions they encounter during migration. Where, inter alia, children are female, unaccompanied, particularly young, have experienced abuse or have mental illnesses or disabilities, they may be more vulnerable (UNICEF 2017). Children's frequent lack of financial resources and access to social networks also increases their vulnerability. They are more easily placed in situations of danger by smugglers and are more susceptible to exploitation and forced participation in criminal activities (Sanchez 2017, pp. 16-17; Dimitriadi 2017, p. 43). It should be noted, however, that their vulnerability is not inherent; it is created through structural and social dynamics of inequality and discrimination that manifests in "diminished and unequal levels of power and enjoyment of rights" (UN General Assembly 2018, para 14). Just as children have differing levels of vulnerability, so do they have varying degrees of agency, both in making migratory decisions and during the migration process itself. Children are not a homogenous group, nor are they passive; children express agency and have aspirations, just as adults do (Bhabha 2014, p. 9).

Due to the varying vulnerability, needs and agency of children, States' legal frameworks and child protection systems must provide mechanisms to identify the status and protection needs and rights of individual children, provide access to additional systems where necessary (such as asylum procedures and services for victims of trafficking), and tailor solutions to children's best interests. How children should be protected in practice is examined further in this Module's section on Protection in Practice.

Smuggling of children

As described in Module 5, migrants who wish to migrate, but cannot access legal avenues of migration, often engage the illicit services of migrant smugglers. Smugglers, who may be part of organized criminal groups, satisfy the demand created by these migrants to generate profit. Generally speaking, where legal channels are non-existent, limited, inefficient, or overly expensive, children (or those in charge of their migration) who wish to leave their countries of origin, may view the services of migrant smugglers as their best or only viable option. Migrant smuggling proliferates with the implementation of restrictive migration policies and becomes increasingly lucrative as migration controls evolve (Zhang, Sanchez and Achilli 2018, pp. 10, 13). Smugglers can help children plan their journeys, leave their countries of origin, traverse geographic obstacles and the borders of transit countries, and reach destinations otherwise closed to them (Koser 2010; Gallagher 2015).

The true scale of smuggling of children is not known. As is the case with smuggling generally, accurate statistics are generally scarce or, in many cases, non-existent (see Baird 2013, who states that there is "very little" research on children as smuggled migrants). Due to the often clandestine nature of smuggling, many smuggled children are undetected. Furthermore, many States do not collect data on smuggling of migrants and even less disaggregate data for smuggling of children (see Baird and van Liempt 2016). Nonetheless, even in the absence of reliable statistics, it seems clear that significant numbers of children engage the services of smugglers. Europol (2016, p. 2) estimates that 90% of all irregular migrants entering Europe are smuggled, while there are estimates that between 80 and 95% of migrants apprehended on the United States-Mexico border are smuggled. UNODC (2018) notes that there are increasing numbers of 'unaccompanied and separated children among smuggled migrants on some routes', an observation made by the International Organization for Migration (IOM) (2016). Anecdotally, reports of children on smuggling vessels, interacting with smugglers, and suffering death and abuse during smuggling journeys have grown exponentially in recent years.

Not all smuggling journeys involve abuse or exploitation. In many cases, facilitation of irregular migration for a profit, while a crime, does not expose migrants to threats to their life and safety. Nonetheless, the smuggling process can pose numerous and serious risks to the lives, safety and well-being of children, beyond those affecting adult migrants. The United Nations Special Rapporteur on the Human Rights of Migrants (2009, para 23) has stressed that 'children who are unaccompanied or separated from their parents are particularly vulnerable to human rights violations and abuses at all stages of the migration process'. Instances and examples of abuse and exploitation of children, including those unaccompanied, are well-documented. Reports by Human Rights Watch, UNICEF and REACH among others, have detailed kidnappings, ransoming, extortion, sexual and gender-based violence, rape and forced pregnancy, physical abuse, debt bondage, slavery and torture of children during smuggling journeys. As noted in Module 11, smuggling of migrants and trafficking in persons often exist along a continuum (see McAdam 2015). This is no less the case in the context of children.

Box 1

Trafficking in children

As observed by the 2018 Global Report on Trafficking in Persons (p. 13), "[t]he trafficking of children - particularly girls - remains a key concern". Like smuggling of children, the true scale of trafficking in children is not known. Nonetheless, the proportion of victims of trafficking who are children is substantial: 30 per cent of detected victims are children. Figures do, however, vary between regions. For example, over 50 per cent of detected victims in Italy and Mali are children, while in North America and Indonesia this falls to below 30 per cent (it should be noted that the comparability of data between countries is not exact; there are variances in detection and data collection practices).

Children on the move are especially vulnerable to being placed in situations of trafficking. This is particularly the case when children are travelling without a parent or legal guardian, even if they are in the company of other migrants. They may be extorted for smuggling fees, forced to work to pay off debts in transit countries, and may be sexually and physically harassed, abused or exploited. Trafficking for the purpose of sexual exploitation is particularly common, though children may also be forced to work in various sectors such as agriculture, mining, manufacturing or by begging (ILO, UNICEF and UNGIFT 2009, pp. 28-29). Children may be put into situations of forced labour while in transit or in destination countries. "This is evident in cases where migrants are placed into debt-bondage in order to pay smuggling-related debts. In such cases they may spend months or years working in exploitative conditions in transit and destination countries" (Schloenardt and Lelliott 2018, pp. 116-117).

Of course, this is not to say that children are exclusively trafficked in the context of migration. The crime of trafficking, in line with the definition under article 3 of the Protocol against Trafficking in Persons (see Module 6), does not require an element of transnationality. A child can be trafficked in his or her home State, even in his or her own village. Indeed, the 2018 Global Report on Trafficking in Persons notes that most victims are detected within the borders of their own country. It is unclear whether this reflects the true numbers and patterns of trafficking (recognizing the likelihood that most victims of trafficking go undetected).

Box 2

Next:  Protecting smuggled and trafficked children: The international legal framework

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