Published in January 2019.

 

 
   This module is a resource for lecturers   

 

Looking beyond the Protocol: international human rights and refugee law

 

Smuggled migrants (and irregular migrants in general) are often in a precarious situation in countries of transit and destination because they lack official permission to be present in these territories. Nonetheless, smuggled migrants benefit from a range of rights under international law, which must be applied without discrimination based on their migration status. Of course, this is not to say that, in practice, these rights are fully implemented domestically, and that States entirely comply with their international obligations.

The rights afforded to smuggled migrants mostly derive from the following international legal instruments:

To these, regional legal instruments can also be added; for instance, the European Convention on Human Rights, the African Charter on Human and People's Rights and the American Convention on Human Rights. The provisions of international and regional instruments are binding upon States which are parties to them - States that have ratified or acceded to them. However, it should be noted that some rights form part of what is referred to as international customary law. That is, they are binding on all States.

This range of international legal instruments is a significant part of the overall framework called upon in article 19 of the Protocol against the Smuggling of Migrants. Together, they set out numerous rights to be afforded to smuggled migrants. It is important to comprehend - as stated above - that smuggled migrants continue to benefit from a range of entitlements despite not being nationals or citizens of transit or destination countries in which they are present.

Of the above-listed treaties, very few refer specifically to migrants as a class of persons. The use of expressions such as 'everyone' and 'no-one' may lead to the conclusion that the rights they refer to apply to all persons without discrimination, irrespective of their immigration status in the country in which they are present. Non-discrimination is a fundamental principle of international law.

 

Non-discrimination

Beyond article 19(2) of the Protocol against the Smuggling of Migrants, the prohibition against discrimination is enshrined inter alia in:

  • Article 2(1) of International Covenant on Civil and Political Rights (ICCPR);
  • Article 2(1) of International Covenant on Economic, Social and Cultural Rights (ICESCR);
  • Article 1 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD);
  • Article 2 of the Committee on the Elimination of Discrimination against Women (CEDAW);
  • Article 7 of International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW);
  • Article 2(1) of Committee on the Rights of the Child (CRC).
Box 8

Principle of non-discrimination

Article 2 of the International Covenant on Civil and Political Rights makes clear that, with respect to all rights recognized by the Convention, the duty bearer is usually the State under whose jurisdiction a person is located. It obliges States to respect the rights recognized in the Covenant and ensure that they are enjoyed by all individuals who are within its territory and/or subject to its jurisdiction, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

[T]he general rule is that each one of the rights of the Covenant [ICCPR] must be guaranteed without discrimination between citizens and aliens.

Committee on Civil and Political Rights, General Comment No.15: The Position of Aliens Under the Covenant (1986), Paragraph 2

Discrimination is defined as: any distinction, exclusion, restriction or preference based on race, colour, descent, ethnic origin, sex, age, gender, sexual orientation, gender identity, disability, religion or belief, nationality, migration or residence status or other status which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

International Convention on the Elimination of All Forms of Racial Discrimination, art  1 (1); Convention on the Elimination of All Forms of Discrimination against Women, art 1

Both direct and indirect forms of differential treatment can amount to discrimination under article 2, paragraph 2, of the Covenant:

(a) Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground; e.g. where employment in educational or cultural institutions or membership of a trade union is based on the political opinions of applicants or employees. Direct discrimination also includes detrimental acts or omissions on the basis of prohibited grounds where there is no comparable similar situation (e.g. the case of a woman who is pregnant);

(b) Indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights as distinguished by prohibited grounds of discrimination. For instance, requiring a birth registration certificate for school enrolment may discriminate against ethnic minorities or non-nationals who do not possess, or have been denied, such certificates" (emphasis added).

Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (2009)

Many rights (for example, rights to life, freedom from torture, freedom from slavery and forced labour, equality before the courts and equal protection of the law) cannot be limited in respect of smuggled migrants. However, the principle of non-discrimination does not prohibit all kinds of differential treatment. Rather, it stipulates that discrimination (including based on citizenship, residence or nationality) must not be disproportionate or arbitrary. Indeed, some provisions in the ICCPR do not apply in the same manner to migrants and nationals. For instance, the right to vote (article 25) does not apply to migrants while the right to judicial review of an expulsion order (article 13) applies only to non-nationals. Likewise, the ICCPR draws a distinction between regular and irregular migrants. Article 12 (right to freedom of movement and choice of residence) and article 13 (expulsion after due process), for example, are only applicable to "those aliens who are lawfully in the territory of a State party … [Irregular] entrants and aliens who have stayed longer than the law or their permits allow, in particular, are not covered by its provisions" ( UN Human Rights Committee, CCPR, General Comment No. 15).

The critical issue is to distinguish between differential treatment limited to some specific provisions (allowed) and discrimination (not allowed). That is, when a person's claimed entitlement to a specific right collides or may collide with a legitimate interest of the State (or other persons, notably nationals and citizens), the State may take due consideration of migration status. The State must carry out a balancing judgment vis-à-vis the conflicting rights or interests at stake, which may result in denying some rights to migrants. Based on the same reasoning, the State may deny some rights to irregular migrants while affording the same rights to regular migrants.

The key point is that differences in ensuring and protecting human rights may be justified according to the principle of proportionality. Firstly, the limitation must be adequate to achieve the end envisaged (principle of adequacy). Secondly, the means employed to achieve the aim must be the least possible restrictive to the human rights affected (principle of necessity). Thirdly, the limitations to the human right in question must be proportional to the benefits/advantage on the right or interest privileged (principle of proportionality stricto sensu). This principle applies even during times of emergency when, under strictly defined conditions, certain derogations on fundamental rights are allowed (article 4 and 12(3) of ICCPR).

Box 9

While article 4, paragraph 1, allows States parties to take measures derogating from certain obligations under the Covenant in time of public emergency, the same article requires, inter alia, that those measures should not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. Furthermore, article 20, paragraph 2, obligates States parties to prohibit, by law, any advocacy of national, racial or religious hatred which constitutes incitement to discrimination. (…)

[A]s long as such [differential treatment] is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant. (…)

[N]ot every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

Committee on Civil and Political Rights, General Comment No.18: Non-discrimination (1989), Paragraphs 2, 10, and 13

In line with this view, the Committee on the Elimination of Racial Discrimination determined:

Box 10

"[D]ifferential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim".

Commission on the Elimination of Racial Discrimination, General Recommendation No. XXX, Discrimination against Non-Citizens

Furthermore:

Box 11

In relation to children, article 24 provides that all children, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, have the right to such measures of protection as are required by their status as minors, on the part of their family, society and the State.

Committee on Civil and Political Rights, General Comment No.18: Non-discrimination (2002), Paragraphs 5

In short, it is deemed that any approach to effectively prevent discrimination against smuggled migrants shall take into account (i) the interest of the State in specific rights; (ii) the relationship between the smuggled migrant and the relevant State; and (iii) whether the State's interest or reason for distinguishing between citizens and smuggled migrants is legitimate and proportionate (OHCHR, 2006, p.7).

 

Civil and Political Rights

Broadly speaking, civil and political rights may be defined as entitlements that restrict the powers of the government in respect of actions affecting the individual and his or her autonomy (civil rights) and confer an opportunity on people to contribute to the determination of laws and participate in government (political rights).

The right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment

The fundamental right of every human being to life is enshrined, inter alia,in article 6(1) of the International Covenant on Civil and Political Rights (ICCPR). The equally fundamental right not to be subjected to torture, cruel, inhuman or degrading treatment is established in article 7 of the same Covenant and the Convention against Torture (CAT). These rights are mirrored in article 16 of the Protocol against the Smuggling of Migrants (see above). These rights oblige States to implement protective measures in situations where the lives of migrants are under threat. They further require that States abstain from actions that could lead to breaches of these rights (see below on States' positive and negative obligations).

An example of intervening to protect the right to life is that of rescuing smuggled migrants from ventures that endanger their lives or safety (for example, where they are on unseaworthy and crowded vessels). The provision of food and shelter, water, and medical care amounts to proactively ensuring smuggled migrants' enjoyment of the rights to life and human treatment. Finally, an example of refraining from acts that could undermine these rights is not returning persons to situations where they would likely be in danger of being submitted to torture, cruel, inhuman or degrading treatment or punishment.

Right to liberty and security

The right to liberty is particularly relevant to the treatment of smuggled migrants, given that migrants are often detained upon arrival for breaches of immigration laws. Several factors are to be clarified in this respect.

Box 12

Article 9 ICCPR

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

There is a presumption against detention, with primacy given to non-custodial measures. Where detention is imposed, it must not be arbitrary, it must be in furtherance of a legitimate aim and it must be imposed on the basis of an individual determination. Detention should only be imposed in conformity with the law and where less restrictive measures are inappropriate or unavailable. Persons detained are to be informed of the underlying reasons as well as the duration of the detention. Avenues for challenging the imposition of detention must be available, in accordance with the right to fair trial, and due process guarantees must be ensured, including access to legal assistance and interpretation services.

In addition to article 9 of the ICCPR, it is important to bear in mind several international guidelines and principles on detention standards. See, for instance, General Comment 35 of the Human Rights Committee, especially para. 18 as well as the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. If detention is imposed on women or children, due consideration must be given to their special needs. Refugees and asylum-seekers' detention is also subject to specific guidelines.

The International Detention Coalition, a network of over 400 civil society organizations, has developed detention guidelines relating to refugees, asylum-seekers and migrants, based on international standards:

Box 13

Detention of refugees, asylum-seekers and migrants: position of the International Detention Coalition

  1. The detention of refugees, asylum-seekers and migrants is inherently undesirable.
  2. Vulnerable individuals - including refugees, children, pregnant women, nursing mothers, survivors of torture and trauma, trafficking victims, elderly persons, the disabled and those with physical or mental health needs - should not be placed in detention.
  3. Children should not be detained for migration-related purposes. Their best interests must be protected in accordance with the Convention on the Rights of the Child. Children should not be separated from their caregivers, and if they are unaccompanied, care arrangements must be made.
  4. Asylum-seekers should not be detained or penalized because they were compelled to enter a country irregularly or without proper documentation. They must not be detained with criminals and must have the opportunity to seek asylum and to access asylum procedures.
  5. Detention should be used only as a measure of last resort. If used, it must be necessary and proportionate to the objective of identity and security checks, prevention of absconding or compliance with an expulsion order.
  6. Where a person is subject to detention, alternatives must first be pursued. Governments should implement alternatives to detention that ensure the protection of the rights, dignity and well-being of individuals.
  7. No one should be subject to indefinite detention. Detention should be for the shortest possible time, with defined limits on the length of detention, which are to be strictly adhered to.
  8. No one should be subject to arbitrary detention. Decisions to detain must be exercised in accordance with fair policy and procedures and subject to regular independent judicial review. Detainees must have the right to challenge the lawfulness of their detention, which must include the right to legal counsel and the power of the court to release the detained individual.
  9. Conditions of detention must comply with basic minimum human rights standards. There must be regular independent monitoring of places of detention to ensure that those standards are met. States should ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides a strong legal basis for a regular and independent monitoring of places of detention.
  10. The confinement of refugees in closed camps constitutes detention. Governments should consider alternatives that allow refugees freedom of movement.
International Detention Coalition. Legal framework and standards relating to the detention of refugees, asylum seekers and migrants - A Guide (2011)
Box 14

Protection Gap: conditions of detention in migration detention centres

The teams encountered poor conditions in detention, some of which could amount to inhuman and degrading treatment. The poor conditions included overcrowding; children being held alongside unrelated adults; frequently dysfunctional toilets or other sanitary facilities; showers in spaces which posed a risk for the safety of women and girls; structures that are unfit for children; lack of adequate and sufficient water and food of nutritional value; and lack of access to quality physical and mental health care and services. Several of the facilities visited were extremely substandard, with strong general ambient faecal or sewage smells, limited opportunities for personal hygiene, washing, clean clothes or bedding, and other highly distressing conditions of confinement. (…) While the poor material conditions in immigration detention could be directly related to a lack and mismanagement of resources, the over-securitization and failure to ensure a reception environment points to a worrying prioritization of a security-based, punitive detention regime, in clear contravention of the requirement to ensure that the administrative purpose of immigration detention is reflected and measures taken to minimize the risks associated with the deprivation of liberty.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)
 Box 15

Good Practice

In Mexico, the Regulations (Reglamento) for the Law on the Rights of Children prohibit the immigration detention of children (article 111, 2 December 2015). Lithuanian law contains an exhaustive list of alternatives to detention, including: periodic reporting to the territorial police office at a reporting frequency decided by the court; trusting the foreigner to the guardianship of a citizen or a foreigner legally residing in the country; or reporting about her place of stay by means of communication at certain times to the territorial police office.

OHCHR and Global Migration Group, Principles and Guidelines, supported by practical guidance, on the Human Rights Protection of Migrants in Vulnerable Situations (March 2018)
 

Access to justice and an effective remedy

The right of access to courts (see, for example, articles 2.3, 9 and 14 ICCPR) entitles individuals to a fair and public hearing by a competent, independent and impartial tribunal established by law, if they face any criminal charges or if their rights and obligations are determined in the context of legal proceedings. All people enjoy this right, irrespective of nationality or legal status. The right to equality before courts and tribunals also ensures equality of arms. That is, the same procedural rights are to be provided to all parties unless distinctions are based on law and can be justified on objective and reasonable grounds. Hence, as highlighted by the Commission on the Elimination of Racial Discrimination in its General Recommendation XXX, there is no equality of arms if, for instance, only the State, but not the defendant, is allowed to appeal a certain decision.

In light of the above, States have to develop specific measures to make sure these rights are enjoyed by smuggled migrants. This can be achieved by ensuring access to competent interpretation services, information and free legal assistance as appropriate (see, for example, article 14(3) ICCPR and article 18(3) ICMW). Remedies must also be accessible and enforceable.

In practice, addressing fears of expulsion that might prevent smuggled migrants from participating in legal proceedings would not only contribute to the implementation of the right of access to courts, it would likely be beneficial for investigations.

Box 16

Protection Gap

With regard to due process and fair trial guarantees, migrants reported inadequate access to information, legal aid and assistance, with limited availability of lawyers who, in some instances, had difficulties accessing the detention facilities; as well as a lack of adequate translation services for migrants, including in criminal, expulsion or deportation proceedings. In [one country], where migrants were subject to criminal prosecution for irregular entry, there were serious concerns over reports about the quality of some state-appointed legal representation providing false information with legal ramifications.

OHCHR, In Search of Dignity - Report on the Human Rights of Migrants at Europe's Borders (2017)
Box 17

Good Practice

Directive 2012/29/EU of the European Parliament and of the Council of the European Union of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA ensures several assistance and protection measures to all victim of crime, without distinction. It specifically includes the right to interpretation and translation, the right to psychological support, and the right to free legal aid, among others.
 

Economic, social and cultural rights

The implementation of economic, social and cultural rights is subjected to progressive realization, in recognition of the limited resources of some States, as this set of rights usually requires States to adopt a proactive role in guaranteeing individual enjoyment of those entitlements.

Box 18

"The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation" (emphasis added).

Committee on Economic, Social and Cultural Rights, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (2009), Paragraph 30

Notwithstanding the statement in Box 19, article 2(3) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) stipulates that: "[d]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals".

However, States may restrict economic, social and cultural rights as "determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society" (article 4 of the ICESCR). This is a general clause that could be interpreted in extensive terms. However, the Limburg Principles - which provide interpretive guidance on the ICESCR - assert that this article was primarily inserted to protect the rights of individuals and was not intended to limit rights affecting the subsistence, survival or integrity of the person. In keeping with this view, the expression "promoting the general welfare" should be "construed to mean furthering the well-being of the people as a whole" (Limburg Principles, article 4, para. 52). The Limburg Principles further clarify that article 2(3) of ICESCR should be contextualized, as it was aimed to address the economic influence of certain groups of non-nationals under colonization. Therefore, it should be interpreted narrowly.

Indeed, the travaux préparatoires of the ICESCR state that the drafters intended to protect the rights of nationals of newly-independent former colonies from resident non-nationals who controlled important sectors of the economy. The Limburg Principles also explain that the term "developing countries" applies to those countries that gained independence and fall under the appropriate United Nations definition of the term. In this manner, the reach of the provision is much more limited than it might appear prima facie.

None of the above should be interpreted as meaning that States hold unfettered discretion regarding the fulfilment of their economic, social and cultural rights-related obligations. Notably, States must comply with the so-called "core obligations" or "minimum standards" of the right in question. Furthermore, economic, social and cultural rights benefit from a presumption of prohibition of retrogressive measures.

Box 19

[The ICESCR] imposes an obligation to move as expeditiously and effectively as possible towards that goal [i.e. the realisation of ESCR]. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources. a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned.

Committee on Economic, Social and Cultural Rights, General Comment Nº 3: The nature of States parties obligations (Art. 2, par.1) (1990)

The Protocol against the Smuggling of Migrants does not reference such rights, though article 15(3) does encourage cooperation to combat root causes of migrant smuggling, including economic and social depression.

Box 20

Article 15 (3) of the Protocol against the Smuggling of Migrants

Each State Party shall promote or strengthen, as appropriate, development programs and cooperation at the national, regional and international levels, taking into account the socio-economic realities of migration and paying special attention to economically and socially depressed areas, in order to combat the root socio-economic causes of the smuggling of migrants, such as poverty and underdevelopment.
 

Right to just and favourable conditions of work

This right is established in article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR):

Box 21

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favorable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) is the only international human rights instrument that explicitly addresses the rights of specific groups of migrants. As of December 2018, it has only 52 States parties, which limits the scope of the implementation of its provisions.

The Migrant Workers' Convention contains civil, political, economic and social provisions relating to the rights of migrant workers and their families. It is based on the principle of non-discrimination, thus requiring that all migrant workers (regular and irregular) have the same protection of their fundamental human rights as nationals of the host country. It covers the entire migration process, including: (i) preparation for departure, (ii) departure, (iii) transit, (iv) period of stay and remunerated activity in the state of employment and (v) return.

While many of the rights contained in the ICRMW are found in other international human rights instruments, one of its most remarkable achievements is the explicit inclusion of irregular migrant workers within its scope. Thus, it applies to migrants that have been the object of smuggling. Although the ICRMW reserves certain rights for legal workers only (such as the right to form trade unions and the right to the same treatment as nationals regarding housing and social services), it lists fundamental rights that must be afforded to all migrant workers:

  • Article 11(1) and (2) states that "[n]o migrant worker or member of his or her family shall be held in slavery or servitude. No migrant worker or member of his or her family shall be required to perform forced or compulsory labor".
  • Article 21 makes it illegal for anyone, except public officials "duly authorized by law", to confiscate or destroy identity documents, work permits or residence permits, thus prohibiting employers from confiscating the passports of their migrant employees.
  • Article 22 provides extensive protections against the arbitrary and unlawful expulsion of all migrant workers and their families, regardless of their status. For instance, it provides that: "[m]igrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually".
  • Under article 32, all migrant workers and members of their families are entitled to transfer savings and earnings as well as their personal effects and belongings on termination of their stay in the state of employment.
  • Other provisions prohibit interference with the rights of religious freedom, expression, privacy and respect for the family.
Box 22

Good Practice

In Thailand, all workers, regardless of migrant status, have the right to claim compensation in case of accident or injury at work through the Workmen's Compensation Fund. All employers are obligated to pay in to the fund and may be liable under civil or criminal law if they do not.

OHCHR and Global Migration Group, Principles and Guidelines, supported by practical guidance, on the Human Rights Protection of Migrants in Vulnerable Situations (March 2018)
 

Right to health

The right to health is enshrined in article 12(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which establishes "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". Under this provision, States commit to (i) equal and timely access to basic preventive, curative, rehabilitative health services and health education, (ii) regular screening programs, (iii) appropriate treatment of prevalent diseases, illnesses, injuries and disabilities, preferably at community level, (iv) essential drugs and (v) appropriate mental health treatment and care. States' health obligations are to be assessed in terms of availability, accessibility, acceptability and quality. States must ensure that functioning health-care facilities and services are available in sufficient quantity. Such facilities and services must be physically accessible and affordable, without discrimination. The Committee on Economic, Social and Cultural Rights considered the core obligations (for States) set forth by the right to health to be the following:

  • Ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;
  • Ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;
  • Ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water;
  • Provide essential drugs, as from time to time defined under the World Health Organization (WHO) Action Program on Essential Drugs;
  • Ensure equitable distribution of all health facilities, goods and services; and

Adopt and implement a national public health strategy and plan of action. The process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.

Box 23

Access to health-care

States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventative, curative and palliative health services; abstaining from enforcing discriminatory practices as a State policy.

Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (2000), Paragraph 34

Notwithstanding the above, it is important to note that many countries grant irregular migrants access to emergency medical care only (OHCHR, 2014).

Box 24

Good Practice

Since 2009, under the Health Insurance Act, health service providers in the Netherlands can seek reimbursement for 80-100 per cent of the cost of care, depending on the treatment concerned. In principle, many services are available to irregular migrants as a result of this scheme. The list covers primary, secondary and tertiary care, including pre- and postnatal care, psychiatric care, youth health, and screening and treatment for HIV and other infectious diseases.

OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (2014)
 

Right to an adequate standard of living

The right to an adequate standard of living (article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)) includes access to safe food and nutrition, potable water and sanitation, clothing and housing. In particular, housing should be appropriate to protect migrants from threats to their safety and provide for migrant children's development. The Committee on Economic, Social and Cultural Rights has identified, in its General Comment No. 4 on the right to adequate housing, a number of aspects that should be taken into account when assessing whether this right has been fulfilled, including the security, habitability and accessibility of the housing.

Right to education

Article 13(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) identifies the specific components of this right:

  • Primary education should be compulsory and available for free to all;
  • All appropriate means should be used to make secondary education available and accessible; and
  • Higher education should be accessible to all on the basis of capacity.

General comment No. 13 on the right to education determines the standards to be met when implementing the right to education and highlights the binding core obligations under this right, such as:

  • Ensuring the right of access to public educational institutions and programmes on a non-discriminatory basis;
  • Ensuring that education conforms to the objectives set out in article 13(1) of the Covenant;
  • Providing free primary education for all;
  • Adopting and implementing a national educational strategy; and
  • Ensuring free choice of education, subject to conformity with minimum educational standards.
Box 26

Good Practice

Italy guarantees to migrant children the right to education, regardless of their status, on the same terms as Italian children. The 1998 Immigration Act integrates the right to education in national legislation. It provides for the compulsory education of migrant children, the teaching of Italian, and the promotion of the culture and language of the countries of origin of migrant children.

OHCHR and Global Migration Group, Principles and Guidelines, supported by practical guidance, on the Human Rights Protection of Migrants in Vulnerable Situations (March 2018)

Belgium protects the right to education in its Constitution and in implementing legislation. Provided they are accompanying their parents or persons holding parental authority, minors residing unlawfully in the French-speaking territory shall be admitted to local schools. Head teachers shall also accept enrolments of unaccompanied minors. In such cases, they must ensure that the minor takes the requisite steps to register with an institution in a position to exercise parental authority over him or her. In Flanders, too, a provision by the Flemish Minister of Education grants such children the right to attend school. Head teachers are not required to inform the police of the administrative status of children and their parents, and undocumented migrants will not be arrested in the vicinity of the school. This guarantee was extended to the entire Belgian territory through a circular letter signed by the Ministry of Interior on 29 April 2003, recalling that police services cannot enter schools in order to carry out deportations.

OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (2014)

In practice, several circumstances may jeopardize enjoyment of this right. For example, a lack of required documents for enrolment, education fees and costs, access of law enforcement to students' data and implementation of restrictive migration polices.

 

Non-refoulement

As noted above, the Protocol against Smuggling of Migrants contains limited provisions relating to return of smuggled migrants and no rights-based protection from removal. A right against removal will generally only be founded on the right of non-refoulement (refered to in article 19(1) of the Protocol against the Smuggling of Migrants). Non-refoulement does not equate to a legal right to asylum. Rather, it prohibits the return of a person to a country where they would face a real chance of persecution or be exposed to a real risk of other forms of serious ill-treatment. It is generally held to be a norm of customary international law. Protection from refoulement attaches to persons who are granted refugee status under the 1951 Convention on the Status of Refugees; consequently, persons benefit from the protection until they are determined not to be a refugee. 

Persons who are not refugees under the Refugee Convention, but who would still face a real risk of ill-treatment, meaning torture, or cruel, inhuman or degrading treatment if returned to their country of origin, are also protected by the principle of non-refoulement under international human rights law. An explicit right of non-refoulement is found in article 3 of the Convention against Torture, and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment (CAT), and is inherent in articles 6 and 7 of the Internatonal Covenant on Civil and Political Rights (ICCPR) and articles 6 and 37 of the Convention on the Rights of the Child (CRC). Protection outside the Refugee Convention is often referred to as 'complementary' or 'subsidiary' protection.

The United Nations Refugee Agency (UNHCR) emphasizes the mutually reinforcing relationship between the protection of refugees and asylum-seekers, on the one hand, and the fight against the smuggling of migrants, on the other.

Box 27

UNHCR's clearly defined responsibilities for refugees and other persons of concern do not extend to migrants generally. It is, at the same time, a fact that refugees often move within broader mixed migratory flows. At the same time, the insufficiency of viable, legal migration options is an added incentive for persons who are not refugees to seek to enter countries through the asylum channel, when it is the only possibility effectively open to them to enter and remain. It is important, given not least the effects on and risks to them, that refugees receive protection without having to resort to a criminal trade that will put them in danger. There is therefore a need to achieve a better understanding and management of the interface between asylum and migration, both of which UNHCR should promote, albeit consistent with its mandate, so that people in need of protection find it, people who wish to migrate have options other than through resort to the asylum channel, and unscrupulous smugglers cannot benefit through wrongful manipulation of available entry possibilities.

UNHCR, Agenda for Protection (Third Edition) (2003)
 
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