Promoting and Protecting the Rights of Migrant Workers The Role of National Human Rights Institutions TYPES OF MIGRATION Migration across borders can take place through regular or irregular channels. The manner in which an individual enters another country determines many of the rights which that person is able to claim. However, under customary international law and international human rights law, all States must protect the rights of all people within their jurisdiction. There are different categories of migrants. While in reality a migrant may move between different categories depending on changes in his or her personal circumstances, it is important to understand the differences between these categories. An irregular migrant can be defined as a person “who lacks legal status in a transit or host country; one who entered a state without authorization, or entered a country legally but then lost permission to remain”.11 Individuals may also be trafficked across borders, having been “coerced to travel to another country for the purpose of exploitation”.12 The UN Trafficking in Persons Protocol defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”13 While the Protocol establishes the trafficking of persons as an international crime, it is important to note that this criminal liability only relates to the traffickers, rather than the victims of trafficking. Victims of trafficking are entitled to a range of protective measures under the UN Trafficking Protocol. In addition, individuals can be smuggled across borders, travelling to another country voluntarily, but illegally, with the assistance of a third party who receives some form of benefit for this assistance. The UN Smuggling of Migrants Protocol defines smuggling of migrants as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.”14 The Protocol excludes migrants who have been smuggled from criminal liability, although it does call for criminal measures against the third parties who receive a benefit for smuggling migrants into States. Individuals fleeing persecution in their home country may seek asylum in another country, under the grounds provided in the 1951 Convention Relating to the Status of Refugees. In general terms, the Convention defines a refugee as someone who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, who is outside the country of his nationality and is unable owing to such fear, to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”15 Those whose claims for asylum are accepted are granted refugee status, which generally brings with it certain rights and entitlements to protection under international law. Individuals may also seek protection from torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. When their claim is accepted they will be granted protected person status. 11 Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence; International Council on Human Rights Policy; 2010; see “Definitions”. 12 Ibid; see “Definitions”. 13 See article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention on Transnational Organised Crime; General Assembly Resolution 55/25 of 15 November 2000. 14 See article 3(a) of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention on Transnational Organised Crime; General Assembly Resolution 55/25 of 15 November 2000. 15 See article 1A(2) of the 1951 Convention Relating to the Status of Refugees. x | Facts and trends involving migrant workers