Border Security: Addressing irregular migration and issues pertaining to trafficking in persons and smuggling of migrants
By: Osei Bonsu Dickson, Esq., Pat Quaye and Edem Kojo Spio
The term irregular migrant is applied to persons “who infringe a country’s admission rules and any other person not authorized to remain in the host country”. The definition of irregular migration is broad and refers to irregular flows, while the definition of irregular migrant seems to refer to the corresponding stock.
Irregular migration poses very real dilemmas for states, aside exposing migrants to insecurity and vulnerability. Sensitive as it is, politically most states have, nonetheless, failed to manage or control irregular migration effectively or efficiently. The current problem is not only a European, American, Asian or Australian one, it is also an African problem and thus a global one.
Irregular migration from the East and Horn of Africa to southern Africa for example, presents countries along this route with a new challenge: how to manage these flows while ensuring that the human rights of migrants are respected and protected. To better manage these irregular migration flows, the Governments of Ethiopia, Kenya and the United Republic of Tanzania have, for instance held several bilateral and trilateral technical meetings since 2014.
Despite the political relevance of the phenomenon, assessments of the size of the irregular migrant population are vague, and there are doubts as to whether granting amnesty or mass deportation will solve the problem of having tens of millions of people living in a country illegally.
This report proceeds from the standpoint that irregular migration cannot be managed on a unilateral basis by individual destination states, but requires meaningful cooperation between countries of origin, transit and destination.
Control measures instituted by only receiving states are unlikely to dismantled the problem. In certain parts of the world, policy on irregular migration is driven by the perception (whether accurate or not) that countries risk being ‘overwhelmed’ by large numbers of irregular migrants who embody threat to states and society.
While all states in the international system have the right to control their national borders, what is required are more effective collaborations with sending states and non-state actors to address the issue. Effective approaches will take notice of both the concerns of states and the need to protect the rights of irregular migrants.
Lack of Political Will
At the same time, it is essential to be realistic about the initial expected outcomes. Our analysis indicate that irregular migration may continue for the foreseeable future, although it may be possible to scale it down.
One key reason is that certain states lack the political will to address irregular migration, as some of the issues are perceived to be politically-sensitive. Irregular migration can be perceived as benefiting some countries of origin – for example by removing a labour surplus and providing a source of remittances and overseas investment (Koser and Van Hear 2003).
Secondly our analysis suggest that the push forces are equally ubiquitous and powerful (for example growing disparities in the level of prosperity and human security experienced by different societies) and the ability to modify them is very limited (Crisp and Dessalegne 2002).
Rule of Law Issues
While nation states have however the sovereign prerogative to govern conditions of entry into and stay within their territory, they must always do so respecting human rights obligations.
Criminalising migration has not been shown to prevent or resolve irregular status and is a concerning practice that leads to a number of human rights violations. The criminalisation of people on the basis of their migration status also reinforces false and xenophobic narratives that migrants are criminals or that migration itself is a threat (A/HRC/20/24, para. 13; WGAD, Deliberation No. 5).
Under international human rights law, the criminalization of irregular migration exceeds the legitimate interests of States in protecting their territories and regulating migration (A/HRC/13/30, para. 58). Within the New York Declaration, Member States agreed to review policies that criminalize cross-border movement and that children should not be criminalized based on their migration status (paras. 33 and 56).
Migrants in an irregular situation should not be treated as criminals, or as national or public security threats (A/HRC/10/21, para. 68). Criminalising people on the basis of their migration status can lead to a number of other human rights violations, including discriminatory profiling, arbitrary arrest and detention, family separation, and the inability to access critical health care, housing, education or other rights. Such approaches further push migrants to live and work in the shadows of society and increase their vulnerability to exploitation and abuse by State and private actors.
In the absence of safe pathways for migration, many migrants are compelled to enter and stay irregularly in countries of destination.
In the current environment the available options to states are briefly as follows:
- Strengthen Border Security
- Collaborate with Sending Countries
- Strengthen Interior Enforcement.
- Improve the Legal Immigration System
- Implement A Better Job Program
- Undertake Mandatory E-Verify
- Eliminate Illegal Immigration Rewards
- Blanket Amnesty
- Authorize Armed Forces at the Border
- Empower Civil Society Organizations
- Establish international agreements
Between 2020 – 2025, CSDS Africa will seek partnership with African Governments, the European Union, ECOWAS and the Africa Union with regard to its Anti-Slavery Project. CSDS seeks to implement a number of mutually reinforcing projects in the fight against irregular migration.
Slavery is not a thing of the past. Our mission is to amplify international law and policy options, hold governments accountable and develop capacities for safe, humane and dignified voluntary return as well as sustainable reintegration processes.
By itself, none of the proffered solutions above will resolve all the problems. The ultimate long-term solution lies in a combination; changing of economic conditions; revising of current policies; and opportunities created in the disadvantaged countries from where the illegal immigrants hail.
A combination of the possible solutions is most likely the best choice to implement a plan that conforms to the rule of law. A key priority of the Project is to support African governments to develop capacities for safe, humane and dignified voluntary return as well as sustainable reintegration processes.
CSDS Africa is an African organization that focuses on human security issues central to Africa’s future. CSDS partners to implement research, training and advocacy projects in the area of border, maritime and cyber security, international law, and development policy. In January 2020, CSDS commenced work on its 2020-2030 Anti-Slavery Project.
The Project seeks to address irregular migration and issues pertaining to trafficking in persons and smuggling of migrants to the European Union, United States, the Middle East, Gulf Region and Southern Africa, by working with African security services, governments and regional blocs to prioritize irregular migration.