Human Rights of Migrants, Vulnerable Groups, Referral Mechanisms and Cooperation November Tirana, Albania Ivona Todorovska Migrant Assistance Specialist IOM Skopje

Human Rights Considerations Human Rights are a political means of recognizing human dignity in a legally binding way Human Rights Laws regulate the relations the relations between and individual and a state Creation of a private sphere for every human being which is to be protected against undue interference from the State Human rights are inalienable – but not all are absolute Derogation possible in times of emergency (Art 4. ICCPR) Concept of negative and positive rights – refraining from an action to states responsibilities to take positive steps that will ensure rights of vulnerable categories.

Human Rights and Migrants Some people are more in need of protection against violations than others due to the specific position they are in In most national legislation there are measures which aim at protecting the vulnerable in accordance with international obligations Non-nationals do not always benefit from the treatment available to nationals The rights of migrants are not different than the ones for nationals but they have different focus It is important to consider vulnerability before nationality (with due respect for the State’s sovereignty)

State Sovereignty and Protection of Human Rights of Migrants

The obligation of the state to defend its security is essential feature of state sovereignty The state has power to derogate from certain rights (=suspension) in the case of public emergency which threatens the life of the nation Limitations:  Non-discriminatory application  Limited time  Prescribed by law + proportionate Many rights have a limitation clause (case of war, for the best of a democratic society) few are absolute State Sovereignty

Rights That Cannot Be Derogated Right to life Prohibition of slavery / servitude Prohibition of torture or cruel, inhuman or degrading treatment or punishment (principle of non-refoulement) Prohibition against arbitrary detention Right to equality before the law Right to freedom of thought and religion Prohibition against retroactive penal measures

State Sovereignty and Migration Management Migration management is a highly complex task The existing international legal framework together with the competent bodies provide guidance to States on how to cope with this task A human rights based approach to migration management, based on a holistic understanding of migration phenomena, benefits all actors involved This means also to recognise that all migrants, including irregular migrants are first of all human beings who enjoy rights Key principles: The management of migration process shall be in compliance with human rights principles. The management of migration shall be in compliance with international commitments of states. 7

Challenges in the Enjoyment of Rights For migrants it is extremely difficult to access and effectively enjoy they rights:  Lack of knowledge of their rights and of the relevant procedures  Language barriers  Cultural differences  Fear to be reported to the authorities  Target of discrimination and racial hatred Perception – unregulated status significantly limits human rights to “basic” only

What States Can Do To Address This Training of officials, particularly at the local level Coordination among different ministries or institutions involved in migration management Public awareness campaigns to improve migrants perception Information to migrants (non-nationals and prospective migrants), including by engaging with diasporas Preparedness plans and actions need to be in place

Examples of Good Practices: Access to Justice provided by law also for irregular migrants + training of law professionals USA: Provision of temporary legal migration status to migrants who are victims of certain crimes, including human trafficking. MEXICO: Creation of a public prosecution service for migrants, as well as measures for the identification and assistance of migrants who are victims of crime. Trade unions: conclusion of bilateral agreements to better protect migrant workers in origin and destination countries. EU Employer sanctions directive access to migrants to redress for exploitative conditions of work.

Who is a Vulnerable Migrant? Vulnerability in the context of migration can be defined as: “… the diminished capacity of an individual or group to have his/their rights (fully) respected, or to cope with, resist and recover from a violation of a (fundamental/human) right. The concept is relative. People differ in their exposure to risk (of not having their rights fully respected) as a result of their social group, gender, ethnic or other identity, age and other factors.”

Vulnerable Groups Women, Children, Elderly Victims of torture or gender based violence (victims of human trafficking, LGBTI) Persons with mental and/or physical disabilities Unaccompanied minors* Persons seeking refuge from war and/or persecution Irregular migrants; Migrants in detention Other individuals at particular risk

Assessing Vulnerabilities To determine people’s vulnerability, two questions need to be asked:  to what threat of violation of rights or effective violations are they vulnerable?  what makes them vulnerable to that?

Assessing Vulnerabilities Assessing vulnerabilities and protection response is a human rights obligation of the states: In a context of mixed-migration flows In a context of extra-regional movements In the context of a transit country Skills (interpersonal, thematic, cultural, language) Material resources Clear rules Cooperation

Convention on the Rights of the Child Sets comprehensive standards; Provides equality in the enjoyment of their applicable rights both for children recognized as refugees and for children seeking asylum. Article 22 “State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.”

Convention on the Rights of the Child Article 9 of the Convention on the Rights of the Child enshrines two essential principles of children’s rights: first, that children should not be separated from their parents unless it is necessary for their best interests and, second, that all procedures to separate children from parents on that ground must be fair. According to Article 10, applications made by a child or her or his parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.

Protection of Unaccompanied Minors Articles 34 to 36 on exploitation must be read in conjunction with special protection and assistance obligations to be provided according to Article 20 of the CRC in order to ensure that unaccompanied and separated children are shielded from trafficking, and from sexual and other forms of exploitation, abuse and violence.

Protection of Unaccompanied Minors States are required to create the underlying legal framework and take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests. Therefore, States should appoint a guardian or adviser as soon as the unaccompanied or separated child is identified and maintain such guardianship arrangements until the child has either reached the age of majority or has permanently left the territory and/or jurisdiction of the State in compliance with the Convention and other international obligations. The guardian should be consulted and informed regarding all actions taken in relation to the child.

Detention of Children A specifically relevant provision is Art. 37(b) which establishes that detention must only be used as a: Last resort For the shortest period of time possible Have proper justification The article sets out conditions for any arrest, detention or imprisonment of the child

Human Rights in the Entry Process Irregular migrants entering or attempting to enter the territory must not be arbitrarily deprived of life by agents of the State State has positive obligations to take measures within its power to protect migrants from arbitrary deprivation of life or ill-treatment by third parties, including private actors, on entry to the territory Where irregular migrants are apprehended by the authorities, they must not be subjected to physical or psychological treatment amounting to torture or other cruel, inhuman or degrading treatment, including the use of excessive physical restraint, or excessive and inappropriate body searches, or compulsory medical testing, and that their rights to health and adequate food while in detention must be guaranteed. Granting of entry must not infringe the protection from discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

Referral and Protection Mechanisms Existing (guardianship, victims of human trafficking, asylum seekers, unaccompanied minors) Are they sufficient/ are they appropriate Can they be used? To a which extent? Adequately resourced Voluntary basis Adapted to the context and specifics of the migration flows

IOM Contributes to the Promotion of: The protection of migrants and their rights and thereby reducing their vulnerability, particularly of those at risk of discrimination and exploitation and vulnerable groups, and safeguarding their dignity and well-being; The interests of IOM Member States in fulfilling their international obligations in respect to the protection of migrants and their rights.

Comprehensive Measures Countries of origin Countries of transit Countries of destination

Questions? Thank you! Ivona Todorovska IOM Skopje Migrant Assistance Specialist