31/35 Situation of migrants in transit - Report of the Office of the United Nations High Commissioner for Human Rights

Human Rights Council Thirty-first session

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Situation of migrants in transit

Report of the Office of the United Nations High Commissioner for

Human Rights

Summary

The present report is submitted pursuant to Human Rights Council resolution 29/2,

in which the Office of the United Nations High Commissioner for Human Rights was

requested to submit to the Council before its thirty-first session a study on the situation of

migrants in transit, including unaccompanied children and adolescents, as well as women

and girls.

The report seeks to analyse the human rights situation of migrants in transit,

highlighting human rights concerns as well as the relevant normative framework. It

contains recommendations aimed at addressing critical protection gaps for migrants in

transit.

Contents

Page

I. Introduction ...................................................................................................................................... 3

II. Background ..................................................................................................................................... 3

III. Human rights concerns ..................................................................................................................... 7

A. Dangerous interception practices ............................................................................................. 7

B. Collective expulsions and violations of the principle of non-refoulement .............................. 8

C. Denial of economic, social and cultural rights ........................................................................ 9

D. Arbitrary detention and inadequate conditions of detention .................................................... 11

E. Violence, abuse and exploitation ............................................................................................ 13

IV. Conclusions ...................................................................................................................................... 16

V. Recommendations ............................................................................................................................ 17

I. Introduction

1. In its resolution 29/2, the Human Rights Council requested the Office of the United

Nations High Commissioner for Human Rights (OHCHR) to submit to the Council before

its thirty-first session a study on the situation of migrants in transit, including

unaccompanied children and adolescents, as well as women and girls, in consultation with

States and other relevant stakeholders, including regional organizations, civil society

organizations and national human rights institutions.

2. Accordingly, on 20 October 2015, OHCHR addressed a note verbale to Member

States and intergovernmental and non-governmental organizations seeking their views and

information on the issue. Written submissions were received from States,

intergovernmental organizations, non-governmental organizations and individual experts.1

On 17 June 2015, OHCHR organized an informal expert consultation on “Human rights

and migrant smuggling: exploring issues and challenges”. The discussions and outcomes of

that consultation have also informed the present study.

II. Background

3. Around the world, migrants in transit are in a precarious — even perilous — human

rights situation. During 2015, more than 5,000 women, men and children lost their lives

along migratory routes across the globe, with an estimated 2,901 people perishing in the

central Mediterranean alone.2 Some 500 children died in sea crossings during the same

period.3

4. Even as technological advances have made travel faster and safer, for many

migrants, the journey could take weeks, months or even years. Some might never reach

their intended destination at all. The route, means of transportation and even the intended

destination can change at different phases along the migration trajectory and migrants often

fall in and out of various legal categories while in transit.

5. There is no authoritative definition of “transit migration”; the term is commonly

taken to mean the temporary stay of migrants in one or more countries, with the objective

of reaching a further and final destination. Yet, it is important to appreciate that the notion

of “temporariness” embodied in the concept of transit is conceptually challenging: how

long or short is the transit period? After what length of stay does the transit country become

the final destination?

6. Notwithstanding such conceptual difficulties, it is apparent that transit is an

important phenomenon in contemporary migration, with critical human rights implications.

In accordance with a human rights-based approach, the present study will seek foremost to

1 Submissions were received from Argentina, Azerbaijan, Belarus, Bosnia and Herzegovina, Chile,

Denmark, Germany, Lithuania, Malta, Mexico, the Netherlands, Paraguay, Peru, Poland, Qatar, the

Russian Federation, Sweden and Turkey — many of which highlighted good practices —, as well as

from United Nations agencies and non-governmental sources. The text of most of the submissions

received can be found on the Migration page of the OHCHR website at www.ohchr.org/EN/Issues/

Migration/Pages/Studymigrantsintransit.aspx.

2 International Organization for Migration (IOM), “Missing migrants project”. Available at

http://missingmigrants.iom.int/en/mediterranean.

3 United Nations Children’s Fund (UNICEF), “On the Day of International Migration, UNICEF says

children need urgent solutions, solidarity”, 18 December 2015.

analyse the situation of migrants in transit from the point of view of the migrants

themselves.

7. Migrants in transit risk a range of human rights violations and abuses, including

because they have become destitute or “stranded” in the transit country and because they

lack legal protection and are unable or unwilling to seek the protection of the country of

transit. Migrant women in transit often face specific gendered forms of discrimination and

abuse, both in the public and private spheres. At the same time, States may question their

obligations towards migrants who are in transit and not intending to remain on their

territory.4

8. In the absence of a universal, legal definition, OHCHR has defined an “international

migrant” as “any person who is outside a State of which he or she is a citizen or national,

or, in the case of a stateless person, his or her State of birth or habitual residence”.5 In using

the term “migrant” to describe the subjects of this study, the intention is not to exclude

refugees or other legal categories, but rather to use a neutral term for a group of people who

have in common a lack of citizenship attachment to their host country.6 Such an approach

stems from recognition of the inherent dignity and equal and inalienable rights of every

human being.7

9. The study will thus consider the situation of all migrants in transit, with a particular

focus on those in an irregular situation and those who are most marginalized and at risk,

including children on the move.

Migrants in transit

10. The drivers for the movement of migrants are multiple and often intertwined. In

addition to persecution and conflict, today, the reasons that compel movement include

poverty, discrimination, lack of access to rights, including education and health, lack of

access to decent work, violence, gender inequality, the wide-ranging consequences of

climate change and environmental degradation, and separation from family. In many

regions, migrants with varying protection profiles and reasons for movement move along

the same routes and use the same transport or means of travel in so-called “mixed flows”,

often in large numbers.

11. Migrants who move out of necessity rather than free choice are at greater risk of

human rights violations throughout their migration, are less likely to be able to make

choices or to formulate exit strategies and are therefore more likely to migrate in conditions

4 Council of Europe, Parliamentary Assembly, “Countries of transit: meeting new migration and

asylum challenges”, Report (Doc. 13867), 11 September 2015. The Council notes that countries that

experience transit migration, in whatever form, are rarely, if ever, only “countries of transit”; many

are also countries of destination and/or asylum (p. 3).

5 See OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders

(2014) chap. I, para. 10. Available from www.ohchr.org/Documents/Issues/Migration/

OHCHR_Recommended_Principles_Guidelines.pdf.

6 See Opening statement by the United Nations High Commissioner for Human Rights at the panel

discussion, “Promoting tolerance, dispelling myths, protecting rights: an evidence-based conversation

on migration”, held in Geneva on 15 December 2015. Available from www.ohchr.org/EN/

NewsEvents/Pages/DisplayNews.aspx?NewsID=16889&LangID=E.

7 See Universal Declaration of Human Rights, art. 2; International Covenant on Civil and Political

Rights, art. 2 (3); International Covenant on Economic, Social and Cultural Rights, art. 2 (2); and

International Convention on the Protection of the Rights of All Migrant Workers and Members of

Their Families, art. 7.

which do not respect the dignity of the human being. Along the migration continuum,

varying degrees of coercion and voluntariness mark each individual’s migration experience,

which is dynamic in that it changes as the journey progresses.

12. The contemporary phenomenon of transit migration is linked in many ways to

increasing barriers to international migration. Stringent migration control measures,

coupled with a lack of regular migration channels for work, family reunification, education

and humanitarian reasons, are increasingly restricting the options for movement of potential

migrants and, in many cases, compelling them to move through irregular channels. Such

control measures include legislation that criminalizes irregular emigration, age and sector-

specific bans on the movement of potential migrants and the externalization of migration

control, which can be manifested in obstacles such as carrier sanctions and onerous visa

requirements.8 The phenomenon of “refugees in orbit”, whereby refugees are unable to

access the asylum system and are therefore obliged to move from one country to another, is

an important driver of transit migration, as are overly onerous and lengthy refugee status

determination processes.

13. A migrant who moves regularly experiences the journey and “transit” differently

from a migrant who travels irregularly. Studies indicate that most irregular migrants will

use the services of a range of actors in the informal economy, including smugglers, at some

point during their journey. For instance, it has been estimated that 80 per cent of recent

crossings of the Mediterranean from Africa to Europe were facilitated by migrant

smugglers.9 Another study found that almost two thirds of migrants transiting in Indonesia

were using the services of smugglers or agents to arrange their irregular movement towards

Australia.10 Irregular migrants in transit are often at risk of abuse as a result of corruption.11

14. Corruption emerges as a key element in the experience of migrants in transit,

including along smuggling routes. Border officials, police, soldiers and consulate and

embassy officials may also participate in the movement of migrants by providing

documentation, by turning a blind eye to migrants or even by their involvement as

organizers or facilitators in collusion with criminal actors.12 For migrants in transit,

corruption can exacerbate risks and prolong journeys; it is an enormous obstacle to the

realization of human rights and has a disproportionate impact on the poor. Migrants who

8 Maybritt Jill Alpes and Ninna Nyberg Sørensen, “Migration risk campaigns are based on wrong

assumptions”, Policy brief (Danish Institute for International Studies, 5 May 2015). The authors refer

to the “document jungle”, in which consulate offices may request documents that people have never

needed before in their life and work trajectories (see p. 4), such as bank accounts.

9 Tuesday Reitano, Laura Adal and Mark Shaw, Smuggled Futures: The Dangerous Path of the

Migrant from Africa to Europe, (Geneva, Global Initiative against Transnational Organized Crime,

2014), p. 1.

10 Graeme Hugo, George Tan and Caven Jonathan Napitupulu, Indonesia as a Transit Country in

Irregular Migration to Australia, Irregular Migration Research Programme, Occasional Paper Series

08/2014 (Australia, Department of Immigration and Border Protection, September 2014), p. 22.

11 For example, research indicates that Nepali migrants en route to other destinations will elect to travel

through India – thereby prolonging their journey and the risks associated with being in transit – as a

way of avoiding having to pay a bribe at the labour migration desk at Kathmandu airport. See

International Labour Organization, No Easy Exit: Migration Bans Affecting Women from Nepal

(Geneva, 2015), p. 9. Available from www.ilo.org/wcmsp5/groups/public/---ed_norm/---

declaration/documents/publication/wcms_428686.pdf.

12 See United Nations Office on Drugs and Crime (UNODC), “Corruption and the smuggling of

migrants”, Issue paper (Vienna, 2013); also Nourhan Abdel Aziz, Paola Monzini, Ferruccio Pastore,

The Changing Dynamics of Cross-border Human Smuggling and Trafficking in the Mediterranean

(Rome, Istituto Affari Internazionali, 2015), p. 27.

have been victims of abuse by State officials or private actors are rarely able to access

justice effectively and abusers can operate with impunity.13

15. Migrants who lack access to financial and material resources or are otherwise at risk

of discrimination are more likely to experience dangerous journeys and a lengthier, more

precarious time in transit than those who are able to pay for faster and safer transport to

their destination.14 The amount that migrants have to pay the smugglers usually varies

according to the service offered and is often determined by the migrants’ socioeconomic or

social status or diaspora connections.

16. Children can be particularly at risk, whether they are travelling on their own or with

their families or caregivers. Migrant children in transit are unlikely to be able to access

education and health care, including mental health care and timely vaccinations. The

difficulty in overcoming the isolation and invisibility of children in transit means that this is

often the stage of migration where conventional child-protection systems are weakest.15 A

particular issue of concern for migrant children in transit is that of age assessment, with a

“culture of disbelief” pervading official determinations of age, particularly in the case of

adolescent migrants. Concerns have also been raised about inappropriate and highly

intrusive age assessment techniques being applied to children.16 The vulnerability of

migrant children to physical, psychological and/or sexual abuse and exploitation, including

child labour, is exacerbated when immigration enforcement policies are allowed to override

child rights.

17. Policy responses to groups perceived as vulnerable, such as migrant children in

transit, are often premised on models of “rescue” and “return” and on inaccurate or

incomplete assumptions about why and how children move, rather than a participatory and

rights-based analysis of the best interests of the child.17

18. The Committee on the Rights of the Child has asserted that, in the case of a

displaced child, the best interests principle must be respected during all stages of the

displacement cycle. At any of those stages, a best interests determination must be

documented in preparation of any decision fundamentally impacting on the unaccompanied

or separated child’s life.18

13 For instance, it has been noted that there have been few successful prosecutions of migrant smugglers,

including in cases of abuse or exploitation of migrants, and those who have been tried have invariably

been lower-level transporters or facilitators. See Tuesday Reitano, “A perilous but profitable crossing:

The changing nature of migrant smuggling through sub-Saharan Africa to Europe and EU migration

policy (2012-2015)”, The European Review of Organised Crime, vol. 2, No. 1, 2015, p. 13.

14 Migrant women with few resources are often used by smugglers as decoys at border crossings to

facilitate the movement of other migrants. See Carla Angulo-Pasel, “Complex migration: A woman’s

transit journey through Mexico, Working paper (United Nations Entity for Gender Equality and the

Empowerment of Women, February 2015), p. 15. In some sea crossings, richer migrants were able to

secure passage on the upper deck of boats, while poorer migrants found accommodation in the more

dangerous hull. See “The darker your skin – the further down you go: The hierarchical system aboard

Italy’s migrant boats that governs who lives and who dies”, The Independent, 21 April 2015.

15 Daniela Reale, “Protecting and supporting children on the move: Translating principles into practice”

in Children on the Move (Geneva, IOM, 2013), p. 67 and 68.

16 See A/69/277, para. 14.

17 Moussa Harouna Sambo and Fabrizio Terenzio, “Children on the move: a different voice”, in

Children on the Move (Geneva, IOM, 2013), p. 23.

18 See the Committee’s general comment No. 6 (2006) on the treatment of unaccompanied and

separated children outside their country of origin, para. 19.

III. Human rights concerns

A. Dangerous interception practices

19. Dangerous interception practices have frequently led to human rights violations,

including injury or death of migrants in transit. All persons, regardless of where they are,

their legal status, nationality or mode of travel, are entitled to protection of their right to

life.19 States should scrupulously avoid dangerous interception measures, including

arbitrary or collective expulsions.20

20. In May 2015, four Special Rapporteurs expressed their serious concern about the

push-back policy implemented by the Governments of Thailand, Indonesia and Malaysia

against irregular migrants in the Bay of Bengal, highlighting their particular concern about

the impact of the policy and the lack of rescue on the health and personal safety of migrants

while at sea.21 Similar concerns have been expressed about the turn-back policy operated by

Australia to return boats to Indonesia, allegedly in unsafe conditions.22

21. The 1979 International Convention on Maritime Search and Rescue requires States

parties to ensure that assistance is provided to any person in distress at sea, regardless of the

nationality or status of the person or the circumstances in which the person is found and to

provide for his or her initial medical or other needs and deliver him or her to a place of

safety. OHCHR has recommended that States should agree on what constitutes a situation of distress, nearest place of safety and safe ports, with a view to enhancing human rights

protection for migrants.23

22. At land borders, the erection of fences, walls and other physical barriers to entry

have raised concerns about the human rights impact of such measures. The Council of

Europe Commissioner for Human Rights has expressed concern about the increased use of

razor-wire fences, border controls and restrictions to free movement in several countries in

Europe.24

23. Physical barriers to the movement of migrants in transit have been accompanied by a

wide range of restrictive measures to restrict or deny access to territory, asylum procedures

and other screening and identification procedures by migrants in transit, as well as

accelerated or even summary returns. OHCHR has provided guidance to States to ensure

the accountability of private transport companies and other private actors that are

implementing entry restriction measures.25

19 See Universal Declaration of Human Rights, art. 3; and International Covenant on Civil and Political

Rights, art. 6 (1).

20 OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders (see

footnote 5), guideline 4.5.

21 See https://spdb.ohchr.org/hrdb/30th/public_-_UA_Malaysia_21.05.15_(2.2015).pdf.

22 Amnesty International, By Hook or by Crook: Australia’s Abuse of Asylum Seekers at Sea, (London,

2015).

23 OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,

guideline 4.13.

24 See Council of Europe, “Europe should lead by example by treating migrants and asylum seekers

humanely and fairly,” Statement by the Commissioner for Human Rights, 13 November 2015.

25 OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,

guideline 4.6. See also the contribution to the present study from the Identity Project

(http://papersplease.org).

B. Collective expulsions and violations of the principle of non-refoulement

24. International human rights law limits the sovereign entitlement of States to remove

migrants from their territory when the migrant would be at risk of serious harm upon

return.26 Collective expulsions are prohibited as a principle of general international law.27

OHCHR has recommended that removal orders should only be issued following

consideration of individual circumstances with adequate justification in accordance with the

law and international human rights standards.28 Any consent given to voluntary return

processes should be fully informed and given free of any coercion, such as the prospect of

indefinite detention or detention in inadequate conditions.29

25. Also guaranteed to all persons, regardless of their legal or other status, is the right to

protection from refoulement (i.e., the return of anyone to a country where they would be at

risk of torture, cruel, inhuman and degrading treatment).30 It should be noted that the

principle of non-refoulement, which is recognized as a rule of customary international law,

is equally applicable to all places where the intercepting State exercises jurisdiction and

control, including on the high seas.

26. The Special Rapporteur on the human rights of migrants has expressed concern

about refoulement from Europe to countries of origin and third countries with weak rule of

law and poor asylum systems that have been conducted under the broad auspices of

bilateral agreements.31

27. Returns that are not sustainable can lead not only to further abuse and exploitation,

but also to more cycles of insecure and irregular migration, with human rights implications

for the people moving. In one survey of sub-Saharan African migrants in Morocco, 68 per

cent of people interviewed said that they had been arrested and expelled since their arrival

in Morocco; and almost 80 per cent of them had been expelled multiple times.32

Furthermore, in the case of children, it is vital that return is only used as a protection

26 See Intervener Brief filed by the United Nations High Commissioner for Human Rights pursuant to

leave granted by the Court on 9 October 2015 in European Court of Human Rights, N.D. and N.T. v.

Spain, Application Nos. 8675/15 and 8697/15. Available at: www.ohchr.org/Documents/Issues/

Migration/ThirdPartyIntervention.pdf.

27 See International Convention on the Protection of the Rights of All Migrant Workers and Members of

Their Families, art. 22 (1); as well as Human Rights Committee, general comment No. 15 (1986) on

the position of aliens under the Covenant, para. 10; and Committee on the Elimination of Racial

Discrimination, general recommendation No. 30 (2005) on discrimination against non-citizens, para.

26.

28 See Intervener Brief filed by the High Commissioner (see footnote 26), para. 19, for a non-exhaustive

list of individual circumstances; also OHCHR Recommended principles and guidelines, guideline 9.4.

29 See OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,

guideline 9.3.

30 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment,

art. 3; and, in the case of refugees, 1951 Convention relating to the Status of Refugees, art. 33.

31 See A/HRC/29/36, para. 39.

32 See Doctors Without Borders, Violence, Vulnerability and Migration: Trapped at the Gates of

Europe: A report on the situation of sub-Saharan migrants in an irregular situation in Morocco,

March 2013, p. 14; also Duncan Wood, “Reflections on the Mexico-Guatemala Border”, in

Reflections on Mexico’s Southern Border, Duncan Wood and others, contributors (Washington, D.C.,

Wilson Center; Mexico, Autonomous Institute of Technology Institute, 1 April 2015), pp. 5-6, a study

of migrants attempting to transit from Guatemala through Mexico to the United States of America, in

which it is noted that migrants paid smugglers around $7,000 for up to three border-crossing attempts.

Deported migrants therefore soon made more attempts to cross the border irregularly.

measure and not as a punitive one.33 In a 2012 study of migrant children returned from

Germany to Kosovo,34 it was reported that many returned children lived in abject poverty

with little access to health care and that 70 per cent of minority children had dropped out of

school upon return.35

C. Denial of economic, social and cultural rights

28. Migrants can face physical and environmental threats, hunger, ill health and

exposure to trauma in transit. Migrants in transit are often unable to legally work, rent

accommodation or access basic services, such as education and health care. Where irregular

migration is criminalized, migrants in transit live with the constant fear of detection and

abuse.

1. Lack of access to health care

29. Migrants often begin their journey in good health. However, the complexity of the

migratory journey, the conditions of travel and the absence of, or inadequate, access to

health care can result in many migrants experiencing poor physical and mental health

outcomes.

30. Migrants may face hazardous conditions as they move, such as being confined in

severely overcrowded boats or trucks.36 Dangerous sea crossings with inadequate life-

saving equipment, physically gruelling journeys though deserts and other unsafe travel in

harsh terrain are common. Infants and young children, pregnant women, older persons and

persons with disabilities can be at particular risk. This phase of the migration cycle is

associated with high risks of death and morbidity at land, air and sea borders, including

respiratory and gastrointestinal infections, dehydration, hypothermia and injuries from

accidents and violence.

31. Migrants are often unable or unwilling to access necessary first aid and other

immediate health interventions following rescue or interception, owing to a lack of

competent medical staff or equipment, or because they are under pressure to continue their

journey to their intended destination. With regard to international borders, OHCHR has

recommended that States ensure that competent medical staff are present at the point of

rescue or interception to carry out screenings and refer persons for further medical

attention, including mental health referrals where appropriate.37

32. All migrants, regardless of status, are entitled to the full protection of their right to

health. The International Covenant on Economic, Social and Cultural Rights protects the

right of everyone to the enjoyment of the highest attainable standard of physical and mental

health (art. 12). The Committee on Economic, Social and Cultural Rights notes that States

33 See Office of the Special Representative of the Secretary-General on Violence against Children,

Toward a World Free from Violence: Global survey on violence against children, (New York,

October 2013), p. 23.

34 All references to Kosovo in the present document should be understood to be in compliance with

Security Council resolution 1244 (1999).

35 Verena Knaus and others, Silent Harm: A report assessing the situation of repatriated children’s

psycho-social health, (UNICEF Kosovo in cooperation with Kosovo Health Foundation, 2012), p. 8.

36 See A/HRC/23/41, para. 3.

37 OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,

guideline 5.2.

have an obligation to ensure that all migrants have equal access to preventive, curative and

palliative health services, regardless of their legal status and documentation.38

33. In addition to basic access to health care, specific challenges to migrants’ right to

health while in countries of transit include the management of chronic conditions, such as

diabetes and cardiovascular disease, and addressing psychosocial and mental health

problems. Many migrants undergo traumatic experiences relating to their journey, including

imprisonment and physical and psychological violence, which necessitate mental health

care.39 Without access to adequate services, migrants are likely to self-medicate or rely on

informal medical interventions to address their health problems.

34. The specific health needs of migrant women and girls, particularly in relation to

their sexual and reproductive health and rights, frequently remain unmet. Where medical

services are provided to migrants in transit, they may not include consultations with

gynaecologists or sexual and reproductive health services and specialized care for survivors

of sexual violence.

2. Inadequate living conditions

35. In a report on sub-Saharan African migrants in transit in Morocco, it was noted that

almost half of the medical problems diagnosed were diseases closely related to poor living

conditions.40 While in transit, migrants may be compelled to live in precarious conditions,

such as in forests, fields, abandoned houses, train stations or other public spaces, with no

sanitary facilities and limited access to safe food and water sources. Improvements to those

places are often prevented and access to homeless shelters may be denied. Migrants who

manage to rent accommodation are often forced to live in crowded, unsanitary and unsafe

conditions, because they are unable to rent accommodation legally or because they lack the

financial means to do so.

36. The International Covenant on Economic, Social and Cultural Rights recognizes

“the right of everyone to an adequate standard of living for himself and his family,

including adequate food, clothing and housing, and to the continuous improvement of

living conditions” (art. 11 (1)) and the Convention on the Rights of the Child recognizes the

right of every child to a standard of living adequate for the child’s mental, spiritual, moral

and social development (art. 27). States should adopt measures to prevent and sanction

discrimination against all migrants that undermines their right to an adequate standard of

living, and should avoid the marginalization and social exclusion of migrants in an irregular

situation, including because of the location of their accommodation.41

38 See the Committee’s general comment No. 14 (2000) on the right to the highest attainable standard of

health, para. 34.

39 A survey of 1,102 men, women and youth who were receiving post-trafficking assistance services

found that symptoms associated with depression were reported by 59.7 per cent of participants;

symptoms associated with post-traumatic stress disorder were reported by 35.6 per cent of

participants and 41.9 per cent met the symptom criteria for an anxiety disorder. See Cathy

Zimmerman and others, Health and human trafficking in the Greater Mekong Subregion: Findings

from a survey of men women and children in Thailand, Cambodia and Viet Nam (International

Organization for Migration and London School of Hygiene and Tropical Medicine, 2014), p. 6.

40 See Doctors Without Borders, Violence, Vulnerability and Migration: Trapped at the Gates of Europe

(see footnote 32), p. 9.

41 OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (New York

and Geneva, 2014), p. 78.

3. Lack of access to decent work

37. While in transit, many migrants are compelled to seek employment in order to

survive and to be able to fund further travel. More often than not, migrants in those

circumstances are only able to find work in the informal sector, which can be hazardous

and exploitative. Migrants are often unable to have their labour rights protected, including

because they are in an irregular situation. For example, migrant women in transit in Mexico

were restricted to gendered and informal occupations such as domestic work, hospitality or

entertainment, where legal protection of their labour rights was limited.42 In a study, it was

found that, in Thailand, unaccompanied migrant children in transit tended to work in

similar occupations with a high risk of labour exploitation.43

38. The protection of all workers against exploitation and abuse is a core component of

labour-related human rights.44 The Committee on the Rights of the Child has recommended

that States consider establishing monitoring and reporting systems for identifying and

remedying child rights violations taking place in work contexts, particularly in informal

and/or seasonal situations.45

D. Arbitrary detention and inadequate conditions of detention

39. Detention of irregular migrants is increasing around the world, including in transit

countries and at international borders. Far from being used as a last resort — as befits a

measure with such a drastic effect on its subject —, administrative detention is often routine

and, in some cases, mandatory. In many cases, procedural safeguards for administrative

detention are fewer than for criminal detention, including a lack of measures to determine

the arbitrariness of arrest and continued detention. Migrants in detention are often denied

access to legal aid or interpretation services and, thus, may not understand why they are

detained or how to challenge the legality of their detention.

40. The use of detention for migrants is of concern, owing to the lack of procedural

safeguards and poor conditions such as denial of access to medical care, including mental

health care, as well as to the lack of adequate conditions, including space, food, water and

sanitation, in short-term custody. Migrants in detention often suffer violence, including

sexual violence, and a deterioration in their physical and mental health.46

41. The enhanced use of detention and other forms of strict enforcement increases the

likelihood that migrants in transit will seek to avoid the authorities entirely, which, inter

alia, renders them more vulnerable to abuse and exploitation, and increases the likelihood

42 Carla Angulo-Pasel, “Complex migration: a woman’s transit journey through Mexico” (see footnote

14), p. 17.

43 Daniela Reale, “Protecting and supporting children on the move: Translating principles into practice”

(see footnote 15), p. 71.

44 See OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation (see

footnote 41), p. 116.

45 See the Committee’s report of the 2012 day of general discussion on the rights of all children in the

context of international migration, para. 90.

46 The United Nations Support Mission in Libya in 2014, for example, found conditions of grave

concern in detention centres for migrants, where detention is “widespread and prolonged”, including

chronic overcrowding, poor sanitation and health care, and insufficient food. There were also

consistent reports of physical or verbal mistreatment, labour exploitation, sexual abuse, extortion and

confiscation of identity documents, and minors were being detained with adults. See A/HRC/28/51,

paras. 32-33.

that they will accept greater risks to continue their journey.47 There is evidence that

migrants are less likely to abscond in a country through which they are transiting if their

basic needs are met through legal avenues, they are not at risk of detention or refoulement

and they can remain hopeful regarding future prospects.48

42. The right to liberty and security of person is a fundamental human right to be

enjoyed by everyone, regardless of legal status.49 Under international human rights law, the

deprivation of liberty should, in all cases, be a measure of last resort, of limited scope and

duration, necessary and proportionate, and the result of an individual determination. The

detention of asylum seekers as a penalty for irregular entry is not lawful.50 OHCHR has

called on States to establish a presumption against detention in law and legally prescribe

human rights-compliant alternatives to detention.51

43. Children are often detained along with unrelated adults or arbitrarily separated from

their family members. While there is a lack of data on how many children are detained

globally, since many countries do not keep or release relevant data, the Global Campaign to

End Immigration Detention of Children estimates that hundreds of thousands of children

are currently detained for immigration purposes.52

44. According to the Committee on the Rights of the Child, detention of a child owing

to his or her or the parent’s migration status always contravenes the best interest of the

child. The Committee has called upon States to expeditiously and completely cease the

detention of children on the basis of their immigration status.53

45. In the exceptional cases where migrants are detained, international law provides that

all migrants are entitled to adequate living conditions and procedural safeguards.54 The

Committee on the Elimination of Discrimination against Women has called on States to

ensure that women migrant workers who are in detention do not suffer discrimination or

gender-based violence and that pregnant and breastfeeding mothers as well as women in ill

health have access to appropriate services.55 OHCHR has called for States to ensure that

47 Robyn Sampson and others, There are Alternatives: A handbook for preventing unnecessary

immigration detention (revised edition), (Melbourne: International Detention Coalition, 2015), p. 63.

48 Ibid. “Transit community models” of alternatives to detention in some countries ensure the right to

freedom of movement in the community; in some contexts, migrants are required to reside in specific

towns (Turkey) or to not enter border areas without permission (Indonesia). Conditions, such as

reporting, are only applied as needed. The principles of case management and information about

available options remain central, as seen in reduced levels of absconding in Thailand.

49 See Universal Declaration of Human Rights, arts. 3 and 9; and International Covenant on Civil and

Political Rights, art. 9.

50 Office of the United Nations High Commissioner for Refugees (UNHCR), Guidelines on the

Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to

Detention, (Geneva, 2012), guideline 4.1.4, p. 19. Available at www.refworld.org/pdfid/

503489533b8.pdf.

51 See OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,

guideline 8.1.

52 See Global Campaign to End Immigration Detention of Children, “The Issue”, available at

http://endchilddetention.org/the-issue/.

53 See the Committee’s report of the 2012 day of general discussion on the rights of all children in the

context of international migration, para. 78.

54 See A/HRC/20/24, paras. 15-20.

55 See the Committee’s general recommendation No. 26 (2008) on women migrant workers, para. 26 (j).

conditions in detention facilities adhere to the United Nations Standard Minimum Rules for

the Treatment of Prisoners (the Nelson Mandela Rules) and other relevant standards.56

Alternatives to detention

46. The prohibition of arbitrary detention means that any decision to detain must be

guided by the principles of reasonableness, necessity, proportionality and non-

discrimination. This requires States to contemplate other ways to achieve their objectives,

such as considering alternatives to detention.

47. Around the world, however, there is a marked lack of human rights-compliant

alternatives to detention, although research indicates that immigration detention is

expensive, damaging to individuals and does not in general deter irregular migration.57

48. An alternative approach respects migrants as rights holders who can be supported

and empowered to comply with immigration processes without the need for detention,

while at the same time achieving migration management objectives.58 Research indicates

that alternatives are most effective when a diversity of strategies and approaches that focus

on constructive engagement and respect for human rights are used. Such successful

alternative approaches include case management, legal assistance, social support and

ensuring the protection of the rights to education, housing and health care. Alternatives to

detention also increase the likelihood of compliance with return decisions; for instance,

independent returns in the European Union and Australia result in savings of approximately

70 per cent compared to escorted removals.59

E. Violence, abuse and exploitation

49. While in transit, migrants are frequently at risk of violence, torture, abuse and

exploitation at the hands of private and State actors. For example, more than half of the

people interviewed for a report on the situation of sub-Saharan African migrants in transit

in Morocco said that they had witnessed violence during the journey to Morocco and 43 per

cent said that they had been a victim of some form of violence. Three quarters of those had

experienced multiple episodes of violence.60 In addition to physical wounds, such violence

has a profound impact on the mental health of the migrants. Perpetrators are often able to

act with impunity and migrants are often reluctant to seek medical help, protection or

justice for fear of arrest or other repercussions.

56 OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,

guideline 8.7.

57 International Detention Coalition, “Does, detention deter?” Briefing paper, 2015.

58 The International Detention Coalition defines alternatives to detention as any legislation, policy or

practice by which persons are not detained for reasons relating to their migration status. IDC has

identified and incorporated a number of positive examples of alternatives to detention globally into a

single framework, called the Community Assessment and Placement Model. See Robyn Sampson and

others, There are Alternatives: A handbook for preventing unnecessary immigration detention (see

footnote 47), pp. 2 and 19.

59 Ibid., p. 52.

60 See Doctors without Borders, Violence, Vulnerability and Migration: Trapped at the gates of Europe,

p. 8.

50. Migrants are often subjected to violence by security forces, including indiscriminate

raids on communities of migrants in an irregular situation, and violence by border

authorities against migrants attempting to cross international borders irregularly.61

51. The prohibition of torture is a principle of customary international law and obliges

States to take effective legislative, administrative, judicial or other measures to prevent acts

of torture in any territory under their jurisdiction (see Convention against Torture, art. 2).

52. States should provide effective police and other criminal justice protection for all

persons who are subject to physical or sexual violence, whether inflicted by officials or by

private individuals, groups or institutions. At borders, victims of violence and trauma

should be referred to medical and psychosocial services.62 The Committee on the Rights of

the Child has called upon States to ensure and implement adequate and accessible measures

for addressing trauma experienced by children during migration.63

53. Girls and women are especially at risk of all kinds of violence, including sexual

violence, while in transit. Research indicates that a reality of transit migration for women is

the likely inevitability of encountering sexual abuse, not only by criminal gang members

and male migrants, but also by border authorities, police officers and other officials.64

Recent reports have highlighted a surge of violence against women and children in the

transit of migrants through the Balkans and Central Europe.65

54. The Committee on the Elimination of Discrimination against Women has noted that

women are vulnerable to sexual and physical abuse by agents and escorts when travelling in

countries of transit and asked States to take active measures to prevent, prosecute and

punish all migration-related human rights violations that occur under their jurisdiction,

whether perpetrated by public authorities or private actors (see general recommendation

No. 26, paras. 12 and 25 (b)).

Abusive smuggling, extortion and trafficking

55. As noted previously in this study, migrants in transit are often compelled to rely on

the services of “facilitators” for assistance with travel, housing, employment and other

matters,66 which leaves them disproportionately vulnerable to violence, abuse and

exploitation.

61 On 17 September 2015, the High Commissioner for Human Rights expressed his shock at the

disproportionate force used against migrants, including women and young children, who were

assaulted with tear gas and water cannons by Hungarian security forces at its border with Serbia. See

OHCHR, “Hungary violating international law in response to migration crisis” press release.

Available at: http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?News

ID=16449&LangID=E.

62 See International Convention on the Rights of All Migrant Workers and Members of Their Families,

art. 16 (2); International Convention on the Elimination of All Forms of Racial Discrimination, art. 5

(b); as well as OHCHR, Recommended Principles and Guidelines on Human Rights at International

Borders, guideline 7.8.

63 See the Committee’s report of the 2012 day of general discussion on the rights of all children in the

context of international migration, para. 89.

64 See Carla Angulo-Pasel, “Complex migration: A woman’s transit journey through Mexico”, p. 14.

65 See UNHCR, “UNHCR concerned at reports of sexual violence against refugee women and

children”, News stories, 23 October 2015. Available from www.unhcr.org/562a3bb16.html.

66 Although some smuggling networks are organized criminal structures, many are loosely linked chains

of individuals who provide a range of services across countries of origin, transit and destination. See

Nourhan Abdel Aziz, Paola Monzini, Ferruccio Pastore, The Changing Dynamics of Cross-border

Human Smuggling and Trafficking in the Mediterranean (see footnote 12), p. 25.

56. Smugglers occupy an ambiguous position in the facilitation of mobility today. It

should be noted that smuggling, as seen through a human rights lens, does not in itself

constitute a human rights violation and can be the relatively neutral provision of a service

that could enable a migrant to escape persecution or deprivation. In a study of child

mobility in West Africa, it was noted that such actors play a very important role in the

phase between departure and arrival, as they are regarded as a trusted and vital source of

protection and assistance by travellers, including children on the move.67

57. At the same time, migrants who have turned to smugglers often have little other

choice in how they move and, in that unequal power relationship, smuggled migrants are

particularly at risk of abuse and exploitation, including being forced into situations of

trafficking. In 2015, there were reports of severe abuse by smugglers of migrants travelling

from Myanmar and Bangladesh, including violence and deprivation of food and water. The

Office of the United Nations High Commissioner for Refugees (UNHCR) estimated that 11

or 12 out of every 1,000 people on smugglers’ boats in the Andaman Sea died from

starvation, dehydration or violence.68

58. Migrants in transit have also become easy prey to criminal actors who have

kidnapped and imprisoned migrants, often for the purposes of extorting money from their

families. Reports indicate that kidnapping and extortion have become a ready source of

income for some of the many militia groups active in Libya.69 Similar practices have been

recorded in South-East Asia,70 Mexico,71 the Sinai Peninsula and elsewhere.

59. Trafficking is always a human rights violation and is often accompanied by high

levels of violence.72 Migrants in transit can be trafficked for various forms of exploitation,

including labour exploitation in various sectors as well as sexual exploitation.

60. The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially

Women and Children, supplementing the United Nations Convention against Transnational

Organized Crime, contains important provisions in respect of protection for victims of

67 Terre des Hommes, Locally-Developed Child Protection Practices Concerning Mobile Children in

West Africa, 2014, p. 44. See also Maybritt Jill Alpes, “Law and the credibility of migration brokers:

The case of emigration dynamics in Cameroon”, Working Papers Series, No.80 (International

Migration Institute, December 2013), pp. 4 and 8, in which it is noted the first point of departure for

many aspiring migrants in Anglophone Cameroon is not the embassy, but a migration broker or a

member of family. Migration brokers are not “other” to aspiring migrants, but rather “allies” and

“helpers” in a quest for both geographic and social mobility.

68 UNHCR Tracks, “Abandoned at Sea”, Stories of refugees and aid workers, 26 August 2015.

Available from http://tracks.unhcr.org/2015/08/abandoned-at-sea/.

69 Tuesday Reitano, “A Perilous but profitable crossing: The changing nature of migrant smuggling

through sub-Saharan Africa to Europe and EU migration policy (2012-2015)” (see footnote 13), p. 10.

70 In October 2015 Mohammed Alam, 21 years, reported how his family had to sell all its cattle to

secure his freedom. It has been two years since he returned penniless to Sonarpara, Bangladesh, after

spending 19 days at sea on a trawler with 420 other people on board before being held hostage in

southern Thailand for 17 days until his family paid 170,000 taka (about $2,200). See Bruno Stagno-

Ugarte, “The Other Refugee Crisis: The Plight of Bangladesh’s Migrants”, Foreign Affairs, 21

October 2015.

71 In 2010, 72 migrants were massacred in Tamaulipas state and buried in shallow graves by the drug-

trafficking cartel Los Zetas after their families failed to pay a ransom. See “Mexico rescues more than

100 kidnapped migrants”, BBC News, 7 May 2015.

72 A survey in the Greater Mekong Subregion found that nearly half (47.4 per cent) of the 1,015

participants who reached their destination reported experiencing physical and/or sexual violence

during the time they were trafficked. See Cathy Zimmerman and others, Health and human

trafficking in the Greater Mekong Subregion (see footnote 39), p. 35.

human trafficking. In 2010, the High Commissioner for Human Rights called upon States

to adopt a human rights-based approach to trafficking.73

61. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power universally recognizes the right of all people to access justice and to prompt

redress.74 Migrants in transit should have the same rights in national law as other victims of

crime.

62. The Protocol against the Smuggling of Migrants by Land, Sea and Air,

supplementing the United Nations Convention against Transnational Organized Crime,

affirms that the protection of the rights of persons who have been the object of smuggling is

a State obligation. Article 4 extends the scope of the Protocol beyond the prevention,

investigation and prosecution of migrant smuggling offences to also ensuring the human

rights of smuggled migrants. Article 6 requires States to criminalize the smuggling of

migrants as well as aggravating circumstances that endanger lives or safety, or entail

inhuman or degrading treatment of migrants. States are called upon to ensure that all

measures aimed at addressing irregular migration or combatting the smuggling of migrants

do not adversely affect the human rights of migrants.75

IV. Conclusions

63. The main conclusion of this study is that there exists today a clear protection

gap for migrants in transit. Across the world, an increasing number of women, men

and children embark on perilous journeys in search of safety and dignity, and face

abuse and exploitation in transit. The lack of a rights-based response to such

migration results in greater risks for migrants in transit and leads to death, injuries

and other human rights violations.

64. The response to transit migration is increasingly militarized and security-

centred, which permits States and other actors to employ a range of intrusive, non-

transparent and even arbitrary actions, with limited scrutiny and oversight.76 Harm

resulting from those measures may be viewed as an unfortunate side effect of national

security, rather than a significant human rights concern in its own right.

65. The lack of research and data on the situation of migrants in transit is an

important gap and a major obstacle to the formulation of effective, sustainable and

rights-based policy responses. Issues in need of further research and data include the

73 OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking –

Commentary (Geneva, 2010).

74 See Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, General

Assembly resolution 40/34, annex.

75 OHCHR , Recommended Principles and Guidelines on Human Rights at International Borders,

principle A.5.

76 See A/HRC/23/46, para. 75. In addition, the sizeable cost of building fences and employing

surveillance systems, military vessels, drones and other equipment in border areas is striking.

human rights impact of migrant smuggling;77 immigration detention in transit and

alternatives to detention;78 and violence against migrants and fatalities in transit.79

V. Recommendations

66. The High Commissioner recommends that effective measures be put in place to

address the human rights protection gap for migrants in transit, including those who

move in large movements. States should sign, ratify and implement all core

international human rights instruments and other relevant standards of international

refugee law, criminal law, labour law and the law of the sea and ensure that all

relevant laws, regulations and administrative practices protect, respect and fulfil the

human rights of all migrants in transit without discrimination. In addition, States are

encouraged to ensure that migrants have access to regular, safe and affordable

channels for migration as well as access to humanitarian assistance and protection in

order to reduce opportunities for abuse and violations of the human rights of

migrants in transit. The situation of children and other groups that can be

discriminated against on multiple grounds (such as women at risk) should receive

particular scrutiny.

67. The High Commissioner recommends that States and other stakeholders as

relevant, should:

(a) Enable the access of all migrants in transit to justice and to effective

remedies, including in cases of violence and abuse, whether inflicted by officials or by

private individuals, groups or institutions;

(b) Establish, operate and maintain adequate and effective rescue services at

all international borders, including search and rescue at sea services in coastal States;

(c) Ensure that returns from all areas where the State exercises jurisdiction

or effective control, including extraterritorially, are only carried out in accordance

with international law and with due procedural guarantees. States should make every

effort to secure the sustainability of returns;

(d) Develop mechanisms to assess the individual situation of migrants in

transit, without discrimination, and to prevent their expulsion until such an

assessment has been completed in order to, inter alia, uphold the principles of non-

refoulement and the prohibition of collective expulsion;

(e) Ensure that migrants in transit who are victims of violence, physical and

mental abuse and exploitation are referred to the appropriate services, including

medical and psychosocial services; and provide migrants, in particular girls and

77 More research is needed on the complex dynamics linking migrants’ decisions, smugglers’ practices

and policy responses. See Jacob Townsend and Christel Oomen, Before the Boat: Understanding the

Migrant Journey, (Brussels, Migration Policy Institute, 2015), p. 13. Available from

www.migrationpolicy.org/node/15288.

78 The Global Detention Project has highlighted a severe lack of information about the number of

migrants and asylum seekers in detention across Europe. See Global Detention Project, The

Uncounted: Detention of Migrants and Asylum Seekers in Europe, 2015.

79 UNODC observed that data and information is particularly required on the root causes of violence

against migrants and their families and on patterns of migration. See UNODC and International

Federation of Red Cross and Red Crescent Societies, Combating violence against migrants: Criminal

justice measures to prevent, investigate, prosecute and punish violence against migrants, migrant

workers and their families and to protect victims (Vienna, 2015).

women who have experienced rape and other forms of sexual violence during their

transit, with the protection and treatment appropriate to their circumstances and

situations, including sexual and reproductive health services encompassing access to

rights-based, comprehensive and integrated sexual and reproductive health

information and services;

(f) Guarantee the human rights of all migrant children in transit and ensure

that they are treated as children first and foremost and, in that regard, provide

guidance on the operationalization of the principle of the best interests of the child for

migrant children in transit;

(g) Develop standards on the establishment of firewalls between public

service providers and immigration enforcement authorities in order to, inter alia,

protect the rights of all migrants in transit to personal security, adequate health care,

education and an adequate standard of living;

(h) Make targeted efforts to end immigration detention of migrants in

transit, by, for example, establishing a presumption against such detention in law;

expeditiously ending immigration detention of all children, regardless of status; and

implementing non-custodial, community-based alternatives to detention as a matter of

priority;

(i) Institute multi-stakeholder partnerships and cooperation in order to

ensure protection of the human rights of migrants in transit at the local, national,

regional and international levels, including to ensure that migrants in transit are able

to access reliable, relevant and accurate information on their situation and rights;

(j) Improve the collection of data, disaggregated by age and gender, on

migrants in transit, including qualitative research on migrants’ experiences of transit,

and specific data on the number of migrants killed, injured or victims of crime while

attempting to cross maritime, land or air borders.