IACHR Publishes Standards on Rights in Context of Human Mobility
On November 4, 2016, the Inter-American Commission on Human Rights (IACHR) published a report that seeks to address the practical realities of those in the context of human mobility and lay out the legal standards that should govern Member States’ policies concerning migrants, asylum seekers, refugees, persons in need of complimentary protection, stateless persons, victims of human trafficking, and internally displaced persons. [IACHR Press Release] The report, Human Rights of Migrants, Refugees, Stateless Persons, Victims of Human Trafficking and Internally Displaced Person: Norms and Standards of the Inter-American Human Rights System, outlines standards that the IACHR and the Inter-American Court of Human Rights have developed through reports on petitions and cases, judgments, advisory opinions, precautionary measures, provisional measures and country and thematic reports. [IACHR: Press Release] The major areas of focus in the report are: servitude and human trafficking, freedom of movement and residence, due process in immigration and extradition proceedings, family life, the right not to be subjected to cruel or inhuman treatment as a result of deportation, immigration detention, the right to seek and receive asylum, non-refoulement, the right to a nationality, and property rights.
Migration in the Americas
IACHR identified several current challenges to the recognition of human rights in the context of migration. State policies and practices, the report found, do not recognize persons in the context of migration as subjects of law and consequently violate their human rights. See IACHR, Human Rights of Migrants, para. 8. The legal standards developed in the report are intended to address this problem, while still acknowledging that States have the right to control their borders, define requirements of admission and expulsion, and, more generally, determine their immigration policies. See id. at paras. 6, 13.
The IACHR noted with concern States’ move towards more restrictive immigration policies, laws, and practices. In particular, States have engaged in practices that include outsourcing immigration controls to private entities, increasing security along borders, criminalizing migrants through the use of detention and summary deportation, and limiting access to procedures for international protection such as the recognition of refugee status. See id. at para. 14. These methods, the report highlighted, impact some of the most vulnerable groups in the context of migration, including women and children, many of whom are victims of forced migration, stateless persons, internal migrants and internally displaced persons, and victims of trafficking. See id. at paras. 39-73.
Drawing on international law, the IACHR established standards concerning the scope and content of the human rights of persons in the context of human mobility. See id. at para. 82.
The IACHR emphasized that the obligation to respect human rights includes an obligation not to violate—by action or omission—the rights recognized in the relevant instruments, as well as a duty to ensure the enjoyment of those rights. See id. at paras. 151-54. The report described in detail States’ duties to adopt all domestic legal provisions that are necessary to give effect to the rights under the American Convention, as well as to repeal laws and practices that would violate these. See id. at para. 179.
Further, the report specified that if States make distinctions in treatment based on immigration status, the distinction must have an objective and reasonable justification aimed at achieving a legitimate purpose. See id. at 194. Notably, the report specifically stated that racial profiling – that is, distinctions based on stereotypes of race, color, ethnicity, language, descent, religion, nationality, or place of birth – violates the principle of equal protection. See id. at para. 204.
With regard to the use of force in immigration operations, the report reiterated the principles of legality, absolute necessity, and proportionality. The IACHR concluded that the use of force may be used to achieve a legitimate goal when no other means are available to protect the life and safety of the person or situation it seeks to protect, and when the amount of force used is proportionate to the level of resistance offered. See id. at para. 216.
Other Specific Prohibitions
In addition to laying out general obligations vis-à-vis persons in the context of migration, the report also addresses the prohibition of slavery, servitude, and human trafficking; freedom of movement and residence; the right to fair trial in deportation and extradition proceedings; the right to family life in immigration proceedings; the right not to be subjected to cruel, inhuman, or degrading punishment or treatment as a result of deportation; the right to personal liberty and procedural guarantees in immigration detention; the right to seek and receive asylum; the principle of non-refoulement; the right to nationality; and the right to property. See id. at pgs. 71, 103, 109, 135, 159, 173, 179, 195, 207, 221, 231.
Importantly, the report emphasizes that minimum due process guarantees extend to immigration proceedings. See id. at paras. 300-01. Given that during immigration proceedings—including deportation, refugee and asylum determinations, and proceedings for granting nationality—fundamental rights are at stake, it follows that the “most expansive interpretation possible of the right to due process” is necessary. See id. at para. 301. The report lists minimum guarantees that include the right to be assisted by legal counsel, the right to assistance of a translator or interpreter without charge, and the right to effective consular assistance, among others. See id. at paras. 307-34.
On the subject of family life, the report asserts that international law requires States to balance the right to family life and the best interests of the child against its own interest in managing movement and residence on its territory. See id. at para. 346. Because many States grant citizenship to any child born on their territory, the deportation of a parent or close relative increasingly leads to family separation. This outcome, the report argues, “must be an absolutely exceptional measure” and must only be carried out after a judicial proceeding in which the conflicting interests are weighed. See id. at paras. 348-49.
In separate chapters on the principle of non-refoulement and the right not to be subjected to cruel or inhuman treatment as a result of deportation, the report calls on States to refrain from expelling individuals who face a risk of persecution or of treatment – such as inadequate health care – that would violate their fundamental rights. See id. at paras. 437, 377.
With regard to immigration detention, the report emphasizes that migrants should not be treated like criminal offenders and should deprive migrants of their liberty “as a last resort” based on the individual circumstances of the case. See id. at paras. 382-83. Moreover, such detention must be for the minimum time necessary and subject to periodic review. See id. at paras. 390, 405. Migrant children should, generally, not be detained and should never be detained because they are unaccompanied, separated from family, or have a particular migration status. See id. at para. 406.
The report also defines terms used in the context of human mobility, such as migrant, international migrant, and internal migrant. For some of the relevant terms, such as migrant, the international community has not agreed upon a universal definition. See id. at paras. 124-41.
The report clarifies that while international migration refers to the act of crossing a country’s international border with the intent to settle in another country either permanently or temporarily, internal migration refers to individuals migrating within a country in which they are not nationals with the intent to settle permanently or temporarily; however, the term migration encompasses both types. See id. at para. 124.
Further, the report encourages the use of the term “migrant in an irregular situation” instead of “illegal migrant.” The latter term, the IACHR argues, reinforces negative stereotypes and the criminalization of migrants. See id. at para. 126.
Additionally, the report discusses the definitions of refugee, asylum seeker, complementary protection, stateless persons, smuggling of migrants, trafficking in persons, unaccompanied child or adolescent, separated child, mixed migration flow, and internally displaced person. See id. at paras. 127-41. On the definition of refugee in particular, the IACHR noted that an individual has refugee status the moment they fulfill the requirements of the definition, as expanded under the Cartagena Declaration, and not only once a third party declares or confirms refugee status. See id. at para. 131.
The report comes at a time when the number of international migrants is estimated to be around 244 million worldwide, representing 3.3 percent of the world’s population. Of the 244 million, about 63 million live in the Americas. Within the Americas, a large number has been internally displaced as a result of violence, armed conflict, large-scale development, natural disasters, and climate change. Given that many IACHR Member States have developed migration policies that are focused on addressing the issue of persons in the context of human mobility from a national security perspective focused on containment, rather than from a human rights perspective, the IACHR stated that the report is a timely reminder of the standards and obligations to which Member States are legally bound. [IACHR: Press Release]