The Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) has published new guidance for States on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection. See Council of Europe GRETA, Guidance Note on the entitlement of victims of trafficking, and persons at risk of being trafficked, to international protection, GRETA(2020)06, June 2020. In particular, GRETA’s new guide explains when trafficking victims are entitled to international protection in countries where they are not citizens or permanent residents, and identifies the kinds of services and treatment those countries must provide. [COE Press Release] Relying on various international and regional human rights instruments, including the Council of Europe Convention on Action against Trafficking in Human Beings, European Court of Human Rights (ECtHR) jurisprudence, as well as the principle of non-refoulement, the guide is intended to assist Council of Europe (COE) Member States in meeting their obligations. The guide builds on the guidelines from the United Nations High Commissioner for Refugees and elaborates on the scope of application of the Convention on Action against Trafficking in Human Beings. [COE Press Release]
Category Archives: immigration & asylum
Overturning a previous chamber decision, the Grand Chamber of the European Court of Human Rights (ECtHR) has held that Spain’s summary expulsion of two would-be migrants from Africa did not violate the European Convention on Human Rights because they were part of a large group that scaled the Melilla border fence between Morocco and Spanish territory. See ECtHR, N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/17, Judgment of 13 February 2020, paras. 242-243. The judgment is the first time the Court has considered a migrant’s unauthorized entry to be relevant in this way, holding that the applicants were not entitled to protection from mass expulsion because of how they entered Spain. The Court relied on Spain’s assertion that the applicants could have sought asylum at a consulate or border crossing, despite evidence that Moroccan authorities prevented sub-Saharan migrants from reaching those places and that Spanish authorities did not actually have the relevant procedures in place at the time. Various third-party interventions in the case called on the Court to apply the Convention’s prohibition of collective expulsions, and human rights groups have criticized the Court’s ruling as “ignoring the reality at European borders” and of authorizing “violent push-backs everywhere in Europe.” [The Guardian; ECCHR; Amnesty] This is the Court’s first ruling on the issue of forcible return of migrants from a land border, adding to the European Court’s doctrine on collective expulsions. See ECtHR, Factsheet – Collective expulsions of aliens (Feb. 2020).
The Inter-American Commission on Human Rights (IACHR) has launched a report on internally displaced people in El Salvador, Guatemala, and Honduras; it analyzes a years-long increase in internal migration due to violence and the forceful expulsion of Indigenous and farming communities, details the rights of internally displaced people, and provides human rights-based guidelines for essential policy reforms. See IACHR, Internal Displacement in the Northern Triangle of Central America: Public Policy Guidelines (2018). Internally displaced people are those who are forced to flee their homes involuntarily due to armed conflict, violence, human rights violations, or natural or manmade disasters, and who remain in their country of origin or residence after fleeing their homes. See id. at para. 8. A previous IACHR report touched on forced displacement and forced migration in the three countries, known as the “Northern Triangle” of Central America, in the context of human mobility in the Americas. [IJRC] The new report includes a practical guide intended to make its main recommendations more accessible to civil society and individuals working on the promotion and protection of internally displaced people’s rights, as well as to government officials. The IACHR has stated its willingness to provide technical assistance to States and institutions in implementing its recommendations. See IACHR, Internal Displacement in the Northern Triangle of Central America, para. 14.
Internal Displacement & State Obligations in the Northern Triangle
In the Northern Triangle, internal displacement has increased in recent years and is largely the result of gang violence or violence perpetuated by drug cartels. See id. at paras. 29, 42. The report finds that activities by State agents and large-scale business also contribute to internal displacement. See id. However, the IACHR highlights that internal displacement is a complex phenomenon that may be caused by multiple factors, including structural deficiencies that cannot be overlooked. See id. at para. 49. For example, the report points to the existing patriarchal system, high levels of corruption and impunity, States’ inability to ensure personal safety, weak government institutions, and social inequalities that limit access to economic and social rights, such as health, education, and housing. See id. at paras. 49-50.
Certain populations are at higher risk of internal displacement given their particular circumstances, including Indigenous and farming communities forcibly displaced by megaprojects and business activities, women, children and adolescents, human rights defenders, LGBTI people, and journalists, among others. See id. at paras. 29, 43, 54.
While internal displacement in the Northern Triangle continues to increase, the lack of accurate data makes it difficult to identify the full scope of the problem. See id. at paras. 57-59, 72. The report concludes that displacement in the region is often disregarded or minimized as a result of low-level reporting, often because of fear of reprisal or the high level of impunity in the States, and incomplete records or lack of official recognition of internal displacement in reported cases. See id. The IACHR Special Rapporteur on the human rights of internally displaced persons has called on States to “collect additional data […] and analysis to build a comprehensive picture of the internal displacement situation, identify trends, patterns, and risk profiles and understand the location, needs, protection concerns, and intentions of internally displaced persons.” See id. at para. 75.
Human Rights Violations & State Obligations
The IACHR analyzes internal displacement and its impact on the human rights of individuals and communities in three phases. See id. at paras. 55-56. First, it considers the human rights violations that predate and often cause the internal displacement, then the rights violations that occur during the displacement itself, and, finally, the rights violations that occur because of the State’s failure to provide adequate protections and solutions to the problem. See id. at para. 56. While forced displacement is considered a human rights violation in it of itself, the IACHR recognizes the multiple and continuous human rights violations that displacement entails, including but not limited to violations of the rights to an adequate standard of living, freedom of movement, humane treatment, private and family life, property, work, and identity. See id. at paras. 87, 92-93, 100.
As such, the IACHR clarifies that States have an obligation to prevent displacement; to provide protection and assistance during displacement, including humanitarian assistance to ensure an adequate standard of living; and to implement measures that facilitate return or local resettlement as a way to guarantee lasting solutions for internally displaced persons. See id. at paras. 99, 112, 125, 131.
Public Policy Guidelines
The report presents the core Inter-American standards, focusing on the scope of Article 22 (freedom of movement and residence) of the American Convention on Human Rights and drawing on United Nations Guiding Principles on Internal Displacement. See id. at paras. 81-86. The IACHR then translates those standards into 12 policy recommendations aimed at assisting States in complying with their international obligations in this area. See id. at para. 142.
The proposed guidelines are included in the report as well as in the separate practical guide. See IACHR, Practical Guide: Guidelines for the formulation of public policies on internal displacement. The guidelines provide specific steps for States’ executive, legislative, and judicial branches with respect to creating public institutional frameworks capable of achieving effective solutions for the protection of internally displaced persons, adopting data-gathering measures that guarantee transparency and accountability, recognizing internal displacement as a human rights problem and implementing prevention measures to mitigate it, and recognizing and protecting the fundamental rights of the internally displaced. See id. at 9-17.
The guidelines also emphasize the need for a gender and diversity perspective when addressing internal displacement, noting specifically the historical discrimination impacting internally displaced women, girls, and LGBIT individuals, and also highlight the need for an approach that includes an intersectional intercultural perspective. See id. at 21-24. In line with the State obligations previously outlined, the guidelines include specific steps to facilitate humanitarian assistance and efforts to return, resettle, and reintegrate individuals into the local community. See id. at 27-29. Additionally, the guidelines call on States to guarantee access to justice and reparation, and to facilitate civil society and community participation in the process of formulating, implementing, monitoring, and evaluating policies related to internal displacement. See id. at 31-35. Finally, the guidelines include specific measures to guarantee a budget that sustains institutions and policies aimed at protecting internally displaced persons, and steps to expand regional and international cooperation. See id. at 36-37.
To learn more about the Inter-American human rights system, migrants’ rights, and asylum and refugee rights, visit IJRC’s Online Resource Hub. For an overview of the Northern Triangle countries’ human rights obligations, view IJRC’s Country Factsheets. To stay up-to-date on international human rights news, visit IJRC’s News Room or subscribe to the IJRC Daily.
On May 7, 2019, the International Labour Organization (ILO) announced the launch of a new plan including a series of urgent interventions aimed at addressing the security, economic, and social integration needs of Venezuelan refugees and migrants in Argentina, Brazil, Chile, Colombia, Ecuador, and Peru. See ILO, Appeal: Venezuelan refugees and migrants in Latin America and the Caribbean. Under this proposed plan – developed together with the International Organization for Migration (IOM), Food and Agriculture Organization of the United Nations (FAO), and the Organization of American States (OAS) – the ILO has committed $2 million USD of its voluntary funds to support projects in the three countries that have received the majority of displaced people from Venezuela: Ecuador, Colombia, and Peru. [ILO Press Release] The ILO intervention is part of a broader appeal within the framework of the Regional Refugee and Migrant Response Plan (RMRP), a multilateral plan to coordinate a regional response to the unprecedented and growing “largest displacement of population in the modern history of Latin America and the Caribbean.” [ILO Press Release] Venezuela’s years-long economic and political crisis, which worsened in recent months following reactions by national and foreign authorities to Juan Guaidó’s attempt to claim the presidency from Nicolás Maduro, has resulted in an estimated 3.7 million people leaving the country and about seven million people in Venezuela in need humanitarian assistance. [UN News: Humanitarian Crisis]
The African Court on Human and Peoples’ Rights (AfCHPR) recently issued its judgment in the case of Lucien Ikili Rashidi v. Tanzania, finding the State violated a non-citizen’s rights when its agents detained him, subjected him to an anal search, and did not resolve his legal claims for seven years after he was arrested for not having his passport and visa in his possession. See AfCHPR, Lucien Ikili Rashidi v. United Republic of Tanzania, App. No. 009/2015, Judgment of 28 March 2019. The AfCHPR found violations of Ikili Rashidi’s rights to residence, freedom of movement, integrity of person, dignity, and to be tried within a reasonable time. Ultimately, the Court awarded Ikili Rashidi and his family modest financial compensation and ordered Tanzania to take measures to ensure that all future cavity searches would be in compliance with international standards, as clarified by the European and Inter-American human rights bodies. See id. The judgment is one of six the AfCHPR released in late March, three of which concern Tanzania. [AfCHPR Press Release] Read more
More than 160 countries adopted the Global Compact for Safe, Orderly, and Regular Migration (Compact), the first-ever intergovernmental agreement negotiated to holistically and comprehensively cover all aspects of international migration, following a two-day conference in Marrakech, Morocco that took place from December 10 to 11, 2018. [UN News: Marrakech; NYT] The document presents a framework for international cooperation and proclaims States’ commitment to protect the rights of migrants and refugees in transit or in destination countries, regardless of their reasons for leaving their country or their migration status. See Global Compact for Migration, Global Compact for Safe, Orderly and Regular Migration, 11 July 2018, para. 11. Although the Compact received broad support, it faced opposition and withdrawal by a number of States, including the United States, claiming concerns over migration flows and national sovereignty. [NYT] While an agreement on the rights of refugees already exists, the 1951 Convention relating to the Status of Refugees, protections for people in transit that do not qualify for refugee status have generally remained unprotected by law or guidelines until now. [Washington Post]
On Monday, December 17, the vast majority of UN Member States also voted to adopt the Global Compact on Refugees, despite opposition from the U.S. [UN News: Refugees] Today, December 18, is International Migrants Day, the anniversary of UN Member States’ adoption of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, in 1990. See UN, International Migrants Day.
International pressure on Australia is mounting as concerns grow regarding the conditions in its offshore facilities in Papua New Guinea and Nauru, where thousands of asylum seekers and refugees have been detained since 2012. Those monitoring the situation at the facilities warn of a dire health emergency as people, many of them children, remain without access to the critical physical and mental healthcare. [UN News] In recent weeks, more individuals have been medically evacuated to Australia from Nauru than in the previous two years combined as a result of worsening conditions at the Nauru detention center. [UNHCR Press Release; The Conversation] While no one has been medically evacuated out of Papua New Guinea this year, the United Nations Refugee Agency (UNHCR) has reported several cases of self-harm and attempted suicide in the past month alone. [UNHCR Press Release] This situation has developed as a result of Australia’s current “offshore-processing” policy requiring that all refugees and asylum seekers attempting to enter the country by boat be detained at these offshore detention centers for processing, which can go on indefinitely. [NY Times; Guardian: UN Body] In addition to international concern and pressure, the detained asylum seekers and refugees and hundreds of people in Australia have protested this policy. [Al Jazeera; Quartz] The majority of detainees are from Iran or are stateless. See Refugee Council of Australia, Operation Sovereign Borders and Offshore Processing Statistics.
During its 123rd Session, the United Nations Human Rights Committee issued its first decision on the privacy and equal protection implications of mandatory HIV/AIDS and drug testing for individuals seeking a visa extension. See Human Rights Committee, Vandom v. Republic of Korea, Communication No. 2273/2013, Views of 12 July 2018, UN Doc. CCPR/C/123/D/2273/2013. The case concerned an American English teacher, working in the Republic of Korea, whose application to renew her teaching visa was denied after she refused to submit to a mandatory HIV/AIDS and drug test. See id. at paras. 1-2.8. The Human Rights Committee held that the Republic of Korea’s policy of requiring mandatory drug and HIV tests from individuals who were not nationals of the State or of Korean ethnicity and who were seeking to obtain teaching visas constituted a violation of the right to equal protection and the right to privacy under the International Covenant on Civil and Political Rights (ICCPR). See id. at paras. 8.5, 8.9. While this is the first case in which the Human Rights Committee has reviewed mandatory drug and HIV testing policies, another treaty body, the UN Committee on the Elimination of Racial Discrimination (CERD), issued a decision in 2015 on the Republic of Korea’s mandatory testing policy. [IJRC] The CERD found that the policy amounted to racial discrimination under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The case before CERD did not discuss the right to privacy. [IJRC]
In the month of July, various universal and regional bodies will assess States’ compliance with their human rights obligations through the consideration of State and civil society reports, country visits, and the review of individual complaints. Three United Nations treaty bodies will meet in July to engage with States regarding their treaty obligations related to civil and political rights, the rights of women, and the prevention of torture. Further, civil society can register this month to participate in the sessions of two treaty bodies that will meet in August to engage with States regarding their obligations related to racial discrimination and the rights of persons with disabilities, respectively. The UN Human Rights Council and several of its working groups will be in session to review communications, thematic reports, and country-specific reports; select individuals to serve as special procedure mandate holders; and convene several panel discussions on the human rights of women, internally displaced persons, and on technical cooperation in the promotion and protection of human rights related to the 2030 Agenda for Sustainable Development. The Expert Mechanism on the Rights of Indigenous Peoples will hold its annual session. Two UN special procedures will conduct country visits focusing on human rights and transnational corporations, and on the human rights situation in the Republic of Korea.
Regionally, the Grand Chamber of the European Court of Human Rights (ECtHR) may hear one case related to the prohibition of collective expulsion of aliens, and the European Committee of Social Rights and Inter-American Court of Human Rights (IACtHR) will be in session.
The UN treaty body sessions, the public hearings of the European Court, and the hearings of the Inter-American Court, may be watched via UN Web TV, the European Court’s website, and the Inter-American Court’s website or Vimeo, respectively. To view human rights bodies’ past and future activities, visit the IJRC Hearings & Sessions Calendar.
Recent changes in the United States’ immigration policies have drawn fresh condemnation from human rights experts and civil society, particularly as news spread that authorities had separated approximately 2,000 children from their parents at the country’s southern border. [IACHR Press Release; OHCHR Press Release; UNHCR Press Release] These changes include automatic criminal prosecution and detention of adults – including asylum seekers – entering the United States without authorization, separation and detention of children who crossed the southern border outside a port of entry with their parents, and a directive instructing immigration officials not to recognize a State’s failure to protect victims of gang violence and domestic violence as grounds for asylum. In response to criticism earlier this month, President Trump signed an Executive Order on June 20, 2018 to detain children and parents together, but that also raised concerns because it did not address the reunification of separated families and proposed modifying time limits on detention of families. [OHCHR Press Release: UN Experts] The policy changes add to long-standing human rights concerns related to U.S. immigration policy. This post reviews 10 of the primary principles implicated. Read more