The approach of states to managing immigration and asylum relies to a significant extent on the assignment of categories to people entering from abroad. Yet many adults and children travelling along migration routes do not fit neatly into just one of these categories. A new ICMPD Working Paper examines the challenges, and some possible ways forward, in dealing with the nexus between asylum, migrant smuggling and human trafficking in mixed migration contexts.
By Claire Healy
Anyone working on migration is well acquainted with the difficulties people have in distinguishing between human trafficking and migrant smuggling. While acknowledging that in some cases, migrant smugglers may abuse the situation to gain additional profits for themselves, or violate a migrant’s human rights, the distinction is that in essence a smuggler is providing a service that is required by a migrant or refugee, in the absence of alternatives for safe and regular travel, while a trafficker’s purpose is to exploit. However, recent research on migration journeys overland and by sea to Europe shows that in some ways, in practice, the two phenomena are intertwined.
The relationship between trafficking and smuggling becomes even more complex in the context of refugees and asylum applicants. Trafficked people may be considered as entitled only to protection schemes and measures that are specific to victims of trafficking, and not considered as potentially eligible for protection as refugees, or for subsidiary or humanitarian protection.
The trafficking-asylum nexus can also take another form: people who are refugees on grounds other than having been trafficked, and therefore intend to seek asylum, such as people travelling from Syria, Iraq or Eritrea to an EU country. They may be at risk of trafficking, or fall victim to trafficking during that journey. This is a paradox within international refugee law. Every person has a right to seek asylum, but they do not necessarily have the possibility of travelling regularly and safely in order to reach the intended country of asylum, making them vulnerable to human trafficking.
In many countries, refugee status determination, and identification and referral as a victim of trafficking, are considered two separate “tracks”, with people being faced with a choice as to which track to follow, based on the likelihood of a positive decision and the rights attached to each status. According to international human rights law, being identified as a victim of trafficking and accessing the ensuing rights should never prevent someone from applying for and being granted asylum, and vice versa. However, the current de facto situation is that many trafficked refugees have to choose between applying for asylum or being identified as a victim of trafficking.
The difference between being legally recognised as a refugee and as a victim of trafficking is that refugee status gives somebody a residence authorisation in the host country, while being recognised as a victim of trafficking involves rights as a victim of a crime, and may include the issuing of a temporary residence status in the case of a foreign national. So even if someone is recognised as a refugee on the basis of trafficking or other grounds and therefore has a residence authorisation, they still have additional rights as a victim of crime, including protection, rehabilitation, compensation and access to justice (prosecution of the traffickers).
What may at first glance seem like a purely academic debate about terminology has a serious impact on people’s lives. Various factors influence an individual person’s vulnerability, and they may be subject to multiple violations, meaning that for many people, assigning them to one single category will not adequately reflect their situation.
We must design and implement protection responses from the perspective of the adult or child concerned and any protection needs that a person has should be addressed first, before resolving issues of immigration status, or conducting criminal investigations and prosecutions. If someone is both a refugee and a victim of trafficking, they must be effectively granted both sets of rights. And the single most effective measure to prevent trafficking and smuggling-related violations in this context is to substantially expand legal migration channels for migrants and refugees, thereby reducing reliance on smugglers, and ensuring access to swift and fair asylum procedures.
Designing and implementing migration policy in a mixed migration context is not a theoretical exercise. It must be based on the real, lived experiences of the individual people who are migrating or seeking international protection, so that girls, boys, women and men do not end up ‘lost in categorisation’.