Round Table: The current migration situation in the region and risks associated to the crimes of trafficking in persons and migrant

smuggling: Challenges in regulation modernization.

December 1, 2010, San Salvador

Challenges Relating to Trafficking in Persons and

Migrant Smuggling in the Region: From the Perspective of Refugee Protection

Topics to Address:

(1) The current situation of refugees in the RCM region:

- The situation of Colombia- Mixed migration flows (migrants and refugees)

(2) Considerations regarding trafficking in persons and migrant smuggling:

- The Interest of UNHCR- Key challenges in refugee protection- Aspects related to regulatory frameworks

The Current Situation of Refugees in the RCM Region

Forced Movement in Figures

(2009)

Refugees: 812,300

Asylum Applicants:125,000

Internal Displaced Persons:3,300,000

Population under 10,000

Mixed Migration and Refugee Protection

• Refugees move for different reasons than migrants and enjoy a specific legal status under International Law.

• Mixed Migration: Includes persons with different motives and different assistance and protection needs:

- Predominantly migrants for economic reasons- A low percentage of refugees- Other groups with specific needs exist as well (not

necessarily as refugees): Unaccompanied boys, girls, and adolescents, victims of trafficking, open water rescue, migrants having suffered abuse

Mixed Migration and Refugee Protection

• Risks associated to international border crossing• Life-threatening risks• Violence against migrants and refugees

• Specific risks for refugees• Obstacles to entering the territory• Not being identified as refugees• Risk of refoulement

Mixed Migration and Refugee Protection

• Systems for refugees are often the only available protection mechanism

Considerations regarding Trafficking in Persons and

Migrant Smuggling

The Interest of UNHCR

Trafficking in Persons

Could affect persons Could lead towho already are under persons being the mandate of UNHCR included in the

mandate of UNHCR

(Risk of Protection) (Definition of Refugee)

Key Challenges in Refugee Protection

- Significant advances in the protection of victims of trafficking, mainly from the perspective of their nature of victims of a crime

- An emphasis on assistance and on meeting immediate needs, with repatriation as the usual measure

Gaps in Protection(From a Refugee Protection Perspective)

General Protection

Actions

Are insufficient for victims of

trafficking fearing to be persecuted in their country of

origin

Procedures to Establish

Refugee Status

To ensure access for victims of

trafficking

Definition of Refugee

To ensure an adequate

interpretation in cases of

trafficking in persons

States Parties recognize that all actions implemented in accordance with this international instrument, including the establishment of a person as a victim of trafficking, shall not affect implementation of the 1951 Convention and its Protocol, particularly the Status of Refugee and the principle of non-refoulement.

Saving Clause(Article 14, Palermo Protocol)

The 2009 Law Against Sexual Violence, Exploitation, and Trafficking in Persons establishes:

• Repatriation of victims of trafficking shall be implemented “without detriment to the right to asylum” (Articles 16 & 17)

• Victims have the right to information about their rights and the services available to them, as well as “about the asylum procedure, the search for their families and the situation in their country of origin” (Article 2.h)

Mexico

• The Federal Law Against Trafficking in Persons (2007) establishes mandatory training on international law relating to refugees

• The Minute of INM about Victims of Trafficking (2010) explicitly establishes the right to asylum and the possibility of applying for refugee status

• The Protocol for the Repatriation of Boys, Girls, and Adolescents Victims of Trafficking contains a saving clause on the principle of non-refoulement and refers to UNHCR Guidelines about implementation of the 1951 Convention for victims of trafficking.

Regional Conference on Migration

• The Regional Guidelines for Special Protection in Cases of the Repatriation of Child Victims of Trafficking establish:

• “In those cases where the State providing protection has reasonable grounds to conclude that the repatriation carries a serious risk for the victim or his or her family, the State may offer legal and/or temporary or permanent humanitarian alternatives to repatriation, including when applicable to ensure access to asylum procedures, consistent with the domestic legislation of each country.”

Formal Acknowledgment of Refugee Status for Victims of Trafficking

• Cases recognized in Canada, Colombia, Costa Rica, Ecuador, and the United States

The Interest of UNHCR

Migrant Smuggling

It is an accepted fact and a cause for concern that refugees and refugee status applicants may be forced to resort to migrant smugglers and other forms of clandestine movements as a means of gaining access to protection in another country.

Key Challenges in Refugee Protection

- A need to differentiate between migrants in general and refugees (different rules exist for their treatment).

- The form of entry should not have repercussions on the need for protection under refugee status.

- Indiscriminate implementation of control actions could affect the chances of refugees to gain access to protection in another country.

Saving Clause(Article 19, Palermo Protocol)

• States Parties recognize that all actions implemented in accordance with this international instrument shall not affect implementation of the 1951 Convention and its Protocol, particularly the Status of Refugee and the principle of non-refoulement.

Article 31, 1951 Convention relating to the Status of Refugees

• The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

UNODC Model Law(Article 28)

• The competent authority (immigration, police) shall ensure that smuggled migrants who are seeking international protection are referred to the appropriate competent authorities to decide on their case.

• Access to UNHCR should be ensured for these persons.

Aspects Related to Regulatory Frameworks

• In regard to matters of protection, is a legal reform required in Member States of RCM to enable them to be more effective in assisting victims of trafficking in persons and migrant smuggling?