UN Committee on Migrant Workers p1a

New terrorism laws should adhere to human rights principles. John von Doussa QC

Extreme Changes Kate Ellis MP not punishing people Senator Despoja responsive politicians PC How To: Antonios Symeonakis People need practical help Senator Linda Kirk For the benefit of all Australians Senator Grant Chapman

2. Migration as a survival strategy

Human rights violations in countries of origin are often the motivating factor for the movement of migrant workers and members of their families. The report of the Global Commission for International Migration (GCIM) notes that "migration has become a survival strategy, employed by people who are seeking to escape armed conflict, human rights violations, authoritarian and corrupt governments, as well as unemployment and poverty."(6) While movement in response to violations of economic and social rights or environmental degradation is not generally considered to constitute refugee flight, commentators have noted that "it has become increasingly difficult, in practice, to separate out refugees from other involuntary migrants or from economic migrants."(7) The United Nations High Commissioner for Refugees also recognises that the distinction between economic migrants and refugees is sometimes blurred.(8) Such migrants, who have been termed "survival migrants" by some commentators(9), are migrating less out of choice than out of necessity. Lack of access to human security and development, discrimination, and extreme poverty are all primary motivating factors for the movement of such migrants from their countries of origin.

Survival migrants often migrate in conditions that are severely detrimental to the protection of their human rights. For instance, such migrants are especially vulnerable to unscrupulous and abusive practices by recruitment agents in countries of origin. The International Labour Organisation (ILO) has noted that some private fee-charging recruitment agencies "have sent workers for non-existent jobs, some provide false information about jobs, and many charge excessive fees for services."(10) Such migrants are also more likely to seek out the services of people traffickers, to be vulnerable to labour exploitation and to suffer serious physical and mental harm in the course of their migratory journey. This is migration out of desperation, not choice.

In the last decade hundreds of thousands of workers(11) from Myanmar have migrated to neighbouring Thailand in search of jobs and other economic opportunities. Migrants interviewed by Amnesty International had left their homes in Myanmar for a variety of reasons, including the inability to find a job; confiscation of their houses and land by the military; and fear that if they remained they would be subjected to human rights violations, including forced labour. Many of the young people who were interviewed had come to work in Thailand in order to send money back to their families. However some of them could not save enough to send any money home, but were working in Thailand so as not to be a burden to their parents. Those who had fled from militarized areas in Myanmar were much more likely to have had direct experience of human rights violations at the hands of the Myanmar military. [M]uch of the rural population of Myanmar have been systematically deprived of their economic rights since the military’s re-assertion of state control in September 1988.(12) Although the then State Law and Order Restoration Council and later the State Peace and Development Council attempted to shift the country from a centrally planned economy to a market-driven economy, the majority of the rural population continued to suffer. As the military increased its presence throughout the country from 1989 until the present, particularly in "ceasefire areas",(13) and almost doubled its troop numbers, it implemented policies which resulted in widespread deprivation of economic rights for rural people.(14) One Burmese migrant spoke to AI of his reasons for coming to Thailand: "I didn’t want to come to Thailand – because I love my country and land – but because of economic mismanagement and poverty and lack of education, especially for rural people – what they want is a better life. But we are being subjected to abuses here." Another Burmese migrant worker said of the situation in Burma "Prices are going up, the population is growing, people are having a hard time feeding themselves and have to leave."(15)

All over the world, grave abuses of civil, cultural, economic, political and social rights compel migrants to leave their homes, and often also their families, in search of safety, security and a sustainable livelihood.

3. Human rights abuses in State measures to "combat" irregularity

Irregular migration is an issue that is increasingly at the forefront of the agenda of government migration policies. Irregular migrants are vilified by the media as well as politicians as criminals, economic burdens and even as a risk to the public health.(16) In every region of the world, states are engaged in bilateral or multilateral efforts to "combat" irregular migration; from joint border patrols to the conduct of readmission agreements. Yet, as has been recognised by the GCIM "the issue of irregular migration is inextricably linked to that of human security"(17). Migrants who find themselves in an irregular situation in countries of transit or destination are often those who left their homes and countries of origin in response to human rights violations, poor governance, and socio-economic deprivation. Many feel that they have no choice but to migrate, and on many are pinned the hopes for the survival of families they have left behind. Accordingly, irregular migrants are vulnerable to abuse and exploitation during the journey, as well as when they manage to arrive in a country of destination. This includes the most serious violation of their rights; being deprived of their right to life. Article 9 of the Convention provides that without exception "the right to life of all migrant workers and members of their families shall be protected by law."

Thousands of migrants, many of them from sub-Saharan Africa, try to cross into the Spanish enclaves of Ceuta and Melilla each year. Their numbers have been increasing in recent months. There are currently hundreds of migrants, mainly from sub-Saharan Africa, living in northern Morocco. The number of migrants killed or seriously injured as the alleged result of ill-treatment or use of excessive force by the Spanish or Moroccan security forces has risen sharply over the last few months. In the latest and most serious incident, five men of sub-Saharan origin died and several others were seriously injured during the night of 28 September, when several hundred people tried to enter Spanish territory by climbing over two razor-wire fences separating Ceuta from Morocco and were confronted by law enforcement officials from both countries.(18)

Migrants including irregular migrants suffer human rights abuses as a result of restrictive administrative arrangements put in place by governments at their borders. Here, many migrants are simply refused entry even where such refusal would expose them to human rights abuses.

In a recent mission to Morocco, Amnesty International delegates collected evidence confirming reports that hundreds of migrants, including possible asylum-seekers, were transported in buses, trucks and other vehicles to remote desert regions near the border with Algeria, and then ordered to walk across the frontier towards towns inside Algeria. People from west and central African countries told Amnesty International that they had been left with little or no supplies of food and water. One of them described how a man he travelled with had died of exhaustion as his group walked through the desert back into Morocco.

J.P., a man in his twenties, fled extreme poverty in Cameroon over a year ago. He told Amnesty International that he made his way to Morocco through Nigeria, Niger and Algeria to Melilla. The first time he entered the Spanish enclave, he made it to the Commissariat where migrants can register and get legal assistance. However, J.P. was expelled immediately to Morocco. The second time he managed to enter Melilla, the Spanish Guardia Civil beat him and shot at him with rubber bullets from about two metres distance before turning him back. The third time he stormed the fence of the enclave with other migrants, but was expelled again back to Morocco from where the Moroccan authorities removed him to an area at the border between Morocco and Algeria near the town of Oujda. While in the wilderness, migrants are often beaten and robbed by the Moroccan Auxiliary Forces.(19)

When placed in administrative detention in order to verify their identity, migrants are often subject to abusive conditions, including overcrowding, lack of adequate sanitation and even physical abuse.

Following an escape attempt by two North African detainees from an administrative detention centre in northern Italy, it is alleged that they and a number of the other 65 detainees housed in the centre were subjected to repeated physical assault on the night of 2 March 2003. The detainees said that officers wore helmets and struck them with shields and truncheons. Over 10 of the detainees, including one woman, from South America, suffered various significant injuries during incidents, including bruising, cuts to the head, thorax, back and the arms.(20)

States often enter into cooperation agreements with countries through which these migrants have transited, further exposing individuals to abuses such as mass expulsion, arbitrary detention, torture and ill treatment in detention, and return to countries where they are at risk of serious human rights violations. Of the situation at the EU’s southern border, Amnesty International recently stated "The present dire situation in North Africa, where people trying to gain entry to EU territory are reportedly being shot dead, or even dumped in the desert without food or water, relates directly to pressure exerted by EU countries to strengthen fortress Europe."(21) Such pressure will often result in readmission agreements with countries on the borders of Europe which do not contain adequate safeguards to ensure the effective protection of the human rights of the migrants that are subject to these agreements.

Every year, hundreds of migrants arrive in Lampedusa in Italy, having undertaken a hazardous journey from North Africa. After a dubious identification, over a thousand migrants have been handcuffed and put on military or charter flights in recent months. Their destination is Libya, a country where many fundamental human rights are not respected. Italy has acted contrary to its international obligations, including the European Convention on Human Rights and Fundamental Freedoms which forbids the return of anyone to a country where s/he would be at risk of torture and other ill-treatment and Protocol 4 of the same Convention, which forbids the collective expulsions of non-nationals. Libya, in its turn, is also known to have violated its international obligation not to send anyone to a country where they are at risk of serious human rights violations on several instances in the past.(22)

In December 2004, Amnesty International expressed concerns about the Malaysian government’s plans to expel up to one million migrant workers and members of their families from its territory, noting that the organization was "seriously afraid that the mass deportation will result in large scale human rights abuses, such as ill-treatment, prolonged detention, and lack of access to medical care. A similar deportation in 2002 resulted in migrants falling gravely ill, with three children dying because of the unhygenic conditions in government detention centres, according to Malaysian media reports." The organization went on to note that "Malaysian government officials acknowledge the contribution to the economy that foreign labour makes. After the 2002 mass deportation there were severe labour shortages in the construction and plantation sectors, prompting the authorities to ease the immigration process for certain industries."(23) In the aftermath of the tsunami in December 2004, the government of Malaysia appears to have postponed plans to carry out this mass deportation, and Amnesty International has appealed to the government "to halt any deportations until it can be guaranteed that the fundamental human rights of all refugees, asylum-seekers and migrants, including undocumented migrants, will be respected in this process".(24) Article 22 of the Convention stipulates that "Migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually."

The fact remains that there is, and will continue to be, a demand in the labour markets of relatively richer countries for irregular migrant workers. The GCIM report acknowledges that "[i]n some parts of the world, certain sectors of the economy, including agriculture, construction, hotel and catering services, as well as domestic and sex work, have come to rely to a significant extent on migrants with an irregular status, who are prepared to work in difficult, dangerous and dirty jobs with little security and low wages."(25) In many countries and in many situations, governments tolerate the existence of this informal economy, and society reaps the benefits from its existence, while at the same time these irregular migrant workers are criminalised, and the individuals themselves are too afraid of the repercussions to seek redress for abuses perpetrated by their employers.