UQ Migrant Smuggling Working Group
Protection and assistance

The smuggling of migrants involves the movement of human beings whose life, freedom, and safety are frequently at risk and who are vulnerable to exploitation by their smugglers and others.  In many instances, smuggled migrants are found in situations of emergency, exposed to the elements, dehydration, suffocation, and drowning.  When apprehended by authorities, they may be in urgent need of shelter, food, and basic medical care.  Smuggled migrants are particularly vulnerable if they reside in the host country illegally or clandestinely, and if they do not speak the local language and are unfamiliar with local procedures and customs.  

For these reasons, it is important that international and domestic frameworks protect the fundamental rights and liberties of smuggled migrants, and that any action taken against the smuggling of migrants adheres to the principles of international human rights law.

Assistance and Protection Under International Law

Whilst the emphasis of the Protocol against the Smuggling of Migrants by Land, Sea and Air is on criminalisation of migrant smuggling, and mutual assistance between States Parties, it does create an obligation to ‘afford appropriate assistance’ to smuggled migrants.  Several provisions under the Protocol identify the minimum standards of protection and assistance States Parties should provide to smuggled migrants.

 

Assistance to smuggled migrants

Article 16(2) requires States Parties to protect smuggled migrants from physical violence.  Article 16(3) calls on States Parties to ‘afford appropriate assistance to migrants whose lives or safety are endangered by reason of being [smuggled migrants]’.  Article 16(4) recognizes the particular vulnerability of women and children.  The Convention against Transnational Organized Crime also includes a number of provisions requiring States Parties to take measures to assist and protect victims, and to cooperate with other enforcement authorities to offer protection to victims and witnesses.

These provisions under the Protocol and the Convention do not confer any rights upon smuggled migrants, nor do they create new obligations on States Parties beyond those already recognised in international law. Whilst the content of the assistance provisions in the Protocol and Convention are mandatory, the method of implementation remains within the ambit of States’ legislative and procedural discretion.

 

Protection of the rights of smuggled migrants

Article 16(1) contains a general statement to protect the human rights of smuggled migrants:

In implementing this Protocol, each State Party shall take, consistent with its obligations under international law, all appropriate measures, including legislation if necessary, to preserve and protect the rights of persons who have been the object of conduct set forth in article 6 of this Protocol as accorded under applicable international law, in particular the right to life and the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

While this paragraph refers to specific rights such as life and protection from torture, cruel, inhuman or degrading treatment or punishment, Article 16(1) is generally seen as emphasizing the protection of all fundamental human rights and freedoms as accorded in relevant international treaties, especially the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.

Article 16(5) also implies an obligation on States Parties to facilitate communication between a smuggled migrant and their relevant consulate, especially in situations in which the receiving country detains smuggled migrants because of their illegal entry or to facilitate their removal.  Reflecting provisions under the Vienna Convention on Consular Relations, this encompasses assistance measures such as informing the migrant of their right to contact their relevant consulate, notification of a migrant’s request to do so, and facilitation of this communication, in person or otherwise.

 

Refugee and human rights law

Article 19 of the Protocol against the Smuggling of Migrants preserves the rights of smuggled migrants established under international refugee and human rights law, independently from the Convention and the Protocols.  Article 19(1) draws particular attention to the specific obligations stemming from the Convention and Protocol relating to the Status of Refugees:

Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.

The Refugee Convention places obligations on States Parties to provide refuge for persons who fear persecution in another country.  The key requirement is that a refugee must neither be expelled nor returned (‘refouled’) to ‘the frontiers of territories where his [or her] life or freedom would be threatened’, pursuant to Article 33 of the Refugee Convention.  A country is in breach of this non-refoulement obligation if its authorities fail to properly identify and protect persons who are entitled to the benefits of refugee status.

This non-refoulement obligation also arises from a number of other international human rights treaties.  Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment expressly prohibits return of a person to places ‘where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture’.  The obligation is also implicit in Articles 6 and 7 of the International Covenant for Civil and Political Rights, and Articles 6 and 37 of the Convention of the Rights of the Child.

Article 19 further ensures the unimpeded operation of international law generally, including the rights, obligations, and responsibilities provided for in international instruments.  Given the limited protection and assistance measures in the Protocol against the Smuggling of Migrants, the savings clause is integral to safeguarding the rights of smuggled migrants.  In addition, Article 19(2) seeks to ensure that domestic laws pertaining to migrant smuggling are not designed or applied in a manner that discriminates against smuggled migrants or illegal residents by reason of their status as such. 

Assistance and Protection of Smuggled Migrants in Australia

Australia has no specific, separate legislative or administrative regime to provide assistance and protection to smuggled migrants.  Australian law refers to the phenomenon of smuggling of migrants as ‘people smuggling’, and relevant legislative provisions are limited to a range of offences in Division 73 of the Criminal Code (Cth) and Division 12 of the Migration Act 1958 (Cth).  Instead, Australian law categorises all persons entering Australia as either ‘lawful’ or ‘unlawful’ non-citizens, dependant on whether or not a person holds a valid visa to enter Australia. Smuggled migrants, who by definition illegally enter a State, have no valid visa and are thus unlawful non-citizens. Unlawful non-citizens are subject to numerous measures under Australia’s legal framework, some of which depend on their mode of arrival, and which affect the protection and assistance they are given.  Laws relevant to unlawful non-citizens, and the measures they are subject to, are many and complex.  Generally, for the purpose of describing assistance and protection, unlawful non-citizens may be grouped into two categories: those who are transferred from Australia to regional processing countries, and those who are permitted to stay in Australia.

 

Assistance and Protection in Regional Processing Countries

Unlawful non-citizens who enter Australia by sea (referred to ‘illegal maritime arrivals’ by the Australian Government) must be transferred to designated regional processing countries, unless permitted to stay in Australia by the Minister for Immigration. Persons transferred to regional processing countries are provided accommodation, health services, education, and other assistance by a combination of private companies and the authorities of those countries.  The standard and content of this assistance is regulated by the legislative frameworks of the regional processing countries, bilateral agreements between Australia and regional processing countries, and contractual agreements between Australia and private service providers.  Where transferees are asylum seekers, their claims for asylum are processed by the regional processing country they are transferred to.

 

Assistance and Protection in Australia

Unlawful non-citizens who are not transferred to regional processing countries are accommodated in Australia. Assistance services are regulated and funded by the Australian Government, but are generally administered contractually by private companies and NGOs. Unlawful non-citizens in Australia may be detained in high or low security detention centres, or may otherwise be permitted to live in the Australian community. If permitted to live in the community, their address is specified and they are subject to certain restrictions. Assistance provided to unlawful non-citizens in Australia includes healthcare, education, case management support for visa applications, welfare payments, and transport.  They also have access to basic legal assistance through the Protection Application Information and Guides service. Higher levels of assistance, including supervised accommodation and greater welfare support, are provided to unaccompanied minors and other vulnerable persons.