• Identify the rights holders affected by the policy
  • Identify the rights holders who will be directly affected by the policy. Remember that each individual, whatever their nationality or immigration status, is a rights holder and is entitled to all fundamental rights without discrimination. Depending on the objective of the policy, some individuals or groups will be directly targeted.
  • Identify the indirect impacts that the policy may have on other individuals’ or groups’ rights. Note especially the communities that are affected by emigration, immigration or return migration. For example, a policy on reintegration impacts the concerned individuals, but also the families and the communities to which they return.
  • Ensure due consideration is given to groups that tend to be excluded, marginalized or exposed to vulnerability factors (such as migrant children, pregnant or breastfeeding women, domestic migrant workers, victims of trafficking, LGBTI migrants, stateless migrants, refugees, and victims of torture or abuse), and to whom States have a heightened duty of care. (See the Global Migration Group’s principles and guidelines, supported by practical guidance, on the human rights protection of migrants in vulnerable situations for further guidance.)

• Identify the duty bearers and other actors

  • Identify the relevant State representatives with duties related to the particular policy (for instance, law enforcement officials, border guards, coast guards and consular authorities), including those with the duty of ensuring migrants’ rights are respected and fulfilled.
  • Identify private actors directly or indirectly involved in the implementation of the policy (such as staff at privately run migrant detention facilities, service-providers, employers and recruitment agencies), recalling that States also have an obligation to prevent or remedy violations of rights perpetrated by private actors.

• Identify the rights upheld or otherwise impacted by the policy and the corresponding obligations of the duty bearers

  • Ensure that any differential treatments based on nationality or migration status are part of efforts to meet a legitimate goal (as defined in the relevant legislation) and are proportionate to achieving that goal. Bear in mind that all international human rights conventions establish obligations for States, as well as rights for all individuals, including all migrants and irrespective of their migration status

• Conduct a rights impact assessment

  • Review the draft policy against the rights and obligations set forth in international and regional human rights conventions, particularly those to which the State is party (see chapter 1.3.1 Human rights of migrants: An overview for further details), as well as soft law instruments (such as the Global Compact for Safe, Orderly and Regular Migration).
  • Consider, in particular:
    1. What is the effect of the proposed policy on the enjoyment of all human rights (civil, political, economic, social and cultural), as well as on those rights deriving from other branches of international migration law?
    2. Does the policy serve to further the realization of relevant rights for all the various groups of rights holders, directly and indirectly impacted by the policy? What measures can be included to better protect those rights or to better facilitate access to those rights and related services?
    3. Can the proposed policy be implemented in a way that avoids both direct and indirect discrimination? If not, what is the nature of the barriers to ensure a non-discriminatory implementation (for example, are there legal or practical barriers)? What can be done to address those barriers (for instance, amendments to legislation or regulatory frameworks, capacity-building of government officials/service providers or awareness-raising campaigns for the broader public)?
    4. Does the policy consider the need to ensure cultural or religious sensitivity with regard to the migrants and communities concerned?
    5. Have any of the United Nations treaty bodies or special rapporteurs made any recommendations or raised any concerns regarding the State policies, laws and actions related to the one under consideration? Have those concerns been addressed in the current policy?
    6. Are all of the various categories of duty bearers aware of the relevant international standards, and are they adequately trained in how to apply them to their work in order to avoid violations of migrants’ rights? What additional capacity-building programmes are needed in this regard?
    7. Do duty bearers have the operational capacity and resources under the policy to meet their obligations to respect, protect, and fulfil human rights? How can their capacities be strengthened? Do any additional resources, including financial, need to be allocated to ensure that duty bearers have the capacity to protect rights?
    8. Considering the extent to which the enjoyment of certain rights depends upon the realization of others, does the proposed policy further the realization of some rights at the expense of others? If so, how can this be corrected? For example, a project aimed at protecting the right to life of a victim of trafficking should not have a negative effect on the victim’s right to liberty.
    9. Are there opportunities to better involve impacted rights holders and other stakeholders concerned with the rights of migrants in policy implementation?

• Revise policy in response to considerations identified through the rights impact assessment

• Establish mechanisms for ongoing assessment and accountability

  • Provide for ongoing assessment protocols. This should include developing indicators to use when collecting data, so that the human rights implications of the policy can be assessed with regard to migrants and other rights holders.
  • Establish accountability mechanisms, including complaint mechanisms, to ensure that any violation of the rights of migrants or of other rights holders can be addressed and that adequate remedies are available. This should include mechanisms for preventing future violations and holding duty bearers accountable, including through prosecution, as appropriate.
  • Ensure migrants can have access to courts or tribunals to seek redress for any violation of their rights that may occur as a result of implementing the policy. In particular, remove any legal or practical barriers that may prevent migrants, including those in an irregular situation, from having access to courts.
  • Ensure that rights holders have the necessary information and assistance to access complaint and redress mechanisms.

Migrants’ rights are enshrined in various international conventions. Various United Nations human rights treaty bodies, regional courts and special rapporteurs offer further guidance on how to ensure those rights through jurisprudence and interpretative documents they have issued; that is, documents that explain and interpret the rights and responsibilities established by the conventions. These treaty bodies, courts and rapporteurs include:

Human rights treaty bodies:

• Committee on Migrant Workers.

• Human Rights Committee on Civil and Political Rights.
• Committee on Economic, Social and Cultural Rights.
• Committee on the Elimination of Racial Discrimination.
• Committee on the Rights of the Child.
• Committee on the Elimination of Discrimination against Women.

International tribunals:

• European Court of Human Rights (ECtHR).
• Inter-American Court of Human Rights (IACtHR).
• African Court of Human and Peoples' Rights (ACtHPR).

Special rapporteurs:

• Special Rapporteur on the Human Rights of Migrants.