Types of movements

In a note, the glossary makes clear that the fact that migrants may have migrate irregularly “does not relieve States from the obligation to protect their rights” (International Organization for Migration, 2019).

Moreover, it describes categories of migrants, including, “refugees, victims of trafficking, or unaccompanied migrant children” who use irregular pathways but may still be in need of some forms of protection.

In practice, there is overlap between the two forms of migration. Although some people cross borders in a fully irregular fashion, clandestinely without inspection by any consular or immigration authorities or using fake documents, in other cases, they travel with legitimate passports and visas. After entry, however, they consciously or inadvertently overstay their visas and/or reside, work or engage in other activities without authorization.   

The reverse can occur as well. A person may enter or stay irregularly but subsequent regularize their status.  

Irregular migration is often associated with human smuggling and trafficking in persons (See chapter Smuggling of Migrants and chapter Trafficking in Persons and Associated Forms of Exploitation and Abuse for more information). Yet, some irregular migrants travel on their own, or with the help of family members. Those utilizing smugglers may be served by small organizations or they may be the clients of large transnational operations (or a combination of both). Only smugglers who facilitate irregular border crossing for financial compensation are covered under international law. Still other migrants are trafficked—meaning that they have been coerced or deceived into crossing international borders for the purpose of sexual or labour exploitation. Some trafficked persons enter irregularly whereas others use regular channels. When those who engage the services of human smugglers are forced into debt bondage to repay their smuggling fees, smuggling can become trafficking in persons.

The drivers include serious threats to life and livelihood arising from natural or human-made causes (e.g. movements of refugees and internally displaced persons as well as people displaced by natural or environmental disasters, chemical or nuclear disasters, famine, or development projects. As discussed below, the term ‘forced migration’ is debated because of the widespread recognition that a continuum of agency exists for all migrants (International Organization for Migration, 2019). In fact, many, if not most migrants fall somewhere between the two extremes, exhibiting elements of choice and coercion.

Refugees and those threatened by torture are the only groups of forced migrants who are specifically protected from forcible return under international law although others at risk of irreparable harm are covered under provisions in international, regional and national human rights and migration instruments (See chapter Human Rights of Migrants: an Overview for further information).  Under the 1951 UN Convention Relating to the Status of Refugees, a refugee is defined in Article 1A (2) as a person whose owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinions, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country (United Nations, 1951).

In Africa and Latin America, respectively, the definitions have been broadened to include those forced to flee because of “external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his [or her] country or origin or nationality” and “because their lives, security or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order.”

Although there is no obligation to admit a refugee or torture victim who is outside of the territory of a State, there is an obligation not to refoule (forcibly return) a refugee who is on a State’s territory except in specified cases where the individual poses a threat to the country. Under Article 3 of the Torture Convention, States have an absolute obligation to refrain from forcibly returning someone who is under threat of torture.

In other cases, in which coercion exists, the decision to admit or deport a forced migrant is at the discretion of the State. Few States have legislative or regulatory frameworks, however, for determining on a systematic basis who should be admitted or, at least, not removed in these situations. The Global Compact for Safe, Orderly and Regular Migration recognizes that there are gaps. In paragraph 21(g), the compact encourages States to develop or build on existing national and regional practices that provide for admission and stay based on compassionate, humanitarian or other considerations for migrants compelled to leave their countries of origin owing to sudden-onset natural disasters or other precarious situations (United Nations, 2019).” Humanitarian visas, private sponsorships, access to education for children, and temporary work permits are cited as actions States can take in this regard (United Nations, 2019).

As noted above, although often framed as dichotomies and placed in separate boxes, whether movements are voluntary or forced is not as easily categorized. As with regular and irregular, there are some movements that clearly fit one category or the other. However, many others are much more difficult to fit into the appropriate designation. The term mixed migration was coined to capture the continuum of movements and the conundrum States often face in making determinations.

There are three ways in which migration is mixed. First are movements in which voluntary and forced migrants use the same means of transport and arrive in transit and destination countries together. Determining which migrants are refugees, and thereby entitled to refugee protection as established under international law and which are fleeing other life-threatening situations, and might be granted protection as a matter of discretion or national regulation, and which are seeking better opportunities for themselves and their families can be difficult, particularly when people have left very similar situations. Putting everyone through refugee status determinations can be time-consuming and expensive and still not result in protection for those who require it and removal of those who do not.

The second way involves mixed drivers of migration leading to mass movements. For example, political drivers, such as conflict and human rights violations, may combine with other factors, such as natural disasters or economic collapse to precipitate large-scale movements.

The third way in which migration is mixed involves the multitude of reasons that individuals, rather than groups of people, migrate. Any given person or family may be forced to leave home because of life threatening conditions but choose to go to a specific destination because of greater opportunities there compared with other locations. Sometimes the opportunities are economic or involve strong social networks. At other times, there is greater safety and security in the chosen destination. Or, one State may have more expansive categories for protection of those facing life threatening situations at home. The migration is no less forced because of the agency that the migrant shows in determining where to go. It may be more difficult for policymakers to discern, however.