State's obligation to protect and assist smuggled migrants

States have a clear obligation under international law to protect the lives and safety of migrants. the smuggling of migrants is an illegal act to which the migrants have given their consent; however, this does not affect the duty of the State to:

Article / Quotes

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.

Source

Article 16 (1), United Nations Smuggling of Migrants Protocol

The smuggling of migrants generally involves the consent of those being smuggled for the purpose of irregularly crossing borders. However, there is the possibility that the smuggled migrants might retract their consent during a smuggling operation (for example, if they deem the conditions of transportation too dangerous). After the withdrawal of their consent, the migrants might be forced to continue the smuggling process, becoming trafficked migrants (read more on differentiating smuggling and trafficking in the interlinkage Smuggling of migrants and Trafficking in persons). In such cases, the migrants – now trafficked persons – become eligible for certain entitlements. These include protection and assistance, basic needs, medical and psychosocial care, and temporary accommodation, among other things (read more in Trafficking in persons and associated forms of exploitation and abuse).

Policy Approaches
A multi-stakeholder response to protect and assist smuggled migrants
  • Recognize the key role played by border officials and maritime response units, as they are often the first ones to be in contact with smuggled migrants:
    • Train officials to prioritize the life and safety of migrants and to identify migrants in need of assistance and protection;
    • Produce official guidelines on interception that include guidance on protection and assistance;
    • Strengthen their rescue capacity.
  • Develop cooperation mechanisms between government officials, law enforcement and NGOs to protect and assist smuggled migrants and to assess their protection needs.
  • Support local communities and NGOs to provide assistance to smuggled migrants.
  • Ensure that criminal justice responses prioritize the life and safety of migrants, considering the protection of witnesses and their families from retaliation.

Migrants who have endured particularly dangerous forms of smuggling may need urgent protection and care.

Migrants willing to cooperate with authorities and serve as witnesses against smugglers risk retaliation from an organized criminal group (read more in Non-criminalization of smuggled migrants in this chapter in the scope of the UN Migrant Smuggling Protocol). Furthermore, among people being smuggled in complex migration flows may be individuals with specific protection needs, because they might be a refugee, an asylum seeker, or a victim of trafficking in human beings; they might also include unaccompanied children. Smuggled migrants are also highly vulnerable to falling victim of human trafficking, as the debts they incur to pay fees to the smugglers expose them to risks of exploitation.

Humanitarian protection

Refugees and asylum seekers

The United Nations Smuggling of Migrants Protocol requires States to combat smuggling while protecting the rights of migrants enshrined in human rights, humanitarian law and refugee law. Article 19 – known as the “saving clause” – stipulates that:

Article / Quotes

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.

That is, the Protocol recognizes that a person who uses the services of smugglers may be a refugee or an asylum seeker, and that the management of each specific case should respect the obligation of State with regard to the migrant, as well as domestic laws.

Policy Approaches
Providing access to protection for smuggled migrants
  • Implement measures to prevent the smuggling of migrants; ensure that those measures will not undermine the rights of individuals to seek asylum, and will not put refugees and asylum seekers at risk of refoulement.
  • Ensure that counter-smuggling activities do not prejudice the right to seek asylum.
  • Put in place adequately resourced protection and assistance frameworks and systems to cater for the multiple and complex needs that a migrant may have.
  • Ensure that standard operating procedures (SOPs) and referrals mechanisms for managing cases involving refugees and asylum seekers are accessible to all officers dealing with smuggled migrants in a clear, unambiguous format.
  • Ensure that authorised authorities or entities assess and determine asylum applications through legal processes. Smuggled migrants do not have to specifically request asylum, it is sufficient for them to indicate a fear of returning to their country of origin or last departure.
  • Ensure that the principle of non-refoulement is observed, even when the person concerned has not – or has not yet – been formally documented as a refugee (read more on the application of the principles of non-refoulement in Chapter  Human rights of migrants: An overview.
To Go Further

The procedures and criteria for determining refugee status can be found at:

Return of smuggled migrants

Policy Approaches
  • Review non-refoulement considerations prior to returning smuggled migrants.
  • Carry out returns in an orderly manner and with due regard for the safety and dignity of the person (as per article 18[5] of the United Nations Smuggling of Migrants Protocol), and with due consideration of any rights afforded to the migrant in domestic law or under any relevant bilateral or multilateral treaty or agreement.

Read more on the return of migrants in Chapter Return and reintegration of migrants.

Smuggled children

Some smuggled migrants are children (defined as anyone below the age of 18). Smuggled children have access to specific rights under the Convention on the Rights of the Child. Smugglers may also use children in various roles such as captaining vessels, because – owing to their age – they cannot be prosecuted.

Policy Approaches
Protection of and assistance to smuggled child migrants
  • Enshrine the best interest of the smuggled children in all policies and procedures.
  • Ensure that smuggled children enjoy the same rights as national or resident children in respect to access to health, education, food and child protection and care systems.
  • Capacitate frontline officers to handle smuggled children on a priority basis and to provide access to child welfare authorities, international organization and NGOs with a child protection mandate.
  • Appoint a legal guardian for child victims until a durable solution is found to protect them.
  • If the age of smuggled migrants cannot be verified, assume that they are children until verification; provide any necessary safeguards based on that assumption.
  • Apply all child rights to all smuggled child migrants, irrespective of the status of their migration. Read more in Chapter Child Migration.
Protecting smuggled migrants at sea

Many migrants choose a sea route, often because it is the cheapest or the only way to leave their countries of origin. Others may begin their journey with no knowledge about the route or the means to be used along the way.

Smugglers’ operations at sea often involves night sailings to evade detection. Smugglers may also decide to sail in adverse and inclement weather conditions with the clear intention of seeking detection and rescue, with migrants even coached to sabotage their vessels to force rescue. Both of these methods pose acute risks to both migrants on board and rescuers (UNODC, 2011b).

Article 9(1) of the United Nations Smuggling of Migrants Protocol affirms that States must ensure the safety and humane treatment of persons on board vessels at sea, when a State Party takes measures against the smuggling of migrants at sea in accordance with article 8 (read further in section 1.2 Prosecution (and investigation) of migrant smugglers).

The protection of smuggled migrants at sea is also governed by the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention for the Safety of Life at Sea (SOLAS Convention) and the International Convention on Maritime Search and Rescue (SAR Convention). The obligation to rescue any person in distress at sea is well established. However, in practice, disputes about where rescued migrants are to be disembarked have resulted in some people in distress being abandoned to their fate, in contravention of the duty to rescue as laid out in treaty and customary international law.

Policy Approaches
Interception, search and rescue at sea
  • Establish clear standard operating procedures (SOPs) regarding the management of migrants rescued at sea. These should include guidelines on establishing and equipping reception centres, cooperating with non-governmental organizations (NGOs) and international organizations, and conducting vulnerability assessments to establish the individual protection needs of those rescued.
  • Disembark migrants in places where their safety and human rights are no longer threatened.
  • Avoid dangerous interception measures, including arbitrary or collective expulsions.
  • Provide all migrants with accessible information about their rights in a language they understand and in accessible formats, including their right to consular assistance if they so wish.
  • Consider the principle of non-refoulement and the possibility of persecution before contacting migrants’ consular services.
  • Ensure that border authorities are aware of the particular risks posed to certain groups, such as asylum seekers and refugees as well as irregular migrants and LGBTI individuals, of being brought to the attention of consular authorities without their knowledge and informed consent.
  • Provide and maintain rescue beacons along dangerous migration routes to enable migrants whose lives and safety are in danger to signal for help and be rescued.
  • Provide immediate assistance, including, where necessary, at or near places of rescue, interception or disembarkation. Such assistance should include medical care, adequate food and water, blankets, clothing, sanitary items and the opportunity to rest.
  • Establish and strengthen screening and referral processes to ensure that the situation and reason for entry of each individual is individually determined and addressed.
Good Practice
Italy’s life-saving mare nostrum operation

In 2013–2014, Italy conducted search and rescue operations (named mare nostrum) amid the European migration crisis. The mare nostrum operations have saved tens of thousands of lives at sea, allowing for the safe disembarkation of migrants in distress at sea. This national initiative to save lives have been applauded by the whole international community. The operation was then replaced by the broader Frontex-led initiative named Operation Triton.

To Go Further
Protecting migrant victims of violence, exploitation and abuse

Most migrant smugglers facilitate the safe entry of their “clients” to their destination, as agreed between them. However, in some cases, smugglers may subject migrants to abuse, violence, physical or sexual assault, exploitation, extortion, kidnapping and ransom, and even murder. Article 16 of the United Nations Smuggling of Migrants Protocol refers to the protection and assistance of migrants where their lives are endangered as a result of being smuggled.

In practice, article 16 does not create new rights. Rather, it requires States Parties to adhere to existing human rights obligations under international law and to provide appropriate assistance and protection to migrants where their lives or safety are endangered by smugglers. Where people are identified as victims of trafficking, they become eligible for certain entitlements, including protection and assistance, basic needs, medical and psychosocial care, and temporary accommodation, among other things. (Read more on the protection of victims of trafficking in Chapter Trafficking of persons and associated forms of abuse and exploitation.)

To Go Further
Protecting smuggled migrants in detention

Protection and assistance of smuggled migrants is challenged by the fact that irregular migrants often exist in political fault lines. In many countries, immigration detention – and alternatives to detention – are used as migration management tools, following either administrative or criminal legislation. Immigration detention is an issue that has gained increasing attention in recent years, with calls made to ensure that detention is considered as a last resort, only after alternatives have been explored; that minimum standards are met where migrants are detained; and that no child is ever detained (Association for the Prevention of Torture [APT], International Detention Coalition [IDC] and UNHCR, 2014).

In practice, migrants – including asylum seekers among them – may be deprived of liberty at many stages of the migration process. They may be deprived of their liberty during processes of identification and determination of nationality, and while they wait for decisions on asylum applications. States may deprive them of their liberty in order to prevent them from gaining entry, and to enforce deportation orders. In transit, people may be detained at land borders, airports, ports or on vessels at sea, to prevent them carrying on with irregular journeys. They may spend long periods in transit countries, often in irregular situations, during which they lack access to justice or health care and face a range of human rights abuses (OHCHR and Global Migration Group [GMG], 2018: 7). Some may even be detained for indefinite periods.

States are entitled to manage migration as they deem most appropriate, but must do so in accordance with their obligations under international law.

Read more on policy approaches related to administrative detention in Chapter Regulating migration: Border management.

Key messages
  • Responses to smuggling should be conducted in full respect for international law, international human rights law and – when applicable – international refugee law.
  • People who use the services of smugglers may be refugees or asylum seekers, and their treatment will depend on the obligations of State in this regard, as well as pre-existing domestic law.
  • Some smuggled migrants are children (defined as anyone below the age of 18), who have access to specific rights under the Convention on the Rights of the Child.
  • Implementing article 16 of the United Nations Smuggling of Migrants Protocol for the protection and assistance of smuggled migrants is most effectively done through domestic legislation.
  • Before contacting consular services and returning smuggled migrants, consider the principle of non-refoulement. This will help to ensure the application of the human rights of the migrants, under international law.
  • Article 18 of the Protocol provides principles on the return of smuggled migrants.
  • Detention of smuggled migrants should adhere to human rights principles and minimum standards.
PreviousProsecution (and investigation) of migrant smugglersNextCooperation to address migrant smuggling