Tipos de movimientos

The Global Compact for Safe, Orderly and Regular Migration does not define regular migration but includes potential components of regular migration policies: country-specific immigration laws and policies, visa requirements, application formalities, fees and criteria for conversion of permits, employment permit requirements, professional qualification requirements, credential assessment and equivalences, training and study opportunities, and living costs and conditions, in order to inform the decisions of migrants.

Irregular migration is defined as:

In a note, the IOM Glossary on Migration makes clear that the fact that migrants may migrate irregularly “does not relieve States from the obligation to protect their rights” (IOM, 2019: 116). As well, it describes categories of migrants who use irregular pathways but may still be in need of some forms of protection, including “refugees, victims of trafficking, or unaccompanied migrant children”.

In practice, there is overlap between the two forms of migration. Some people cross borders in a fully irregular fashion, clandestinely, without inspection by any consular or immigration authorities or using fake documents. Other people travel with legitimate passports and visas; however, after entry, they consciously or accidentally 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 subsequently regularize their status.

Irregular migration is often associated with smuggling of migrants and trafficking in persons (for more, see Smuggling of migrants and Trafficking in persons and associated forms of exploitation and abuse). Yet some irregular migrants travel on their own, or with the help of family members. Migrants who do use smugglers may be served by small organizations or they may be the clients of large transnational operations (or a combination of both). Other migrants are trafficked – meaning that they have been coerced or deceived into crossing international borders for the purpose of labour or sexual exploitation. Some trafficked persons enter irregularly whereas others use regular channels. Smugglers who facilitate irregular border crossing do so for financial compensation. When migrants who engage the services of human smugglers are forced into debt bondage to repay their smuggling fees, smuggling can become trafficking in persons.

These drivers include serious threats to life and livelihood arising from natural or human-made causes (for instance, 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 (IOM, 2019). In fact, many – perhaps most – migrants fall somewhere between the two extremes: there are elements of both choice and coercion in their migration.

Refugees and those threatened by torture are the only groups of forced migrants who are specifically protected from forcible return under international law. Others at risk of irreparable harm are covered under provisions in international, regional and national human rights and migration instruments (see Human rights of migrants: An overview for further information). Under the 1951 United Nations Convention Relating to the Status of Refugees, a refugee is defined in article 1 A(2) as a person who:

In Africa, 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 of origin or nationality” (Convention Governing the Specific Aspects of Refugee Protection in Africa, 1961). And in Latin America, “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” (Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 1984).

States do not have an obligation to admit a refugee or torture victim who is outside of the territory of the State. However, 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 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 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. However, few States have legislative or regulatory frameworks for determining on a systematic basis who should be admitted or, at least, not removed in these situations. The Global Compact for Migration recognizes that there are gaps. In paragraph 21(g), the Compact encourages States to:

The Compact presents a number of actions that States can take in this regard. These include humanitarian visas, private sponsorships, access to education for children, and temporary work permits.

Whether movements are voluntary or forced is not easily categorized, though the two possibilities are often presented as though there is no overlap between them. As with regular and irregular, there are some movements that are clearly either voluntary or forced. However, many others are much more difficult to fit into one category or the other. The term mixed migration describes the continuum of movements and the difficulties that 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. Some of these migrants are refugees, and thereby entitled to refugee protection as established under international law. Others are fleeing other life-threatening situations, and might be granted international protection as a matter of discretion or national regulation. And some are seeking better opportunities for themselves and their families. Determining which migrants are which can be difficult, particularly when people have left very similar situations. Putting everyone through refugee status determinations can be time consuming and expensive, and may still not result in protection for those who require it and the 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 cause 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. However, it may be more difficult for policymakers to determine.

As the United Nations Department of Economic and Social Affairs (UN DESA) underlines, high-income countries mostly receive labour and family migrants, while low- and middle-income countries are the destination of populations displaced across national borders as a result of conflict or persecution (for numbers on displacement, see The scale and nature of international migration in the twenty-first century, in this chapter). This has consequences for the kinds of assistance needed by migrants, the development challenges that arise from overstretched infrastructures, and the appropriate policy responses required (UN DESA Population Division, 2020a).