Mixed migration flows and human rights

In 2020 migration continues to drive political agendas and command attention in both popular and policy circles. The United Nations General Assembly noted in 2016 that we are witnessing an ‘unprecedented level of human mobility’ in today’s world. According to the International Organization for Migration (IOM), 272 million international migrants were registered in 2019, representing 3.2% of the global population (IOM, 2020).

Migration is not a new phenomenon; it has long been a feature of human societies. Too often, the policy debate oversimplifies the issue of migration, reducing it to a juxtaposition of two categories: people who migrate for economic-related reasons, often referred to as people who migrate voluntarily, and those who flee seeking protection from oppression. However, in recent years various factors have led to more complex migration movements. People are more likely to migrate for multiple reasons, and it is increasingly common to see mixed migration flows.

‘Mixed migration’ is a relatively new policy concept which primarily describes cross-border movements composed of people with different legal status. IOM identifies the principal characteristics of mixed migration flows as ‘the irregular nature of and the multiplicity of factors driving such movements’ and ‘the differentiated needs and profiles of the persons involved’.

What does this changing reality mean, then, for the way states manage migration, and how does it affect the human rights protections afforded to people on the move?

In order to demonstrate how the reality of mixed migration flows challenges the application of a human rights framework for migrants; it is important to stress two main features of mixed flows:: (1) they are composed of individuals belonging to different legal categories with associated rights and protections, and (2) these categories may be shifting and dynamic.

Multiple categories of people on the move

Mixed migration flows may include refugees, asylum seekers, economic migrants, environmental migrants, unaccompanied children, and victims of trafficking. They therefore encompass a diversity of people with different legal status, needing different levels of protection. As states’ responses to migration are determined by their international obligations to people on the move, when it comes to mixed flows states are required to guarantee a heterogeneous range of rights and protection systems to people within a single migration movement.

In practical terms, mixed migration often occurs in irregular channels where people to whom different legal frameworks apply may come together on the same routes and use the same modes of transport . A prime example is the Eastern Mediterranean route, where high numbers of refugees seeking shelter from Syria's war arrived in 2015 alongside people fleeing conflicts further afield, as well as those driven toward Europe by poverty, instability and the search for a better life. Limited opportunities to reach Europe have caused all these groups to turn to irregular routes, frequently resorting to smuggling as the only practical option to reach Europe’s shores. Within these population movements, it is not immediately possible to distinguish between those with additional rights and protections, and those without.

Here it is pertinent to consider the international regimes applicable to mixed migration. A key legal obligation involves the ‘duty of individual examination’ under which states must establish whether the non-admission of individuals on the move would result in a breach of non-refoulement. Refugees, defined as people who are ‘unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion’ are especially protected from refoulement. This is because they enjoy a well-established protection regime based on the 1951 Geneva Convention relating to the Status of Refugees and its 1967 Additional Protocol.

In addition to those rights afforded to refugees, international human rights law applies to all individuals on the basis of inherent human dignity and includes protections against torture, degrading treatment and forced labour. Further, specific populations with particular needs may benefit from additional protection under dedicated instruments, including the Convention on the Rights of the Child, and the Palermo Protocols which address the protection needs of individuals who have been trafficked or smuggled.

States face a challenge: how to ensure effective management of mixed migration while also ensuring adequate protection of the most vulnerable? Accordingly, in mixed migration flows there is a particular need for efficient, protection-sensitive entry systems which respond to and can account for complexity, and where the duty of individual examination is attentive to all possible rights frameworks. An approach which centres on individual needs rather than on status, and avoids making assumptions about people on the move is therefore essential.

Unstable and flexible categories

However, effectively responding to mixed flows is not as simple as acknowledging multiple categories of migrants. In practice, categories are not always clear cut and distinctions may blur together. This is because people can move between (legal) categories, such that the status of an individual may change over time.

For example, the situation in a person’s country of origin may change during their journey, with the effect that a migrant who left their country for economic reasons may become eligible for refugee status, or at least be likely to claim asylum. People may also experience human rights violations en route, such as trafficking, forced labour, and unlawful detention - all of which are likely to be common experiences among people using the irregular routes along which mixed migration takes place. These violations might change the status of a person on the move in a formal or informal way. A refugee might become a victim of human trafficking during their journey, for example, meaning they acquire new rights and protections.

In addition to recognising the multiple legal categories to which people in mixed flows belong, entry systems should therefore also be sufficiently elastic to account for this nuance over time. Scope for changing categories and the acquisition of new rights and protections based on the experience of migration itself must be built into the mechanisms which recognise the legal status of people on the move.

Conclusions

In conclusion, mixed flows pose a number of challenges to states’ migration management policies and systems as they introduce additional complexity into their legal obligations. However, these added complications should not provide an excuse for states to neglect their international obligations.

To respond to the evolving nature of migration and displacement, it is important to have a functioning entry system with a holistic approach that considers complexity within a single movement. It is essential to account for multiple profiles and vulnerabilities in policy responses to ensure the human rights of all are upheld.

One way to do this would involve adopting a stronger human rights-based approach to migration, which places the migrant at the centre of migration policies and governance. Furthermore, improving meaningful involvement and coordination of multiple governmental stakeholders including ministries for social development, immigration and international development, as well as international partners, would provide a broader base for an effective response.

Disclaimer: The views and opinions expressed in this blog are personal to the author(s) and do not reflect the official policy or position of any other agency, organisation or employer.