Statement: GCM Reflections on the September 19 Outcome Documents

GCM Reflections on the September 19 Outcome Documents:
Most of the work is yet to be done, and States need to act now.

August 2016
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On August 2, after several weeks of intense negotiations, the Member States of the United Nations adopted a Political Declaration and two Annexes as outcomes for the upcoming September 19 United Nations Summit addressing large movements of refugees and migrants. We applaud the work of the Co-­facilitators in forging this agreement and we welcome States’ commitment to “reaffirm, and… fully protect, the human rights of all refugees and migrants, regardless of status.”

But what the Declaration really reveals is States’ reluctance to act collectively to make concrete commitments ensuring implementation of respect for migrants’ and refugees’ rights in practice. Worse, some States actually insisted on language that backtracks from existing standards; the US-­led weakening of the draft language­­ that had recognized that detention for purposes of assessing immigration status is NEVER in the best interest of the child and committed States to ending the practice­­ was especially shameful.

Elsewhere, in paragraph 2.3, some States’ security concerns led to commitments to strengthening cooperation to keep people out, with insinuations of connections between terrorism and refugees and migrants. This is despite a lack of evidence that deterrence and securitized borders keep people from attempting—and sometimes succeeding at—irregular entry, especially when they are responding to unmet labor demand in the destination country.

Perhaps even more importantly, State deterrence policies are completely inconsistent with the important expressed commitments to combating racism and xenophobia and to “changing the narrative” to emphasize the positive contributions migrants make to societies of destination as well as origin. On the contrary, State policies preventing regular entry, criminalizing irregular entry and detaining migrants who enter or stay without documents can only contribute to the demonization of migrants and refugees. This is intensely counterproductive to combatting racism and xenophobia and achieving the social cohesion and integration that we all seek.

We call on States to stop wasting time. There are many millions of migrants living and working around the world, most working in low­wage jobs in the informal economy­­ in agriculture, domestic work, construction, and various service sector jobs. Their conditions of life outside of the framework of legal and social protection impose risks and burdens on them, but also negatively impact the rest of society and the potential for social integration. We call on States to show leadership and take action now to:

  • End criminalisation of migrants and ensure that irregular entry or stay is only ever an administrative offense and not grounds for detention;
  • End detention of migrants (children, pregnant women and families most urgently) for purposes of assessing migration status and implementing alternatives to detention, and recognize that international standards state clearly that detention is never in the best interest of the child;
  • Ensure firewalls between immigration enforcement authorities on the one hand, and other government agencies and services on the other, enabling all migrants’ access to social services and to the criminal justice system to report crimes against them, without fear of being detained or deported;
  • Respect the rights of irregular migrants at work and outside of work, including access to healthcare, including reproductive health services for women; accommodation, and access to education for children;
  • Ensure that gender issues are fully addressed at the levels of law, policy and practice so as to empower women in migration and allow them to enjoy full and equal rights protection and benefits from migration;
  • Address the need for paths for regularization of irregular migrants in the interests of social cohesion and integration.

Well governed migration must be more than merely “safe, orderly and regular”; it must also protect migrants’ human rights and guarantee access to justice when those rights are violated. Responsible and coherent collective approaches to migration governance must focus on developing mechanisms to allow people to move regularly across borders—whether to make asylum claims, to work, to look for work, to return home, to return to a job, to get education or training, or to reunite with family members. Recognizing that most migration is for labor, we call on States to commit to progressively improving standards for regular migration programs, and to ensure their effective implementation. Improved labor standards must:

  • Focus on the rights of migrants, benefits to migrants and preferences of migrants as central concerns of regular labor migration programs, not simply benefits to origin and destination states, which often come at the expense of migrants and their families;
  • Reform temporary and circular migration programs to enable workers to fully exercise their rights, including the right to organize and collectively bargain, to use visa portability to change employers and to access justice for protection from retaliation;
  • Provide migrant workers with the widest possible range of mobility choices, including paths to permanent residency and citizenship, with the right to family reunification;
  • Improve transparency, accountability, and adequate standards in labor agreements, preferably by involving the ILO and social dialogue partners;
  • Develop and expand mechanisms for recognition of skills and qualifications at all skill levels;
  • Go beyond current efforts at recruitment reform, developing effective oversight and portable justice mechanisms to guarantee access to justice and end impunity of exploitative recruiters and employers.

We note that if States ratified the nine core international human rights treaties and ILO Conventions including 97, 143 and 189, domesticated them in national law and implemented them in policy and practice, they would effectively address almost all of those urgent needs for reforming regular labor migration programs. Paragraph 3.8 asks States to “consider” ratifying or acceding to the 1990 Convention on the Rights of All Migrant Workers and Members of Their Families. We call on States that have not done so to do more than consider it, and to ratify the Migrant Workers Convention now.

We urge States to work both individually and collectively, now and through the Global Compact negotiating process, to address the issues we have outlined and to do so as part of a genuinely multi­stakeholder process. States must take advantage of the mandates, expertise and capacity of UN and other intergovernmental organizations as well as that of civil society, including migrant and migrant­led organizations.

We also urge States to devote greater attention to addressing drivers of forced migration and to supporting better migration and mobility choices for all. While we focused here on improving the respect, protection and fulfillment of migrants’ rights, we want to emphasize that the ultimate goal­­ of the UN, of its Member States, and of global governance­­ must be the respect, protection and fulfillment of the human rights of all. Looking toward achieving the 2030 Sustainable Development Agenda and beyond, States and all stakeholders must take a view of the place of human mobility in the future of humanity that is both longer and broader.


Statement: End Child Detention

Don’t Lower the Bar on Children’s Rights:
End the Detention of Migrant Children!

August 2016
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On September 19, UN Member States are coming together for a High Level Summit to collectively address large movements of migrants and refugees. But instead of rising to meet the challenge, some countries are trying to back away from existing obligations and standards. One of the most alarming examples was the successful last­-minute attempt to weaken language in the Summit’s Political Declaration, which in early drafts reaffirmed that detention is NEVER in the best interest of the child and committed to end the detention of children for purposes of assessing their (or their parents’) migration status.

“Best interests of the child” is a legal principle articulated in the UN Convention on the Rights of the Child, the most widely­ratified of international human rights instruments. Of all the countries in the world only the United States has failed to ratify it. But in U.S. law and the law of most countries, the “best interests” principle is enshrined in national (and sub­national) law as a primary consideration in decisions concerning a child’s welfare.

It is shameful that the U.S., together with other wealthy countries that pride themselves on their respect for human rights and rule of law, has acted in such a heavy­handed and clumsy way in an attempt to defend the indefensible.

The offending language of the Summit’s Political Declaration, as advocated by the U.S., is found in Paragraph 2.12, which states:

… Furthermore, recognizing that detention for the purposes of deter mining migration status is seldom, if ever, in the best interest of the child, we will use it only as a measure of last resort, in the least restrictive setting, for the shortest possible period of time, under conditions that respect their human rights and in a manner that takes into account, as a primary consideration, the best interest of the child, and we will work towards the ending of this practice.

This language is inconsistent with and backtracks from multiple authoritative interpretations of the best interests of the child:

The Convention on the Rights of the Child

“…no child shall be deprived of his or her liberty unlawfully or arbitrarily” [Art. 37(b)] and children have the right not to be separated from their parents against their will [Art. 9].

The Committee on the Rights of the Child

“Children should not be criminalized or subject to punitive measures because of their migration status. The detention of a child because of their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status” (DGD 2012, Para 78).

The Special Rapporteur on the Human Rights of Migrants

The detention of children and adolescents, even for short periods, is detrimental to their physical and mental health. “Children in immigration detention are often traumatized by the experience and have difficulty understanding why they are being ‘punished’ d espite having committed no crime.” “The conditions of detention, which may include overcrowding, forced separation from family, sharing cells with adults, exposure to sexual abuse and violence and lack of adequate food, have a negative impact, both from a human rights and a developmental perspective. In addition, children in detention are often deprived of access to education, health and play and leisure facilities” — none of which can be said to be in a child’s best interest.

The Inter­-American Court of Human Rights

The “last resort” caveat, does not apply in the case of migrant children on the grounds that this principle was developed to respond to criminal offenses, not for administrative offences like irregular border crossings. “…the deprivation of liberty of children based exclusively on migratory reasons exceeds the requirement of necessity, because this measure is not absolutely essential in order to ensure their appearance at the immigration proceedings or to guarantee the implementation of a deportation order… the Court finds that the deprivation of liberty of a child in this context can never be understood as a measure that responds to the child’s best interest.”

The UN Committee on Migrant Workers

“…it has been repeatedly stated that the detention of child migrants cannot be, in any case, in line with the principle of best interest of the child (…) there is a consensus that unaccompanied or separated children from their families should not be deprived of liberty. Families with children should also not be deprived of liberty, and detention cannot be justified on the grounds of preserving family unit.”

In the U.S., E.U. countries, and elsewhere the rights of children are violated every day as a result of punitive immigration detention regimes. Held in detention centres, unaccompanied or with family members, for immigration status violations or separated from detained parents or guardians, detained children are deprived of their rights to liberty and family life. They are taught at a young age what it means to be members of a criminalized community and experience the impacts of xenophobia and racism, which are further amplified by such policies.

As Member States move into a two­-year process of negotiations of a Global Compact on Migration, we demand that they prioritize the legal and moral obligation to ensure the highest standard of protection for migrant children and reject provisions that would put children’s rights at risk. States must affirm that detention is never in a child’s best interest and immediately end the practice of detaining migrant children.


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