Irregular migration, trafficking and smuggling of migrants: A dilemma for states

Irregular migrant is applied to persons, “who infringe a country’s admission rules and any other person not authorised to remain in the host country”.

The definition of irregular migration is broad and refers to irregular flows with respect to irregular migrants.

Irregular migration poses dilemmas for states, apart from exposing migrants to insecurity and vulnerability.

Sensitive as it is, politically, most states have failed to manage or control irregular migration effectively.

This is a global problem.

Irregular migration from the East and the Horn of Africa to southern Africa presents countries along these routes with a new challenge: How to manage these flows while ensuring that the human rights of migrants are respected and protected.

To better manage these irregular migration flows, the governments of Ethiopia, Kenya and the United Republic of Tanzania have, for instance, held several bilateral and trilateral technical meetings since 2014.

Despite the political relevance of the phenomenon, assessments of the size of the irregular migrant population are vague and there are doubts as to whether granting amnesty or mass deportation will solve the problem of having tens of millions of people living in a country illegally.

This report proceeds from the standpoint that irregular migration cannot be managed on a unilateral basis by individual destination states, but requires meaningful cooperation between countries of origin, transit and destination.

Control measures instituted by only receiving states are unlikely to dismantle the problem.

In certain parts of the world, policy on irregular migration is driven by the perception that countries risk being ‘overwhelmed’ by large numbers of irregular migrants, who embody a threat to states and society.

While all states in the international system have the right to control their national borders, what is required are more effective collaborations with sending states and non-state actors to address the issue. Effective approaches will take note of both the concerns of states and the need to protect the rights of irregular migrants.

Political will

At the same time, it is essential to be realistic about the initial expected outcomes.

Our analysis indicates that irregular migration may continue for the foreseeable future, although it may be possible to scale it down.

One reason is that certain states lack the political will to address irregular migration, as some of the issues are perceived to be politically-sensitive.

Irregular migration can be perceived as benefiting some countries of origin, for example, by removing a labour surplus and providing a source of remittances and overseas investment (Koser and Van Hear 2003).

Secondly, the push forces are equally ubiquitous and powerful.

The ability to modify them is very limited (Crisp and Dessalegne 2002).

Rule of law

While countries have, however, the sovereign prerogative to govern conditions of entry into and stay within their territory, they must always do so respecting human rights obligations.

Criminalising migration has not been shown to prevent irregular status and is a concerning practice that leads to a number of human rights violations.

The criminalisation of people on the basis of their migration status also reinforces false and xenophobic narratives — migrants are criminals and migration is a threat (A/HRC/20/24, para. 13; WGAD, Deliberation No. 5).

Under international human rights law, the criminalisation of irregular migration exceeds the legitimate interests of States in protecting their territories and regulating migration (A/HRC/13/30, para. 58).

Migrants in an irregular situation should not be treated as criminals or as national or public security threats (A/HRC/10/21, para. 68).

Such approaches push migrants to live and work in the shadows of society, increasing their vulnerability to exploitation and abuse.

In the current environment the available options to states are as follows: strengthening border security; collaborating with sending countries and strengthening interior enforcement.

Other options are improving the legal immigration system, implementing a better job programme, undertaking mandatory e-verify, eliminating illegal immigration rewards, offering blanket amnesty and authorising armed forces at the border.

Some migrants rescued at sea being transported to safety

CSDS role

The Centre for Strategic and Defence Studies, Africa (CSDS ), is a non-profit, non-partisan think tank dedicated to improvement in security and governance transitions in stable, fragile, failed and conflict-affected states in Africa.

From 2020-2025, the CSDS, Africa will seek partnership with governments across Africa, the European Union, ECOWAS and the Africa Union with regard to its Anti-Slavery Project.

CSDS seeks to implement a number of mutually reinforcing projects in the fight against irregular migration.

Slavery is not a thing of the past. Our mission is to amplify international law and policy options, hold governments accountable and develop capacities for safe, humane and dignified voluntary return as well as sustainable reintegration processes.

The ultimate long-term solution lies in the changing of economic conditions; the revising of current policies and opportunities created in the disadvantaged countries where illegal immigrants are from.

A combination of the possible solutions is most likely the best choice to implement a plan that conforms to the rule of law.

A key priority of the project is to support African governments to develop capacities for safe, humane and dignified voluntary return as well as sustainable reintegration processes.

Osei Bonsu Dickson is a lawyer and security expert

ACP (rtd) Mrs Patience Quaye is a former Head of the Anti-Human Trafficking Unit of the Ghana Police Service
Edem Kojo Spio is a programme lead at the Centre for Strategic and Defence Studies, Africa (CSDS Africa).