The right of refugees to seek protection in Europe is under threat from anti-trafficking initiatives.

The context in which refugee policy is framed within the European Union has changed dramatically since the 1980s. From being an issue of human rights and cold-war politics it had, by the early 1990s as the number of asylum claims rose, become an issue of immigration control. By the end of the decade the paradigm had shifted again to criminology, moving from border control to the fight against transnational organised crime.

Globalisation and trafficking

The Group of Eight Industrialised Nations (G8) has stated its commitment ‘to the fight against the dark side of globalisation: transnational organised crime which threatens to damage our societies and our economies’. The trafficking and smuggling of human beings is seen as a key element in such crime and each warrants its own protocol attached to the recently agreed United Nations Convention on Transnational Organised Crime. The significant actors in the globalisation process: transnational corporations, financial institutions and organised crime, all represent a direct threat to the sovereignty of nation states. In response, states can often react by opting for solutions that, however wasteful or inefficient, maintain at least the illusion of control.

There is no doubt that governments throughout the world now view human trafficking and smuggling as significant components of transnational organised crime. A survey of 45 countries by the United Nations in October 1999, showed that ‘trafficking/smuggling human beings’ incurs an average punishment of between 5 and 15 years imprisonment. This is comparable with other types of serious transnational crime such as trafficking in drugs (5-20 years), counterfeiting in money (3-10 years), money-laundering (5-15 years) and the smuggling of firearms (1-10 years).

No legal routes left

What is missing from all of the above approaches to the issue is a direct reference to the fact that human smuggling is now the only option for the vast majority of asylum seekers to reach the EU at all. Since the growth of common visa policies, carrier’s liability fines, airline liaison officers and readmission treaties there has been no compensating commitment to refugee resettlement or even a ‘refugee visa’ that would provide a legal migratory option for those in need of protection. Instead, refugees have had to run the gauntlet of illegal migration. Recent research has made two things clear:

• The vast majority of asylum seekers who reach Europe have required the assistance of a ‘human smuggler’ at some stage of their journey.
• The effect of blanket enforcement measures has been to push asylum seekers from using safer forms of ‘deceptive’ migration (eg using a regular air flight on a forged travel document) to ‘clandestine’ means which are both more expensive and hazardous to the women, children and men involved (eg being locked in the back of a lorry).

The fact that refugees might have to use ‘illegal means’ of entering a country of asylum is recognised in Article 31 of the 1951 UN Convention on the Status of Refugees. This realisation had sprung directly from the ‘human smuggling’ activities of people such as Varian Fry, Oscar Schindler, Raoul Wallenberg, Frank Foley and Nicholas Winton in the 1930s and 1940s rescuing Jews from Nazi persecution. However, a large number of Jews who sought protection in Britain in the mid-to-late 1930s were denied protection as there was no international treaty that obliged the government to consider each application within international norms. This is why Article 31 of the 1951 Convention is so important and why it is a thorn in the side of current EU ambitions to keep the majority of EU-bound refugees out of Europe altogether (despite the fact that we currently offer protection to less than 5% of the world’s total). We can expect that during the latter part of 2001, under the Belgian Presidency of the EU, there will be a concerted attempt, led by the United Kingdom, to deny refugees any dispensation for illegal entry onto European territory. This will be part of ‘regional solutions’ to keep the vast majority of Afghan refugees in Pakistan, Somalis in Kenya, Iraqis in Turkey etc, in huge refugee camps paid for by bilateral donations from the European Union or increased funding to UNHCR.

Creating an international crime

This is the perspective from which we should view European efforts to frame irregular migration as an international crime. By 1997, because of the increasing interest in the numbers of migrants arriving on the peninsula, the Italian government sought to promote an international convention to combat illegal migration by sea. This was to be presented in London at the 76th Session of the International Maritime Organisation in 1997. Instead, the Assembly referred it to their Marine Safety Committee as a resolution, noting that human trafficking per se was outside the remit of its organisation. The Italian proposal was then consolidated with an Austrian draft convention on the Smuggling of Illegal Migrants and was considered by the UN Commission for the Prevention of Crime and Penal Justice in April 1998. This has formed the basis for the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organised Crime that drew up the 2000 UN Convention on Transnational Organised Crime.

An excuse to end asylum?

Under the Organised Crime Convention a distinction is made between the ‘trafficking’ and ‘smuggling’ of humans, each warranting its own protocol. Trafficking involves exploitation that goes on after the arrival in the country of destination, such as bonded labour or prostitution. The consensus within the human rights community is that such illegal migration should be stopped at source. However, there were few refugee NGOs that paid much attention to the drafting of the Smuggling Protocol (‘smuggling’ meaning an assisted illegal border crossing with no ongoing exploitation) – despite the fact that most refugees are smuggled and not trafficked into Europe. Under the Smuggling Protocol, the migrant is not viewed as the blameless victim, but rather is partly complicit in the act of ‘illegal migration’. The common assertion is that human smuggling should now be criminalised out of existence, despite the fact that this would mean the end of European asylum policy as we know it. Too few human rights commentators have grasped the complexity of the situation – the fact that many refugees actively choose the smuggling process to escape persecution or to join their only remaining family in Europe. It is now an international offence to assist any person in an illegal border crossing, regardless of whether they are a refugee in need of protection or not. Is this really an issue of transnational organised crime, ‘the dark side of globalisation’, or more a Trojan horse to facilitate Europe’s desire to end the right of asylum upon its territory?

What we can do

European governments have been supremely successful in frustrating international human rights law by shifting the paradigm of refugee policy twice in the past 15 years, from human rights to border enforcement and then on to organised crime. Academics, lawyers and NGOs have been generally too specialised to adapt and so there has been no concerted defence of an asylum seeker’s right to access European territory to seek protection. It might now be too late but there is still time for a robust defence of the asylum principle, as set out in Articles 1, 31 and 33 of the 1951 Refugee Convention. Governments might also have over-stretched themselves under their commitments to the European Convention on Human Rights, in particular the jurisprudence under Article 3, which requires governments not to return any person to a country where they face torture, inhumane or degrading treatment. We must also be precise as to when we are talking about human ‘trafficking’ as opposed to ‘smuggling’. As there is a more immediate consensus in the case of the former, some governments will still use it as an umbrella term hoping that they win the support of the human rights community in its attempts to control all migration, including an end to unsolicited asylum.

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