A Summary Report on the Human Trafficking Elements of the Findings and Recommendations of the Special Rapporteur on the Human Rights of Migrants
April 2003

Introduction
Franciscans International fully supports the mandate and the work carried out by the UN Special Rapporteur on the human rights of migrants, Ms. Gabriela Rodriguez Pizarro. Established in 1999 by the UN Commission on Human Rights, mandate of the Special Rapporteur is to:

• Request and receive information from all relevant sources, including migrants themselves, on violations of the human rights of migrants and their families;
  
• Formulate appropriate recommendations to prevent and remedy violations of the human rights of migrants, wherever they may occur;
  
• Promote the effective application of relevant international norms and standards on the issue;
  
• Recommend actions and measures applicable at the national, regional and international levels to eliminate violations of the human rights of migrants; and,
  
• Take into account a gender perspective when requesting and analysing information, as well as to give special attention to the occurrence of multiple discrimination and violence against migrant women.
  

In her report to the 59^th Session of the UN Commission on Human Rights, the Special Rapporteur again found that the global human rights situation for migrants is worrying. With widespread reports of inhumane detention, illegal trafficking, inadequate immigration policies and corrupt immigration officers, the need for national-level initiatives to combat its effects is increasingly evident.

In 2002, the Special Rapporteur made official missions to Mexico, the border region between the Mexico and the United States and to The Philippines. Her findings, summarized in the final section of this report, highlight again the importance of national-level strategies to protect the rights of migrants and the need for international attention in key areas.

Franciscans International will continue to monitor, report and intervene on the human rights dimension of migration, as per the request and input of Franciscan brothers and sisters around the world. We continue to believe, mindful of the importance of international coordination, that national and regional-level initiatives are the most effective way to protect the human rights of migrant workers and their families.

More information on FI’s Migration Program

 

Summary of the Report of the Special Rapporteur to the Commission on Human Rights
This year, the Special Rapporteur’s general report to the Commission on Human Rights (doc.: E/CN.4/2003/85) highlighted the situation of the human rights of migrants deprived of their liberty and formulated some recommendations in this respect.

"Deprivation of liberty is undertaken without due regard for the individual history of migrants."

The Special Rapporteur found that migrants are particularly vulnerable to deprivation of liberty. Not only there is a tendency to criminalize violations of immigration regulations and to severely punish them in an attempt to discourage irregular migration, but also a great number of countries resort to administrative detention of irregular migrants pending deportation. Deprivation of liberty is undertaken without due regard for the individual history of migrants. Victims of trafficking and smuggling are criminalized, detained and deported for infractions or offences committed as inevitable consequences of the violations they have suffered. Often there is a lack of specific provisions regarding the detention of children and other vulnerable groups, allowing for their detention in conditions that often violate their basic human rights and are detrimental to their physical and mental health.

The Special Rapporteur received worrying reports of criminal offences, such as theft or robbery, being planted by immigration officials on irregular migrants. Such incidents are often inspired by racist attitudes and beliefs. She observed that the tendency to arbitrarily resort to criminal proceedings for administrative infractions is more frequent where corruption of immigration officials is widespread.

"...undocumented migrants deprived of their liberty often do not receive adequate legal, medical, social and psychological assistance and protection, either by the institutions of the host countries or by their consular representatives."

In the context of administrative detention of migrants, the high degree of discretion and the broad power to detain to immigration and other law enforcement officials can give rise to abuses and to human rights violations. The failure to provide legal criteria can result in de facto discriminatory patterns of arrest and deportation of irregular migrants. Article 9 of the Universal Declaration of Human Right establishes that “no one shall be subjected to arbitrary arrest or detention.” This universally recognized principle is also enshrined in article 9 of the International Covenant on Civil and Political Rights. However, national laws often do not provide for judicial review of administrative detention of migrants. Even when the law requires that detained migrants be brought before an administrative or other court, this is often not done within the prescribed time limit. Legislation and practices allow administrative detention to become at times indefinitive or very lengthy, despite the fact that the facilities built or used for this purpose are not equipped for long-term detention. They do not provide for access to education, recreational activities and adequate medical services. In addition, undocumented migrants deprived of their liberty often do not receive adequate legal, medical, social and psychological assistance and protection, either by the institutions of the host countries or by their consular representatives. In several cases, owing to the lack of documents, migrants are not recognized as citizens by their consulates or embassies.

Summary of Recommendations
The Special Rapporteur, therefore, recommended that infractions of immigration laws and regulations not be considered criminal offences under national legislation. Governments should consider the possibility of progressively abolishing all forms of administrative detention and, when this is not possible, take measures to ensure respect for the human rights of migrants deprived of liberty.

She encouraged governments to ensure that consular and embassy personnel are adequately trained to provide assistance to nationals in distress broad, including irregular migrants. Mechanism of supervision of cases of negligence in providing such assistance should exist.

She invited NGOs to continue in their efforts to document and study the violations and abuses that migrants often suffer in the context of detention. She also encouraged the organizations of the civil society to develop programs to provides assistance to migrants deprived of their liberty, including legal counsel, translation services and social psychological assistance, and to regularly visit holding centers and penitentiaries where irregular migrants are held.

Finally she supported dialogue, through international and regional events and forums, with the participation of relevant international and regional organizations and representatives of the civil society, on international cooperation and arrangements for the establishment of migration management system.

 

Summary of the Report of the Visit of the Special Rapporteur to the Mexico/United States Border
At the invitation from the governments of Mexico and the United States of America, the Special Rapporteur on the human rights of migrants visited the common border between the two states from 7 to 18 March 2002 with a view to investigating the human rights situation of migrants who cross the border. We report on the links between migration and human trafficking that the encountered during her mission as well as on the specific recommendations that she issued at this respect. (Her complete report can be found in document E/CN.4/2003/85/Add.3).

"They cross the border illegally, in a delicate physical and psychological state, with worrying signs of exhaustion, dehydration and malnutrition, and with nothing more than the clothes they are wearing."

The border between the United States and Mexico is an important means of entry for many migrants who have left their places of origin and their families in the hope of a better future in the United States. A large number of migrants who arrive in the United States by crossing its southern border do so without documents, after having travelled long kilometres through inhospitable zones. Many of them have hired smugglers, more commonly known as pasantes, pateros, coyotes or polleros, and have invested all their savings in the journey. They cross the border illegally, in a delicate physical and psychological state, with worrying signs of exhaustion, dehydration and malnutrition, and with nothing more than the clothes they are wearing. When they arrive, migrants do not know the language, customs or local geography, which increases their vulnerability.

The Special Rapporteur was able to observe the alarming vulnerability of migrants when they fall prey to transnational organized crime networks. A source of concern is the expansion of trafficking and smuggling networks that unscrupulously exploit migrants’ need to cross the border into the United States, in spite of increasing efforts on the part of the two countries to combat such crimes.

"Many of the victims are women who come from the poorest parts of Mexico and who have been promised work as a nanny or a housemaid in the United States."

The Special Rapporteur was informed that trafficking in migrants is reaching serious proportions on the border between Mexico and the United States. Many of the victims are women who come from the poorest parts of Mexico and who have been promised work as a nanny or a housemaid in the United States. The Special Rapporteur received information about trafficking networks that recruit migrants on false pretences to work in conditions approaching slave labour on farms or in factories in the United States.

Recommendations
In view of the expansion of migrant smuggling and trafficking networks and the abuse of migrants by such networks, the Special Rapporteur welcomed the recent bilateral negotiations in which the two States pledged to combat such crimes, and invited them to take specific measures to that end, particularly by strengthening legislation that deals with such crimes and their punishment. The Special Rapporteur recalled that efforts to combat the smuggling and trafficking of persons must be made with respect for the human rights of the victims. The Special Rapporteur requested the relevant authorities of the two countries to increase their efforts to combat such crimes and investigate and punish alleged illicit practices by some public officials. In this context, the Special Rapporteur invited the Government of Mexico and the Government of the United States of America to ratify the Protocol against the Smuggling of Migrants by Land, Air and Sea and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.

The Special Rapporteur considered that programmes to treat victims of trafficking should be strengthened, and welcomed the new category of visas created for that purpose (T visas) in the United States. Nevertheless, as the Special Rapporteur has been informed, only 5,000 visas are granted each year, and anyone who wishes to request one must first have escaped from his or her exploiters and cooperated with the Government in the investigation, and demonstrate that his or her life would be in danger if her or she was deported. The Special Rapporteur was informed that migrants who claim to be victims of trafficking in persons are kept in preventive detention. Because of the difficulty of escaping from smugglers, the low level of police protection, the risk of being detained and subsequently deported, and their unfamiliarity with the English language, many women decide not to report such abuse.

 

Summary of the Report of the Visit of the Special Rapporteur to The Philippines
At the invitation of the government of the Philippines, the Special Rapporteur on the human rights of migrants visited the Philippines from 20 May to 1 June 2002. We report on the links between migration and human trafficking that the encountered during her mission as well as on the specific recommendations that she issued at this respect. (Her complete report is contained in document E/CN.4/2003/85/Add.4). ['http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/44a782e3f781212dc1256c8400437b2a?Opendocument']

"According to the Commission on Filipinos Overseas (CFO), 65 percent of the victims were women and 25 percent of them were forced into prostitution; 51 percent of the victims were trafficked with their consent/knowledge while 47 percent were deceived."

Almost all Philippine embassies and consulates worldwide have recorded instances of trafficking for forced prostitution, illegal labour and the bride trade. Women who travel with false papers and illegal documents provided to them by illegal recruiters are particularly vulnerable to trafficking. The Philippine Centre for Trans-national Crime (PCTC) recorded 881 cases in the period 1992-March 2001. According to the Commission on Filipinos Overseas (CFO), 65 percent of the victims were women and 25 percent of them were forced into prostitution; 51 percent of the victims were trafficked with their consent/knowledge while 47 percent were deceived. The Government repatriated 38 percent. The Special Rapporteur was informed that illegal recruiters, organized crime groups, including those involved in narcotics and arms smuggling, local pimps and procurers, entertainment promoters and impresarios were the traffickers.

"...there is no national legislation on the crime of trafficking."

The Philippines has ratified the United Nations Convention against Transnational Organized Crime and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the Convention. However, there is no national legislation on the crime of trafficking. At the time of the visit of the Special Rapporteur, there was a bill before the joint Senate Committees on Youth and on Women and Family on an Anti-Trafficking Act that had already been approved by the House of Representatives.

" ...women migrants are particularly vulnerable to trafficking and smuggling"

The Special Rapporteur noted with concern that women migrants are particularly vulnerable to trafficking and smuggling. The lack of information on national legislation on migration and on the conditions of work in countries abroad, the lack of awareness of the risks of irregular migration, the difficult economic conditions, the existence of a network of unscrupulous illegal recruiters, the high demand for sex workers and widespread impunity are all factors that increase the vulnerability of Filipino migrant women to victimization by trafficking and smuggling criminal networks.

The Special Rapporteur learned that bilateral and multilateral agreements are being sought so that victims of human trafficking and smuggling are not treated as offenders. A high-level governmental Working Group on Human Trafficking was established to develop a national strategy against trafficking and smuggling of persons. Other interesting programmes and projects brought to the attention of the Special Rapporteur were the Philippines-Belgium project on trafficking which aims to educate and train the public in preventive actions and provide social and legal assistance to victims. The Special Rapporteur visited PCTC and was informed that the Centre has the task of formulating and implementing a concerted programme of action for all law enforcement, intelligence and other government agencies for the prevention and control of, among other things, trafficking in women and children, particularly through improved coordination, research and the collection and centralization of data.

Recommendations
The Special Rapporteur welcomed the integration in the Human Rights Action Plan of provisions referring to irregular migration and the current debate on the enactment of legislation against trafficking. However, in this regard, she recommended to the country that:

(a) The Government continue negotiating with receiving countries in order to conclude agreements and devise policies for the revision of immigration policies and the regularization of immigrants where there is a strong demand; the repealing of legislation that discriminates against Overseas Filipino Workers (OFWs) and their inclusion in national labour and social legislation; the protection and non-criminalization of trafficked Filipino women and children; the extradition of traffickers/recruiters when cases have been filed against them in Philippine courts; and the identification of measures to combat the phenomenon of mail-order brides;

(b) Action to combat illegal recruitment, trafficking and smuggling be strengthened, including by strengthening the licensing system for recruiting agencies; undertaking regular inspections to Pre-departure orientation seminars (PDOs); ensuring that passports are not forged by asking workers to obtain them directly from the Department of Foreign Affairs (DFAs); enabling OFWs to report contract substitutions or alterations by providing adequate information and legal assistance abroad; establishing sanctions for violations of the full-disclosure policy; creating special courts to deal with cases of illegal recruitment; providing judicial organs in charge of prosecution with the necessary resources; strengthening the information and data system on migration; strengthening community-based organizations and activities to detect, report and monitor cases of trafficking and smuggling; and strengthening the certification procedure for entertainers and tightening controls for the provision of entertainers’ visas;

(c) A law on trafficking and smuggling and the absentee voting bill be enacted promptly; and,

(d) Foreigners detained in the Philippines pending deportation be given adequate access to courts and lawyers and their cases reviewed by competent authorities without undue delay, and steps taken to ensure that victims of trafficking to the Philippines are not criminalized.