Chapter 2: Migrants and migrant smugglers
Introduction
16.The way in which people are defined can have a great impact on how they are perceived and how they are treated. This is particularly problematic in the context of an emotive topic such as the current refugee crisis, in which words are loaded with political meaning. As Franck Düvell, Associate Professor and Senior Researcher, COMPAS, University of Oxford, told us, “There is so much rhetoric and there are so many narratives. The use of certain words tells me that the writer would rather narrate a particular story than look at the complexity of the issues.”11 Our aim in this report therefore is to be as clear and precise as possible in our use of words.
17.The aim of this Chapter, in particular, is to:
- investigate the different categories of people involved in migrant smuggling, both the smugglers and those who use their services;
- analyse some of the narratives put forward by different parties;
- examine a number of underlying issues and concepts that underpin the Action Plan; and
- provide a clear analysis of policy against migrant smuggling, both with regard to the immediate crisis, and in respect of the longer term.
Migrants, asylum seekers and refugees
18.The distinction between the terms migrant, asylum seeker and refugee has often proved elusive. It is, however, crucial to determining the policy approach that should be taken in order to address the current increase in the number of non-EU citizens being smuggled into the EU.
19.The term ‘migrant’ generally refers to anyone who moves from one place to another, though it often has economic connotations. One dictionary defines migrant as “A person who moves from one place to another in order to find work or better living conditions”,12 and a UN Convention defines it as a “person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.”13
20.Against this background, the title of the EU Action Plan against migrant smuggling could be taken to indicate that the Plan applies only to those individuals who seek to enter the EU for reasons of personal betterment. However, it is clear that this narrow definition of ‘migrant’ does not accurately reflect the large-scale movement of persons currently taking place. Rather, of those migrants smuggled into the EU, a significant number should be classified as ‘refugees’.
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The 1951 Geneva Convention defines a refugee as someone who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” |
Source: 1951 United Nations Convention relating to the Status of Refugees (‘Geneva Convention’): http://www.unhcr.org/3b66c2aa10.html (accessed 26 October 2015)
21.The 1951 Geneva Convention defines ‘refugee’ (see Box 1), and provides that refugees are entitled to protection from contracting states which receive them. This protection, also known as ‘asylum’, confers a number of rights, including in particular the right not to be expelled from the host state. ‘Asylum seekers’ are individuals who have made a claim to be entitled to such protection from a relevant host state,14 until such time as their request for asylum has been adjudicated. Some asylum seekers may not be refugees, but it should not be assumed that, if that is the case, such people are acting in bad faith.
22.If an asylum seeker’s claim is unsuccessful, the host state will normally seek to return him or her to their home country. Aware of this risk, some bona fide refugees may not attempt to claim asylum, preferring to live and work in a host country “informally”, in the words of one witness.15 Some refugees may also choose to do this because, having spent their lives in oppressive or corrupt states, they have a fear of law enforcement bodies. At the same time, failure to comply with any of the formal procedures for conferring refugee status may render the individual an ‘irregular migrant’. Indeed, most asylum seekers entering the EU currently do so as ‘irregular migrants’, as they do not possess the necessary documentation to apply for visas or other means of regular entry before lodging their claim.
23.There is thus an inherent ambiguity about the term ‘refugee’: according to the Geneva Convention, the status of refugee exists irrespective of any adjudication on individual cases; yet only such formal adjudication confers the legal protections enjoyed by refugees in their host country. This has led the UNHCR to develop a further concept, of ‘prima facie refugee’:
“During mass movements of refugees (usually as a result of conflicts or generalized violence as opposed to individual persecution), there is not—and never will be—a capacity to conduct individual asylum interviews for everyone who has crossed the border. Nor is it usually necessary, since in such circumstances it is generally evident why they have fled. As a result, such groups are often declared ‘prima facie’ refugees.”16
24.In conclusion, there is significant potential for confusion and overlap among the terms ‘refugee’, ‘asylum seeker’ and ‘migrant’. In this report we refer to all individuals entering the EU via one of its external borders collectively as ‘migrants’, on the understanding that this group encompasses a large number of prima facie refugees, along with economic migrants. Where we refer exclusively to those formally seeking international protection under the 1951 Geneva Convention, we use the term ‘refugee’.
Who are the migrants entering the EU?
25.On 3 June 2015 the Prime Minister said: “the vast majority of people who are setting off into the Mediterranean are not asylum seekers, but people seeking a better life.”17 In an evidence session conducted before our inquiry was launched, Mr Brokenshire also told us that the majority of migrants entering the EU by sea were economic migrants.18 In a subsequent letter to us, he qualified that remark by saying that he was speaking “in the context of information available on the central Mediterranean route at that date.”19
26.Other evidence casts doubt on the Government’s position—at least as it was in June. Andrej Mahecic, Senior External Relations Officer, United Nations High Commissioner for Refugees, provided the most recent figures available in June for the breakdown of the migrants reaching the EU by sea. He told us that 36 per cent of these individuals were of Syrian origin, with another 13 per cent and 11per cent coming from Eritrea and Afghanistan respectively. Syria, Eritrea and Afghanistan are all ravaged by civil war, and those fleeing these countries would appear to fall within the category of what the UNHCR calls ‘prima facie refugees’. Mr Mahecic therefore argued:
“The majority of those taking the sea route to Europe are refugees. Their numbers continue to rise rapidly. Most people arriving by sea are fleeing war, conflict and persecution at home, as well as deteriorating conditions in many refugee-hosting countries.”20
27.In written evidence, Amnesty International UK told us:
“The UK government should revisit and correct its analysis and narrative concerning the current crisis. Its understanding and approach, as evidenced by Ministers’ public statements, is inconsistent with available evidence; and will, if this narrative takes hold in general political and public discourse, increase the barriers or disincentives to adopting comprehensive and collective strategies commensurate with the nature and scale of the crisis.”21
28.Similar considerations apply to the Eastern Mediterranean route:
“There has been a major increase in refugees and migrants taking the eastern Mediterranean route from Turkey to Greece. More than 85 per cent of those arriving in Greece are from countries experiencing war and conflict, principally Syria, Afghanistan, Iraq and Somalia. From Greece, most move onwards across the Balkans to western and northern Europe.”22
29.The reality is complex even for migrants from sub-Saharan countries such as Niger, who may originally have moved to Libya for economic reasons. The situation in Libya has become increasingly dangerous due to political instability and civil conflict, while neighbouring countries have closed their borders. The result is that persons who were once economic migrants are now in need of protection. Elizabeth Collett, Director, Migration Policy Institute Europe, further highlighted the complexity of the situation saying that in general “motivations may change over time. They also may have multiple drivers attached to them.”23
30.The figures outlined above are subject to constant change as international events unfold. At the time of writing, the most up-to-date figures were provided by Frontex, the EU’s border agency, and the European Asylum Support Office (EASO). EASO reported that “In August 2015, the number of asylum applications recorded by EU+24 countries reached a record high for the fourth consecutive month, with over 148,880 applications reported.” Syria was the main country of origin (49,233 applications), followed by Afghanistan (20,033 applications). While a relatively high number of asylum seekers originated from the Western Balkans (16,472 applications), a further 31,332 applications were lodged by nationals of Eritrea, Iraq, Iran, Pakistan, Sudan and Somalia.25
31.Frontex reported that, from January–September 2015, the most popular routes for irregular entry to the EU were the Eastern Mediterranean Route (359,171 detected crossings), the Western Balkan Route (204,630 detected crossings), and the Central Mediterranean Route (128,619 crossings detected). Syria and Afghanistan were the top countries of origin for those taking the first two routes, with most of those taking the latter route being of Eritrean origin.
Figure 1: Main Land and Sea Routes of Irregular Entry into the EU
From left to right, the arrows indicate the Central Mediterranean Route, the Western Balkan Route and the Eastern Mediterranean Route, which are the main routes for irregular migrants entering the EU. The boxes indicate the top three countries of origin for each route.
Source: Frontex, ‘Migratory Routes Map’: http://frontex.europa.eu/trends-and-routes/migratory-routes-map/ (accessed 26 October 2015)
32.The evidence suggests that a majority of those currently entering the EU as irregular migrants are at least prima facie refugees as defined by the UNHCR. It is therefore appropriate to refer to the present crisis as a refugee crisis. We urge the Government to acknowledge that this is the case, and to ensure that the language it uses properly reflects this fact.
33.The Action Plan should be amended to acknowledge that those smuggled may be refugees. Equal focus should be placed on the humanitarian aspects of the refugee crisis as on law enforcement.
Trafficking vs smuggling
34.The Action Plan acknowledges that trafficking and smuggling are “different yet interlinked”: trafficking is the transportation of people for the purposes of exploitation, while smuggling involves the clandestine transporting of people across a border. Trafficking is, in itself, “a direct human rights violation” according to David Mepham, UK Director, Human Rights Watch, whereas smuggling is a crime against the state without necessarily involving a human rights abuse.26
35.As the Immigration Law Practitioners’ Association (ILPA) pointed out, “The distinction between trafficking and smuggling does not present a conceptual difficulty … when looking at factual situations, it can be complex to sort out what is going on.”27 Steve Symonds, Programme Director, Refugee and Migrants Rights, Amnesty International UK, told us: “People move … from situations of smuggling to situations of trafficking … Individuals may experience both in their journeys, so it is not easy to distinguish the two from a holistic approach to tackling the wider problem.”28
36.A number of witnesses stated that, regardless of whether trafficking or smuggling were involved, greater emphasis needed to be placed on the individuals being transported. Mr Mahecic told us:
“Those boats are carrying human beings who are entitled to their human rights and who are in need of international aid and protection. Therefore, all actions must scrupulously respect international human rights law, international refugee law, international humanitarian law and the law of the sea, and ensure the dignified, safe and humane treatment of migrants.”29
37.Amnesty International UK was also alert to the possibility that:
“The emphasis upon human trafficking in political rhetoric is also dangerous insofar as it is or may be used as a means to paint the current crisis as one primarily of criminality requiring a policing and border control response; rather than acknowledging and addressing the importance of conflict, brutal regimes and other driving forces behind people’s movement and the lack of safe and legal routes which lead to refugees and other migrants turning to smugglers or falling prey to traffickers.”30
38.The Action Plan is right to distinguish migrant smuggling from human trafficking. The latter necessarily involves a breach of human rights, whereas smuggling may not. The evidence suggests that in the majority of cases of irregular migration trafficking is not involved.
39.Nonetheless, governments, law enforcement bodies and other EU and Member State agencies must have regard to the likelihood that smuggled migrants are vulnerable people. They may at some time have been victims of exploitation, extreme hardship or indeed trafficking. Agencies must not simply treat migrant smuggling as a matter of criminal law, but also one with a humanitarian dimension. They must be ready to provide adequate support and assistance to smuggled migrants.
Smugglers as “evil” and “organised”
40.According to the Action Plan, “Ruthless criminal networks organise the journeys of large numbers of migrants desperate to reach the EU. They make substantial gains while putting the migrants’ lives at risk.”31 It is undoubtedly true that organised criminal groups are involved in migrant smuggling, and that their indifference to the safety of those migrants has led to many deaths.
41.According to Rob Wainwright, Director of Europol, Europol as the EU’s law enforcement agency has observed organised crime groups becoming less specialised and participating increasingly in illegal migration. He also made clear that there are “established criminal syndicates that are organising the smuggling operation from start point to end point, also with a very deliberate exploitation of the Internet as a recruitment mechanism.”32 This would indicate that a high level of sophistication is involved.
42.Mr Wainwright also linked people smuggling groups to those involved in other forms of smuggling such as the smuggling of drugs and firearms. In fact, some migrants were smuggled for the “express purpose to support the drugs distribution business in Europe.”33
43.He was especially concerned by the possible connection with terrorism. Although Europol had not actually witnessed this “potential threat manifested yet in a significant way,” he felt that there was a risk that smuggling networks might be exploited by groups such as Daesh. Europol was “very sensitive to any signs of that.”34
44.Fabrice Leggeri, Executive Director, Frontex, also assured us that Frontex, the EU border agency, had not received “evidence that potential terrorists have crossed the external border of the EU, taking boats with irregular migrants.”35 At the same time, he conceded that Frontex was not an intelligence agency and so would not necessarily have access to such intelligence. Nonetheless, Frontex was “increasing awareness” among the staff it deployed to screen and debrief migrants.
45.Mr Wainwright conceded that some migrant smuggling was merely opportunistic. Tom Dowdall, Deputy Director, Border Policing Command, National Crime Agency, went further, contrasting migrant smuggling with other forms of smuggling, such as drug smuggling, where one group of individuals oversaw the movement of the commodity from the country of origin to the country of destination. By contrast:
“The nature of the organised criminality in terms of illegal migration is far more compartmentalised. Of course, there is a degree of organisation, but quite often, the decisions around how the organised crime groups operate are taken by the migrants themselves, who will embark on their journey. Sometimes, they will embark on their journey quite legally; sometimes it may well be a bus ride across a border. It may well be some time, some hundred miles, before they first come into contact with a facilitator or someone who will arrange travel movements or safe houses.”36
46.Academic witnesses criticised the Action Plan’s failure to distinguish between the different motivations and methods used by smugglers. Ms Collett told us: “So much of smuggling is horizontal networks. We are talking about sometimes very local networks. Sometimes migrants themselves participate in the facilitation of smuggling to fund the next stage of their journey.”37
47.In the light of this complexity, the Migrants’ Rights Network recommended that, when smugglers are convicted of criminal acts,
“account should be taken of any measures smugglers take to improve the safety and well-being of their passengers when considering charging and sentencing. This would incentivise more to avoid the sort of ‘evil’ behaviour decried by the UK and French governments.”38
48.Migrant smuggling is a complex and little-understood phenomenon. The Action Plan, in its present form, fails to discriminate between the many individuals and organisations who are contributing to the current upsurge in migrant smuggling. These include organised criminal gangs at one end of the spectrum, and local groups, including groups of migrants themselves, who may have humanitarian motives, at the other. It is important that migrant smuggling is understood in all its complexity.
49.We support the high priority that is being given to guarding against terrorism, though we have seen no evidence to show that migrants have yet been smuggled into the EU for the purpose of committing terrorist acts.
12 http://www.oxforddictionaries.com/definition/english/migrant (accessed 27 October 2015)
13 2003 International Convention on the Protection of All Migrant Workers and Members of Their Families (United Nations Convention on Migrants’ Rights). UNESCO, ‘International Migration Convention’: http://www.unesco.org/new/en/social-and-human-sciences/themes/international-migration/international-migration-convention/ (accessed 26 October 2015)
14 Under the Dublin Regulation, it is generally for the Member State, through which an individual first enters the EU, to determine that person’s asylum status.
16 UNHCR, ‘Asylum Seekers’: http://www.unhcr.org/pages/49c3646c137.html (accessed 26 October 2015)
17 HC Deb, 3 June 2015, col 583
19 Letter of 20 July 2015 from James Brokenshire MP, Minister of State for Immigration: http://www.parliament.uk/documents/lords-committees/eu-home-affairs-subcommittee/EU-Agenda-on-migration/EU-Agenda-on-migration-James-Brokenshire-letter.pdf (accessed 26 October 2015)
24 The EU+ is composed of the 28 Member States plus Norway and Switzerland.
25 EASO, Latest Asylum Trends (August 2015): https://easo.europa.eu/wp-content/uploads/Latest-Asylum-Trends-Snapshot-September2015.pdf (accessed 26 October 2015)
31 Communication from the Commission: EU Action Plan Against Migrant Smuggling (2015–2020) (COM(2015)285 Final)