SMUGGLING OF MIGRANTS: A SEARCH FOR NEW LAND

SMUGGLING OF MIGRANTS: A SEARCH FOR NEW LAND, NEW HOME, NEW LIFE.

Written by Garima Tiwari

In this picture, victims of human smuggling are intercepted along the Southern border of the United States of America. Photo credit/Wordpress

On May 16^th, 2013 Ecuador smashed a ring that smuggled immigrants from India and Sri Lanka into the US through Ecuador. Among the six people were arrested including three Indian nationals and two members of Ecuador’s immigration police. They brought in nationals from India and Sri Lanka, and arranged refuge for them in various hotels. The smugglers charged USD 5000 per person and after entering Ecuador illegally, the migrants would be sent to Central America and from there to the United States.[i]  Incidents of South Asians being smuggled into the U.S. via Latin American nations are not new. In 2011, Mexican authorities in Chiapas discovered two tractor-trailers carrying a total of 500 Central Americans, Indians and Chinese who had just crossed the Guatemalan border. In the same year, Mexican immigration investigators disrupted a smuggling ring “after arresting three frightened Indians at the Tapachula airport. The Indians carried seemingly legitimate visas for Mexico but admitted their intent to sneak into the U.S”.[ii]

Each year, criminals are estimated to generate around $6.75 billion from the smuggling of migrants along just two of the principal routes used for such smuggling, namely from East, North and West Africa to Europe and from South America to North America. [iii] In the Americas, an estimated three million illegal migrants enter the United States of America from Latin America each year, which generates an annual income of about $6.6 billion for the criminals involved. Some 55,000 migrants are thought to be smuggled between East, North and West Africa and Europe every year, earning criminals a net profit of $150 million. [iv]

The MV Sun Sea cargo ship brought 492 Tamil migrants to the B.C. coast in August 2010 ( Source: ocanada.com)

 A popular smuggling route is from Turkey to Greece, onwards to Italy, and through Central Europe to Belgium, before continuing to the United Kingdom as the final destination.[v]Iraqi nationals are known to smuggle hundreds of migrants along this route mainly from Iraq and Afghanistan, but also from  China.[vi] Smuggled into Belgium by an Indian network, the migrants are then handed over to the Iraqi smuggling network who facilitate the onwards journey to the United Kingdom. On finding a suitable smuggler, Chinese smuggled migrants pay a deposit from US$1,000 to US$2,000 so the smuggler can obtain the required fraudulent documentation.[vii]The passport is not given back to the migrant until full payment is received. Once the migrant has reached the European Union (e.g., Czech Republic), the migrant is asked if the United Kingdom is the final destination. If yes, the migrant pays an additional fee to an associate of the European-based smuggling coordinator with cash carried from China.  Typical amounts are around US$600 for the journey to France, and then an additional US$4,700 from France to the United Kingdom (which requires leaving the Schengen area).All financial flows between China and Europe are managed internally by the smuggling network through a hawala-like system. [viii]

Although focused primarily on the economic aspects of smuggling, the smuggling business theory looks at the link between smuggling networks and organized crime syndicates. According to Salt and Stein, smuggling of migrants is an established branch of a well-organized “international gangster syndicate”.[ix] The concept of “organized criminal group” is defined by article 2 (a) of the United Nations Convention against Transnational Organized Crime as a structured group composed of at least three persons, acting in concert with the aim of committing one or more serious crimes to obtain financial or material benefit.[x] However, in many publications, the concept of organized crime is used in a generic sense  without referring to the United Nations definition. Naylor has argued that organized crime groups differ from other crime groups in that they specialize in enterprise, have a durable hierarchical structure,employ systemic violence and corruption and extend their activities into the legal economy.[xi]

The Smuggling of Migrants Protocol supplementing the United Nations Convention against Transnational Organized Crime[xii] defines the smuggling of migrants as the:

“procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal  entry of a person into a State Party of which the person is not a national or a permanent resident.” (Article 3, Smuggling of Migrants Protocol).

In order to comply with the Smuggling of Migrants Protocol, Article 6 requires states to criminalize both smuggling of migrants and enabling of a person to remain in a country illegally, as well as aggravating circumstances that endanger lives or safety, or entail inhuman or degrading treatment of migrants. By virtue of article 5, migrants are not liable to criminal prosecution for the fact of having been smuggled. It is therefore understood that the Protocol aims to target smugglers, not the people being smuggled.[xiii]

Contrary to the concept of smuggling, the notion of irregular migration does not have a universally accepted definition. In looking at the relationship between the two concepts, Friedrich Heckmann stresses that smuggling of migrants plays a crucial role in facilitating irregular migration, as smugglers may provide a wide range of services, from physical transportation and illegal crossing of a border to the procurement of false documents.[xiv]

There are differences between Migrant Smuggling and Trafficking in Person which have to be kept in mind because the consequences of mistakenly treating a trafficking victim as a smuggled migrant can be very severe for the victim.

Source: UNODC [xv]

Migrants are often smuggled by organized criminal networks that exploit the lack of legal migration opportunities available to migrants seeking a better life. As legal immigration channels become more limited, an increasing number of people seek the assistance of smugglers, who take increasingly risky measures to circumvent border controls. Since the smuggling of migrants is a highly profitable illicit activity with a relatively low risk of detection, it has proven attractive to criminals.[xvi] According to a typical characterisation: “[The smuggling network] is like a dragon. Although it’s a lengthy creature, various organic parts are tightly linked.”[xvii]

Smuggling routes may originate and end on the same continent, be transcontinental or involve transit through a third continent. As smuggling networks expand, the safety and lives of smuggled migrants continue to be at risk: many suffocate in containers, perish in deserts or drown at sea while being smuggled. Between 1996 and 2011, at least 1,691 people died while attempting desert journeys, and in 2008 alone a further 1,000 deaths occurred as a result of sea crossings.[xviii] Besides loss of life and the grave human rights abuses suffered by migrants as they undertake arduous and risky journeys, the smuggling of migrants fuels other forms of organized crime in the countries of origin, transit and destination. Smugglers are known to bribe government or border officials in exchange for documentation, thereby increasing corruption, falsify travel and identity documents both for themselves and for those being smuggled.

Asylum-seekers are an important clientele for people smugglers. Strengthened law enforcement activities in transit and destination countries means it is often more difficult for asylum-seekers to reach countries of their choice.[xix]Consequently, individuals employ the services of human smugglers for their specialised knowledge (e.g., the least risky routes) to reach certain countries. In addition to the prospects of being granted asylum, other major pull factors are existing communities and strong diaspora ties in Australia and the Chinese in Canada. Canada, for example, has the largest Tamil population (over 300,000) outside Sri Lanka and India. Under the circumstances, it is not surprising that all of the smuggled Tamils on-board the Ocean Lady and the MV Sun Sea ships in 2009 and 2010 made asylum claims when they reached Canadian shores, but above that are the Chinese.[xx] Existing social networks provide potential migrants or asylum-seekers with trusted information, financial loans for smuggling fees, and assist with immediate arrival challenges, such as overcoming language barriers in addition to finding accommodation and employment. [xxi]

India –Bangladesh Issue:

Since the 1971 war of independence that created the state of Bangladesh, millions of Bangladeshi immigrants (the vast majority of them illegal) have poured into India. While the Indian government has tried to deport some of these immigrants, the sheer number of them, as well as the porous border between the two countries, has made such an enterprise impossible. It is difficult to assess how many illegal immigrants are currently residing in India. Consider that in 1971, during the civil war in neighboring East Pakistan (the former name of Bangladesh), at least 10-million Bangladeshis poured into West Bengal in India. The majority of those migrants were Hindus fleeing persecution (rape, murder, forced conversion, etc.) from Muslims. In subsequent years, the bulk of illegal immigrants from Bangladesh were Muslims seeking to escape poverty. It has been suggested that over the last decade almost 1.4-million illegal Bangladeshis have migrated to India.[xxii]

The issue of Bangladeshi illegal migration has troubled the state of Assam , North East of India for decades now. Illegal migration from Bangladesh into Assam has been a major political, economic, social and security issue for Assamese society, so much so that it evoked the non-violent, highly visible, Assam Agitation (1979-1985) spearheaded by the All Assam Students Union (AASU). That agitation resulted in the Assam Accord of 1985 which stated that anybody settled in Assam from Bangladesh after March 25, 1971 is not a citizen, but an illegal migrant. This provision of the Accord has not been implemented and has therefore failed to change the nature of Bangladeshi immigration into Assam, now termed as a “silent invasion” with the majority of the infiltration taking place through the Dhubri district in lower Assam bordering West Bengal, the districts of Cachar and Karimganj in Assam bordering Bangladesh and the 443 km Bangladesh-Meghalaya border. [xxiii]

Though there is no documented data on the number of illegal migration, it is assumed that out of the 26 million people residing in Assam, around six million are illegal Bangladeshi migrants. Significantly, in order to tackle the issue of illegal migration into Assam, the Centre set up the Illegal Migration (Determination by Tribunals) Act, 1983 on December 12, 1983 under an act of Parliament. Applicable only to the state of Assam, the IMDT Act provided that anybody settled in Assam before March 25, 1971 was a legal citizen. Significantly, for the rest of India, the cut off date for acquiring Indian citizenship is July 19, 1948. The IMDT Act also laid the onus on the complainant rather than on the accused to prove the latter’s citizenship status. (The Foreigner’s Act, 1946, in contrast, lays the responsibility on the accused, and not on the complainant, to prove his/her citizenship status.) This was a killer clause as the person accused had to do nothing to prove his/her citizenship whereas the complainant had to prove that someone was illegal. The IMDT Act therefore failed to effectively identify and deport illegal migrants.

Subsequently, on July 12, 2005, a three judge Bench of the Supreme Court comprising Chief Justice R. C. Lahoti, Justice G. P Mathur and Justice P. K. Balasubramanyan ruled that the IMDT Act “created the biggest hurdle and is the main impediment or barrier in identification and deportation of illegal migrants.” The Bench also noted strongly that despite the fact that enquiries were initiated in 310,759 cases under the IMDT Act, only 10,015 persons were declared illegal migrants and out of this declared number, only 1,481 were physically expelled as of April 30, 2000. In comparison, West Bengal, which also has a huge influx of illegal Bangladeshi migrants, has deported nearly half a million till date under the Foreigners Act, 1946. The Bench held the Act unconstitutional and stated that it contravened Article 355 of the Constitution. Article 355 of the Indian Constitution entrusts upon the Union of India the duty to protect every state against “external aggression and internal disturbances”. The Supreme Court also directed the setting up of fresh tribunals under the Foreigners Act, 1946 and Foreigners (Tribunal Order) 1964. The effectiveness of these legal mechanisms to deal with the issue is however suspect. Till date, about 12 lakh Bangladeshi nationals have entered India legally with visas but have subsequently vanished without trace. This reflects the inability on the part of law enforcement agencies to perform the tasks of detecting and deporting these Bangladeshi citizens.[xxiv]

AT this juncture it is interesting to note how the Indian Judiciary is responding to this situation. Calling illegal migrants “parasites” that drain the country’s economy, a trial court directed Delhi government to identify and deport all foreigners living illegally in the capital. “The chief secretary is asked to identify the foreigners living in Delhi illegally and ensure that they are sent back to their respective countries as early as possible,” additional sessions judge Rajender Kumar Shastri said while asking for a quarterly report from the government “till the last identified illegal migrant is expelled”. The court’s directions came while sentencing four Bangladeshi nationals — all illegal migrants — to 13 years in jail for carrying out robbery in south Delhi. Taking serious note of the offence, the court said that such illegal migrants are responsible for draining “already dwindling natural resources of the country”. “If the illegal migrants from neighbouring countries are counted together, they may form a population equal to a country of moderate size…They deprive local residents from their meager incomes by pumping in cheap labour,” he said.          The court also directed that a copy of the order be sent to chief secretary, Union of India, “who may proceed to frame a National Policy on how we can tackle… illegal migration from neighbouring countries”.  [xxv]

While there is no clear policy on how to deal with the situation. As of now they have to proceed against such agents under the Indian Penal Code. Mostly agents involved in the smuggling are charged under the offence of ‘Cheating’ which is difficult to establish in the absence of adequate evidence resulting in acquittal of most of the agents. Few states like the State of Punjab in India have decided to implement “The Punjab Prevention of Human Smuggling Act, 2010” which seeks to regulate the profession of travel agents to check their illegal and fraudulent activities and malpractices of those involved in the organised human smuggling in Punjab[xxvi]. The initiative of the state government of Punjab to create a cell in every district to investigate the cases of irregular migration has made a positive impact as cases are investigated promptly and many agents could be arrested due to timely action by the investigating officers.[xxvii] Other states should come up with such legislation and a central monitoring authority should be established to deal with the issue.

A look must be made to the Model Law against the Smuggling of Migrants developed by United Nations Office on Drugs and Crime (UNODC) [xxviii] for developing such legislations and policies.

The key to combating the smuggling of migrants is to increase international cooperation, reinforce national coordination and ensure that the laws of the countries involved are harmonized in order to close legal loopholes, since the practice is by nature a transnational crime and the smugglers involved operate in networks. In addition, issues of migration and development need to be examined closely in order to better understand the root causes and prevent organized criminal groups from profiting from vulnerable groups. Assessment of the situation of migrants and accompanying principles of  protection should focus on risk of harm and on the protection of the human rights of migrants, rather than solely on their motives or their purpose in travelling – even if categorical distinctions (such as asylum seeker, irregular, smuggled, trafficked) have some descriptive and legal value.[xxix]