Civil Society Action Committee Webinar on Migrant Detention and Return
SIHMA had the pleasure of attending the first round of conversations on migrant detention and return, hosted by the Civil Society Action Committee in 2021. The Civil Society Action Committee which is a ‘global platform for civil society engagement on migration policy and governance’ [1] held a series of webinars in this round [2]. Civil Society Action Committee’s membership includes organisations working with migration and refugees. The Committees members include among others: Amnesty International, Caritas Internationalis, International Catholic Migration Commission (ICMC), International Council of Voluntary Agencies (ICVA), International Detention Coalition (IDC), NGO Committee on Migration (NGO CoM), Save the Children (StC) and the Scalabrini International Migration Network (SIMN), Terre des Hommes (TdH) and the United Nations Major Group for Children and Youth (UN-MGCY) [1]. SIHMA is one of the organisations, along with the Scalabrini Centre of Cape Town that form part of the Scalabrini International Migration Network (SIMN) which is one of the members mentioned above.
The Civil Society Action Committee in one of the recent webinars on 11 May 2021 brought together multiple people from across the globe to enter a conversation about the detention and return of migrants [2]. The goal of this webinar was to spark and begin a global conversation on migrant organizations. Furthermore, those included in the webinar shared a common concern about the seeming normalization of detention and the resulting deprivation of human rights. For example, the harsh conditions of most detention centres, the lack of access to attorneys to provide legal representation, and the fact that many detention decisions are not reviewed by a judge.
The discussion began with Michael Flynn, executive director of Global Detention Project [3], who answered the initial question “is it possible to have a global civil society advocacy on detention and if so, what does that look like?” Flynn turned to the example of the Global Compact on Migration [4]. He believes the compact to contain many positive attributes; however, the compact presented, in Flynn’s opinion, a one-size fits all narrative, which is not beneficial to the issue of detention and returns. Flynn then offered questions to keep in mind as the webinar continued:
o Does the country apply to immigration detention migrants and in what context (administrative, ad hoc, criminal)? If not, then why?
o Does the country have laws that prohibit any group from being detained?
o Is the country primarily a source or transit country or a destination country?
o Does the country have a time limit for detention procedures?
o What is the current regulatory framework for testing the necessity and proportionality of detention decisions?
At this point it may be useful to consider some definitions of terms raised in or relating to those used in the webinar.
Definitions
o Migrant: “An umbrella term, not defined under international law, reflecting the common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons” [5]
o Refugee: “A person who, owing to a well-founded fear of persecution 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” in accordance with the 1951 Convention and/or in the African context “any person compelled to leave his or her country “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country or origin or nationality” in accordance with the 1969 Convention Governing Specific Aspects of Refugee Problems in Africa [5].
o Asylum seeker: “An individual who is seeking international protection. In countries with individualized procedures, an asylum seeker is someone whose claim has not yet been finally decided on by the country in which he or she has submitted it. Not every asylum seeker will ultimately be recognized as a refugee, but every recognized refugee is initially an asylum seeker” [5] In other words “An asylum-seeker is someone whose request for sanctuary has yet to be processed. Every year, around one million people seek asylum” [6]
o Regularization: “Any process or programme by which the authorities of a State allow non-nationals in an irregular situation to stay lawfully in the country, by granting them a regular status” [5]
o Return Migration: “In the context of international migration, the movement of persons returning to their country of origin after having moved away from their place of habitual residence and crossed an international border. In the context of internal migration, the movement of persons returning to their place of habitual residence after having moved away from it.” UN DESA “defines returning migrants as “persons returning to their country of citizenship after having been international migrants (whether short term or long term) in another country and who are intending to stay in the country for at least one year” [5]
o In the webinar, the return of migrants was also used with regards to deportations, as the question of forced migration was raised.
Following Flynn’s remarks, the webinar focused on different countries and their current detention and returns.
Malaysia
Sumitha Shaanthinnni Kishna, director of Our Journey [7], offered insights on Malaysia. She believes we should be using the judicial system to challenge current procedures. She is also concerned with the criminalization of irregular migration. So, the judiciary system can be used to challenge the normalization of criminalization of irregular migration. In Malaysia, the punitive apparatus and administrative detention is used to deprive migrants of their rights. Detentions in Malaysia are a problem because of the conditions, the length, and the conveyor belt justice (no effort made to listen to the migrants), and their mass deportations. In Kishna’s opinion, the judiciary system is the best route to change.
In Malaysia, as Kishna explains, every migrant is viewed as a foreign national, no matter their status (i.e. refugee, child, asylum seeker). As a result, they are regarded as a security threat. Furthermore, immigration laws are strict and strong and hard to challenge [2].
Latin America
In regard to Latin America, Pablo Ceriani Cernadas, coordinator of UNLA (National University of Lanús) in Argentina [8], provided information on this region. According to Cernadas, there are two main trends that can be classified in terms of geography. In North and Central Latin America there is an increase in migration through Mexico, and the country is seen as a transit state. There are many structural challenges and many of the displacements occur because of irregular migration. In South America, there is an elimination from the legal framework from the use of detention. In 2017, a few detention centres were closed in line with progressive reforms. Furthermore, there have been 4 million Venezuelan migrants and no detentions; however, there has been a militarization of borders and a lack of consensus between various governments. There has also been a regression in some Latin American countries and an increase in detentions. The political agenda of certain governments are based on speech and the idea that migration is a threat has led to an increase in militarization. Cernadas believes there must be more regularization and social inclusion. There must also be an understanding that Latin America is heterogenous and solutions may vary based on the state [2].
Europe
Marta Gionco, advocacy officer at Platform for International Cooperation on Undocumented Migrants (PICUM) [9], provided information on the current environment in Europe. In Europe there have been three major reforms. First, there is the returns directive, which is the main piece of EU legislation. It was requested in 2008, and in 2018 there were 700 amendments to the document. This directive deals with the return of migrants to their home countries. Secondly, there is the reform in the EU border and Coast Guard Agency. The EU is planning to hire 100,000 new staff members to cover the coast guard by 2027. Finally, there is the Migration and Asylum reform which was published in 2020. The reform compromised 4 proposals and 5 recommendations which are being discussed by the Parliament and Council. This reform deals with the increasing returns and it believes returns are mandatory in migration policy. Gionco explains that these reforms are based on a binary division of the world. They also lack the understanding on what return means: is the return voluntary or forced? And what is voluntary? There is also very little research on what occurs after returns or deportations; however, the little research there is shows that the conditions of returns denies the migrants basic human rights. Gionco believes there must be a defunding of the border and security apparatus. Moreover, groups must address the role of private companies and the resulting lack of accountability in their dealing of migrants [2].
South Africa
Wayne Ncube, National Director of Lawyers for Human Rights (LHR), gave his opinions on the situation in South Africa. Ncube explains there has been legislation that has been passed to provide safeguards to protect people from detention, such as asylum seekers, refugees, and children. There has been, however, a lack of oversight which results in migrants being detained for years because no one implemented the laws in place. Lawyers then initiated litigation to secure the release of individuals. In 2018, the Constitutional Court said there should be judicial oversight which led to a decrease in detentions and deportations. Following the decision, the detentions fell from 30 – 40,000 individuals a year to 10,000.
In relation to COVID-19, there was an increase in concerns surrounding public health. As a result, over 20,000 low risk inmates were released, and detention numbers fell. There was, however, an increase in border control. While inland systems have been reformed to an extent, the border does not have the same implementation of laws to protect migrants. As a result, there have been 13,000 direct deportations at the border in the last 1.5 months [2].
James Chapman and Mary Cascarelli
SIHMA SIHMA
Project Manager Communications and Research Intern
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References
- https://csactioncommittee.org/
- https://csactioncommittee.org/webinar-4-detention-and-return/
- https://www.globaldetentionproject.org/staff/executive-director
- https://www.iom.int/global-compact-migration
- https://publications.iom.int/system/files/pdf/iml_34_glossary.pdf
- https://www.unhcr.org/asylum-seekers.html
- https://www.iias.asia/profile/sumitha-shaanthinni-kishna
- https://www.mideq.org/en/about-us/our-team/dr-pablo-ceriani-cernadas/
- https://picum.org/staff/
- https://www.lhr.org.za/about-us/#office-0
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