Anti-Trafficking vs Immigration Control

Ever since concepts like the nation-state, citizenship, borders, sovereignty were established, there have been barriers for international movement demonstrated by physical constraints such as border control and systematic constraints such as immigration laws and visa restrictions. Both types of constraints embedded in a set of policies enabling states to control immigration flow through its borders. This frame of migration control policy created two labels: Legal immigrants who comply with the immigration laws and illegal immigrants who do not. The challenge of illegal immigration has augmented after the rise of international smuggling networks that facilitate the infiltration of borders and took advantage of migrants’ vulnerability and exploited them for profit.

This threat of illegal immigration accompanied by the growing smuggling networks as part on international crime organizations became a transnational trend that required the attention of international lawmakers and organizations who perceived trafficking and smuggling as serious crimes that affect not only individuals but also states. In response

This essay will explore and discuss the relationship between immigration control policies and anti-trafficking policies in light of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (hereinafter referred to as the Palermo Protocol). In doing so, traditional measures applied by each and the differences and alignments between both will be identified. Then, the essay will look into the question: Are anti-trafficking policies at risk of becoming indistinguishable from immigration control policies?

Before going further, it is worth mentioning that the consideration of the abovementioned comparison makes trafficking human beings within borders irrelevant. Therefore, any reference to trafficking in this essay will be referring to transnational trafficking in persons.

This alignment between anti-trafficking and immigration control policies finds root in the 1990s when the political discourse represented human trafficking as an ‘illegal immigration crime’ problem

The lines are blurry, Anti-trafficking policies end up criminalizing trafficked victims due to the lack of identification mechanisms and the heavy focus on the prevention function other than the support of victims and coordination to punish the traffickers (functions 2 and 3 in the protocol. Similarly, immigration control policies sometimes illustrate illegal immigrants along with trafficked persons as ‘victims’ in the context of return programs in order to create content for the information campaigns.

Difference between smuggling and Trafficking

When looking at the Palermo protocol and the smuggling protocol, we see how the language used in both is almost identical. However, Art.2 of the Palermo protocol called trafficked migrants ‘victims’ unlike the Smuggling protocol which called them ‘Smuggled migrants’. Moreover, the Palermo Protocol mentions the protection of the victims ahead of the promotion of cooperation to combat trafficking while the smuggling protocol listed cooperation to combat smuggling ahead of protecting the rights of the migrants; illustrating such protection as secondary or precautionary

In order to understand how anti-trafficking policies and immigration control policies align, we have to look into the definition of the subjects which such policies come to address in light of the international law (namely the Palermo protocol & the smuggling Protocol).

  • Definition of Trafficking in the Palermo Protocol: The definition of trafficking around victimization and exploitation and protection of victims as a core purpose.
  • Definition of smuggling: It focuses on the criminalisation of illegal border crossing. They both include border crossing, illegality is a condition for smuggling but not trafficking. Therefore, immigration control policies that merely target borders cannot address the issue of trafficking effectively.
  • Immigration control policies actually influencing trafficking: The relationship between immigration control policy and anti-trafficking policy is not always complementary.
  • Insufficiency of Anti-trafficking measures in transit areas: Because of the criminal nature of trafficking and its overlapping with smuggling, combatting traffickers through immigration-control measures such as border securitisation seems insufficient as anti-trafficking measures at this stage are overwhelmed by the former which emphasises the prevention of entry as the core concern other than the identification and protection of victims. Moreover, victims of trafficking who are in transit situation are most vulnerable and still under the influence of traffickers or their agents and apparently less willing to cooperate with the authorities to expose formers.

What are Immigration policies

Immigration policies come in two main categories: selection and admission policies which set the criteria of acceptance into the country and are applied on prospective migrants before they enter the country of destination. And residency policies which embed the conditions of legal stay and mechanisms of monitoring migrants already resident in destination countries. (Avdan, 2012) P176

Both policies apparently have an impact on human trafficking (ibid.). Rrigorous admission policies influence trafficking by increasing restrictions for regular immigration and reducing the opportunities for migrants to come legally to the country. When the route to illegal immigration becomes more risky and difficult, the cost for smuggling becomes very high reaching to a point where smugglers become traffickers as they have a better chance exploiting the desperate potential migrants whose numbers increase as the restrictions get tighter . Moreover, in-country migration policies such as hostile environment may pose many immigrants who cannot comply with the strict requirements vulnerable for trafficking.

The shortages in the Protocol urges for a solid tools to protect victims similar to the TVPA. The TVPA created a nonimmigrant status for the trafficking victims who are non-citizens of the United States and established a new tier for them called the T-visa. T nonimmigrant status is a temporary immigration benefit that enables certain victims of a severe form of human trafficking to remain in the United States for up to 4 years if they have assisted law enforcement in an investigation or prosecution of human trafficking.

07 September 2020
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