The recent vast influx of migrants and refugees seeking to enter the European Union has justifiably drawn extensive media coverage and commentary. Daily we see images of families, many with small children, sleeping in the open, fighting to board trains to northern European countries, and, even worse, we see the bodies of children who have drowned trying to reach Italy or Greece.
While we have not seen similar events in the United States, anybody who follows domestic politics here knows that the “immigration” issue — including, of course, illegal entry and people-smuggling — is alive and well. Nor is it just a European and American phenomenon. In Southeast Asia, Rohingya refugees from Myanmar have suffered appalling (and largely unnoticed) mistreatment, and Australia has been forced to confront its own issue of “boat people,” determining that such individuals will not be permitted to enter Australia and implementing this policy with measures that almost certainly violate international law.
Incidents such as the discovery in Austria of 71 people who had suffocated in an abandoned truck draw condemnation of so-called “people smugglers” who, for payments estimated to range from a few hundred dollars to more than $10,000, arrange to move people across international borders but who often, either deliberately or accidentally, fail miserably to honor their bargain, with often fatal results.
It is very easy to point fingers at those who profit from human misery and politicians of all stripes have been quick to do so. However, excoriating people smugglers often extends to the people who are being smuggled, as if both groups are conspiring to commit immigration fraud. This, in turn, can be convenient for politicians who can play various immigration cards for domestic political purposes without troubling themselves greatly with what really is illegal and what is not. The problem with this is that it blurs very important lines between people who cross international borders — migrants and refugees.
Migrants are those who, usually for economic reasons, seek to permanently resettle in another country. All traditional “destination” countries in Europe, North America and Oceania have well-established policies governing economic migration to determine who is allowed to enter and under what circumstances. A refugee, however, is one who “owing to a 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,” according to Article 1 of the Convention and Protocol Relating to the Status of Refugees. Having refugee status does not guarantee that an individual will be permanently resettled in a particular country. However, refugee status does carry with it important rights as a matter of international law, including the right to identification papers and travel documents and personal rights applicable to citizens and legal residents of a receiving country.
A third group of people, internally displaced persons, arguably presents even greater humanitarian problems than migrants and refugees. The United Nations Commission on Human Rights estimates that there are more than 25 million displaced persons around the world. However, displaced persons do not become refugees until they cross international borders to find sanctuary.
There is no reason to doubt that people who currently struggle to enter destination countries comprise both migrants and refugees. Some are trying to find a better life or, at least, avoid constant warfare. But politicians and others who blur these categories are not just ignoring important international legal distinctions; they are also glossing over the legal rights of people who do have a well-founded fear of persecution, including the right to seek international protection and asylum.
It is true that mass exoduses create significant financial and logistical difficulties for receiving countries and that refugee determination is normally an individualized process. However, receiving countries may grant temporary protection or, in some cases, group determination of refugee status, and logistical difficulties are not legally sufficient reasons for building literal or figurative walls against asylum-seekers. The mere fact that someone has paid money to be “smuggled” does not mean that he or she is either undeserving of or lacks a legal right to protection, and blurring the lines between migrants and refugees, while convenient, is wrong.
Stephen R. Arnott is an associate professor of legal studies at Hamline University.