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that the individual is unlikely to appear for an examination or a hearing, or where the officer is
not satisfied about the identity of the person. Some anti-terrorism legislation allows for the
detention of migrants on the basis of vague, unspecified allegations of threats to national
security. The high degree of discretion and the broad power to detain accorded to immigration
and other law enforcement officials, often coupled with a lack of adequate training, can give rise
to abuses and to human rights violations. The failure to provide legal criteria can result in
de facto discriminatory patterns of arrest and return of irregular migrants.
49. Moreover, there have been reports of searches that target the removal of migrants living in
a host country. In some cases States have resorted to police “raids” on private homes in
migrants’ neighbourhoods, arresting and detaining all residents who cannot show documents of
legal residence, leading to separation of children from their arrested parents, including children
born in such countries. All cases of expulsion should be decided upon on an individual basis and
States should ensure that no collective expulsions take place.36
50. With such diversity in national policy and law governing detention and expulsion, it is
important that irregular migration be seen as an administrative offence and irregular migrants
processed on an individual basis. Where possible, detention should be used only as a last resort
and in general irregular migrants should not be treated as criminals. The often erratic and
unlawful detention of migrants is contributing to the broader phenomenon of the criminalization
of irregular migration.
3. Smuggling and trafficking
51. The Special Rapporteur observes the continued abuse of irregular migrants who are
involved, whether deliberately or inadvertently, in smuggling and trafficking operations. Over
time the process of human trade has become more complex, whereby smugglers and traffickers
may use a combination of deceptive, clandestine, or even legal modes of migration, switching
strategies at different stages of the journey, and involving both legitimate and illicit actors at the
governmental and non-governmental levels (inter alia, border officials, intermediaries,
recruitment agencies, police officers, tourist agents, transport entrepreneurs and airline
employees).37 The facilitation of cross-border movements has increased to such an extent that the
networks rely on many players who may not be actively and knowingly participating in
smuggling or trafficking activities as such. There is a concern that, in the process of preventing
the proliferation of such networks and intercepting those involved, irregular migrants may not
receive adequate protection.
36
The prohibition on the collective expulsion of non-nationals is arguably a recognized
principle of international customary law. Indeed, the International Convention on the Protection
of the Rights of All Migrant Workers and Members of Their Families is the most protective
instrument for irregular migrants in international human rights law and affords additional rights,
such as elaborate individualized protection against expulsion, which is limited to lawfully
resident migrants in other instruments, such as ICCPR. See ICMW, article 22, and ICCPR,
article 13, and the discussion in Cholewinski, et al., pp. 10-14.
37
Lee, pp. 2-3.
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