CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE HUMAN RIGHTS OF MIGRANT WORKERS IN THE CONTEXT … the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include…the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”. 31 The fundamental elements of smuggling are: illegal entry of the smuggled person into another state – it must be transnational, as human trafficking may also occur within a country’s territory – and the receipt of a material benefit by the smuggler. The offence of smuggling is defined 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”. 32 In practice, it may be difficult to draw the boundary between smuggling and trafficking, as elements of exploitation and abuse may emerge during transit or at destination, even in the presence of initial consensus on the part of the migrant. Smuggling and trafficking may occur on the same routes and smuggling can lead to trafficking, making it difficult to discern one from the other. 33 Both Protocols require states to criminalize trafficking and smuggling, implement domestic law enforcement mechanisms and cooperate with other states. The criminalization is not to extend to the migrants themselves who should not be subject to criminal prosecution because of their irregular entry. There is an essential distinction between the protections that both Protocols afford to migrants. The Trafficking Protocol establishes a wide range of protective measures, requiring states to consider “implementing measures to provide for the physical, psychological and social recovery of victims of trafficking in persons”, and to consider adopting legislative or other appropriate measures to enable trafficking victims to remain in their country “temporary, or permanently, in appropriate cases”. 34 The Smuggling Protocol, though only in its preamble, stipulates “the need to provide migrants with humane treatment and full protection of their rights”. Irregular Status There is a lack of a universally accepted definition of “irregular migration”. While highlighting this absence, international organisations attempt to define its boundaries. In this regard, the IOM, in its lexicon of central terms relating to migration, defines irregular migration as the “movement that takes place outside the regulatory norms of the sending, transit and receiving countries”. 35 It distinguishes the perspective of the sending country, where the irregularity of emigration refers to a departure in which a person crosses an international boundary without a valid passport or travel document, or does not fulfil the administrative requirement for leaving the country; and the perspective based on the transit or destination countries, according to which “irregular migration” refers to entry, stay or work 31 Article 3, Trafficking Protocol. 32 Article 3, Smuggling Protocol. 33 Migration Data Portal, Smuggling of Migrants . Available at: https://migrationdataportal.org/themes/smuggling- migrants. 34 Article 7(1). 35 International Migration Law, Glossary on Migration, IOM, 2019. Available at: https://publications.iom.int/ system/files/pdf/iml_34_glossary.pdf

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