“The Future of Migration is Mixed”
Why mixed migration movements endanger asylum seeker processing and how policy makers can fix it.
The IOM once predicted that the “future of migration is mixed”, meaning that more and more of the people migrating would move along the same migratory routes, but for different reasons (ex: refugee, worker, asylum seeker, family member, etc). Mixed migration is already happening, and so far our immigration systems are not handling it well.
The Mixed Migration Centre explains mixed movements are when a:
“collective movement of people[s] with a range of legal statuses and motivated by a variety of factors” migrate together, almost legally indistinguishable from the other, driven by diverse factors, such as “political, social, and economic forces that are often highly localised in origin but global in impact”.
Mixed movements often include persons with mixed regular and irregular legal status. Commonly, those in mixed migration movements move in and out of legal status throughout their migration route, depending upon the domestic laws of each country through which they transit. People who move in mixed movements “often place their lives at risk, are obliged to travel in inhumane conditions and may be exposed to exploitation and abuse”.
Mixed migration movements are often called differently in news headlines, which can wrongly cultivate a feeling of lawlessness or invasion, especially when paired with collectivizing and dehumanizing language. Using words like caravans, flows, swarms, surges or masses to describe the people crossing the border aren’t only incorrect, but inhumane. For migrants, refugees and asylum seekers, labels matter.
Mixed migration at the southern U.S. border
Mixed migration movements occur around the world; within the Americas, such movements commonly include migrants from North, Central and South America, the Caribbean, and Africa. The United States, in an effort to stymie irregular migration at its southern border, proposed aid to address underlying causes of displacement in Central America as well as “encouraged Mexico and Guatemala to ramp up their border security to prevent irregular migration northwards through their territories”. Between October 2020 to June 2021, the greatest numbers of mixed migrants at the United States southern border were Mexicans (42.8%), Hondurans (18.3%), Guatemalans (16.5%) and Salvadoreans (5.6%).
Mixed migration in international law
Mixed migration movements fall under several relevant international legal regimes: refugee law, to protect refugees on the move; human rights law, to protect all persons on the move regardless of their legal status; international humanitarian law, to protect people moving through States in conflict; and transnational criminal law, to protect persons subject to trafficking.
Marina Sharpe, Assistant Professor of International Law at Royal Military College of Canada, explains that the obligation of a State to respect the rights of the persons in mixed migration movements occurs when they are within a State’s territory, at a State’s border, or in a place where the “State has de jure or effective de facto control over them”. However, whether within the State territory or extraterritorial jurisdiction of the State, the asylum seeker or migrant is still “entitled to the respect, protection, and full enjoyment of his or her human rights under international law”.
Why mixed migration movements endanger asylum seekers
One of the ways States have responded to mixed movements is by preventing migrants, asylum seekers or not, from accessing their territories. These ‘pushback’ policies endanger the rights of asylum seekers by not allowing them individual credible fear interviews to start their asylum petitions, and instead forcibly return them to wait in often dangerous conditions across the border, where violence is regularly targeted at returned asylum seekers.
Fixing the problem: individual assessments
Instead of summarily pushing back everyone at the border, Customs and Border Patrol must individually assess each migrant to identify who qualifies for refugee protection and who does not.
The Global Compact for Safe, Orderly and Regular Migration explains:
“Refugees and migrants are entitled to the same universal human rights and fundamental freedoms, which must be respected, protected and fulfilled at all times. However, migrants and refugees are distinct groups governed by separate legal frameworks. Only refugees are entitled to the specific international protection as defined by international refugee law.”
In order to identify refugees in need of international protection from other migrants, border officials must interview each and every person individually and promptly in accordance with international law, whether they arrived alone or as part of a mixed migration movement. The United Nations Special Rapporteur on the human rights of migrants issued a report on the human rights impact of pushbacks, stating that:
“Migrants arriving at international borders, regardless of how they have travelled, and of whether they are part of larger and/or mixed movements, should have access to their human rights, including individualized, prompt examinations of their circumstances, and referral to competent authorities for a full evaluation of their human rights protection needs, including access to asylum, in an age-sensitive and gender-responsive manner.”
This individualized assessment is an imperative step to identify and provide protection to refugees. If the State does not identify refugees, and thus deports them amongst irregular migrants, the State has violated its obligations of the right to seek asylum and non-refoulement.
Policy Recommendations
- The U.S. must end all immigration policies which summarily turn back people arriving at U.S. borders.
- Customs and Border Patrol must provide prompt individual assessments to each person who arrives at a U.S. border or port of entry. To do this, all officials must be trained in refugee law and trauma-informed interviewing.
- Asylum seekers must have their cases heard as soon as possible, while being ensured due process and ample time to retain an attorney, as the U.S. does not provide legal representation to asylum seekers.
- While awaiting their hearings, asylum seekers must not be pushed back across the border where they face threats to their life and liberty.
- To truly uphold the human rights of asylum seekers, the U.S. Congress must pass new human rights based immigration legislation which reflects current immigration trends, particularly employment shortages, family reunification and humanitarian needs — and explicitly prohibits violations against the right to asylum and non-refoulement.
