Non-Criminalization of Smuggled Migrants: Australia’s Asylum Challenges

1. Migration Control Part 2 Non-Criminalization of Smuggled Migrants Asylum Problem Problem

2. Australia Migration Policies

3. Non-Criminalization of Smuggled Migrants - Overview • Article 5 – Protocol against Smuggling • Prohibits criminalization of migrants who are the “object of smuggling” • Protocol mostly concerned with security & sovereignty issues • Art. 5 as a tool to hold state parties accountable for criminalizing “illegal entry” • “Good faith” doctrine in int’l treaty law • Comparison with Art. 31 of the Refugee Covention

4. Smuggling Laws in Australia • What is smuggling in int’l law? • Smuggling of persons =procuring “the illegal entry of a person” into a country “in order to obtain, directly or indirectly, a financial or other material benefit.” • v. Trafficking = transportation by coercion/force for purpose of exploitation • Australian Law • Doesn’t require that smuggling be for “financial or material benefit” • Case law examples (SRBBB & Mr. Kadem)

5. Non-Criminalization of Smuggled Migrants • Is mandatory detention de facto criminalization? • In Australia, Courts say it’s not – Simply administrative necessity/procedure • What about in the US? Migrants, including asylum-seekers, housed in public and private jails and prisons. Same treatment as criminal inmates • If mandatory detention is punitive in nature, then it’s criminalization.

6. Alternatives to Australia’s Approach • Simply add language to make law fit int’l definition of smuggling • England • Regina v. Uxbridge – Prosecution of migrant smugglers only if/after a genuine claim to asylum has been rejected • But Art 5 goes beyond only asylum protection and protections afforded by Refugee Convention • And there must be ways to claim asylum..

7. Why are there Smugglers? • No legal channels to get protection • Smugglers into Europe control routes • No route to seek asylum in Australia • Cut humanitarian program • Boats intercepted • Planes grounded

8. Asylum Problem Problem • Shift in Australia drug policy from zero tolerance to harm reduction strategy • Under Zero tolerance: • moral language excites a crisis • built around law enforcement • Doesn’t work! = no regulation • More deaths (at sea/from drugs) • Can you apply this to asylum law?

9. Asylum Problem Problem • Zero tolerance in Asylum Law • Boats intercepted • Airlines don't let anyone board without a valid visa https://www.theguardian.com/australia-news/2016/sep/02/woman-who-protested-against-asylum-seekers-deportation-on-qantas-flight-to-plead-not-guilty) • Outsourcing responsibilities to Papua New Guinea; Nauru; Malaysia = “Border externalization idea” • States may be responsible if outsourced states don’t protect • Currently, 70% overturn on first decisions on asylum status; overwhelming majorities (>90%) found to be genuine refugees • Compare to the US: Texas 90% of CFIs in detention centers have positive credible fear • Proper channels overwhelmed – 119,100 out of 923,400 claims are processed

10. Asylum Problem Problem • Push and pull factors. Deterrence doesn’t work. • Deaths at sea • No impact on number of arrivals when controls put in place • Cost • Key reform ideas: • Cost • Normalization

11. Asylum Problem Problem • Language incites a ‘crisis’ • Rhetoric and framing of an issue as unmanageable , similar to drugs • “Irregular maritime arrivals” – aggregates the “problem” of asylum-seekers • Politically, wasn’t popular to be against border controls (or soft on crime/drugs) • Note Criminal Justice reform in the U.S.

12. Harm Reduction • Harm Reduction Strategy • Make drugs safer; regulate better • Supreme Court held that denying addicts access to life saving services violates the constitution • For asylum: • Improve conditions on boats; ameliorate situations leading to boats • Increase resettlement program from transit countries and encourage these countries to accept more of refugees in its borders • Do we agree with this? • Different from outsourcing? • Abandoned deterrence; mandatory detention • Right to work and education • increase UNHCR support • Access to family reunion • Reduces labor issues • Other ideas?

13. Mandatory Detention/Offshore Processing • Cost • Govtwill spend $6 billion in offshore processing and mandatory detention • Abuse • UN CRC committee to question Nauru over abuse of children in Australian detention facilities. Happening now! • https://www.theguardian.com/world/2016/sep/13/united-nations-to-grill-nauru-over-abuse-of-children-in-australian-run-detention?CMP=share_btn_tw

14. Deterrence • Deterrence strategy • US deterrence strategy

17. https://www.youtube.com/watch?v=kNyx1O6panU http://www.sbs.com.au/news/article/2014/02/13/refugees-angered-governments-graphic-novel-campaign

18. Discussion • If we’re trying to normalize, how do we get away from that rhetoric? • How does this compare to US deterrence policies for migration? • How can we create legal pathways so people don’t rely on smugglers? • Does the UN Protocol prevent member parties from mandatorily detaining migrants who are smuggled? • Can this help protect specific groups of migrants? • With US criminal justice reform, is there a chance for asylum/immigration ‘harm reduction’ policies? Where?