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28 September 2006 Edition

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OPINION: Human trafficking: Radical rethink on approach needed

Irish law facilitates misery of human trafficking

In May of this year, RTÉ's Prime Time highlighted the issue of human trafficking into Ireland. The programme correctly noted the absence, in the 26 Counties, of sufficient penalties for those who engage in this abhorrent practice. WENDY LYON argues however that the programme failed to locate the problem within a broader context of migration options and restrictions - and it completely bypassed the subject of how traffickers are being facilitated by Irish legislation which was put in place to limit the entry of refugees.

At present, trafficking of adults into the 26 Counties is punishable only under the Illegal Immigrants (Trafficking) Act 2000. This legislation actually casts a much broader net than its title suggests: not only traffickers but anyone who knowingly helps a person enter the State without proper documentation is guilty of an offence under its terms. That includes helping persons fleeing persecution - the law explicitly prohibits facilitating the entry of "a person who intends to seek asylum". This, in fact, is the legislation's primary purpose. The title notwithstanding, it isn't really about protecting vulnerable migrants from exploitation - it's about keeping asylum seekers out.

In this effort, the Act is only one of a number of weapons in the State's arsenal. The visa system is itself a means by which asylum seekers can be prevented entry: visas are required for nationals of nearly all countries that have tended to produce refugees in recent years. And this is no accident: countries which were previously on the "visa exempt" list will be removed from that list if they start producing large numbers of refugees, as the recent examples of Yugoslavia and Zimbabwe demonstrate. Of course, the demand for visas in such cases far outstrips the number granted. And even for years after a conflict has died down, a citizen of one of these countries is unlikely to be granted an Irish visa if there is any hint that they might not be planning to go home at the end of their visit. The burden of proof is on the applicant, and it's usually quite high. With the introduction in 2003 of carrier liability legislation, imposing penalties on transport companies who fail to ensure that all passengers have proper documentation at boarding, the Dublin Government has effectively eliminated most legal means by which an asylum seeker can travel here.

These laws - and an increasing number of countries are adopting them - leave asylum seekers with very few options. Refugees have rights under international law, but how can those rights be exercised when the path to obtaining refugee status is blocked? To paraphrase one observer, it's like trying to exercise the right to a fair trial when the courthouse is all bricked up.

It's important to keep in mind at all times that these restrictions do not discriminate between what popular parlance describes as "genuine" and "bogus" asylum seekers. A person fleeing genocide would be just as stymied by these laws as a so-called "economic migrant".

But the governments' increasingly harsh measures to deter immigration have met with only limited success, for a very simple reason: in much of the world, people live under desperate conditions. They will do what they need to do to save their lives, or feed their family. These are basic human instincts which no amount of punitive legislation can override.

And so an industry has developed to circumvent the laws. Documents can be counterfeited, passports doctored, officials bribed. But it comes at a price - and the more countries crack down on "illegal immigration", the higher the price climbs. Human smuggling is now estimated to generate up to $10 billion per year. The appeal of such a lucrative business to criminal elements is obvious and there is a huge financial incentive for mobsters and petty criminals alike to seek out people whose economic circumstances make them vulnerable to the promise of a better life abroad.

Of course, very few migrants can afford a smuggler's fees up front, so typically a repayment deal will be struck - with the migrant led to believe they will earn enough to pay off their debt in a minimal amount of time. But in reality, the terms of these arrangements are hardly ever favourable to the migrant and in all too many cases amount to debt bondage, a form of slavery illegal under international law. But to whom can victims complain? Alerting the authorities of their predicament will inevitably result in a one-way ticket back home. In this way, traffickers are able to use the state's immigration laws as a weapon to keep their victims under control.

Michael McDowell has stated that his long-promised anti-trafficking legislation will incorporate a 2004 EU directive that provides for temporary residence permits. But this is insufficient. For one thing, there will be conditions attached to any permit, such as that victims must help the State in bringing criminal charges against the trafficker, up to and including testifying in court - a procedure that may be extremely traumatic, particularly for victims of sex trafficking. More important is that the residence permit will be only temporary. Who is going to be persuaded to come forward by being told they will be deported after a few months instead of immediately?

It has been said that the key difference between "simple" smuggling and trafficking is that the first is a breach of a state's immigration laws while the second is a violation of a person's human rights. In ruling out the possibility of permanent resident permits, the 26 County Government has declared itself more concerned with preventing the first than the second. But the fact is that our policies are failing to prevent both. The immigration laws are still being violated, but because the victims themselves are criminalised - as "illegal immigrants" - they are afraid to come forward and hence the violations are going undetected. Nobody benefits in this scenario - except, of course, the traffickers.

None of this is to suggest that human trafficking could be eradicated by the adoption of an open-door policy. Trafficking occurs within as well as across state borders. But it is beyond argument that when legal means of migration are not available, asylum seekers and other vulnerable people will turn to illegal means. Border-tightening measures have undoubtedly been effective in reducing the number of asylum claims - UN figures show a decease of 50% over the past five years for all Western nations, and the 26 County decrease is even greater - but they have done nothing to curb trafficking, which by all accounts has increased over the same period. Add to this the inevitability that persons genuinely in need of protection are among that 50%, and the disastrous human rights effects of our policies become clear. Without a radical rethink of our approach to the modern realities of migration, our laws, and those of the rest of the industrialised world, will continue to benefit traffickers at the expense of the persecuted, deprived - and trafficked

An Phoblacht Magazine


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