The United States and the Criminalisation of Migration

6th October 2019

On the 8th July 2019, Michelle Bachelett, the High Commissioner for Human Rights at the UN, stated that “according to several human rights bodies, detaining migrant children may constitute cruel, inhuman or degrading treatment that is prohibited under international law”. This was in response to the decision by the Trump administration to separate young children from their families and keep them in detention centres.

The Convention and Protocol relating to the status of refugees was adopted by the UN in 1951, governing both the legal status and the rights of refugees. It defines refugees as ‘someone fleeing from fear of persecution’. However, this definition is widely considered outdated and has allowed many people fleeing their countries to be classed as economic migrants, who have far fewer rights and protections. Whilst many states are happy to keep the definition in order to reduce immigration, it has led to thousands dying while travelling to Europe and many more being unable to leave their country of origin, despite losing their homes and livelihoods.

Since coming into office, US President Donald Trump has presided over massive policy change aimed at reducing immigration, including banning nationals of several majority
Muslim countries from entering the US in 2017. He also initiated more subtle changes to federal agencies responsible for controlling immigration, which have increased the number of illegal immigrant arrests, as well as reducing refugee admissions to their lowest level since the 1980s.

the US is failing to meet its obligations to those who flee countries illegally, even if the result is not illegal under international law.

This has led to accusations that the US is neglecting its obligations to refugees fleeing war torn countries. Whilst, legally, this refusal to take refugees may be allowed (as the US is not the closest state where they could claim asylum), his decision to separate and intern children is in violation of international law. As such, the US is failing to meet its obligations to those who flee countries illegally, even if the result is not illegal under international law.

The U.K. and France have similarly rejected many refugees fleeing the Middle East in recent years. Many refugees have travelled across Europe to attempt crossing into the UK; however, the governments of both countries have denied responsibility for them, claiming them to be economic migrants. This has led to ‘diabolical’ migrant camps building up in Calais, which are in breach of international standards of aid and protection . Whilst rejection of these people is legal, the conditions they are allowed to live in breach human rights and have led to thousands of migrants suffering from many illnesses and mental health problems. The lack of willingness to take in refugees has also led to many attempting to cross the Mediterranean illegally, leading to thousands of deaths.

Overall, states are often acting within international law regarding refugees and migrants, but there are exceptions where their treatment would be deemed unacceptable. In order to combat this, international law would have to be updated in order to cover migrants fleeing for economic reasons and more affluent states would need to allow for independent representatives of the UN to witness their policy implementation firsthand, in order to prevent both further mistreatment of refugees and the many deaths caused as a byproduct of these initiatives.

By Polina Toner

Image by Gage Skidmore