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Holiday, Yewa --- "Legal perspectives on migration crime" [2019] ELECD 2987; in Mitsilegas, Valsamis; Hufnagel, Saskia; Moiseienko, Anton (eds), "Research Handbook on Transnational Crime" (Edward Elgar Publishing, 2019) 183

Book Title: Research Handbook on Transnational Crime

Editor(s): Mitsilegas, Valsamis; Hufnagel, Saskia; Moiseienko, Anton

Publisher: Edward Elgar Publishing

Section: Chapter 14

Section Title: Legal perspectives on migration crime

Author(s): Holiday, Yewa

Number of pages: 16

Abstract/Description:

This chapter examines the non-criminalisation clauses in the 1951 Refugee Convention and the Smuggling Protocol which are intended to protect refugees and smuggled migrants from prosecution for offences of irregular entry and stay. The chapter identifies and contrasts the nature of the protection in international law. It argues that the overlaps and differences between the concepts of ‘refugee’ and ‘smuggled migrant’, a lack of legal clarity in the non-criminalisation provisions and how they interact with each other, state concerns with security and borders at the expense of the human rights of migrants, and a lack of monitoring make it difficult for these groups to gain protection from prosecution. There is a need to consider whether refugees and smuggled migrants might benefit from the same non-criminalisation provision based on shared features of their experience and consequent vulnerability to exploitation.