Action to Ensure Humanitarian Access for and to Migrants

8/9/2019 Action to Ensure Humanitarian Access for and to Migrants

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Supplementary Guidance on the Policy on Migration

Advisory note

ACTION TO ENSURE HUMANITARIAN ACCESS FOR AND TO MIGRANTS

National Societies have identified humanitarian access for and to migrants as a fundamental

and complex challenge. The present note spells out the essential rules and recommendations

for strategic programming in this area, based on the relevant parts of the IFRC Policy on

Migration (2009). It is compatible with analytical and policy work undertaken previously, and

provides guidance that is indispensable and valid for all Red Cross and Red Crescent societies

at the global level.

1. Background

Scope and limitations

Humanitarian access access to humanitarian assistance and protection for persons in

need, as well as access of humanitarian actors to persons in need is a prerequisite for our

global humanitarian action, in non-conflict as well as conflict situations.

In situations of armed conflict, the primary

legal framework and source of guidance toensure humanitarian access is international

humanitarian law. The ICRC has a central

role, and humanitarian access in situations

of armed conflict involves special action

under specific guidelines.

Consequently, the scope of this advisory

note is, limited to humanitarian access in

non-conflict scenarios, where international

human rights law and, specifically for the

Red Cross and Red Crescent, the Statutes of

the Movement provide guidance.

Problems of access may affect a large range of vulnerable groups, related to factors such as

health and mental status, age and gender, but also ethnic origin and social background. The

30th

International Conference of the Red Cross and Red Crescent expressed particular

concern about migrants, irrespective of their status, as they may live outside

conventional health, social and legal systems and for a variety of reasons may not have

access to processes which guarantee respect for their fundamental rights1. Consequently,

the present note focuses especially on the situation of migrants.

1Resolution 1, Together for Humanity(November 2007)

The International Red Cross and RedCrescent Movement strives to adopt

an integrated and impartialapproach, combining immediate

action for migrants in urgent need

with longer-term assistance and

empowerment. It is therefore

important that National Societies be

permitted to work with and for all

migrants, without discrimination and

irrespective of their legal status.

(Policy on Migration, Principle 1)


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Humanitarian Access for and to Migrants

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Legal considerations

The Statutes of the Movement lay down that National Societies (and other components ofthe Movement) act at all times in accordance with the Fundamental Principles; but also,

that States shall at all times respect the adherence by all the components of the Movement

to the Fundamental Principles2.

According to the principle of impartiality, the Movement makes no discrimination as to

nationality, race, religious beliefs, class or political opinions. It endeavours to relieve the

suffering of individuals, being guided solely by their needs, and to give priority to the most

urgent cases of distress3.

Thus, to be able to act as required by theFundamental Principles, National Societies must

have access to all persons in need, who in turn

must have access to the services provided.

States, on their part, are obliged to grant

humanitarian access to National Societies.

In addition, the Statutes of the Movement

require also that States support, whenever

possible, the work of the components of the

Movement4

. This imposes a positive obligationon States. Not only are they obliged to grant

humanitarian access, but they also should

facilitate the efforts of National Societies to

ensure access to humanitarian services to and

for all persons in need.

The entitlement to humanitarian access is also

rooted in international human rights law, which

defines the rights of all human beings. States are obliged to respect, to protect and to fulfil

these fundamental rights. This means that all persons in need are entitled to have access tothe services and procedures necessary to realize their rights. If a State is unwilling or unable

to fulfil a particular right5, a National Society may substitute action by the public authorities

by providing the necessary humanitarian services. However, National Societies also have a

role in promoting the rights of individuals and should, if need be, remind the authorities of

their obligations under international human rights law.

2Statutes of the International Red Cross and Red Crescent Movement, Article 1.2, Article 2.4

3Ibid, Preamble

4

Ibid, Article 2.35For example, the right of everyone to the enjoyment of the highest attainable standard of physical and

mental health (Article 12.1, International Covenant on Economic, Social and Cultural Rights)

Legal considerations are an

essential element in determining the

vulnerability of migrants, and in

securing adequate access for them to

assistance and services. Moreover,

legal considerations are important

when designing strategies to empower

migrants and support them in

establishing realistic and positive

prospects for themselves.

National Societies shall develop athorough understanding ofmigrants rights as a key element

for responding to the vulnera-

bilities of migrants, and for their

empowerment.

(Policy on Migration, Guidance 4.1.)


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The IFRC Policy on Migration

In its declaration Together for Humanity, the 30th International Conference, comprisingStates and the components of the Movement, explicitly acknowledged the role of National

Societies, based on the principles of humanity and impartiality, and in consultation with the

public authorities, in providing humanitarian assistance to vulnerable migrants,irrespective

of their legal status6.

The Policy on Migration reflects this concern by underlining that National Societies shall

undertake sustained efforts to ensure that migrants have access to humanitarian assistance,

essential services, and legal support; and they shall strive to obtain effective and

unconditional access to all migrants, irrespective of their legal status.

The Policy thus makes clear that the term

humanitarian access has a double-meaning: It

relates to the access for migrants in need to

humanitarian services, and it relates to the

access of National Societies to migrants in

need.

The wording of the Policy also emphasises

that humanitarian access is not limited to

material assistance, but to a broad range ofconcerns: It states that the degree to which

migrants have access to assistance, services and

legal support is a key criterion in assessing their

vulnerability.

Action to ensure humanitarian access for

migrants, thus, requires efforts to ensure that

the migrants have access to the full range of

services and procedures that are necessary to

realize their fundamental rights.

As humanitarian access is an encompassing issue, it not only concerns the relationship

between National Societies and public authorities. Equally important is how National

Societies act in relation to migrants. Culture and language as well as lack of trust may be

barriers that have to be overcome to ensure effective humanitarian access.

Prejudices and xenophobia among the general population are often a major source of

access problems for migrants. It is essential for National Societies to take into account, and

work to overcome social tensions and fears that prevent or hinder migrants in need from

accessing assistance and protection, irrespective of their status.

6Resolution 1, Together for Humanity

The degree to which migrantshave access to assistance, services

and legal support is a key criterion

in assessing their vulnerability.

Those who lack access are especially

susceptible to risks.

National Societies shallundertake sustained efforts to

ensure that migrants haveaccess to humanitarian assis-

tance, essential services, and

legal support. They shall strive

to obtain effective and uncon-

ditional access to all migrants,

irrespective of their legal

status.

(Policy on Migration, Guidance 1.2.)


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2. Programming principles

When working to ensure humanitarian access for and to migrants, National Societies mustensure that the following general programming principles are respected:

1. Migrants are included in humanitarian programming and have access to NationalSociety activities and services, without discrimination and irrespective of their status

2. The primary aim is to ensure access for migrants to humanitarian services, be thatservices provided by National Societies or other components of the Movement,

services provided by the public authorities, or services provided by other relevant and

competent organizations

3. When taking action to obtain access to migrants, National Societies are ready to carryout vulnerability and capacity assessments and to respond to the needs identifiedthrough providing services, referral to other service providers, or advocacy

4. When providing humanitarian services as a substitution to action by the publicauthorities, National Societies remind the authorities of their obligations under

international human rights law.

3. Elements for analysis: Aims, Obstacles, Action

National Societies need to analyse humanitarian access for and to migrants in their specific

context identifying aims and obstacles and determine solutions and action accordingly.

Aims

Firstly, as an indispensable prerequisite, National Societies have to develop an

understanding of the humanitarian services that are at stake: The aims of Red Cross Red

Crescent action to ensure access must be clear.

Such services may include:

Emergency relief: first aid and disaster relief, medical and legal interventions, otheremergency interventions

Basic living assistance: accommodation, food, health care, education, other basicassistance

Additional services: social and psychological support, legal advice, integration support,other services.

Obstacles

Secondly, as the basis for planning action to ensure humanitarian access, National Societies

have to identify and analyse the relevant obstacles. In most contexts, a complex mix of

factors is involved:


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Socio-cultural: xenophobia andracial prejudices against migrants; linguistic and culturaldiscrimination; obstacles in the way of integration; tensions, misperceptions and lack ofcommunication between members of host communities and migrants; etc

Public politics: exclusion of migrants from public services, participation and information;discriminatory political discourse, or measures taken by political bodies, against

migrants of certain nationalities and religions; etc

Legal and administrative: legal provisions that prohibit assistance for specific categoriesof migrants; reduced financial or material aid to migrants or certain migrant categories;

preconditions/fees for migrants to obtain services; discriminatory policing practices;

limited freedom of movement for migrants; etc

Action

Thirdly, National Societies where needed with the support of the IFRC and other National

Societies have to determine appropriate solutions and take action to ensure humanitarian

access by circumventing, overcoming, or removing the obstacles:

Alternatives to direct services: Refer migrants to other organizations and institutions that are in a better position to

overcome the obstacles

Provide services in partnership with other organizations, rather than acting alone Support migrants to set up self-help networks Rely on informal networks to provide assistance, rather than formal programmes. Arrangements and agreements with decision-makers: Agree informally on flexible arrangements to allow access Obtain assurances from local authorities for unhindered access at local level Negotiate an interpretation of laws, policies, and procedures that allow humanitarian

exemptions.

Changes to administrative practices, policies and legislation: Obtain changes in administrative practices hindering access Challenge the application of laws hindering access Intervene with competent authorities to change restrictive laws and policies Lobby and campaign against laws and policies that restrict access. Creation of an environment conducive to humanitarian access: Undertake advocacy with a view to promoting the rights of migrants and underlining the

benefits that migrants bring to host communities and countries of origin

Inform migrants about their rights and involve migrants in participatory processes intheir host communities

Integrate migrants as staff or volunteers into National Societies Cooperate with National Societies in countries of origin in order to make use of their

capacities, human resources and expertise to reach out to migrants in host countries.

Documents

Action to Ensure Humanitarian Access for and to Migrants