A number of provisions within the UN instruments would have significance for migrants who are criminalized, either wholly or partly because of their immigration status. Article 9 of the International Covenant on Civil and Political Rights, (1966) (ICCPR) provides protection against arbitrary arrest or detention, and ensures that no one is deprived of their liberty except on grounds, and under such procedures, that are established by law. Paragraph 4 of this provision states that anyone who is deprived of their liberty by arrest or detention should be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. Paragraph 5 entitles victims of unlawful arrest or detention to an enforceable right to compensation. Article 10(1) of the ICCPR requires States to treat all persons deprived of their liberty with humanity and respect for their inherent dignity. In relation to expulsion, Article 13 states that aliens lawfully in the territory of the State party may be expelled only after a decision reached in accordance with law and unless compelling reasons of national security apply they should be allowed to submit the reasons against their expulsion and to have their case reviewed by a competent authority.

The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, consolidates a number of instruments, adopted prior to 1949. This Convention prohibits the traffic of persons for the purpose of prostitution. In December 1996 the Secretary-General of the United Nations, in his presentation to the General Assembly, urged that concerted national and international action was necessary to end the trafficking of women and children, which would also require concrete measures and an increase in resources. In November 2000 the General Assembly adopted the United Nations Convention against Transnational Organised Crime, a Protocol to Suppress and Punish Trafficking in Persons, Especially Women and Children, and a Protocol Against the Smuggling of Migrants, by Land, Sea, and Air. These instruments were opened for signature at a high-level political signing conference in Italy in December 2000 where it was signed by 124 States, with 80 states signing the accompanying Protocols.

The Protocol to Suppress and Punish Trafficking in Persons supplements the Convention and aims to prevent and combat trafficking; protect and assist victims of trafficking and promote cooperation among States Parties to achieve these objectives. The Protocol applies to the prevention, investigation and prosecution of the offences where such crimes are transnational and involve an organised criminal group, it also applies to the protection of the victims involved. The Protocol Against the Smuggling of Migrants aims to prevent and combat this type of smuggling while protecting the rights of smuggled migrants. It also applies to the prevention, investigation and prosecution of these types of offences and the protection of the rights of those persons who have been the object of such offences. Migrants are not criminalised under this Protocol for being illegally smuggled into a State of which they are not a national. The Protocol only criminalises smugglers where the offences are committed intentionally and in order to obtain indirectly or directly financial or other material benefits, this would therefore exclude smuggling purely for humanitarian reasons.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.