FACULTY OF LAW, JAMIA MILLIA ISLAMIA

REFUGEE CRISIS AND PROFITING CRIMINAL NETWORKS

RESEARCH DISSERTATION
SEMINAR COURSE-I

Submitted By:
Name: Amaan Abbas
Student ID: 20168300
B.A.LL.B (Hons.) Self Finance
Semester-IX

Submitted To:
Prof. (Dr.) Eqbal Hussain
Dean, Faculty of Law
Jamia Millia Islamia, New Delhi
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TABLE OF CONTENTS

S. No Title Page No.

1 3
Acknowledgement
2 List of abbreviations 5
3 Chapter-1: Introduction 6
I. Title of the Dissertation
II. Statement of Research Problem
III. Hypothesis
IV. Research Questions
V. Research Focus and Objectives
VI. Research Methodology
VII. Scope and limitation of Research
VIII. Literature Review
4 Chapter – 2 : The Law and Treaties governing the refugee 11
crisis
2.1) Indian Scenario
➢ History of the Indian refugees
➢ Protection granted to the asylum people in India
➢ The Legal framework governing Refugees In India
➢ Non Refoulment
➢ The Indian Constitutional Framework Governing
and providing protection to Refugees
➢ Incorporation of International Law with Domestic
Law
2.2) The International Law governing Refugees Crisis
➢ Recent Global Refugee Crisis
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5 Chapter- 3: Analysis of the present Scenario for Refugee 29

Crisis and Organised Crimes
3.1) The Concept of Organised Crimes
➢ The criminal groups: Moving people for profit
➢ Victims: harsh search for a better life
➢ Routes and packages of some Criminal
Organisations

➢ It is a far-reaching crime
3.2) Refugee Smuggling: The Need for New Policy
➢ Human Smuggling as a Security Threat for Nations
➢ Involvement of Corruption In Refugee Smuggling
➢ Illegal human movements lead to financial flows
6 Chapter -4: Case Studies: Practical approach to look into 39
the issues of organised crimes along with the solution for
them.

4.1) Europe’s Case study: the nation’s approach to deal

with Refugee crisis and organised crime

4.2) Indian Case Study: India and Bangladesh Refugee

Crisis

4.3) Rohingyas Refugee Crises and Organised Crime

4.4) Latin America Case Study: A Lesson to be Learned

7 Chapter-5 : Recommendations and Suggestions 48
➢ Suggestions
➢ International Communities Coming Together
8 Bibliography 52
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ACKNOWLEDGEMENT

First of all I would like to thank Almighty Allah for giving me all strength, energy and courage
to take up this burning topic, work on it and finish it on time.

I deem it to be my utmost privilege to present the research on the topic “Refugee Crisis and
Profiting Criminal Networks”. At the outset, I would like to express my deepest gratitude to the
Respected Dean, Dr. Eqbal Hussain, Faculty of Law, Jamia Millia Islamia University, for
granting this wonderful opportunity to research for which I shall remain indebted forever.

At this juncture, I would also like to express my deepest gratitude to Dr. Ghulam Yazdani for his
immense resourcefulness and precious guidance in the course of preparing this dissertation. It is
indeed impossible to mention the names of everyone- friends, fellow students, and legal experts
who have helped me formulate my ideas through stimulating discussions. Therefore, all in all, I
take this opportunity to express my heartfelt gratitude to one and all under whose valuable
support my crude brainwave has finally materialized into this cogent and coherent document.

Amaan abbas

b.a.ll.b (hons.)

semester-ix
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List of abbreviations

❖ UNHCR - United Nations High Commissioner for Refugees

❖ NHRC- National Human Rights Commission of India
❖ SC- Supreme Court
❖ UOI- Union of India
❖ UN- United Nations
❖ V- Versus
❖ USD- US Dollars
❖ EU- European Union
❖ EMSC European Migrant Smuggling Centre
❖ MOU - Memorandum of understanding
❖ IDPs - internally displaced persons
❖ UNODC- United Nations Office on Drugs and Crime
❖ INTERPOL- International Criminal Police Organization
❖ OECD- Intergovernmental Economic Organisation
❖ FIUs- Financial Intelligence Unit
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Human rights are not reserved for citizens: they benefit everyone who is on
a State’s territory or within its jurisdiction, without discrimination,
whatever their administrative status and circumstances.1

Chapter-1

Introduction

I. WORKING TITLE OF THE STUDY/ DISSERTATION

The title of the paper is “Refugee Crisis And Profitng Criminal Networks”. The dissertation
is prepared for the seminar Course-I submission.

II. STATEMENT OF RESEARCH PROBLEM

Refugees are forced or involuntary migrant’s driven out of their homeland due to human right
violations. Refugees are a not new phenomenon. They are common since the Greek and Roman
empires. Millions of people around the world today have fled their homes to escape civil war
and other violence. The refugees globally are entitled to the most basic human rights such as
life and liberty. But many of the countries absorbing large flow of refugee do not have
comprehensive policies or simply lack resources to deal with the influx. These nations’ lack of
Legal support and funding has proven to be a fertile breeding ground for criminal syndicates
and has enabled a multibillion-dollar criminal network to thrive.

This crisis has breathed new life into well-established criminal groups. Organized criminal
syndicates have changed rapidly since the fall of Communism. They were among the first
institutions to exploit globalization to the full. With the expansion of new markets around the
world and the emergence of a vast lawless zone for the best part of a decade from Yugoslavia
in the west to Russia’s border with China in the east, the 1990s saw a remarkable upturn in the
provision of illicit goods and services around the world.

Many of the countries absorbing large flows of refugees do not have comprehensive policies
or simply lack resources to deal with the influx. That means those migrant’s often become

1
François Crépeau, United Nations Special Rapporteur on the human rights of migrants, “Mainstreaming a human rights-
based approach to migration within the High Level Dialogue”, statement to the PGA Plenary Session — Criminalization of
Migrants, New York, 2 October 2013.
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isolated and desperate for the means to survive: Promises of a better future from transnational
organized criminal groups and traffickers become more attractive as time passes.

In the absence of legal channels, boat smugglers remain the only alternative. These smugglers
practically have a monopoly on transporting people across the Mediterranean.

This is not the trafficking of migrant labour or women for sexual purposes. These criminal
gangs are effectively offering travel-agent services to desperate people fleeing conflict. Their
services can include false documentation, bribes to border guards and transport, in dangerous,
often deadly, and circumstances.

Hence, it is highly likely that migrants will turn to organised criminals to help them cross
frontiers. This may attract existing crime groups active in other areas to this criminal market.
This coupled with initial mismanagement and the lack of joined-up action in dealing with the
twin issues of irregular migration and refugees – have resulted in a growing absence of support
and compassion in civil society, along with less tolerance and understanding of those who seek
refuge and asylum when they have been forced from their homes by untenable factors.

The Spanish media reports that since the beginning of this year, national police have arrested
1,765 people trying to reach the UK illegally. According to a June study by the United Nations
Office on Drugs and Crime, about 2.5 million migrants were smuggled across borders — an
operation worth about $5.5 billion to $7 billion in 2016 alone. As could be expected, the
countries most affected are in proximity to the conflict zones creating waves of global refugees.

The Criminal elements exploiting migration routes are hardening public attitudes towards the
very people who need human assistance and compassion the most. Put simply, it is becoming
ever more difficult for those in need to find the asylum that they seek and deserve. Attitudes
are hardening and fewer people are willing to help; some political parties and movements are
capitalising on compassion fatigue and growing public fears about the consequences of
migration.

Hence this paper will conduct study to analyze the reasons the rise of refugee crisis and
organised crimes and will look into what are the legal avenues available for resolving the
refugee crisis and providing protection to them from these organised crime groups.
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The law of various jurisdiction and policies adopted by them to deal with the rise in profiting
criminal networks due to the refugee crisis and will aim to indentify appropriate solutions in
this paper.

III. HYPOTHESIS

We are taking a hypothesis that:

“There is no adequate legislative framework for the regulation of the refugee crisis and
criminal networking”

IV. RESEARCH QUESTIONS

• Is the present system governing the status of Refugees sufficient to deal with the problem
of the profiting criminal networks because of refugee crisis?
• Is there is a need for adoption of a policy to overcome the refugee crisis leading to
organised crimes?
• Whether relaxation of border security to allow the refugees to enter the destination
countries legally would reduce the abuse faced by the irregular migrants at the hands of the
organised criminal groups?
• Whether the policies adopted by various jurisdictions to deal with the smuggling of people
across borders can be adopted by India as well?

V. RESEARCH FOCUS AND OBJECTIVES

• The study conducted hereby is with the view to achieve the following objectives:
• To evaluate if the present system governing the refugees status is sufficient to deal with
the issues of refugee crisis and organised crimes.
• To analyze if there is a need for adoption of a new policy or regional agreements in order
to preserve the refugees.
• To critically analyze if a policy for refugees and organised crimes would be accepted
universally or not
• To analyze if the new approach will reduced the refugee crisis and organised crimes
• To critically evaluate the provision and contents of various existing laws and policies
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VI. RESEARCH METHODOLOGY

The researcher has adopted doctrinal method of research for the said dissertation. Doctrinal
process involves a number of linear steps including assembling the facts, identifying the legal
issues, analysing the issues with a view to searching for the law, undertaking background
reading and then locating primary material, synthesizing all the issues in context, and coming
to a tentative conclusion. For this dissertation, existing statutory provisions are analyzed, along
with relevant case laws, and study of legal institutions is adopted through legal reasoning or
rational deduction. All the relevant sources were broadly classified into two basic categories
namely Primary and Secondary sources.

• Primary Sources: It includes the study and analysis of legal regime currently in place to
combat paid news in India, the relevant laws, rules, notifications, byelaws, orders etc. All
these will be studied from the critical and analytical point of view. The proposed research
will also focus on various judgments delivered by the law of courts.
• Secondary Sources: Secondary sources are not themselves the law but discuss or analyse
legal doctrine. Even though secondary sources are not the law, they provide for important
functions in legal research. The proposed research work includes the detailed analysis of
the various secondary sources related to the topic. This included various texts from legal
and non-legal section, relevant articles, research papers, reports by various autonomous
bodies on cross media ownership, important learning resources, study of relevant cases,
etc.

VII. SCOPE AND LIMITATION OF RESEARCH

• The issues addressed in the dissertation will be with respect to Refugee crisis and criminal
crisis and the Law governing the same.
• The study is limited to the Laws applicable to the profiting to criminal networks due to
refugee crisis under specific treaties and jurisdictions.
• An attempt to formulate a universal law or regional agreements with an aim establish a
effective legal mechanism to avoid future refugee crisis
• The study is limited only to the secondary and tertiary sources and there has been no access
to the primary sources in this. Also, there has been no actual field research to establish the
research objectives and the answers to the research questions posed in the
 P a g e | 10

study. This is purely limited to the established case laws and the legislative framework
along with a few texts by scholars on the said topic of discussion.

VIII. LITERATURE REVIEW

• Nationality and Statelessness in the International Law of Refugee Status, Eric Fripp
(1st ed.,2016):
This book International refugee law look forward to conduct of state in relation to
statelessness, protection and nationality. Status of refugees under the Convention
describing the Status of Refugees and regional and domestic mechanism referring to it can
be completely understood only against the background of international laws concerning
nationality, statelessness, and the consequences of national status or the lack of it. This
literature also talks about concept of effective nationality. This book also highlights the
conventions and provisions relation to the protection of refugees.

• Critical Issues in International Refugee Law, Simon James C (1st ed., October 11, 2010)
This book contains a diversity of essays in the area of international refugee law. It also
talks about policies for interpretative harmony, the standards of proof in harmonizing
protection and the rights of refugees. Every topic of this book is scrutinized from a
theoretical and a practical perspective in order to find solutions to the various legal issues
and concerns which currently confront this area of law, and to search for ways to progress
the field.

• Protection of Refugees in India: A Critical Analysis, Nimrat Kaur, NLSIU.

The paper studies the ad-hoc administrative policy adapted by India to accord protection
to refugees ever since independence. The paper also reflects upon the problems of human
right abuses of refugees, lack of basic amenities and discrimination between refugees
themselves, posed by it. Thus the paper looks into the role of courts, NHRC and UNHCR
in protecting the rights of the refugees and also suggests measures to improve upon it by
way of enacting a definite legislation or formulating a regional treaty on similar lines as
the OAU Convention in Africa.
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Chapter – 2

The Law and Treaties governing the

refugee crisis

2.1) INDIAN SCENARIO

India is one of the few countries in the world which has experienced refugee situation, time and
again, and that took on a gigantic scale in the last less than half-a-century.2

India has one of the largest refugee populations in the world. Regardless of the fact that India
serves to the diverse group of refugees, example: – Syrians, Afghans, Palestinians, Persians,
Ethiopians and Christians, etc., the country do not have specific domestic laws and policies for the
refugees. “The United Nations 1951 Convention relating to the Status of Refugees (Refugee
Convention) defines a refugee as a person who, “owing to a well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling
to avail himself of the protection of that country.”3 Although India is not the party to the 1951
Refugee Convention or its 1967 protocol, even do not have a national refugee protection
framework, but still it continues to give asylums to refugees of the neighbouring countries. Asylum
seekers can get the refugee status from UNHCR if the status is not protected by the Indian
Government. Under Indian law, the term “foreigner” is the only reference to aliens of any kind;
this places refugees, immigrants, and tourists in the same broad category.

➢ HISTORY OF THE INDIAN REFUGEES

As earlier discussed, India is one of the few countries to experience the refugee situation in the last
half century. Indian history is evident by large-scale migration of people from different countries.
These migrations had taken place in 2 ways: “Hindukush Mountains in the West and the Patkoi
range in the East”.

“India has seen a huge influx in its refugee population since 1947 wherein a good part of its

2
Prof. J.N. Saxena, "Legal Status of Refugees : Indian Position", Indian Journal of Int. Law, Vol. 26, No. 3 & 4,
1986, P.501.
3
UNHCR: The 1951 Refugee Convention
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population comes under the unacknowledged category of “Refugees” by the Government of India”.
“After Independence, 25 years were involved in accepting over 15 million refugees due to the India-
Pakistan partition. Initially, over a 100 relief camps were set up and a total expenditure of over Rs.
59 crores were incurred by the Government of India”4. Step of primary importance that was taken
to deal with the refugee crisis during this period was the enactment and enforcement of the
Rehabilitation Finance Administration Act, 1948.5

India faced another refugee crisis in the year of 1959 wherein the spiritual leader of the Gelug, Dalai
Lama, along with his followers had to flee from Tibet due to China’s Communistic approach to
Anti-Religious legislations. The Government of India provided the Dalai Lama and his followers a
Political Asylum.

The refugee influx continued in 1971 when more than a decade millions of refugees fled from East
Pakistan to India during and immediately after the Indo-Pak war. In this case, India had no choice
but to consider the plight of the refugees on humanitarian grounds forced by the humanitarian
obligation to give shelter to such refugees.

With the increasing gap of time, India’s already-bursting population continued to be affected by the
massive in-take of refugees from Sri Lanka and Bangladesh in 1983 and 1986 respectively”. “As
per the World Refugee Report published every year by the UNHCR, India hosted approximately at
least over a million refugees and some 2,37,000 internally displaced persons.

➢ PROTECTIONS GRANTED TO THE ASYLUM PEOPLE IN INDIA

Treatment given to the asylum people were divided into three heads:

4
“Pritam Ghosh, The " Illegal Migrant " and " Refugee " Status Dilemma: A critical analysis with special reference to
the Rohingya Muslims in India, ACADEMIA (Oct. 1, 2019, 10:04 A.M.),
https://www.academia.edu/35968762/The_Illegal_Mi grant_and_Refugee_Status_Dilemma_A_critical_ana
lysis_with_special_reference_to_the_Rohingya_Musl ims_in_India”.
5
See Rehabilitation Finance Administration Act, 1948, No. 12, Acts of Parliament, 1948 (India) (This piece of
legislation was enacted to provide financial support for rehabilitation and resettlement of people who were displaced
to the Indian side post-partition. Under the Act an authority called the rehabilitation finance administration was
formed under the direct supervision and control of the then central government which was supposed to lend money to
displaced individuals and families so that they could arrange for their basic needs such as food, clothing and shelter
by starting a new industry or business. The authority also received financial support from the government for easier
disbursement of loans. For the sake of transparency and accountability to the government, the rehabilitation finance
administration had to maintain proper books of accounts and was registered as a company with a common seal and
perpetual succession)”
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➢ National Treatment: The national treatment to the asylum people is same as the citizens
of India. There are certain Articles in the Constitution of India, which takes care of the
Fundamental Rights of all people in India. The rights such as equal protection to law under
article 14, religious freedom under article 25, the right to life and personal liberty under
article 21, right to social security and educational rights are guaranteed in Part III of the
Indian Constitution.

➢ Treatment that is accorded to foreigners: – Under this head, there are rights which are
related to the housing problems, movements, etc. the rights which are provided under this
treatment are: right to employment or profession under article 17, freedom of residence and
movement under article 26, right to housing under article 21, right to form association
under article 15 and right to property under article 13 of the 1951 Refugee Convention.

➢ Special treatment: – This treatment includes the identity and travel document under article
28, exemption from penalties under article 3(1) of the 1951 Refugee Convention.

➢ THE LEGAL FRAMEWORK GOVERNING REFUGEES IN INDIA

As discussed earlier India has been the home for several refugees. For these refugees, numerous
legislative measures were passed and issued under Seventh Schedule of the Indian Constitution.
But some of the measures have lost their importance in the current context. “There were certain
legislation that was enacted following the partition of India and before the Indian Constitution
came into effects which are given below:

• East Punjab Evacuees (Administration of Property) Act, 1947

• UP Land Acquisition (Rehabilitation of Refugees) Act, 1948
• East Punjab Refugees (Registration of Land Claims) Act, 1948
• Mysore Administration of Evacuee Property (Emergency) Act, 1949
• Mysore Administration of Evacuee Property (Second Emergency) Act, 1949

Once the Constitution of India came into operation, the following acts were passed relating to
refugees, evacuees and displaced persons:

• Immigrants (Expulsion from Assam) Act, 1950

• Administration of Evacuee Property Act, 1950
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• Evacuee Interest (Separation) Act, 1951

• Displaced Persons (Debts Adjustment) Act, 1951
• Influx from Pakistan (Control) Repelling Act, 1952
• Displaced Persons (Claims) Supplementary Act, 1954
• Displaced Persons (Compensation & Rehabilitation) Act, 1954
• Transfer of Evacuee Deposits Act, 1954
• Foreigners Law (Application & Amendment) Act, 1962
• Goa, Daman & Diu Administration of Evacuee Property Act, 1969
• Refugee Relief Taxes (Abolition) Act, 19736

India has a federal set up and is described as a Union of States. This union is considered as a State
in international law. The Union legislature, i.e., the Parliament alone is given the right to deal with
the subject of citizenship, naturalization and aliens. India has not passed a refugee specific
legislation which regulates the entry and status of refugees. It has handled the refugees under
political and administrative levels. The result is that refugees are treated under the law applicable
to aliens in India, unless a special provision is made as in the case of Ugandan refugees (of Indian
origin) when it passed the Foreigners from Uganda Order, 1972.

In India refugees are considered under the ambit of the term ‘alien’. The word alien appears in the
Constitution of India (Article 22, Para 3 and Entry 17, List I, Schedule 7), in Section 83 of the
Indian Civil Procedure Code, and in Section 3(2)(b)7 of the Indian Citizenship Act, 1955, as well
as some other statutes. Enactments governing aliens in India are the Foreigners Act, 1946 under
which the Central Government is empowered to regulate the entry of aliens into India, their
presence and departure there from; it defines a ‘foreigner’ to mean ‘a person who is not a citizen
of India’. The Registration Act, 1939 deals with the registration of foreigners entering, being
present in, and departing from India. Also, the Passport Act, 1920 and the Passport Act, 1967 deals
with the powers of the government to impose conditions of passport for entry into India and to
issue passport and travel documents to regulate departure from India of citizens of India.

Since these enactments do not make any distinction between genuine refugees and other categories
of aliens, refugees run a risk of arrest by the immigration authorities and of their prosecution if

6
“Rathin Bandyopadhyay, Human Rights of Noncitizens: Law and Reality, DEEP AND DEEP PUBLICATIONS,
31-32 (2007)”.
7
A person shall not be a citizen of India by virtue of this section if at the time of his birth- his father or mother is an
enemy alien and the birth occurs in a place then under occupation by the enemy.
 P a g e | 15

they enter India without a valid passport/travel documents. When a refugee is detained by customs,
immigration or police authorities for commission of any of the offences under the earlier
mentioned enactments, he is generally handed over to the police and a First Information Report is
lodged against him. According to the provisions of these statutes the refugee may face forced
deportation at the established sea ports, airports or the entry points at the international border, if
he is detected without valid travel documents. He may also be detained and interrogated pending
decision by the administrative authorities regarding his plea for refugee/asylum. A refugee also
faces the prospects of prosecution for violation of the Registration of Foreigners Act, 1939and
Rules made there under and if he is found guilty of any offence under this Act he may be punished
with imprisonment which may extend to one year or with a fine up to one thousand rupees or with
both.

However, in many cases the courts have taken a lenient view in the matter of punishment for their
illegal entry or illegal activities in India and also, by releasing detainees pending determination of
refugee status, staying deportation and giving them an opportunity to approach the United Nations
High Commissioner of Refugees (hereinafter referred to as UNHCR), refugees continue to run the
risk of apprehension, detention and prosecution for the violation of the Foreigner’s Act, 1946 and
the Foreigners Order,1948.

➢ NON-REFOULMENT

Non-Refoulement, the practice of forced repatriation, is discussed in elaboration below:

1. “Non-State Actors like United Nations High Commissioner for Refugees (UNHCR) and National
Human Rights Commission (NHRC) prevent the return of Legal Refugees back to their home
country”: “UNHCR’s presence is not guaranteed by any constitutional provision”. “The reason
why UNHCR exists in India is solely because of political agreement between the Government of
India and the United Nations”. “The short-term political considerations outweigh the long-term
interests to protect the refugees”. Furthermore, the Indian Judicial system provides the mere right
to apply to UNHCR to refugees which is also decided on an adhoc basis; it doesn’t give them the
right to non-refoulement. “In Zothansangpuri v. State of Manipur, Imphal bench of Guwahati
High Court held that the refugees have the right to not to be deported if their life was in danger”.
“UNHCR’s funding can cater to only to above 21,000 refugees and considering the sudden influx
of refugees in India, UNHCR had to cut back on the level of aid per refugee”. Finally, UNHCR
has been accused of secretly repatriating the Sri Lankan refugees back to Sri Lanka on the context
 P a g e | 16

of ‘liberated zones’; However, no such liberated zones existed and the Sri Lankan Refugees were
forced to come back to India.8 When it comes to NHRC, it just provides a ‘procedural mechanism’
through which the refugees petitions and cases are brought to the Indian Courts. NHRC just
investigates human rights abuses, provides non-binding recommendations to the Government of
India and helps in litigation but in no way provides new rights to citizens or non-citizens.
Considering the current budget of NHRC, it cannot possibly attend to above 40,000 human rights
abuses cases.9

2. “Article 21 promises Non-Refoulement as a fundamental and substantive right to noncitizens”: In

Louis De Raedt v. Union of India10 and State of Arunachal Pradesh v. Khudiram Chakma11,
the Supreme Court of India held that foreigners are also entitled to the protection of Article 21.
However, Article 21 provides different rights in different contexts because it provides less
protection when applied to foreigners as against citizens and when it conflicts with state’s interest
in immigration or national security. Moving on, it provides no protection to a person whose life
or liberty has been deprived by a Non-State Actor (NSA)12 . Indian Constitution’s and Judiciary’s
ad-hoc approach to Article 21 neither confirms nor denies that it is granting substantive rights to
a citizen only because there are very few cases involving non-citizens being granted the
substantive rights as mentioned under Article 2113 . In NHRC v. State of Arunachal Pradesh14,
wherein there was a dispute between Chakma Refugees who were forced to move migrate from
Assam to Arunachal Pradesh and the All Arunachal Pradesh Students Union (AAPSU), the
Supreme Court ruled that the Chakma Refugees cannot be moved – “because Arunachal Pradesh
formulated plans to move these displaced people to another state despite these people being under
the threat of severe violence, harm and death - unless and until the Federal Government ruled on
their citizenship, and Arunachal Pradesh government had an obligation to protect these group of
people, i.e. Chakma Refugees from harm”. Firstly, the NHRC merely assisted the Chakma
Refugees by taking their case to court and petitioning the State and Federal Governments: No new
right of Non Refoulement was given to such noncitizens.

8
“Omar Chaudhary, Turning Back: An Assessment of Non-Refoulement under Indian Law, 39 ECONOMIC AND
POLITICAL WEEKLY 3257, 3257-64 (2004)”
9
Ibid.
10
(1991) 3 SCC 554
11
(1994) Supp.(1) SCC 615
12
Ibid Note 7
13
Ibid. Note 7
14
1996 SCC (1) 742
 P a g e | 17

Secondly, this case does not involve whether the rights involved were procedural or substantive
in nature because the court was clearly not trying to protect the Chakma Refugees from freedom
from involuntary movement as the court expressly permit noncitizen Chakmas to be moved by the
state after they are given a valid opportunity to apply for citizenship. As for the Right to Life, the
Ministry of Home Affairs demanded that the state government provides protection. Therefore, any
contrary policy pursued by the state government would not be according to a procedure established
by law since that would violate the federal law. If the state does not follow proper procedure in
carrying out its policy, then it violates the procedural aspect.

Thirdly, the Supreme Court clearly upheld the principle of primacy of state’s interest over
individual interests because it was just protecting the citizens but not the non citizens because it
was trying to prevent an interstate feud from taking place. Furthermore, in Dr. Malvika Karlekar
v. Union of India15, the Supreme Court of India held that the authorities should consider whether
refugee status should be granted, and until this decision was made, the refugees should not be
deported.

3. “Article 51 of the Indian Constitution incorporates Customary International Law, i.e. principle of
Non-Refoulement into India’s Domestic Laws”: According to Indian Jurisprudence, the
government should follow domestic law in case of an international legal catch. On the other hand,
when India has a clear international obligation but an unclear domestic obligation in a particular
area, it should international law. However, considering the latter scenario, India cannot follow
international law because firstly, nonrefoulement has a very weak basis in custom because the
country who decides to provide protection to the refugees also chooses to exercise some sort of
discretionary power over such cases which leads to variable customary practices finding no
common ground.

“Secondly, India has not signed any agreement that expressly or impliedly requires non-
refoulement and therefore is not bound by any treat-based international obligations, i.e. United
Nations Convention Relating to the Status of Refugees of 1951 and the Protocol Relating to the
Status of Refugees of 1967”.

“Thirdly, Customary International Law has never been incorporated into Indian Law under Article

15
W.P (Cri) 583/1992
 P a g e | 18

-51 despite having numerous opportunities to do so in Vishaka v. State of Rajasthan16”. “Even if

Customary International Law suddenly became acceptable to incorporate into Indian law, it would
not happen in the refugee context because while non-refoulement definitely qualifies as customary
international law, there are three problems with nonrefoulement as binding customary law”:

a. First, India's several broad statutes covering immigration 'occupy the field' of refugee law.
Domestic Legislations in India 'occupies the field' of immigration and refugee law completely,
thus leaving out any hope for incorporating new rules into the domestic sphere. The incorporation
of Customary International Law is not permitted when parliament 'occupies the field' of a given
area. Parliament is said to 'occupy the field' when it legislates in such a broad and comprehensive
manner that it indicates it 'owns' a particular subject matter of legislation. According to this logic,
the legislator has not forgotten to include an extra norm or rule but must have intentionally left
that rule out. The exclusion of the rule or norm is considered intentional due to the broad
legislation of Parliament in the area. “India has passed several laws governing immigration,
including the Passport (Entry into India) Act of 1920, the Registration Foreigners Act of 1939, the
Foreigners Act of 1946, the Foreigners Order of 1948 and the Citizenship Act of 1957”. As
previously mentioned, the Constitution also grants parliament broad powers over these areas.
“Both the Foreigners Act and the Foreigners Order permits India to restrict movement of
foreigners inside India, to mandate medical examinations, to limit employment opportunities, and
to control the opportunity to associate”.

b. “Second, India's statutes directly oppose the principle of non- refoulement. Foreigners Act, 1946
deals with the matters of “entry of foreigners in India, their presence therein and their departure
therefrom””. “Paragraph 3(1) of the Foreigners Order, 1948 lays down the power to grant or refuse
permission to a foreigner to enter India”. “It stipulates a general obligation that no foreigner should
enter India without the authorization of the authority having jurisdiction over such entry points. It
is mainly intended to deal with illegal entrants and infiltrators”. “In the main condition is that
unless exempted, every foreigner should be in possession of a valid passport or visa to enter India”.
“If refugees contravene any of these provisions, they are liable to prosecution and thereby to the
deportation proceedings just like any other foreigner or illegal alien”. “Thus, there is no clearly
defined category of refugees under Indian law”. “Foreigners, generally, are a classified category
which can be further subdivided as per the Foreigners Act regime, but no such sub-classification
has been made for refugees”. “As such, refugees, like other foreigners, are generally subject to

16
(1967) 6 SCC 241
 P a g e | 19

deportation with minimal due process”. “Therefore, the status of refugees is presently determined
by the extent of protection they receive from the Government of India which in turn has been
influenced more by political equations than by humanitarian or legal obligations”.

“There are certain refugee communities like Tamil refugees from Sri Lanka, Jumma and Chakma
refugees and Tibetan refugees who have received (at least normatively) full protection according
to the standards set by the Government of India”. “Apart from security screening, no formal status
determination procedures exist for these groups of refugees and there is a prima facie recognition”.
“Asylum policies have been generous as far as these groups are concerned”. “They are accorded
legal stay indefinitely through executive discretion exercised under the Foreigners Act”.

There are few other communities like the Burmese, Afghan, Iranian, Somalian, Sudanese and Iraqi
refugees whose presence in Indian territory is acknowledged only by the UNHCR and there is no
protection from the government of India except those under the principle of Non-Refoulement.
They remain as foreigners and on the basis of UNHCR refugee certificates are issued temporary
residence permits under the Foreigners Act pending durable solutions. However, the condition of
such communities is precarious. They do not have any work permit and are not able to make
subsistence for themselves. A small number of refugees who have been able to gain employment
in the informal sector are subjected to persistent harassment and abuse from their employers and
the police. The subsistence allowance that the UNHCR provides is meagre and entirely inadequate
for survival. “To make their survival more difficult, the UNHCR has arbitrarily started terminating
payment of this subsistence allowance”. “There are other refugees like the Chin refugees in
Mizoram who have entered India and have assimilated into local communities or have not been
recognized by the UNHCR”. “Neither the Indian government nor the UNHCR acknowledges their
presence.

“The government has also denied UNHCR access to the seven states of the North-East including
Mizoram where the vast majority of Burmese refugees are sheltered”. “Thus, these refugees
receive no official acknowledgement whatsoever”. “As such, they have been consistently
subjected to harassment and periodic eviction drives by sections of civil society in Mizoram and
other parts of the north-east17”.

17
Saurabh Bhattacharjee, India Needs a Refugee Law, 43 ECONOMIC AND POLITICAL WEEKLY 71, 71- 75 (2008)”
 P a g e | 20

c. Third, India has clearly expressed its interest to not be bound legally by the Refugee Convention.
As previously mentioned, India has considered and rejected the idea of being bound by the
Convention multiple times. Indian courts only incorporate international law via Article 51 when
domestic law and policy are ‘ambiguous’. Therefore, Indian courts would be hesitant to enforce a
customary norm that clearly violated the policy of the nation.

d. “Finally, Article 51 remains a 'Directive Principle' and is not a mandatory rule of governance or
not enforceable upon the courts”. “Instead, Article 51 has merely been a way for courts to construe
legislative intent, assuming that Parliament does not intend to violate international law unless
given indications otherwise”. The courts do not operate under compulsion of law to effectuate the
language of Article 51.

4. “The Parliament retains full control over citizenship and foreign affairs as granted to them in
Railway Board v. Das18 that stated the primacy of nation’s interest and security must be ‘read
into’ other parts of the Constitution and such international affairs are of paramount importance
when a nation’s interests and security are concerned. In Mohammed Sadiq v. Government of
India and Khadija v. Union of India19, the Supreme Court of India and the Delhi High Court
clearly confirmed the state interests in national security and criminal matters outweigh the
refugee’s life and personal liberty”. “In the aforementioned cases, the courts were found to have
returned the refugees back to their home countries”, despite serious threats against their lives,
because “their presence interfere with the criminal laws or National Security of India”.

“In the matter of Gurunathan and others vs. Government of India and others20 and in the matter
of A.C. Mohd. Siddique vs. Government of India and others21, the High Court of Madras
expressed its unwillingness to let any Sri Lankan refugees to be forced to return to Sri Lanka
against their will”. “In the case of P .Nedumaran vs. Union Of India22 before the Madras High
Court, Sri Lankan refugees had prayed for a writ of mandamus directing the Union of India and
the State of Tamil Nadu to permit UNHCR officials to check the voluntariness of the refugees in
going back to Sri Lanka, and to permit those refugees who did not want to return to continue to
stay in the camps in India”. “The Hon’ble Court was pleased to hold that” “since the UNHCR was

18
(2000) 1 SCC 465
19
(1978) ILR 557
20
(1992) 2 SCC 1
21
(1998) 47 SRJ 74
22
(1993) 2 ALT 291
 P a g e | 21

involved in ascertaining the voluntariness of the refugees’ return to Sri Lanka, hence being a
World Agency, it is not for the Court to consider whether the consent is voluntary or not”.
“Further, the Court acknowledged the competence and impartiality of the representatives of
UNHCR.

“The Bombay High Court, in the matter of Syed Ata Mohammadi vs. Union of India23, was
pleased to direct that” “there is no question of deporting the Iranian refugee to Iran, since he has
been recognised as a refugee by the UNHCR”. “The Hon’ble Court further permitted the refugee
to travel to whichever country he desired”. “Such an order is in line with the internationally
accepted principles of ‘non-refoulement’ of refugees to their country of origin.

“In the matter of Malavika Karlekar vs. Union of India24, the Supreme Court of India directed
stay of deportation of the Andaman Island Burmese refugees, since” “their claim for refugee status
was pending determination and a prima facie case is made out for grant of refugee status”.

“The Supreme Court (SC) Judgment, Romoni KR. Chakma v. State of Arunachal Pradesh, in
the Chakma Refugee case clearly declared that no one shall be deprived of his or her life or liberty
without due process of law”.

“Earlier judgments of the Supreme Court in Luis De Raedt vs. Union of India and also State of
Arunachal Pradesh vs. Khudiram Chakma had also stressed the same point. There is yet another
aspect of nonrefoulement which merits mention here. The concept of ‘International Zones’ which
are transit areas at airports and other points of entry into Indian territory, which are marked as
being outside Indian territory and the normal jurisdiction of Indian Courts, is a major ‘risk factor’
for refugees since it reduces access of refugees to legal remedies. This is violative of the
internationally acknowledged principle of non-refoulement. In Mukesh & Anr vs State for Nct
Of Delhi & Ors, a Palestinian refugee who was deported to New Delhi International Airport from
Kathmandu was sent back to Kathmandu from the transit lounge of the Airport. He was once more
returned to New Delhi International Airport on the grounds of being kept in an ‘International
Zone’. Such detention is a classic case on the above point barring legal remedies to the detained
refugee. The only relief in such a case is through the administrative authorities.

23
(1998) 47 DRJ
24
Supra
 P a g e | 22

➢ THE INDIAN CONSTITUTIONAL FRAMEWORK GOVERNING AND PROVIDING

PROTECTION TO REFUGEES

The Constitution of India guarantees certain Fundamental Rights to refugees. Namely, right to
equality (Article 14), right to life and personal liberty (Article 21), right to protection under
arbitrary arrest (Article 22), right to protect in respect of conviction of offences (Article 20),
freedom of religion (Article 25), right to approach Supreme Court for enforcement of Fundamental
Rights (Article 32), are as much available to non-citizens, including refugees, as they are to
citizens.

The constitutional rights protect the human rights of the refugee to live with dignity. The liberal
interpretation that Article 21 has received now includes right against solitary confinement, right
against custodial violence, right to medical assistance and shelter

The Supreme Court has taken recourse to Article 21 of the Constitution in the absence of legislation
to regulate and justify the stay of refugees in India. In NHRC v. State of Arunachal Pradesh25,
the Government of Arunachal Pradesh was asked to perform the duty of safeguarding the life,
health and well-being of Chakmas residing in the State and that their application for citizenship
should be forwarded to the authorities concerned and not withheld. In various other cases it was
held that refugees should not be subjected to detention or deportation and that they are entitled to
approach the U.N High Commissioner for grant of refugee status. In P. Nedumaran v. Union of
India26 the need for voluntary nature of repatriation was emphasized upon and the Court held that
the UNHCR, being a world agency, was to ascertain the voluntariness of the refugees and, hence,
it was not upon the Court to consider whether consent was voluntary. Similarly, according to B. S.
Chimni, the Supreme Court has erred in concluding in Louis de Raedt v Union of India27 that
there is no provision in the Constitution fettering the absolute and unlimited power of the
government to expel foreigners under the Foreigners Act of 1946.

In actuality Article 21 of the Indian Constitution does impose certain constraints: any action of the
State which deprives an alien of his or her life and personal liberty without a procedure established
by law would fall foul of it, and such action would certainly include the refoulement of refugees.
Therefore, the author opined that the Court should have proceeded to test the validity of Foreigners
Act as against Article 21.

25
Supra
26
Supra
27
Supra
 P a g e | 23

➢ INCORPORATION OF INTERNATIONAL LAW WITH DOMESTIC LAW

It is true that India has not ratified the 1951 Convention and the 1967 Protocol to it, however, it
acceded to various Human Rights treaties and conventions that contain provisions relating to
protection of refugees. As a party to these treaties India is under a legal obligation to protect the
human rights of refugees by taking appropriate legislative and administrative measures under
Article 51(c)28 and Article 253 and also under the same laws it is under the obligation to uphold
the principle of non-refoulement. India is a member of the Executive Committee of the office of
United Nations High Commissioner for Refugees which puts a moral, if not legal obligation, on it
to build a constructive partnership with UNHCR by following the provisions of the 1951 Refugee
Convention.

With regard to adopting international conventions in domestic laws, in Vishaka v. State of

Rajasthan29, the Court observed that reliance can be placed in international laws. Therefore, the
question that arises is whether India can refer to the 1951 Convention in interpreting the domestic
legislation and whether it is really necessary to ratify these conventions. It is to be noted that merely
ratifying the 1951 Convention does not ensure that the asylum seekers will not be kept out and
also Article 42 of the same Convention permits reservations with respect to the rights of refugees
which will defeat the purpose of ratifying the Convention.

The solution to treat refugees with dignity in India is to either ratify the 1951 Convention and
incorporate it into domestic law or enact a uniform legislation specifically for refugees so that it is
not left to the discretion of the executive and the judiciary to decide their fate.

2.2) THE INTERNATIONAL LAW GOVERNING REFUGEES CRISIS

The legal framework within which the refugee is located remains characterised, on the one hand,
by the principle of state sovereignty and the related principles of territorial supremacy and self-
preservation, and, on the other hand, by competing humanitarian principles deriving from general
international law and from treaty30.

28
Article 51(c) in The Constitution of India 1949: “foster respect for international law and treaty obligations in the dealings
of organised peoples with one another; and encourage settlement of international disputes by arbitration PART IVA
FUNDAMENTAL DUTIES”
29
1997 (6) SCC 241
30
Guy S. Goodwin-Gi 11, "The Refugee in term of international Law", Clarendon Press, Oxford, 1983, P.215.
 P a g e | 24

Refugees are for the most part victims of human rights abuses. And more often than not, the great
majority of the refugees are likely to suffer a double violation, the initial violation in their own
country of origin which will usually underlie their flight to another country; and the denial of a full
guarantee of their fundamental rights and freedoms in the receiving state. The international legal
regime for the protection of refugees, whose basis is provided by the 1951 UN Convention Relating
to the Status of Refugees and the 1967 Protocol, attempts to guarantee against such violations. Or,
at any rate, these conventions prescribe duties and obligations which are incumbent upon States in
their treatment of asylum-seekers and refugees. International guarantees for the protection of
refugees, of course, are in themselves largely without much effect unless supported by parallel
guarantees within the domestic structures of the various states which comprise the international
communities.

This suggests the need for a certain concordance between international law, on the one hand, and
municipal law, on the other. This need is an acknowledgement of the fact that, international refugee
law largely, if not wholly, depends for its effectiveness on the willingness of States to respect and
apply to the individuals concerned. Thus, realistically, the protection enshrined in the provisions
of international refugee conventions may only be enjoyed by the refugees through provisions in
the municipal laws enacted by the host or receiving State.

The formal instruments on refugees are three:

I. The Statute of the Office of the United Nations High Commissioner for Refugees,
adopted by the United Nations General Assembly in 1950
II. The Convention relating to the Status of Refugees, 1951 ; and
III. Protocol relating to the Status of Refugees, 196731.

The Statute of the Office of the High Commissioner for Refugees is an important instrument,
sometimes overlooked because it is not in treaty form. It invests the High Commissioner with the
function of protection of refugees. These functions include the promoting measures to improve the
situation of refugees by special agreements with governments, assisting governmental and private
efforts to promote voluntary repatriation or assimilation within new national communities,
promoting the admission of refugees, facilitating the welfare and improvement of conditions of
refugees, and maintaining liaison with governments in all matters concerning refugee questions.
The High Commissioner is assisted by the advice of the Executive Committee of the High

31
See Collection of International _·Instruments Concerning Refugees, Published by the Office of the United Nations High
Commissioner For Refugees, Geneva, 1990.
 P a g e | 25

Commissioner’s Program, which in term established, in 1975, a Sub-committee of the Whole on

International Protection.

Indeed, the principal legal instrument concerning refugees is the Convention Relating to the Status
of Refugees of 1951 which has been described as the Magna Carta - the Great Charter - of refugees.
Although it does not go back as far in history as the memorable proclamation of rights and
freedoms conceded in 1215 by the King of England to his subjects, the Convention is the veteran
of many battles it has helped to win by providing a unified code of rights and duties for refugees,
which still today protects them from arbitrary treatment by states32. The 1951 Convention is a
comprehensive charter of the rights which signatory countries agree to confer upon refugees. These
rights range from the simplest to the most elaborate and it is provided that there shall be no
discrimination for reasons of race, nationality or religion.

They include the right to practice a religion, to have access to wage-earning or self-employment
and to the liberal professions, to housing and public education, and to hold movable and
immovable property. The refugee shall also have access to courts of law, to public relief and to
social security. He shall be granted freedom of movement, and shall be entitled to identity papers
and a travel document. He shall also have the right to cease to be a refugee that is the right to seek
and acquire the citizenship of the adopted country.

Regarding the application of these rights, the Convention often refers to treatment at least as
favourable as that accorded to other aliens in the same circumstances, and recommends that
refugees shall benefit from the most favourable treatment possible. However, the most notable
omission from the Convention is any statement of obligation on the part of contracting States to
admit a person qualifying as a refugee under its terms. But it is also true that in 1951, the events
of the preceding years seemed unlikely to be repeated, and the Convention was seen as achieving
its primary objective of resettlement and integration of dislocated persons without the need for any
obligation of admission of refugees. This expectation proved, of course, to be wrong.

Here it is interesting to note that the term "asylum" does not appear in any of the institutions
discussed above relating to refugees. But asylum (meaning territorial and not diplomatic asylum)
aptly describes the status of a person accorded refugee status and permanent settlement in a State
other than that of his nationality.

The statuses of refugee and of enjoyment of asylum are thus largely, but not exactly, contentious.

32
Y. Zarjevski, "A Future Preserved", Pergamon Press, Oxford, 1988, P.55
 P a g e | 26

For asylum is a wider notion embracing in addition protection for reasons other than those
particular grounds of persecution set out in the 1951 Convention. Also, the notion of asylum
connotes a decision by the host State to grant the asylum permanent, or at least indefinite~
residence, Whereas refugee status can be granted without such an assurance of residence; an
obligation is assumed only against expulsion and refoulement.

RECENT GLOBAL REFUGEE CRISES

In the past two years, the world has witnessed a growing refugee crisis. In 2013, for the first time
since World War II, the number of those forcibly displaced from their homes exceeded 50 million.
Millions more have since been displaced as a result of conflict and crises around the globe.

More than half of Syria’s population is displaced. Some four million women, men and children
have fled the country and are refugees, making this one of the biggest refugee crises in history.
The vast majority - 95% - are living in the countries neighbouring Syria. In one country - Lebanon
- Syrian refugees now account for one in every five people.

Despite the huge influx of refugees, the host countries have received almost no meaningful
international support. The UN’s humanitarian appeal for Syrian refugees was only 23% funded as
of the 3 June 2015. Calls by the UN for the international community to resettle refugees from Syria
have largely fallen on deaf ears. The total number of places offered to refugees from Syria is less
than 90,000, only 2.2% of the refugees in the main host countries.

It is clear that the situation in Syria will not allow refugees to go home any time soon. However,
Syria’s neighbours are at breaking point – and some have resorted to deeply troubling measures,
including denying desperate people entry to their countries and pushing people back into the
conflict.

While Syria is the world’s biggest refugee crisis, it is by no means the only one. In Africa people
fleeing conflict and persecution in countries like South Sudan, the Central African Republic
(CAR), Nigeria and Burundi, have added hundreds of thousands to the longstanding refugee
populations from countries such as Somalia, Ethiopia, Sudan and the Democratic Republic of
Congo (DRC). There are more than three million refugees in sub-Saharan Africa. Kenya is home
to Dadaab - the world’s largest refugee camp, set up in 1991.

Yet, the refugee situations in African countries receive little or no global attention - in 2013, less
than 15,000 refugees from African countries were resettled and UN humanitarian appeals are
severely underfunded. The South Sudan regional refugee response plan, for example, is only 11%
 P a g e | 27

fulfilled.

While many African countries have opened their borders to those fleeing conflict, too many
refugees and migrants have faced discrimination and abuse in host states. The xenophobic attacks
that took place in South Africa in April 2015, for example, left thousands of refugees and migrants
displaced in that country.

In an effort to escape desperate situations refugees and migrants risk their lives – one of the starkest
examples is the perilous boat journeys in the Mediterranean from North Africa to Europe. In 2014
and the first three months of 2015, the largest number of people recorded attempting to cross the
Mediterranean by boat to reach Southern Europe were Syrians.

In April 2015, more than 1,000 people died in the space of ten days while attempting to cross the
Mediterranean. As of 31 May 2015, the number of people who drowned making the boat journey
from North Africa stood at 1,865, compared to 425 deaths recorded during the same period in
2014. The dramatic increase in the number of lives lost in the Mediterranean in 2015 is partly due
to the decision by Italy and the European Union (EU) to end the Italian navy operation Mare
Nostrum at the end of 2014 and replace it with a much more limited EU operation.

In South East Asia in May 2015 the world witnessed harrowing scenes as fishing boats crammed
with refugees and migrants from Myanmar and Bangladesh were pushed back to sea by Thailand,
Malaysia and Indonesia. Desperate children, men and women were left without food, water and
medical care for a week, before the Philippines and later Indonesia and Malaysia offered to take
them in.

The Mediterranean and South East Asia crises exposed governments’ willingness to ignore legal
obligations and humanitarian imperatives. In situations where lives were known to be at risk and
states had the means to save them, they chose not to act for political reasons. The lives lost were
not a result of a violent conflict or an unavoidable natural disaster – most were entirely preventable
deaths.

In both Europe and South East Asia, people smugglers and human traffickers have – rightly – been
blamed for sending thousands to their deaths. Effectively combatting the criminals who prey on
desperate people is vital, but it does not absolve governments of their responsibility to provide
refugees with protection. The global refugee crisis cannot be re-cast as a trafficking and smuggling
issue by governments desperate to deflect attention from their failures.

The global refugee crisis may be fuelled by conflict and persecution but it is compounded by the
 P a g e | 28

neglect of the international community in the face of this human suffering. In the aftermath of
World War II, the international community came together to create the United Nations Refugee
Convention to protect people from being returned to countries were they risked persecution and
human rights abuses.

The Refugee Convention has been an important mechanism, providing a framework for the
protection of tens of millions of people. The Refugee Convention also established the principle of
responsibility and burden-sharing - the idea that the international community must work together
to address refugee crises so that no one country, or a small number of countries, has to cope by
themselves. This fundamental principle is now being ignored, with devastating consequences: the
international refugee protection system is broken.

o 86% of the world’s refugees are in developing countries. Some of these countries host
hundreds of thousands of people. Turkey, Lebanon and Pakistan each host more than one
million refugees. There is a clearly disproportionate burden on a small number of countries;

o Nearly one million refugees need resettlement or other forms of humanitarian admission –
whereby the most vulnerable refugees in a country are offered residency in another county
where they would receive better assistance. Yet, global annual resettlement commitments
are less than a tenth of this number;

o Although 145 countries have ratified the Refugee Convention, there are regions of the
world in which very few countries have ratified the treaty, including most of the Middle
East, South Asia and South East Asia. In these countries refugees generally enjoy limited
rights and in some cases can’t even be legally recognized as refugees;

o Xenophobic and racist discourse has been normalised in many countries, with certain
media outlets and politicians blaming refugees and migrants for economic and social
problems.

The global refugee crisis will not be solved unless the international community recognizes that
it is a global problem and deals with it as such. Refugees are - by definition – people who no
longer enjoy the protection of their state because that state will not or cannot protect them.
They are people who have fled armed conflict, persecution, violence and grave human rights
abuses.
 P a g e | 29

CHAPTER- 3

ANALYSIS OF THE PRESENT SCENARIO FOR REFUGEE

CRISIS AND ORGANISED CRIMES

Significant attention has been given to the horrors endured or tragically succumbed to by many
people in the process of migrating. Reports of deaths are increasingly common around the world,
with the numbers of people victimized en route rising as organized criminals realize the profit to
be made from exploiting human hope and desperation. Violence perpetrated against migrants by
border and police officials may pose additional threats to migrants. Many people become stranded
en route, rendered more vulnerable to violence.33 Violence can be perpetrated in the course of
individual and collective expulsions.34 Repressive policies aimed at curtailing migration mean that
migrants may turn to smuggling services for lack of alternatives to migrate. The violence that
migrants face en route is well discussed in this paper, particularly in the context of human
trafficking and migrant smuggling.

3.1) THE CONCEPT OF ORGANISED CRIMES

The smuggling of migrants is a truly global concern, with a large number of countries affected
by it as origin, transit or destination points. Profit-seeking criminals smuggle migrants across
borders and between continents. Assessing the real size of this crime is a complex matter, owing
to its underground nature and the difficulty of identifying when irregular migration is being
facilitated by smugglers. Smugglers take advantage of the large number of migrants willing to
take risks in search of a better life when they cannot access legal channels of migration.

Smuggled migrants are vulnerable to abuse and exploitation. Their safety and even their lives are
often put at risk: they may suffocate in containers, perish in deserts or drown at sea while being
smuggled by profit-seeking criminals who treat them as goods. As the crime is a clandestine one,
accurate global figures are difficult to come by. Nevertheless, it is estimated that two of the
principal smuggling routes — leading from East, North and West Africa to Europe and from

33
In relation to particular risks faced by women migrants, see: European Union Agency for Fundamental Rights,
Fundamental Rights at Europe’s Southern Sea Borders (Vienna, Austria, 2013), available from
http://fra.europa.eu/en/publication/2013/ fundamental-rights-europes-southern-sea-borders.
34
See the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, General
Comment No. 2 on the rights of migrant workers in an irregular situation and members of their families (CMW/C/GC/2)
 P a g e | 30

South America to North America — generate about $6.75 billion a year for criminals 35. The
global figure is likely to be much higher.

➢ THE CRIMINAL GROUPS: MOVING PEOPLE FOR PROFIT

The smuggling of migrants is the facilitation of crossing borders illegally or residing illegally in
another country with the aim of making a financial or other material profit. This crime is often
perpetrated by organized criminal networks, which seize the opportunity to make large profits from
an illicit activity involving little risk of detection.

The profiles of the smugglers vary widely. Full-time professional criminals are involved in
smuggling migrants around the world; some of those criminals are specialized in smuggling
people, and some are not. There is evidence of both smaller and larger, more organized groups and
networks operating as smugglers in all areas, although this varies by region and route. There are
also many smugglers who run legitimate businesses and are involved in the smuggling of migrants
as opportunistic carriers or hospitality providers who choose to look the other way in order to make
some extra money. Corrupt officials and other individuals may also be involved in the process36.

Smugglers of migrants are becoming more and more organized, establishing professional networks
that transcend borders and encompass all regions. As with other forms of organized crime, the
groups concerned have increased their operations by shifting routes in a bid to expand into other
markets and circumvent the responses of States. Criminal groups have merged or formed
cooperative relationships, expanding their geographical reach and the range of their criminal
activities. Some criminal groups view migrants as simply one of many commodities to be
smuggled, alongside drugs and firearms. Since the smuggling of migrants is a highly profitable
illicit activity with a relatively low risk of detection, it is attractive to criminals.

➢ VICTIMS: HARSH SEARCH FOR A BETTER LIFE

People move to other countries for many reasons, but for undocumented migrants it is nearly
always for a better life. This may be for themselves or for their families, and it may involve

35
The Globalization of Crime: A Transnational Organized Crime Threat Assessment (United Nations publication,
Sales No. E.10.IV.6). Available from www.unodc.org/documents/data-and-analysis/tocta/TOCTA_Report_2010_
low_res.pdf
36
Budapest Group. 1999. The Relationship between Organised Crime and Trafficking in Aliens. Vienna: International Centre
for Migration Policy Development
 P a g e | 31

searching for work or escaping from poverty, natural disasters, violence, armed conflict or
persecution.

Profit-seeking criminals exploit the lack of legal opportunities available to migrants and take
advantage of their situation by offering services at great cost. While these may include services
such as transport, they may also consist of document fraud37. This can include the lending of stolen
passports with photos that resemble the migrants, the falsification of travel or identity documents
or the obtaining of genuine passports or visas on the basis of fraudulent supporting documents.

Because these services are illegal, the criminals have tremendous power, while the migrants are
left vulnerable. Many migrants are abused or die on the way to their destination, and many are
abandoned en-route without resources. Refugees and asylum seekers, as well as vulnerable
migrants such as unaccompanied minors and pregnant women, can be among those who pay a high
price for smuggling services with no guarantee for their safety or the success of the venture.

In many cases, migrants are mistreated during the smuggling process and the conditions that they
are made to endure are severe. When they realize the situation they are in, some migrants try and
turn back, but they are inevitably forced to continue with the journey.

➢ ROUTES AND PACKAGES OF SOME CRIMINAL ORGANISATIONS

There are many different ways of smuggling migrants; they range from simple to complex, from
safe to dangerous and from cheap to very costly. The level of safety and ease of reaching the
destination are dependent on the amount of money paid. Migrants with little financial means may
opt for a “pay-as-you go” package in which they pay bit by bit for different parts of the journey to
smugglers who may not be linked with one another38. These migrants are more likely to become
stranded and be exposed to abuse. The more comprehensive “package deals” may be quicker, safer
and have a higher guarantee of success, but they can also be considerably more expensive.

Smuggling routes can be affected by long detours and last-minute changes in the itinerary to take
advantage of certain border policies or weaknesses in border control. The routes may originate and
end on the same continent, be transcontinental or involve transiting through a third continent. Two
examples of routes commonly used for the smuggling of migrants are the route leading from South

37
Behan, Tom. 2002. See Naples and Die: The Camorra and Organised Crime. London: Taurus

38
Barker, Cat. 2013. The People Smugglers’ Business Model. Canberra: Parliamentary Library
 P a g e | 32

America and Central America (as well as Mexico) to North America and the route leading from
Africa to Europe.

• From South America and Central America to North America

It is estimated that just under one third of all immigrants in the United States of America
are there illegally, with about 80 per cent of the illegal immigrant population in the country
originating in South America (as well as Mexico). Of all illegal immigrants in the United
States, an estimated 25-40 per cent entered the country on a legal visa and then over stayed,
and the remainder entered the country clandestinely. Of the latter group, 97 per cent entered
the United States clandestinely through that country’s border with Mexico; coastal
apprehensions comprised less than 1 per cent of the total. While not all illegal immigrants
are smuggled, these figures do provide an indication of the extent of the situation.

Most migrants are smuggled across the border in trucks, although there have been cases in
which the crossing is made on foot, by rail or even through special tunnels. The organized
criminal groups involved in smuggling migrants across the border between Mexico and the
United States appear to be based largely in Mexico and Central America. For the
smugglers, there appears to be little risk of arrest, as they normally pretend to be irregular
migrants themselves and are repatriated rather than apprehended.

While the percentage of migrants who have been smuggled is unknown, it is estimated that
Latin Americans account for around 3 million illegal entries into the United States each
year, generating an annual income of about $6.6 billion for criminals 39. Incidents of
hostage-taking and extortion have increasingly been noted, which highlights the diverse
criminal elements involved in the smuggling of migrants.

Figures for 2008 show that 88 per cent of migrants apprehended at United States borders
were Mexican nationals, 3 per cent were from Honduras, 3 per cent were from Guatemala,
2 per cent were from El Salvador and 4 per cent were from other countries. The fees
charged for smuggling migrants differ substantially depending on the point of origin.
Migrants smuggled across the border between Mexico and the United States pay about
$2,00040 while migrants from beyond Mexico (and thus needing to cross multiple borders)

39
Ibid. As one migrant may enter a country more than once per year, the term “entries” is used.
40
Ibid.
 P a g e | 33

could pay as much as $10,000.

Recent figures indicate that to migrants use indirect routes leading from other continents.
Migrants from East Africa are transported along land routes to South Africa and then
smuggled by air into Brazil. Once in South America, they then travel by sea or land to
Costa Rica or Panama directly from Brazil to Mexico. Chinese and Indian migrants are
often transported to Guatemala and travel from there by land to Mexico.

• From East, North and West Africa to Europe

Each year, some 55,000 migrants are thought to be smuggled from East, North and West
Africa into Europe, generating about $150 million in revenue for criminals. While the
number of migrants smuggled from Africa into Europe is far lower than the number
smuggled from South America and Central America into North America, the conditions
are no better: long desert routes and treacherous sea crossings41. While figures on fatalities
can be difficult to ascertain, media reports indicate that between 1996 and 2011, at least
1,691 people died while attempting to cross the Sahara and that in 2008 alone, 1,000 deaths
occurred during sea crossings42.

For African migrants travelling to Europe, the motivation for leaving their country of origin
mirrors that of migrants from Central America and South America: a lack of economic
opportunities and political instability are two of the leading reasons. It is believed that many
migrants heading to Europe from Africa are either smuggled by air with the aid of
fraudulent documents or initially enter Europe legally and then remain in the country of
destination once their visa has expired. The rest are smuggled along a combination of land
and sea routes, which can take considerably longer and be more dangerous.

The journey from West Africa to Europe is not always made all at once: the majority of
migrants remain in North Africa for different periods of time, often to earn more money to
pay for the rest of the journey. The fees paid to criminals vary, depending on the point of
departure and the points of destination. For instance, Asian migrants who travel to Europe
via Africa reportedly pay between €4,180 and €5,575 for the flight alone. A smuggling
journey from Agadez, in the Niger, to Libya or to Europe itself would be priced at about

41
Ibid.
42
Issue Paper: Smuggling of Migrants by Sea. Available on www.unodc.org/documents/humantrafficking/Migrant-
Smuggling/Issue-Papers/Issue_Paper_-_Smuggling_of_Migrants_by_Sea.pdf.
 P a g e | 34

$2,000-$3,00043.

Travelling from inland areas to coastal ports is a gruelling journey. In West and East Africa,
Gao, Mali; Agadez; Addis Ababa; and Cairo are hubs from which migrants head to the
coasts of Algeria, Egypt, Libya, Morocco and Turkey. From there, migrants are smuggled
by boat to various locations in Europe44.

➢ IT IS A FAR-REACHING CRIME

Smuggled migrants are often subject to grave human rights abuses. While they might initially agree
to be smuggled into another country, the journey can turn into anything but a consensual one.
During the trip, people might be squeezed into exceptionally small spaces in trucks or onto
unseaworthy boats in order for smugglers to maximize their “cargo”. Migrants might be raped or
beaten en route or left to die in the desert. Once they reach their destination, many find that they
(or their families) are the victims of blackmail or debt bondage. The latter can involve migrants
paying huge sums of money to criminals in order to settle near-impossible levels of debt out of
fear of violence or fear of being deported by the authorities, which can result in them becoming
victims of human trafficking.

The smuggling of migrants and the activities related to it cost many people their lives and generate
billions of dollars in profit for criminals. They also fuel corruption — through the bribery of
officials — and strengthen organized crime in the countries of origin, transit or destination. There
is evidence suggesting that, with the ever-growing interdependence of the global economy, the
involvement of criminal groups in the smuggling of migrants is on the rise.

The smuggling of migrants has an impact on the countries of origin, transit and destination. In
countries of origin, families go into debt in order to pay the smuggling fee, with no guarantee for
a return on their investment. Even worse, they may be left with no news from their relatives, not
knowing whether they are dead or alive, in prison or victims of trafficking. In transit countries,
smuggled migrants may become stranded with limited means of continuing their journey, or be
deceived by smugglers45. This places a heavy burden on the transit countries, particularly since
migrants are usually from a different cultural background and may not understand the local

43
The Role of Organized Crime in the Smuggling of Migrants from West Africa to the European Union
44
Ibid.
45
The Role of Organized Crime in the Smuggling of Migrants from West Africa to the European Union. Available from
www.unodc.org/unodc/en/human-trafficking/migrant-smuggling/the-role-of-organized-crime-in-thesmuggling- of-
migrants-from-west-africa-to-the-european-union.html.
 P a g e | 35

language. Smugglers may also recruit for their criminal activities among local or migrant
communities; thus, their illicit activity may have an impact on the areas along the routes they use.
Attempting to intercept smuggled migrants and combat the crime places a significant strain on the
resources of countries of destination. If countries lack the resources and legal framework to
respond appropriately to the smuggling of migrants, the crime may continue unchecked.

3.2) REFUGEE SMUGGLING: THE NEED FOR NEW POLICY

Refugee smuggling also referred as Human smuggling and Trafficking and these are the two of
the fastest growing transnational criminal activities and one of the most lucrative forms of
organised crime, second only to the drug trade. Although distinct offences, they both often involve
a number of other crimes, including exploitation, coercion, extortion, fraud, bribery and human
rights abuses, such as debt bondage, deprivation of liberty, and restrictions on freedom of
movement and labour46.

While there are significant differences between trafficking in persons and human smuggling, they
both frequently arise from similar circumstances, namely extreme poverty, lack of economic
opportunities, civil unrest, and political uncertainty. The criminal elements that engage in one often
also engage in the other. Further, smuggled persons may become victims as well. In addition to
being subjected to unsafe conditions en route, smuggled people may be subjected to physical and
sexual violence or extortion. They may be held hostage until their debt is paid off. Moreover, a
person being smuggled may at any point become a trafficking victim.

Human smuggling may be further distinguished according to the type of person seeking to illegally
cross an international border. The term migrant smuggling refers to any form of assisted illegal
immigration to escape war, political persecution or natural disaster, or to obtain better economic
opportunities circumstances that can make emigration extremely difficult or even impossible.
Refugee smuggling relates specially to a class of migrants who are eligible for protection under
international law. Due to exigent conditions, they may have to resort to extra- legal measures to
obtain such protection. For instance, national policies that require refugees to physically arrive
within a country’s borders to be granted legal protection complicate the asylum seeking-process
and fuel the black market for human smuggling47. However, the distinction is important in
principle only – the actual smuggling of refugees is no different from the smuggling of other
migrants (save for certain special circumstances, such as departure from refugee camps).

46
Human Smuggling and Trafficking into Europe: A Comparative Perspective, Migration Policy Institute (February 2014),
citing UN Drug Report (UNODC 2007).
47
Kenney, Michael. 2007. From Pablo to Osama. University Park, PA: Pennsylvania State University Press
 P a g e | 36

➢ HUMAN SMUGGLING AS A SECURITY THREAT FOR NATIONS

In addition to the very real toll human smuggling takes on lives, this trade also has significant
security implications. Illicit money from human smuggling may be used to enhance terrorist
activity. In light of increased counter terrorism enhancing measures, terrorist groups are
increasingly turning to organised crime, including human trafficking and smuggling, as a source
of funding. This trend has been aged by several national administrations as a growing area of
concern48. Terrorist groups also use smuggling channels to physically relocate themselves. They
have reportedly taken advantage of the disorder created by the recent humanitarian crisis to
smuggle their members into Europe.

➢ INVOLVEMENT OF CORRUPTION IN REFUGEE SMUGGLING

Corruption is a key facilitator of human smuggling offences. It is a major impediment to the

prevention, detection and control of human smuggling. As with most transnational criminal
activities, refugee smuggling flourishes where rule of law is weak and public officials are prone to
corruption. Law enforcement, border protection and immigration control activities can be
circumvented by the complicity of corrupt officials along every step of the passage from the point
of origin to the destination.

There are a number of stages in the smuggling process in which corruption in general, and bribery
in particular, occurs. Due to the international nature of human smuggling, smugglers must pay
bribes to both national as well as foreign public officials over the entire course of the transit route.
Officials must be paid off at entry and exit points, as well as to obtain or overlook documentation,
such as in the form of visas and permits, or to waive controls or regulations.

In the world of human smuggling, bribery pays in many transit and destination countries where
public officials are poorly remunerated, accepting bribes to be complicit in smuggling schemes is
a type of rent, or extra income. Refugees and illegal migrants thus can represent a significant source
of additional income for border protection and immigration control officials.

➢ ILLEGAL HUMAN MOVEMENTS LEAD TO FINANCIAL FLOWS

Human smuggling is a highly profitable business. While evidence on profits obtained by

48
See e.g. in “International Jihadist Networks are a Threat to Portugal: Report,” Agence France-Presse, 30 March
2006; see also Arslan, Gökçe, “Migrant Smuggling: the Impact of the Turkish Highway to Europe”, Reuters (2013).
Australia’s Foreign Affairs Minister Julie Bishop has also stated that “[d]estroying the people-smuggling trade remains
a ‘national security priority’ for Australia because it is being used globally to fund terrorism” (Julie Bishop: Smashing
people smuggling the priority due to terrorism links, The Spring Morning Herald, 23 May 2015).
 P a g e | 37

smuggling individuals and networks is difficult to find, isolated cases show that the gains are
substantial. In January 2015, for example, the cargo vessel Ezadeen, intercepted by Frontex in its
Joint Operation Triton, with 360 migrants on board purportedly earned smugglers USD 2.79
million49. Prices charged by human smugglers can range from hundreds of dollars to the tens and
even hundreds of thousands50. The estimated human smuggling pro- t in the United States alone
for 2008 was USD 2.16 billion51. Some estimates place the figure of global profits from smuggling
to be in the ballpark of USD 26 billion per year52.

An empirical study following 50 illegal immigrants smuggled to the United Kingdom from
Afghanistan and Pakistan found that, on average, smugglers’ fees amounted to 262% of a
household’s annual income. The lowest ratio of fee to household income was 67% and the highest
was over ten times the household’s annual income. An example of the sequence of payments (and
average costs) necessary for arranging a flight leaving the host country (in this case Pakistan) can
be seen in the table below.

The study found that among the households studied, payments were broadly similar in that they
were usually made in full in advance of the migration (the main variation being whether payment
was transmitted in one lump sum or in instalments over time). Respondents explained that
payments in advance were always made to a third party (such as a hawala, or money changer) who
would essentially hold the money in escrow (and disburse funds as needed), rather than pay the
smuggler directly. The balance would be released to the smuggler at the end upon confirmation by
the migrant’s family of safe arrival.

Because the criminal scheme generates most of its proceeds in cash, payments often need to be
sent abroad to be “cleaned”. As such, money laundering plays a crucial role in the concealment of
proceeds, although detection of human smuggling through suspicious transaction reports (STRs)
made to Financial Intelligence Units (FIUs) represents only a small minority of cases brought to
the attention of law enforcement officials. The Financial Action Task Force (FATF) reports that,
compared to other serious offences, the number of STRs relating to smuggling is very low53.

49
See Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions, EU Action Plan against Migrant Smuggling (2015–2020) (converted from
EUR 2,5 million).

30
See Koser, Khalid, “Why Migrant Smuggling Pays” (2008).
51
See Money Laundering Risks Arising from Traffi cking in Human Beings and Smuggling of Migrants, FATF report, July
2011, para. 52
52
The billion-dollar business of refugee smuggling, Al Jazeera, 15 September 2015
53
See Note 6
 P a g e | 38

All this gives the huge opportunity for bribery to these organised crimes groups. Some of these
opportunities are mentioned below:

• To exit refugee camps, guards and security personnel are often bribed.
• Corruption in the issuance of falsified or fraudulent identity or travel documents may
require bribing the relevant public administration in charge, or bribery may be required to
facilitate the use of such fraudulent documents (e.g. by lack of scrutiny).
• Documentation fraud may involve the purchase of passports and visas through corrupt
officials in embassies.
• Another common scheme is ‘visa smuggling’, often involving the creation of fictitious
companies to sponsor an illegal immigrant.
• Approved destination status’ allows for multiple people to enter using one legitimate visa.

• Bribery of customs officials, immigration officers or border police at border crossings of

transit and destination countries is usually necessary, even with falsified documentation.

• Bribery of transportation officials who stop vehicles to inspect cargo will be required to
avoid detection or to pass check-points.
• Corruption in the form of bribery or coercion can induce or intimidate law enforcement
officials to look the other way (and not open investigations or initiate prosecutions).
• Corruption in the form of bribery or coercion can induce or intimidate members of the
judiciary to not convict smugglers or other participants of the illicit scheme.
• Immigration officials may be bribed to fail to implement a deportation order.
• Officials may also be bribed to facilitate the illegal housing and employment of
immigrants upon arrival.

In order to overcome the issues of Refugees smuggling there is the urgent need for introduction of
more stringent law and regulation in order to curb these organised criminal groups from the root.
From the above discussion it can be clearly seen that the issues is so grave and dark that it not only
puts the refuges life at risk but it also create hindrance for the Nation’s Security. It indirectly
challenges the legal protection and National Security of a Nation by easily facilitating illegal
movement of Refugees across borders and along with that these Criminal Groups also facilitate
the other illegal activities such as illegal smuggling of drugs from one place to another, this might
children and women’s smuggling across borders. Hence there is urgent need for introducing a law
dealing with the issue of Smuggling of refugees at both National and International Level.
 P a g e | 39

Chapter -4

Case Studies: Practical approach to look into the issues of

organized crimes along with the
solution for them

4.1) Europe’s Case study: the nation’s approach to deal with Refugee crisis and organised
crime

A complex, ruthless and multinational migrant-smuggling network has developed around Europe’s
unprecedented migration crisis, thus generating billions of Euros for the criminal groups involved.
In 2017, the number of irregular migrants arriving in the EU surged, reaching more than one
million migrants the following year. Europol believes this trend of rapidly increasing numbers is
set to continue54.

This development has had a profound impact on Europe’s criminal landscape, with criminal
networks substantially increasing their involvement in migrant smuggling. More than 90 % of the
migrants travelling to the EU used facilitation services. In most cases, these services were offered
and provided by criminal groups.

Criminal networks exploit the desperation and vulnerability of migrants seeking to escape armed
conflict, persecution and deprivation. They offer a broad range of facilitation services such as
transportation, accommodation and fraudulent documents at excessively high prices. In many
cases, migrants are forced to pay for these services by means of illegal labour. Europol expects
this exploitation to further increase.

Organised crime networks as well as individual criminal entrepreneurs are profiting from mass
migration. In 2016, criminal networks involved in migrant smuggling are estimated to have had a
turnover of between EUR 3–6 billion55. These earnings strengthen criminal networks and have a
significant negative long-term impact on Europe’s economy.

The turnover from this highly attractive business could double or triple if the scale of the current
migration crisis persists. A knock-on effect could be an increase in the exploitation of labour,

54
Morselli, Carlo. 2009. Inside Criminal Networks. Europe, EU: Springer
55
Ibid.
 P a g e | 40

where migrants may be forced to work to pay off their large debts with the smugglers.

Migrant smuggling networks have proven flexible and resilient, adapting to law enforcement
actions by quickly changing the routes they use to smuggle migrants to the EU. These routes are
constantly diversifying and changing. More than ever before, law enforcement authorities have to
rely on situational awareness and an intelligence picture that is updated in real time and that can
be maintained only through effective intelligence sharing.

To cover come this issue of Migrant smuggling the EU introduced European Migrant Smuggling
Centre (EMSC)56. The goal of the Centre is to proactively support EU Member States in
dismantling criminal networks involved in organised migrant smuggling. The Centre will focus on
geographical criminal hotspots, and will build a better capability across the European Union to
fight people smuggling networks. the facilitation of illegal immigration is one of the EMPCT
priorities, Europol’s priority crime areas, under the 2018-2021 EU Policy Cycle.

Rob Wainwright, Director of Europol; said: “Europol’s research indicates 90% of migrants
arriving in Europe have their journey facilitated by a criminal organization. Tackling this huge
people smuggling trade, therefore, has become an essential part of the EU’s response to the migrant
crisis. The European Migrant Smuggling Centre will provide the necessary platform by which
Member States can improve their exchange of information and operational coordination in the
fight against organized migrant smuggling.”57

The EMSC will play a decisive role in proactively supporting Member States to target and
dismantle organized crime networks involved in migrant smuggling. Acting as an information hub,
this Centre will support the EU Regional Task Force and the work of other partner agencies. The
exponential increase of the migratory flow and the involvement of organized crime on a large
scale, together with the number of requested for operational support from EU Member States,
called for an adequate and coordinated European response.

Therefore, Europol launched the new-style European Migrant Smuggling Centre, modeled along
the lines of similar initiatives such as the European Cybercrime Centre (EC3) and the European
Counter Terrorism Centre (ECTC), both hosted at Europol.

Part of the European Migrant Smuggling Centre is the hotspot model of the EU Regional Task

56
Ibid.
57
Ibid.
 P a g e | 41

Force recommended by the European Commission's Agenda on Migration. The aim of the regional
hotspots is to assist national authorities in the field of identification, asylum support, intelligence
sharing, criminal investigations and the prosecution of criminal networks of people smugglers. So
far two hotspots exist in Catania, Italy and in Piraeus, Greece.

In one 2016 operation, police and border-management forces from Austria, Bulgaria, Croatia, the
former Yugoslav Republic of Macedonia, Germany, Hungary, Romania, Serbia, Slovenia and
Switzerland joined forces in a 36-hour-long action along the Western Balkan route58. The EMSC’s
Mobile Analyst team (EMAST) was deployed to the main criminal hubs in Germany, Austria and
Hungary to facilitate the real-time exchange of information and to perform live cross-matching.
The operation resulted in the arrest of 39 migrant smugglers and 580 smuggled migrants. Hence
the EU has been constantly working in reducing the number of illegal migrant and to over the
criminal organisations facilitating smuggling to the migrants.

4.2) Indian Case Study: India and Bangladesh Refugee Crisis

India as stated above has been always somehow involved in the Refugee crisis because of its policy
of keep the place open for the migrants since independence. Hence the Indian Government has
also faced the issues of illegal smuggling of refuges in India

This issues has been specially notice in the areas of Bangladesh and Indian boarders, this problem
of rampant cattle smuggling has made the Indo-Bangladesh border a dangerous place for ordinary
people. There are various reasons for illegal migration few of which are mentioned below59:

➢ The key reasons for illegal migration include job opportunities, medical treatment and visits to
families on the Indian side of the border.

➢ The Indo-Bangladesh land border along the Gojadanga village, which stretches 3 km, is
completely unfenced. This makes it extremely vulnerable to illegal migration from Bangladesh.

➢ This is one of the densest borders in the world making it impossible to monitor every activity. It
is expected that due to sea-level rises in the future many millions of Bangladeshis will flee to
India, exacerbating further the ongoing disputes between India and Bangladesh.

➢ Environmental crisis and the increasing impacts of climate change in Bangladesh have become

58
Ibid.
59
Mueller, Gerhard O.W. 2001. Transnational Crime: Definitions and Concepts. In Combating Transnational Crime:
Concepts, Activities, Responses, eds. Phil Williams, and Dimitri Vlassis, 13–21. Abingdon: Frank Cass Publisher
 P a g e | 42

important causes of cross-border migration to the Indian Sundarbans Region in search of food
and shelter. Because of the supply of cheap labour from Bangladesh, political parties in the Indian
Border States encourage this illegal infiltration.

The issue of Migrant smuggling across the border from Bangladesh is a critical issue along the
Gojadanga border. Hardly any cases of human trafficking have been detected in the past few years
A few years back, cattle smuggling was rampant along the border, now it has drastically reduced.
Smuggling of Phensedyl cough syrup does take place from India to Bangladesh.

The cross-national touts/migrant smugglers are set free after a sentence of few months. Indian laws
barely penalise traffickers adequately. Due to poverty some villagers have made migrant
smuggling their profession. Bases in the bordering villages take advantage of a similar cultural,
religious and linguistic character. One of the reasons for smuggling is the nexus between criminals
and officials. fake Indian currency notes originating in Pakistan that are pushed in through the
Bangladesh border .There are a large number of touts working to ensure cross- over’s.

Monsoon has also impacted the Bangladesh border. Along with the monsoon, smuggling is on the
rise across the riverine border of Bangladesh and India. Besides cattle smuggling, militants might
also utilise this opportunity to cross the international border. The riverine border remains the
preferred route for smugglers — to ferry cattle, drugs and people. Since the river, during
monsoons, damages man-made constructions such as borders, fences and border outposts. This
makes the creation of a permanent border impossible.

Frequent floods, tropical cyclones and storm surges have had a colossal impact on Bangladesh’s
coastal population. These are causing widespread landlessness, unemployment, income disparities
and degradation of human habitat.

The Indian Government has been working to overcome this issue by following certain principles
of guidelines such as the Thailand government has MOU with Burma, Cambodia and Laos that
entitle migrant workers in Thailand to receive equal wages and benefits. Similarly the Indian
government can also open legal channel of migration which can be the most feasible option has
that would entitle them to receive the minimum wage and other entitlements of Indian workers.

Offering Humanitarian assistance to these effectively stateless people through entering into
bilateral negotiations with Bangladesh might also help to cope up with the issues of smuggling of
migrants. In this negotiation they can discuss the issues of fencing along the border which will
 P a g e | 43

definitely help reducing illegal migration and other illegal activities. But this further requires a
multi-dimensional and comprehensive response, which focuses on addressing the socioeconomic
root causes of irregular migration, and the prosecution of those who commit smuggling-related
crimes. Hence by these manners the Indian government can overcome the issues and can come at
peace with Bangladesh.

4.3) Rohingyas Refugee Issue and Organized Crime

Over a million Rohingya refugees live in camps located over 6000 acres in Bangladesh’s Cox’s
Bazaar area. Most of these refugees face a bleak future and have given up hope of ever returning
to their homes in Myanmar. Organised trafficking syndicates, worth millions of dollars, have
sprung up with networks in Myanmar, Thailand, India, and Malaysia. With the promise of jobs
and a better future, these refugees are being trafficked to Malaysia for a hefty amount. Only a
section of these refugees, however, reach their final destination. Many others drown to death at
sea, are killed, tortured and raped by the traffickers, who have an intimate profit-sharing nexus
with the authorities in many of these countries.

Basically, Rohoingyas are an ethnic Muslim minority community who live in Rakhaine state,
formerly known as Arakan state of Myanmar. But, since they are minority and they are not being
recognized by the government of Myanmar, they always try to leave Myanmar and normally come
to Bangladesh, Thailand and Malaysia. There are many Rohingya people who are living in
Bangladesh now. There are 37 refugee camps for the Rohingya people in Coxs Bazar district which
are being run by the government of Bangladesh. UNHCR is providing the necessary assistance in
the camps by giving food and sanitary facilities. According to the information from the Bangladesh
Ministry of Disaster Management and Relief, the Rohingya refugees from Myanmar first came to
Cox‟s Bazar in 1992. The total number of the refugees was 250877. At that time, the Bangladesh
government opened 20 refugee camps. Until August, 2017, there were living 24797 refugees at
Nayapara and Kutupalong Camps in Cox‟s Bazar. But now the number of Rohingya refugees who
are living in camps and out of the camps in Cox‟s Bazar district will be around 1.5 million. The
Rohingya people are actually stateless. They have nothing to do in the camps. They do not even
have permission to go outside of the camps. On the other hand, the Rohingyas who are still living
in Myanmar are not in good situation. They are being tortured by the militarybacked Myanmar
government. The Myanmar government claimed that their origin were Bangladesh. On that false
ground, they were obliged to enter into Bangladesh territory. For that reason, these people are
 P a g e | 44

engaged with the various crimes with the supports of several criminal groups. According to Deputy
Secretary of Ministry of Home Affair of Bangladesh government, recently, human trafficking has
increased in the region. The reason for this increase is an easy access of people to Malaysia and
Thailand by boats through the Bay of Bengal. There is a strong criminal network that is involved in
this trafficking. According to Teknaf police, some local people have connection with some Thai
criminals. They send needy people from Myanmar and Bangladesh to Thailand by boats through
the sea route and the Thai criminal group receives them. The police said, in Thailand, there are some
Rohingyas who work with the Thai criminals.

Insight into the Refugee Rohingya Community:

“A group of Stateless People, The Rohingyas have Indo-Aryan as their origination roots who are
described as the “world’s most persecuted minority”60. Alternatively known as Arakanese Indians and
hailing from the Rakhine State of Myanmar, such community comprises majorly of Bengali Muslims
and minority as Hindus. In October 2017, the Rohingyas were highlighted by the fickle Media because
reportedly around 5 lakh Rohingyas crossed the Myanmar border and entered into Bangladesh and
India due to the persecution and being a constant subject to fear, violence and torture by the Myanmar
Law Enforcement Authorities. The point of conflict arises when the fact that this community has been
residing in Myanmar since the 12th century is acknowledged; “A large number of Migrant Rohingya
Labourers, during 1824 - 1948, migrated from India and Bangladesh to Myanmar, which was still
under the rule of British.

“Following Myanmar’s Independence from the British Rule in 1948 and passing of the Union
Citizenship Act of 1948, the Myanmarese government began to look at the migrant Myanmar’s, i.e.
Rohingyas as illegal”. They were denied full citizenship rights and basic amenities as the aforesaid
act defined which ethnicities would be granted citizenship and “according to a 2015 Report by the
International Human Rights Clinic at Yale Law School, the Rohingyas were not included”. “However,
The Citizenship Act did allow those people whose families had lived in Myanmar for at least two
generations to apply for Identity Cards”. “Rohingya were initially given such identification under the
generational provision”. “During this time, several Rohingya also served in the state’s Parliament as
well.

60
“Human Rights Council opens special session on the situation of human rights of the Rohingya and other minorities in
Rakhine State in Myanmar, UNITED NATIONS HUMAN RIGHTS OFFICE OF THE HIGH COMMISSIONER (Oct. 1,
2019, 10:04 A.M.), https://www.ohchr.org/EN/NewsEvents/Pages/Displa yNews.aspx?NewsID=22491&LangID=E”.
 P a g e | 45

“After the 1962 military coup in Myanmar, things changed drastically for the Rohingyas”. “All
citizens were required to obtain National Registration Cards”. “The Rohingyas, however, were only
given Foreign Identity Cards which limited the jobs and educational opportunities they could pursue
and obtain.

“In 1982, a new citizenship law was passed, which effectively rendered the Rohingyas stateless”.
“Under the law, the Rohingyas were again not recognized as one of the state’s 135 ethnic groups”.
“The law established 3 levels of Citizenship”. “In order to obtain the most basic level of citizenship,
i.e. Naturalized Citizenship, there must be proof that the person's family lived in Myanmar prior to
1948, as well as fluency in one of the national languages”. “Many Rohingyas, despite being fluent in
Burmese, lacked such paperwork as it was either unavailable or denied to them.

“As a result of the new legislation, the following rights of Rohingyas has been restricted: To Study,
To Work, To Seek Shelter and Safety, To Travel, To Marry, To Practice their Religion, To Access
Health Services, To Vote and so on”. “Furthermore, limits are placed on them as to enter certain
professions like Medicine, Law or Running for the Office”. “Since the 1970s, a number of crackdowns
on hundreds of thousands of Rohingyas in Rakhine State has caused them to flee to neighboring states
of Bangladesh, as well as Malaysia, Thailand and other Southeast Asian countries. During such
crackdowns, refugees have often reported rape, torture, arson and murder by Myanmar Law
Enforcement Forces.

4.4) Latin America Case Study: A Lesson to be Learned

Organised Crime is driving forced displacement across Latin America, creating profound tensions
for countries and humanitarian practitioners in the region. How Latin America copes with these
challenges has global implications.

This region may be particularly affected, but there are several other countries around the world
that are technically at peace, yet organized crime is creating significant forced displacement.
Many other countries are embroiled in armed conflicts that have bred under their auspice serious
organized criminal violence and control61.

For all these reasons, organized crime is an important trend in the future dynamics of forced
migration. Latin America’s steps towards addressing forced migration caused by organized crime

61
Grewcock, Michael. 2012. People Smuggling and State Crime. In Crime, Justice and Social Democracy, eds. Kerry
Carrington, Matthew Ball, Erin O’Brien, and Juan Tauri, 327–343. Houndsmill: Palgrave Macmillan.
 P a g e | 46

provide important insights for institutions and agencies working on this issue around the world.
Here are some the conceptual, legal and operational lessons from Latin America62:

1. The challenges are not the same in every country. Different situations require different
responses. To take one obvious example, in some countries, the scale and/or impact of
forced migration may require a humanitarian response whereas in others more subtle
measures will be sufficient. The Nations should be able to identify the tripping point and
take appropriated measures in each scenario. Colombia and Mexico have responded to
internally displaced persons (IDPs) through the framework of reparations for victims of
conflict. We should examine where this is effective and not. When should countries offer
a specific response for internal displacement, and where can other approaches, including
reparations.

2. While the impact of organized crime is similar to an armed conflict in some countries,
there are differences as well as similarities in the operating context for humanitarian
organizations working with IDPs. Careful analysis is required. The government must
always consider and look into the assistance and protection practices developed in conflict
zone and see whether they can be applied to these situations.

3. Avoid an overly legalistic and formalist approach. For instance, it may be that the over-
complicated nature of the Colombian IDP framework has not helped its rapid and effective
implementation, even though Colombia is a relatively well-resourced, upper- middle
income nation. Responses to internal displacement in the region should resist legalism and
staid formalism and concentrate on developing more pragmatic and flexible measures that
can actually be implemented in practice.

4. Importance of development initiatives for IDPs. A lack of local development is

sometimes behind the prevalence of organized crime in some areas. Moreover, trying to
provide IDPs with assistance and protection based on their individual self-identification or
registration as an IDP may run into difficulties in areas under the control of organized
criminal gangs. Providing development to whole communities offers more scope for not
only solutions, but also protection and assistance. Such interventions may also help

62
Ibid.
 P a g e | 47

promote local and national government interest in IDP issues.

5. Existing international legal frameworks for refugees and other persons in need of
international protection are adequate for people fleeing acute criminal violence. No
new framework is required in international law. At the same time, the mind-set of
governments, or at least those officials working on refugee protection, needs to change gear
and recognize that forced migration dynamics in Latin America have changed dramatically.
Less legal formalism based on outdated Cold War assumptions, and greater flexibility in
applying the law that exists, are necessary and sufficient to ensure that refugee law marches
in line with current realities.
 P a g e | 48

Chapter-5

Recommendations and Suggestions

The absence/inadequacy of national legislation to address the smuggling of migrants in many parts
of the world often means that smugglers of migrants can continue to commit the crime with little
fear of being brought to justice. Responses by States often target migrants, leaving smugglers, and
especially organized criminal groups, which are more difficult to apprehend, at large. Only a
limited number of States have specific policies and mechanisms in place aimed at countering the
smuggling of migrants, and a lack of capacity to investigate and prosecute the crime means that
criminal justice systems are often unable to meet the challenge of combating it. Beyond this, failure
to secure smuggled migrants as witnesses means that prosecutions are often difficult and
opportunities to convict are missed.

Moreover, the smuggling of migrants is not always considered a serious crime for which a heavy
penalty could be imposed. Ensuring that priority is given to investigating higher-level smugglers
and taking due account of aggravating circumstances in the prosecution of cases involving the
smuggling of migrants could have a deterrent effect on organized criminal groups. Moreover,
organized criminal groups turn to smuggling of migrants only for the profit that it generates.
Following the money trail by launching financial investigations and freezing, seizing and
confiscating assets, as well as looking for examples of money-laundering, could have a direct
impact on such profits. Making the smuggling of migrants an unprofitable crime would discourage
organized criminal groups from becoming involved in it.

The smuggling of migrants is by nature a transnational crime, and the smugglers involved work in
networks. Key to combating the smuggling of migrants, therefore, is the need to increase
international cooperation, reinforce national coordination and ensure that the laws in the countries
involved are harmonized in order to close loopholes. Only by ensuring that actors within countries
of origin, transit and destination work together can the smuggling of migrants be stopped. The
United Nations Convention against Transnational Organized Crime and the Protocol against the
Smuggling of Migrants by Land, Sea and Air, supplementing the Convention, are essential to
addressing the crime.

The work of UNODC in countering the smuggling of migrants focuses on assisting States in
implementing the Smuggling of Migrants Protocol and in enacting laws criminalizing involvement
 P a g e | 49

in the smuggling of migrants and on training law enforcement officers and prosecutors from around
the world. Organizations such as the International Criminal Police Organization (INTERPOL)
support the efforts of national police authorities in breaking up the criminal networks behind the
smuggling of migrants.

The underlying social, economic and political pressures that fuel the crime cannot be ignored.
Unemployment, war and persecution are but three of the many reasons people decide to leave their
home country. Pull factors include demand for cheap, undocumented labour in countries of
destination. To better understand these dynamics and fully address the root causes of migration in
order to prevent organized criminal groups from profiting from vulnerable groups such as
migrants, a comprehensive response is required — one that involves examining the issues of
migration and development.

A holistic approach to counter smuggling of migrants needs to take into account not only the
geography of the crime but also its different contributing factors which make regular migration
opportunities more accessible in origin countries and refugee camps, including the expansion of
migration and asylum bureau in origin areas, would reduce opportunities for smugglers. Tackling
smuggling networks in their entirety requires improved regional and international cooperation and
national criminal justice responses.

Raising awareness in communities of origin, and particularly in refugee camps, about the dangers
involved in smuggling may also help reduce the demand for smuggling services. Data collection,
analysis and research on smuggling of migrants remain at their infancy. To build a solid
international body of knowledge to support policy making in the area of smuggling of migrant,
there is a need to improve data collection systems at the national, regional and international levels.

This is the first Global Study on Smuggling of Migrants from UNODC. In line with UNODC’s
mandate as the guardian of the UN Convention against Transnational Organized Crime, and its
supplementing Protocol against the Smuggling of Migrants by Land, Sea and Air, the research
represents a start towards developing a deeper, more nuanced understanding of the criminal aspect
of migrant smuggling.

Complementing UNODC’s existing support to Member States, it highlights potential avenues for
strengthening measures against migrant smuggling, and can help to inform effective criminal
justice responses. It is also meant to contribute to continuing efforts towards the Global Compact
on safe, orderly and regular Migration, the first intergovernmental negotiated agreement prepared
 P a g e | 50

under the auspices of the UN, to cover all dimensions of international migration in a holistic and
comprehensive manner.

➢ SUGGESTIONS

The Smuggling of Migrants Protocol identities several measures that can be taken to prevent
refugee smuggling, including border control, information exchange between jurisdictions,
measures to ensure the security and control of documents, and public awareness campaigns63.
However, the covert and corrupt nature of refugee smuggling undermines many of the international
best efforts made to reduce this phenomenon. Systems and organisations set up to control
migration and protect borders are all vulnerable to corruption to varying degrees. It is therefore
critical that measures to address the corrupt behaviour that supports and facilitates refugee
smuggling are prioritised.

The issue of human smuggling is at the top of the EU’s agenda for the coming years. The EU seeks
to promote pro-active financial investigations to seize and recover criminal assets and take action
against money laundering by stepping up cooperation with FIUs and other relevant networks on
financial owns in the areas of human smuggling64.

➢ INTERNATIONAL COMMUNITIES COMING TOGETHER

Leading international organisations such as the OECD, with expertise in transnational corruption
and catching economic crime, should act together with national authorities to cut the lifeline of
refugee smuggling – the complex network of illicit payments and financial owns that fund the
criminal activity. In order to effectively combat refugee smuggling, the international community
must:

❖ Identify the corruption vulnerabilities in source, transit and destination countries that give
rise to refugee smuggling;
❖ Identify and analyse the corrupt schemes and methodologies employed by smugglers;
❖ Analyse laws relating to refugees and asylum seekers in source, transit and destination
countries with an eye to minimise the motivation or ability of smugglers to engage in

63
The Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the Convention against
Transnational Organised Crime, was adopted by the United Nations General Assembly in 2000.
64
See Communication from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions, EU Action Plan against Migrant Smuggling (2015–2020)
(converted from EUR 2,5 million).
 P a g e | 51

corrupt schemes;
❖ Assess institutional arrangements that may be vulnerable to corruption or manipulation by
criminal elements in source, transit and destination countries and provide support through
knowledge-sharing, technical assistance or capacity building;
❖ Improve co-operation between law enforcement and FIUs to (i) trace illicit financial
owns stemming from this crime, and (ii) improve detection of human smuggling by FIUs
(including through underlying offences, such as bribery);
❖ Facilitate international co-operation in the detection and investigation of human
smuggling, including by creating a network for competent law enforcement officials;
❖ Launch an awareness-raising campaign among law enforcement officials and policy
makers of the close relationship between corruption and smuggling, in particular the
bribery transactions that facilitate human smuggling and support the extensive criminal
networks involved;
❖ Identify ways to facilitate the safe passage of refugees that would not involve corrupt or
extralegal measures.
 P a g e | 52

Bibliography

Conventions/Rules/Acts Referred:-

I. 1951 refugee convention

II. Foreigners Law (Application & Amendment) Act, 1962
III. European Migrant Smuggling Centre (EMSC). 2016
IV. Constitution of India

Books Referred:-

• Nationality and Statelessness in the International Law of Refugee Status, Eric Fripp (1st
ed.,2016)
• Critical Issues in International Refugee Law, Simon James C (1st ed.,October 11, 2010)

Articles Referred:-

• Misha Glenny, “The Refugee Crisis has Produced One Winner : Organised Crime” ,
2015
• Andrew wong, “A multibillion – dollar criminal network is being fuelled by inadequate
refugee policies”, 2018
• Liza Kane- Hartnett, “Human Trafficking and the Rohingya Refugee”, 2018
• Chimni, B.S. 1994, “The Legal Condition of Refugees in India” published by Oxford
University Press (vol. 7, no. 4, 1994).
• Daniel Howden, “ The Central Mediterranean: European Priorites, Libyan Realities”,
2017
• Anca-Elean Ursu and Angelo Milingi, “ Organised Crime and Migration in Sicily” , 2018

• Michael Grewwcock, “Transnational Organised Crime, Border Policing and Refugees”,

2017
• Yannick Pasquet and Frank Zeller “How Berlin's crime clans are targeting refugees:
Special report”, 2018
• Jamie Dettmer, “Europe’s Migration Crisis a Boon for Organized Crime”, 2015
 P a g e | 53

• John Morrison and Beth Crosland, “The trafficking and smuggling of refugees: the end
game in European asylum policy?”, 2017
• Tuesday Reitano, What is pricing telling us about the Nature of the smuggling Business,
2017

Online Resources

• https://www.insightsonindia.com/wp-content/uploads/2016/11/Migrant-Smuggling-from-
Bangladesh-to-India.pdf
• https://www.newsdeeply.com/refugees/community/2017/10/04/latin-america-at-
forefront-of-emerging-trend-in-global-displacement
• https://www.unodc.org/documents/toc/factsheets/TOC12_fs_migrantsmuggling_EN_Plai
n.pdf
• https://www.reuters.com/article/us-europe-migrants-smugglers-idUSKCN0Y81J4
• https://www.europol.europa.eu/crime-areas-and-trends/crime-areas/facilitation-of-illegal-
immigration
• https://www.europol.europa.eu/newsroom/news/europol-launches-european-migrant-
smuggling-centre
• https://www.unodc.org/unodc/en/frontpage/2016/September/During-UNGA-Summit-on-
Refugees-and-Migrants-UNODC-affirms-need-to-face-down-migrant-smugglers.html
• https://www.theguardian.com/world/commentisfree/2018/jun/20/how-europe-policies-
accelerate-people-smuggling
• https://refugeesmigrants.un.org/smuggling-and-trafficking-migrants
• https://www.cogitatiopress.com/socialinclusion/article/view/917
• https://www.scconline.com/blog/post/tag/foreign-national/
• https://www.cnbc.com/2018/06/27/refugee-crisis-fuelling-criminal-network-and-human-
trafficking.html
• https://www.unodc.org/toc/en/crimes/migrant-smuggling.html
• www.unodc.org/unodc/en/human-trafficking/publications.html.
• https://www.researchgate.net/publication/342764597_A_Critical_Study_on_the_Transnati
onal_Organized_Crime_along_the_Bangladesh-
Myanmar_Border/link/5f056f7d299bf188160a3f3c/download