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combat the smuggling and trafficking of persons, including through interception, with existing obligations
under international law towards asylum-seekers and refugees.
IV. RECOMMENDATIONS FOR A COMPREHENSIVE APPROACH
33.
In the absence of a comprehensive approach, the application of stringent measures alone for
intercepting undocumented migrants is unlikely to be successful, and may well adversely affect refugees
and asylum-seekers. The adoption of interception policies in certain regions, in isolation from other
measures, risks diverting the smuggling and trafficking routes to other regions, thereby increasing the
burden on other States.
34.
Together with States and other international and national actors, UNHCR is prepared to
contribute to the ongoing discussion on the problem of organized smuggling as it affects asylum-seekers
and refugees. Further progress will require a protection-oriented approach which addresses the problem
through a variety of measures. The following elements are intended as basis for a discussion within the
Executive Committee on a comprehensive approach, with a view to the possible adoption of a conclusion
11
on such an approach:
(a)
Interception and other enforcement measures should take into account the fundamental
difference, under international law, between refugees and asylum-seekers who are entitled to
international protection, and other migrants who can resort to the protection of their country of
origin;
(b)
Intercepted persons who present a claim for refugee status should enjoy the required protection,
in particular from refoulement, until their status has been determined. For those found to be
refugees, intercepting States, in cooperation with concerned international agencies and NGOs,
should undertake all efforts to identify a durable solution, including, where appropriate, through
the use of resettlement;
(c)
Alternative channels for entering asylum countries in a legal and orderly manner should be kept
open, in particular for the purpose of family reunion, in order to reduce the risk that asylumseekers and refugees will resort to using criminal smugglers. By adopting appropriate national
legislation, States should enforce measures to punish organized criminal smugglers and to
protect smuggled migrants, in particular women and children;
(d)
States should, furthermore, examine the outcome of interception measures on asylum-seekers
and refugees, and consider practical safeguards to ensure that these measures do not interfere
with obligations under international law, for instance, through establishing an appropriate
mechanism in transit countries to identify those in need of protection, and by training immigration
officers and airline officials in international refugee law;
(e)
In order to alleviate the burden of States that are disproportionally affected by large numbers of
spontaneous and undocumented asylum-seekers and refugees, other States should give
favourable consideration to assisting the concerned governments in providing international
protection to such refugees, based on the principle of international solidarity and within a burdensharing framework;
(f)
In regions in which only a few countries have become party to the 1951 Convention and the 1967
Protocol, States Parties should actively promote a broader accession to the 1951 Convention and
the 1967 Protocol throughout that region, including the establishment of fair and effective
procedures for the determination of refugee status, in particular in transit countries, and the
adoption of implementing legislation;
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The desirability of a comprehensive approach by the international community to the problems of refugees has been
already acknowledged in Conclusion No. 80 (XLVII) of 1996 (A/AC.96/878, para. 22).