• SL identified as a population of concern, economic pressure a key driver
• SLN detains 1532 would be boat migrants in 2022
• Need to shift irregular migration narrative away from a securitised border and immigration approach

Illegal maritime migration is well established as the most dangerous form of irregular migration.

This is, in a context where thousands of people die at sea globally, each year. Although data on the global scale of the issue is sparse, according to the International Organisation for Migration (IOM), between 2014 and 2018, over 30,000 people died while attempting to irregularly migrate.

Further, there are many vulnerable communities who are easily manipulated by human traffickers and end up being victimised and left worse off.

In recent years, maritime irregular migration has claimed even more lives across a range of routes. Certain reports claim that maritime migration related fatalities in certain regions have increased by as high as 500%.

In Sri Lanka’s case, between 1 January and 31 December 2022, a total of 1,532 individuals had been detained on 59 occasions by the Navy and the Police for attempting to migrate illegally. In response to an inquiry made by The Daily Morning, the Navy further revealed that out of these arrestees, 552 were in the 20-29 age group, while 270 were below the age of 20. Majority of them, i.e. 1,189 individuals, had planned to migrate to Australia, while the number of persons that had planned to migrate to Canada and India was 14 and 147, respectively. The highest number of individuals, i.e. 420 persons, had been arrested in the Trincomalee district. In addition, thus far this year, seven individuals have been apprehended on four occasions.

Explaining the status quo of maritime migration in four countries, i.e. Indonesia, Malaysia, India, and Sri Lanka, a recent report explained that Sri Lanka’s situation with regard to maritime migration requires more attention, since the economic crisis has compelled many to migrate, especially through illegal methods. The report, titled “Maritime People Smuggling and its Intersection with Human Trafficking in South and South-East Asia: Trends and Issues,” was issued by the Global Initiative against Transnational Organised Crime. It analysed recent trends in maritime people-smuggling from South and South-East Asia on journeys towards Asia-Pacific, with a focus on the four countries.

Sri Lanka: Key findings

The fact that Sri Lanka’s economic collapse in 2022 has triggered a spike in attempts to leave the country irregularly, including via maritime routes, was underscored in the report. It further noted that an increase in demand for smuggling services, together with economic pressures on fishing communities arising from fuel shortages and eye-watering price hikes, drove many fishing families to provide smuggling services instead. Boats departing Sri Lanka in 2022 were reportedly seeking to reach either India or Australia, and drove a slight reopening of maritime routes towards the Asia-Pacific region.

“Sri Lanka is largely a source country for irregular migration, with significant portions of irregular emigration involving maritime routes. Migrants smuggled out of Sri Lanka are largely moving towards the Middle East, Europe and North America, and, until 2012, Australia was also a popular destination. Sri Lanka has also been a transit country for nationals from the South Asian Association for Regional Cooperation countries, who travelled through the country en route to Europe and Australia.”

This is, in a context where Sri Lankans have been identified as a population of concern for maritime migration towards South-East Asia and Oceania during research for this report.

With regard to key populations among refugees and asylum seekers, the report noted that given Sri Lanka’s history of conflict, irregular migration flows from the country have historically largely been made up of ethnic Tamil refugees, and that asylum seekers headed toward Tamil Nadu and the south of India and Australia.

“Since the end of the civil war in Sri Lanka, there has been a further rise in economic migration from the country, which has included its majority Sinhalese population. This was especially notable during the surge in irregular migration in 2012 from Sri Lanka to Australia, which included an increase in irregular maritime arrivals by the Sinhalese from 0% to 11%, with motivation to migrate combining economic and humanitarian reasons. There has also been an increase in irregular migrants from Sri Lanka travelling to Malaysia for employment, rather than to only seek asylum,” the report explained.

Although a number of coastal fishing communities serve as departure points from Sri Lanka, the most popular ones are in the provinces where there are significant Tamil populations, including the Northern Province such as Jaffna and Mannar, and Eastern Province such as Batticaloa and Trincomalee. In addition, there are also key departure points in the Western Province such as Colombo and Chilaw. Although Sri Lankans have used sea routes through the Red Sea and the Mediterranean, with Italy previously being a significant destination country, smuggling by air has become more popular since circa 2009, according to the report. The crackdown on routes toward Australia has led to the emergence of new routes from Sri Lanka.

It added: “Since the 2022 economic crisis, maritime departures from Sri Lanka towards Australia have experienced a degree of resurgence, although remaining far below levels in the early 2010s. The economic pressures in Sri Lanka have also driven the development of a broader range of maritime routes, although these largely appear to be a small number of attempts rather than well-tested routes.”

Legal Frameworks in Sri Lanka

Although Sri Lanka has signed but not ratified the smuggling protocol, some elements of smuggling of migrants are criminalised under the 1948 Immigration and Emigration Act No. 20 as amended most recently in 2021. However, smuggling of migrants is not explicitly defined in the legislation, and the criminalisation provisions lack clarity, with some critics attributing low conviction rates in part to this legislative weakness.

With regard to the legal situation concerning Sri Lanka, the report explained: “Notably, the focus of the criminalisation of smuggling under the act relates to smuggling of people out of Sri Lanka, which is punishable by a minimum of one year and a maximum of five years’ imprisonment. This contrasts with the smuggling protocol, which addresses the facilitation of ‘illegal entry’ but makes no mention of ‘illegal exit’, which respects the right, under international law, of a person to leave a country, including their own, while observing state sovereignty in deciding the procedures for entering a country. The criminalisation of facilitated emigration is widespread, particularly in countries that have primarily operated as source and transit countries for irregular migration. While in some contexts this appears to reflect a fear of ‘brain drain’, in others, the focus on criminalising unlawful exit appears to be a result of policy pressure from key destination countries.

Section 45C of the Act, which criminalises the facilitation of unlawful emigration in Sri Lanka, was enacted in 2006, following a period of significant engagement between Sri Lanka, and key destination countries with regards to irregular migration flows from the country. The report pointed out joint efforts and agreements Sri Lanka has entered into with Italy and Australia.

“While Italy was previously a key destination for smuggled migrants from Sri Lanka, this changed in 2002, when bilateral agreements between Italy and Sri Lanka were negotiated to address irregular migratory flows. These included quotas for Sri Lankan migrants in Italy and provided the framework for Italian logistical and financial support to Sri Lankan law enforcement agencies at departure points. Sri Lanka and Australia have also engaged in anti-smuggling efforts, with Australia gifting Sri Lankan Police five drones to monitor people smuggling between the two countries in April 2021.”

Recommendations

Explaining the threats associated with this situation, the report put forward a number of future steps for the four countries to implement. These mainly include policy decisions by governments.

“The high risk of criminalisation of irregular migrants and refugees using the services of smugglers, rather than focusing on core drivers of irregular migration, is a point of concern in the policy approaches adopted by the case study countries. Furthermore, the increase in detention of irregular migrants and refugees, and securitisation of maritime borders (including through the use of pushbacks) are all policy trends that heighten the risks faced on irregular migrant journeys. The health risks posed by Covid-19 may well have distracted governments from ancillary risks and challenges that have emerged as a result of the pandemic and the associated travel restrictions, including surrounding irregular movement. There is a lack of preparedness across the region to deal with significant changes to irregular flows of migrants and an ongoing need for capacity building and multi-stakeholder cooperation,” the report explained, adding that any capacity building is urgently needed to respond to such issues.

As maritime migration is one the most dangerous forms of irregular migration, it is key that policy approaches centre on harm reduction. Noting this, it was recommended that initiatives such as New Zealand’s reflagging of fishing vessels in national waters to respond to human rights abuses and risks of exploitation have been considered good practice.

As per the report, there are opportunities for engagement of international stakeholders in the region, and there is a need to shift the narrative away from a securitised border and immigration approach to one that is centred on humanitarian principles.

It was further noted that irregular migration is often portrayed negatively by the media in a range of destination countries, and that irregular maritime journeys typically receive significant media attention, with those undertaking them often depicted pejoratively. More balanced media coverage of these journeys in source, transit and destination countries is key to shaping attitudes that adopt a less punitive approach and create space for more humanitarian policies, according to the report.

Among the opportunities for regional governments were, enhancing ratification of international protocols enshrining the protection of rights of refugees and promote their adherence in practice, abiding by commitments made in the 2016 Bali Declaration regarding safe disembarkation, and enacting and implementing regional mechanisms in South and South East Asia to ensure safe disembarkation of refugees and migrants at sea, expanding and simplifying pathways towards regularity, avoiding protracted statelessness that enhances vulnerabilities, often eroding human rights, enacting legislative frameworks that enable refugees to seek formal employment and earn a livelihood, mitigating exposure to illicit markets including people smuggling, facilitating regular migration pathways by simplifying processes (ranging from the procurement of identity documents to visas and cross-border procedures) and reducing expenses, addressing the structural factors that create an environment conducive to corruption of officials, increasing the salary of frontline immigration officials or instituting more senior officials at the borders, as well as regulating official migration and employment agencies, could reduce corruption, and enhancing collaboration between states in South and South-East Asia to coordinate responses and better mitigate the risks associated with maritime people smuggling.