States do have a legitimate interest to control their borders and can refuse the entry and stay of persons coming from the ‘outside’. However, there are binding international agreements about the right of individuals to seek asylum through fair, rights-based procedures. The principle of non-refoulement has been established in order to protect individuals from being sent back to situations which would threaten their lives or personal safety.
However, many migrants cannot claim refugee status, even if their enforced return would amount to personal tragedy and/or economic disaster. Many have not managed to regularize their presence in their new country and live underground, constantly fearing to be caught by the police and sent away. A number have lived in the host country for long periods and may have children at school.
Migrants are finding themselves increasingly targeted and some governments have even set quotas on how many should be found and deported through fast-track procedures. It has been necessary – and important – to make clear that irregular migrants have human rights.
I am now aware of proposals to criminalize attempts to enter a country or to stay there without a permit. This may be popular among xenophobes but would be a retrogressive step.
For one thing, to put a criminal stamp on attempts to enter a country would undermine the right to seek asylum and affect refugees. In addition, persons who have been smuggled into a country should not be seen as having committed a crime(1). There are agreed international standards to protect persons who have been victims of human trafficking from any criminal liability.
The 1990 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, expressly holds that if migrants are detained for violating provisions relating to migration, they should be held separately from convicted persons or persons detained pending trial. They should not be seen as criminals.(2)
Criminalization is a disproportionate measure which exceeds a state’s legitimate interest in controlling its borders. To criminalize irregular migrants would, in effect, equate them with the smugglers or employers who, in many cases, have exploited them. Such a policy would cause further stigmatization and marginalization, even though the majority of migrants contribute to the development of European states and their societies. Immigration offences should remain administrative in nature.
There are two particular side effects which States should also bear in mind when they think about resorting to criminal law in order to control irregular immigration:
Firstly, the issue of over-burdening the court system. When in Italy recently, I learned that national judges were worried about the introduction of new criminal offences into domestic legislation which would target migrants. Courts in several European countries face problems of excessive length of proceedings, in violation of Article 6 of the European Convention on Human Rights. Indeed, this in turn encourages a large number of applications before the European Court of Human Rights.
Secondly, the issue of over-crowding in prisons and detention centres. Categorizing irregular migrants as “criminals” under national law would entail their pre-trial and post-conviction detention. It is well-known, and I have personally witnessed this in several countries, that a number of Council of Europe member states are faced with a serious problem of overcrowding and of inhumane and degrading conditions in detention centres and prisons. Aliens in administrative detention are particularly vulnerable to such abusive treatment.
In this context, I should like to reiterate my grave concern about the possibility of detaining irregular migrants in EU member states for a maximum period of 18 months. This possibility is provided for by the legislative resolution on the “Returns Directive” which was adopted by the European Parliament last June. This was a mistake and an unfortunate response to the urgent need to harmonize European policies in this area.
Political decision-makers should not lose the human rights perspective in this discussion and should try to formulate a rational long-term strategy. Such an approach has to include the need for migrant labour to perform the jobs which nationals very often refuse to take. In other words, European states should face up to the reality that irregular migrants are working because migrant labour is in demand.
By way of example, the agricultural sector in southern European countries is one where irregular migrant workers have been extensively employed. Sadly, migrants in this field often fall prey to substandard working and living conditions(3).
Migration is a social phenomenon which requires multi-lateral and intelligent action by states. Irregular migration has increased and thrived not only because of underdevelopment in migrants’ countries of origin. Another root cause is the lack of clear immigration mechanisms and procedures which can respond to labour demands through regular migration channels.
It is characteristic that immigration in most European states remains one of the most complex areas of law. Efforts to simplify immigration law, such as those under way in the UK, should be further promoted.. In this regard, I draw attention to the important guidelines contained in Parliamentary Assembly’s Recommendation 1618 (2003) and Resolution 1509 (2006) regarding irregular migrants. Member states should endeavour to establish transparent and efficient legal immigration avenues, as a way out of irregular migration routes.
Such efforts may well benefit from member states’ accession to the 1977 European Convention on the Legal Status of Migrant Workers: an important treaty concerning regular migrant workers from Council of Europe member states. It covers the principal aspects of regular migration, such as migrant labour recruitment, working and living conditions, social and medical assistance. Regrettably, after thirty-one years, this treaty has still only been ratified by 11 member states.
I recommend that member states accede to the 1990 International Convention on Migrant Workers, the most comprehensive, international treaty on migrant workers reaffirming and establishing basic human rights norms for regular and irregular migrants. To date it has been ratified by four and signed by two Council of Europe member states, even though many European countries actively participated in its drafting. Ratification and implementation of this treaty will enhance the effective protection of all migrant workers’ fundamental rights which should be an absolute priority for every state’s immigration policy and practice.
Thomas Hammarberg
Notes
1. Article 5, the 2000 Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention Against Transnational Organized Crime2. Article 17, paragraph 3 of the Convention
3. See, inter alia, Parliamentary Assembly Recommendation 1618 (2003)