An intense discussion on immigration is raging in many European countries. Some of these are for geographic reasons overwhelmed by the numbers coming and “cost-sharing” within Europe has not functioned well. Xenophobia appears to be on the increase and immigrants are suffering discrimination. At the same time, young migrants are drowning in waters close to Europe. New policies are needed, which should be based on human rights.
It must be made clear that all migrants do have human rights, even when they are not citizens of the country. Human rights norms in the UN treaties, the European Convention and the Social Charter also apply to non-citizens. The general rule is that the rights should be guaranteed without discrimination between citizens and aliens. Equal treatment is the principle. This is demonstrated by the use of the word “everyone” as the subject in many of the articles in the key treaties. The exceptions relate to the right of political participation and freedom of movement.
Non-citizens shall not, therefore, be subjected to arbitrary and unlawful interference with their privacy, family, home or correspondence. They shall be equal before the courts; protected against torture and ill-treatment; and have freedom of religion as well as the right to hold opinions and express them. The right to family reunion is particularly relevant in many cases. Also, they have social rights and should be treated equally with nationals as to work conditions and pay.
Apart from the broader human rights treaties, there are also international conventions specifically addressing the situation of migrant workers. ILO Convention No. 97 deals with remuneration, taxation and access to trade unions. The International Convention on the Protection of All Migrant Workers and Members of Their Families is basically a UN compilation of rights already agreed as part of other human rights treaties – including for migrants whose stay in the country is not regularised.
The derogatory term “illegal migrant” should not be used – it puts a criminal stamp on the individual. To be at odds with immigration procedures does not mean that one is a criminal.
Migrants in an irregular situation also have rights, for instance those spelled out in the ILO convention mentioned above. They should not be denied access to social rights, such as basic health care and education.
Furthermore, they should of course have the right to apply for a permit to stay. They should have protection against arbitrary detention; not be sent to countries where they risk ill-treatment and torture; and not be expelled without having a legal opportunity to challenge such a decision.
These rights are not always respected. In fact, there is a wide gap between reality and the agreed human rights norms for migrants, even in Europe. One problem is detention. The UN Special Rapporteur on human rights for migrants has reported on arbitrary detention decisions, prolonged detention periods, detention even of children and trafficking victims, overcrowding and unhealthy conditions, and limited opportunities to complain about abuse.
As newcomers the migrants are vulnerable and for obvious reasons are often less able to know and claim their rights. They risk facing discrimination in the labour and housing markets. Their children might be discriminated against at school. Racism and xenophobia appear to have increased in recent years and migrants have been targeted.
Migrants without a permit to stay and to work are of course even more vulnerable. They may be humiliated and ill-treated and dare not complain. They may be exploited by ruthless employers or traffickers. Women in this situation certainly face particular risks.
Strict border control has been tried but has not produced the desired result. Rather, it has created a market for organised smuggling and trafficking. Irregular migration continues in ways which increase loss of life. There is no military solution to this problem.
A UN report a couple of years ago mentioned that more than 4,000 irregular migrants had drowned between Morocco and Spain. Even if there is a debate about the statistics, this is a massive human tragedy and it cries out for a comprehensive, human European response.
• Preventive action is of course necessary and urgent. The reason why so many so desperately want to come to Europe – even to the extent of risking their own lives – must be addressed. No doubt this will require more support for countries from where young people have little choice but to run away. The EU’s additional assistance to Mauritania was a positive example.
• Within Europe there is a need for further responsibility sharing; every country should contribute in a spirit of solidarity. This would also allow consideration of the positive aspects of immigration – relevant in an aging continent. After all, it is a good thing that people can move to other countries for longer or shorter periods – though it should happen under conditions which do not put lives at risk.
• Human rights should be respected in all aspects of immigration policy. The reception procedures are key and need more resources, better-educated border police and clear, human-rights-based policies in order to function effectively and humanely. Migrants must be treated as human beings; many of them are in very severe circumstances, and deserve our respect.
Xenophobia is not a European value; human rights should be.
Thomas Hammarberg
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