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A. Draft
resolution
(open)
Report | Doc. 13788 | 07 May 2015
Criminalisation of irregular migrants: a crime without a victim
Committee on Migration, Refugees and Displaced Persons
Summary
Migration is increasingly associated with threats to public order. In addition, inappropriate use of the terminology relating to migration plays a large part in fuelling xenophobic and racist attitudes and heightening the fear of migrants.
Increasing incrimination of migrants undoubtedly has repercussions on their living conditions, whether they are regular or irregular migrants, affecting them in the employment field as well as in their everyday lives.
This criminalisation of migrants facilitates and even to some extent legitimises the adoption of migration policies which are more and more under the sway of a security-dominated rationale.
Governments should adopt a more objective approach towards migrants, observe fundamental rights standards, in particular by combating disinformation and negative stereotypes concerning migrants, and condemn the exploitation of migrants for political purposes.
A. Draft
resolution 
(open)1. Increasingly restrictive migration policies, increased
social exclusion and limited access to human and social rights for
migrants are all aspects of a situation which the Parliamentary
Assembly has been condemning for many years.
2. The term “migrant” retains a degree of stigmatisation vis-à-vis
the group or person to whom it is applied, especially when it is
associated with illegality.
3. The Assembly also notes that the external border control policy
of the European Union is framed on the basis of designations that
associate migration and crime-causing attributes, making migration
an internal security matter and associating migration with a threat
to public order and the social system.
4. In this context, the Assembly underlines the importance of
the proper use of terms, namely “irregular” as opposed to “illegal”
or “undeclared” migrants. Inappropriate use of the terminology relating
to migration plays a part in increasing xenophobic and racist attitudes
and heightens fear of migrants, which is already being fed by the
economic crisis and political instability, in particular in the
countries of the southern Mediterranean.
5. Noting that, contrary to Directive 2002/90 (the Reception
Directive), some European Union member States sanction humanitarian
assistance, thereby creating an “offence of solidarity”, the Assembly
underlines the need to end the threat of prosecution on charges
of aiding and abetting irregular migration.
6. The Assembly condemns the widespread practice of courts being
more severe when trying cases where migrants are arrested, imprisoned
and convicted as perpetrators of criminal offences.
7. It also proposes that detention only be used as a last resort,
in particular for asylum seekers, when it should be as short as
possible, and that alternatives to detention should be used wherever
possible.
8. The Assembly recalls that asylum seekers are entitled to receive
international protection and to enjoy freedom of movement.
9. Given this trend and in breach of the spirit of the Universal
Declaration of Human Rights and the European Convention on Human
Rights (ETS No. 5), irregular migrants are deprived of the minimum
level of social rights and live in conditions far removed from the
principles of protection and human dignity, and in order to survive,
they sometimes have to engage in illegal activities to meet their
basic needs.
10. The Assembly underlines the need to adopt a more objective
approach based on consideration of the human being, which would
discourage any discriminatory or degrading practices towards migrants,
including irregular migrants in Europe.
11. Accordingly, the Assembly calls on the member States to:
11.1. promote and observe fundamental
rights standards for migrants, including irregular migrants;
11.2. promote the use of neutral terminology and replace the
term “illegal migrants” with “irregular migrants” in speeches and
official documents;
11.3. combat misinformation and negative stereotypes concerning
migrants; unreservedly condemn the exploitation of migrants for
political purposes in populist discourse;
11.4. apply stricto sensu to
migrants the standards concerning entry, transit and residence in
the territory of European Union countries;
11.5. ensure that asylum seekers have access to a fair procedure;
11.6. give access to the essential rights for human dignity
(medical care, education) to irregular migrants;
11.7. develop best practice guides on the arrest and detention
of irregular migrants;
11.8. put in place alternatives to detention wherever possible;
11.9. apply the principles governing administrative detention
in migrant detention centres;
11.10. take measures to step up the fight against migrant trafficking
and smuggling;
11.11. continue to consider, when appropriate, the definition
of maritime boundaries and ensure that people rescued are allowed
to land.
B. Explanatory memorandum by Mr Stroe, rapporteur
(open)1. Introduction
1. Migration policy has become more and more restrictive
and, concurrently, anti-migration rhetoric has emerged, spreading
a false image of migrants in the population by accusing them in
particular of posing a serious threat to the internal security of
States. This has brought about, firstly, an attitude of distrust
towards migrants, thereby making it more and more difficult to grant
them asylum requests, and secondly, has led to the setting up of
migration control systems either side of the border.
2. Over the last few years, in nearly all European countries,
the process of hedging migration with security measures has been
underpinned by symbolic policies that are generally built around
four pillars: one socio-economic, in which migration is linked with
unemployment and the crisis of the welfare State, one security related
in which it is linked with the issues of sovereignty, internal security
and public health, one pertaining to identity, in which it is associated
with fears of demographic alienation and loss of national identity,
and one political, in which electoral tactics are increasingly determined
by racist and xenophobic agendas.
3. European external border control policy is framed firstly
on the basis of designations that associate migration and crime-causing
attributes (illegal migrant, drug trafficking, trafficking in human
beings, offenders, etc.), making migration an internal security
matter because migration is fundamentally associated with a threat to
public order and the social system.
4. Resolution 1509
(2006) and Recommendation
1755 (2006) of the Parliamentary Assembly on the human rights of
irregular migrants already emphasised the importance of using the
term “irregular migrant” in common parlance rather than the expression
“undeclared” or “illegal migrant” as these contribute to building up
a negative image of migrants.
5. This report is intended to ascertain the extent to which criminalisation
of migrants constitutes a tool for the security policy of European
States and arouses racist reactions, and what powers the media and
political parties have over the perception of migrants. These negative
attitudes have of course repercussions on the daily life of migrants,
and this report sets out in particular to highlight these consequences
and to single out possible solutions in order to guarantee migrants
living conditions in accordance with the principles of the Council
of Europe.
2. Migrants, victims of a security policy?
6. As the Council of Europe Commissioner for Human Rights
pointed out: “While discrimination on the basis of nationality is
the basis of border controls on persons – some persons, i.e. citizens
have a right to enter the territory of a State while others, non-citizens
do not – nonetheless, the treatment of non-citizens at the borders
does not escape human rights law.” (Criminalisation of Migration
in Europe: Human Rights Implications, 2009)
7. The process of incriminating migrants has tended to grow in
recent years, with the aim of achieving a unified and safer Europe
with easily controllable frontiers.
8. As regards the legal instruments put in place to guarantee
and enhance security in Europe, the European Union has developed
a system of agreements and institutions to advance internal freedom
through stricter control of the external borders.
9. The first such instrument was the codification of the Schengen
area, now incorporated into the Treaty of Amsterdam (1996), which
came into force on 1 May 1999 and which comprises 26 signatory States
since 2013. It states that any individual (whether a European or
a third-country national), once having entered the territory of
one of the member countries, can cross the borders of the other
countries without undergoing any controls.
10. A State may only restore controls in the event of a breach
of public order or national security (for a maximum of six months,
or two years in exceptional circumstances), and after consulting
the other States in the Schengen group. Use was made of this possibility,
for example, by France after 11 September 2001, or in Germany at
the time of the football world cup in 2006.
11. However, proposals for changes widening the possibility of
reintroducing temporary controls in the event of a member State’s
serious failure in its obligations regarding control at the external
borders were put forward by the European Commission in September
2011 and adopted in 2013, after the “Arab Spring” and the ensuing influx
of migrants.
12. Unauthorised migration led to the emergence of players and
agencies for managing migration movements. The most important is
the European Agency for the Management of Operational Cooperation
at the External Borders of the Member States of the European Union
(Frontex), in charge of the European Union’s external frontiers
since October 2004.
13. In fact Frontex is not so much the actuator as the most visible
manifestation of the change in European migration policies, whose
most marked effect is the increasing differentiation between the
frontier of rights (which may be invoked by persons wishing to enter
the European Union) and the frontier of controls (which are intended
to regulate and, if appropriate, to prevent entry).
14. Finally, the new Global Approach to Migration and the Mobility
Partnerships emphasises the need for the European Union to work
with the non-member States on the questions of right of asylum,
combating irregular migration (defined as “unauthorised” by the
European Union) particularly through agreements on readmission,
promotion of lawful migration and protection of victims of human
trafficking. However, a distinction has been drawn between the countries
which can be granted Mobility Partnership and those which are not
yet ready.
15. But even though the European States ever more frequently carry
out collective expulsions to certain countries of emigration, particularly
by concluding readmission agreements, this
practice apparently corresponds less to a way of reducing the presence
of foreigners in an irregular situation than to a will to curb fresh
departures from these countries.
this
practice apparently corresponds less to a way of reducing the presence
of foreigners in an irregular situation than to a will to curb fresh
departures from these countries. 16. This mechanism of “chosen” migration denotes the political
will to have more and more qualified migrants, more amenable to
integration, and able to contribute to growth of the national and
European economy, as opposed to “imposed” migration, rejected by
most States.
2.1. A more and more divided Mediterranean
17. The crisis of the unauthorised migration flows towards
the coasts of the southern European States has tripled the number
of migrants saved at sea by the Italian police in 2014, with some
160 000 rescues.
18. The problem of defining maritime boundaries is one of the
questions which remains open on the agenda of the European Union,
however. Indeed, when speaking of maritime boundaries, it should
be recalled that the limit to the powers of a State is not immediately
established like land boundaries; the role of States diminishes with
distance from the shore.
19. In 1982, the general provisions of the third Convention on
the Law of the Sea redefined the limits of two new zones over which
States can exercise certain functions of their sovereignty, in addition
to their territorial sea: the contiguous zone, an area in which
the State may apply the “necessary control” to irregular migrants, and
the exclusive economic zone (EEZ). In the contiguous zone, the European
countries’ controls to prevent or punish any offence against customs
and current migration laws and regulations are more and more significant.
20. Accordingly, European policy on suppression of migration has
intensified police and military presence at the external frontiers
of the Union. The Triton operation,
whose aim is to tighten controls at the southern boundary of the
European Union, does not conduct rescues in international waters
and testifies to the policy.
2.2. The Reception Directive and the Return Directive
21. According to European Union Directive 2002/90 defining
the facilitation of unauthorised entry, transit and residence (Reception
Directive), any citizen is subject to criminal sanctions for “aiding”
an illegal migrant. The directive makes it punishable to facilitate
entry, transit and residence in the territory of a member State
by any national of a third State whether in breach of the legislation
or for financial gain or as an accomplice in any of these acts.
22. Moreover, the Council Framework Decision on the strengthening
of the penal framework to prevent the facilitation of unauthorised
entry, transit and residence (2002/946/JHA) provides for deportation
among the applicable sanctions.
23. By including deportation among the possible sanctions, the
text refers rather to “criminals” who are foreign nationals, underlining
the drafters’ discriminatory opinion of these offenders. The message
received is a warning against being in any way involved in the migrants’
acts, for they may lead to criminal proceedings.
24. Moreover, European Union Directive 2008/115 on common standards
and procedures in Member States for returning illegally staying
third-country nationals (Return Directive) sets out provisions governing
the ending of illegal stays and provides for the possibility of
resorting to confinement of migrants awaiting removal from the territory
for up to eighteen months and a ban on return for up to five years
throughout the Schengen area.
25. But while this Directive encourages preference for “other
sufficient but less coercive measures” and avoidance of the migrant’s
detention except “to prepare the return or carry out the removal
process”, a study on the implementation of the Directive condemns
the mandatory transit of migrants through detention centres without
this being justified by the state of progress of the removal procedure.
2.3. The offence of solidarity
26. European Union Directive 2002/90 and Framework Decision
2002/946/JHA, which prescribe penalties for facilitating migrants’
entry, transit and illegal residence, provide for the punishment
of persons rendering humanitarian assistance to irregular migrants
if it is done for financial gain.
27. Indeed, some States of the Union sanction humanitarian assistance,
deemed a means of facilitating the entry and residence of irregular
migrants. The implementation of this measure, however, leaves room
for ambiguity. For example, Belgium prescribes penalties for all
those who assist entry to, residence in or transit through the country
“except where assistance is offered for chiefly humanitarian reasons”,
but the text does not explain how to assess this “chiefly humanitarian”
character. In Italy, on 8 August 2007, seven Tunisian fishermen
were imprisoned for having rescued and landed 44 shipwrecked migrants.
Moroccan law, for its part, punishes any act aimed at unauthorised
departure from the country.
28. This practice entails an “offence of solidarity” on the part
of those helping undocumented persons, whether by providing material
assistance for illegal entry, transit or residence, medical aid,
accommodation or food, or by helping a migrant without a permit
by providing undeclared employment.
29. This question was addressed in the report “The ‘left-to-die
boat’: actions and reactions”, in which the Assembly recommends
that its member States “abolish factors which dissuade private vessels
from carrying out rescues, by ensuring that the people rescued will
be allowed to land quickly and by ending the threat of prosecution
on charges of aiding and abetting irregular migration which give
rise to moral and financial damages”.
in which the Assembly recommends
that its member States “abolish factors which dissuade private vessels
from carrying out rescues, by ensuring that the people rescued will
be allowed to land quickly and by ending the threat of prosecution
on charges of aiding and abetting irregular migration which give
rise to moral and financial damages”.30. Considering that international law notably enshrines the right
for everyone “to participate in peaceful activities against violations
of human rights and fundamental freedoms” (United Nations General
Assembly Resolution 53/144), charging people with “offences of solidarity”
does not represent the right solution to the problem of migration
movements in Europe.
2.4. Administrative detention as a migration control device
31. Over the past few years, the administrative detention
of migrants has become one of the main instruments for controlling
migration movements and at the same time one of the worst sources
of violations of migrants’ rights. In 2012, the operation “OpenAccessNow”
certified the existence of 473 detention centres for migrants in
Europe with the presence of some 600 000 migrants in detention each
year.
32. Faced with this constantly growing phenomenon, States have
sought new means of exercising control over migration movements
both at and within their borders. Criminal law has become a new
instrument of control where the laws and policies on migration have
shown their limitations.
33. Thus it is no longer a matter of punishing unlawful acts really
committed by individuals, but the potential behaviour of members
of outsider groups known as groups at risk; nor are individuals
to be dealt with according to the dangerousness of their acts, but
rather entire populations are to be supervised according to the
severity of the risks they might pose to the communities concerned.
34. The feeling that migrants are systematically involved in acts
of delinquency and criminal conduct is more and more widespread.
As a result, courts are more severe in trying cases where migrants
are arrested, imprisoned and convicted as perpetrators of criminal
offences even though, under the instruments protecting human rights,
detention should only be used as a last resort.
35. In detention centres there has been a gradual inversion of
the position, with more migrants today than nationals, particularly
young irregular migrants arrested for petty offences.
3. The importance of words
36. This false perception of the migration phenomenon
also arises from the conflation as regards confusion between the
different migrant typologies. There are several forms of migration:
migrants whose situation is in order, irregular migrants, forced
migrants (including asylum seekers and refugees), migrants through
family reunion, migrant workers (temporary/seasonal), victims of
trafficking in human beings, and students.
37. Nowadays, the expression “illegal emigration” is spreading,
thus turning the mere fact of setting out into a reprehensible act.
However, neither the concept which makes the emigrant a criminal
nor the practices which it purports to permit has any legitimacy
in relation to the Universal Declaration of Human Rights (UDHR)
of 1948 and the European Convention on Human Rights (ETS No. 5)
of 1950.
38. Indeed, Article 13.2 of the UDHR states that “[e]veryone has
the right to leave any country, including his own, and to return
to his country” and Article 2 of Protocol No. 4 to the Convention
confirms that “[e]veryone shall be free to leave any country, including
his own” (except, among others, persons to whom the status of minor
applies).
39. Thus only migration may not be legal since entry to the territory
of a State is subject to its sovereign will. The idea of “illegal
emigration” was of course generated by spurious symmetrical reasoning:
if no country is willing to admit a migrant, then he forfeits the
right to emigrate.
40. During the 20th century, almost all migration movements were
largely “undeclared”, but up to the 1970s the vast majority of migrants
had access to a lawful status which was hardly ever challenged.
Today, migrants are no longer to be kept in an integrated albeit
subordinate position as was the case during the 1960s and 1970s.
41. On the contrary, in a context of economic recession, the conventional
notion of “immigrant workers” gives way to that of “illegals” or
“refugees”, implying that the former were productive whereas the
latter two are parasitic.
42. While for a long time the social paradigm of the migrant was
systematically associated with work and specifically with unskilled
work, economic recession and growing insecurity have gradually transformed
this image, and the migrant’s consignment to his function as a worker
seems less cogent; rather, he is present as a “non-national” element
in what is “national”, the migrant having become someone who has
left his country to settle in the territory.
43. Yet the term “migrant” retains a degree of stigmatisation
vis-à-vis the group or person to whom it is applied. Diploma and
length of stay are not all that distinguish between a “foreigner”
and an “migrant”; what does is primarily the unequal relationship
(political, economic, cultural, etc.), the power relationship between the
two countries, the two societies, the two cultures.
44. The ongoing use of the term “illegal” indicates that criminalisation
predominates and has repercussions on perception by the public and
on the framing of policies. Moreover, the Assembly, in Resolution 1509 (2006), showed its preference for the expression “irregular
migrants” over others such as “illegal” or “clandestine migrants”,
as the latter are more stigmatising and less neutral.
3.1. The importance of the image of migrants conveyed by the media
45. The media shapes a reality which ends up influencing
to varying degrees the formation of public opinion. Admittedly,
there is no direct causal link between media coverage of crime and
the fear of crime since, although the media is the main source of
information, the public does not form its opinion solely though
that channel.
46. But it must be acknowledged that the immediate effects of
broadcast messages about individuals are considerable in specific
circumstances and still greater where, as in the case of criminality
among foreigners, the public has no other sources of information
at its disposal.
47. As emphasised by Mr François Crépeau, a United Nations specialist
on human rights and migrants, improper use of terminology helps
fuel the negative discourse on migration and reinforces the stereotypes portraying
migrants as offenders (Declaration by the United Nations Special
Rapporteur on the Human Rights of Migrants, New York, 2 October
2013).
48. In the European media, the expression “illegal migrant” is
often used in statements on migration. This expression
has the effect of making migrants suspect in the eyes of the population
and defining the act of border-crossing as a threat, whereas these
border-crossing offences claim no victims. Moreover, the media gives
prominence to the nationality of the presumed perpetrators of the
acts, so that it becomes an absolute constant in defining migrants
apprehended for any offence whatsoever.
This expression
has the effect of making migrants suspect in the eyes of the population
and defining the act of border-crossing as a threat, whereas these
border-crossing offences claim no victims. Moreover, the media gives
prominence to the nationality of the presumed perpetrators of the
acts, so that it becomes an absolute constant in defining migrants
apprehended for any offence whatsoever.49. This depersonalised presentation, pertaining to ethnic groups
rather than to individuals, heightens the sense of menace while
suggesting that immorality is an intrinsic feature of some foreign
cultures since unlawful behaviour or acts are no longer blamed on
individuals but on the entire culture of a given country of origin, leading
to the creation of stereotypes.
50. In the dual context of a protracted economic crisis and current
political crisis in the Mediterranean, a dispassionate and productive
debate on migration policies calls for objective, penetrating media
treatment of migration issues.
51. The question is not so much to try and arrive at a consensus
in public opinion on migration issues as to improve knowledge and
understanding by public opinion of this phenomenon and especially
of its economic, social and cultural impacts, in order to stem the
rising tide of racist and xenophobic discourse.
3.2. The rise of populist sentiments in Europe
52. Relations between nationals and migrants are often
perceived as a “zero-sum game” in a context of competition for scarce
resources: if the migrants get more, the nationals inevitably have
less. This strongly entrenched belief can account for a significant
proportion of the hostile attitudes to migration and to any form of
solidarity with migrants: any official policy of support to the
integration and economic success of migrants is in fact perceived
by nationals as dispossession.
53. In this framework, the populist label denotes parties seeking
to take advantage of the crisis by developing a discourse opposed
to “elites”, to migrants, to the euro, to Europe, to globalisation,
to budgetary economies, etc. In this bundle of causes, migration
is obviously one of the most important.
54. Several factors contribute to the rise of this populist sentiment
in Europe: fear of losing the social well-being won over the years
(the “zero-sum game” mentioned above), defence of Christian origins
especially as regards “anti-Islamic” sentiments, and loss of confidence
in the State vis-à-vis the “foreign invasion”. Finally, populism
largely stems from an accumulation of fears.
55. The pressure of the populist and xenophobic parties pervading
the European political scene from North to South – the FN in France,
the UKIP in the United Kingdom, the Austrian FPÖ, the AFD in Germany,
the PVV in the Netherlands, the Northern League in Italy, the Hungarian
Jobbik or the UDC in Switzerland – also fortifies the process of
criminalising migrants.
56. Moreover, these new populist and anti-migration movements
gained extensive support in the last European elections of May 2014.
The Europe of Freedom and Direct Democracy (EFDD) Group coalition
– including political parties like the British UKIP or the Lithuanian
Order and Justice and political personalities like Joëlle Bergeron
for France and Robert Iwaszkiewicz for Poland – gained 6.39% of
votes and is represented in the European Parliament with 48 MEPs.
What is more, the coalition of independents, comprising the political parties
of the Austrian FPÖ, the Dutch PVV, the Italian Northern League,
the Hungarian Jobbik and the French National Front, won 6.92% of
votes with a representation of 52 members.
3.3. Criminalisation of migrants as an obstacle to obtaining right of asylum
57. Asylum seekers are entitled to receive international
protection with no discrimination. But when aspiring migrants are
still in the sending countries or outside European boundaries, they
are defined as “irregular migrants” even when they are refugees
or persons risking their lives to migrate.
58. The fact that irregular migrants are commonly considered lawbreakers
is a source of problems when it comes to their right to asylum:
visa requirements, sanctions imposed on people-smugglers, interception
at sea to deny access to the territory, criminal sanctions for using
forged papers, etc.
59. Once they have entered Europe, asylum seekers often incur
other criminal sanctions: criminal proceedings concerning the conditions
of their entry to the territory, prohibition of employment, etc.
60. Another problem is detention of asylum seekers. As is recalled
by Assembly Resolution
1707 (2010) on detention of asylum seekers and irregular migrants
in Europe, a distinction should be drawn in respect of detention
between irregular migrants and asylum seekers because, for the latter,
detention, designed to determine their status, should be as short
as possible and be carried out in specialised centres.
61. Furthermore, Article 31 of the Geneva Convention relating
to the Status of Refugees (1951) provides that States shall not
impose penalties, on account of their illegal entry or presence,
on asylum seekers who come directly from a territory where their
life or freedom was threatened and if they present themselves without delay
to the authorities.
62. It should be noted, however, that criminalisation and racism
often serve as arguments to justify keeping these migrants in a
lawless zone.
63. I should like to recall that in many Council of Europe member
States, parliamentarians are entitled to make visits to detention
centres for irregular migrants and asylum seekers, and that the
Committee on Migration, Refugees and Displaced Persons has long
been working on this issue and in particular has produced a guide
aimed at encouraging and assisting parliamentarians in the exercise
of this right.
4. The particular situation of irregular migrants
64. In the broad sense, and as defined by the International
Organization for Migration, the category of irregular migrants encompasses
all migrants who contravene the regulations of the country of origin,
transit or destination, whether by unauthorised entry to the territory
of a State, by remaining there beyond the term of validity of the
residence permit, or by evading the enforcement of an expulsion
measure.
65. A breach of migration regulations (“délit de migration”) refers
to the fact that these migrants infringe the national regulations
on the crossing of borders and that consequently they are guilty
of an offence usually punishable under the criminal law of European
States by a prison sentence and/or a fine, and also removal, in accordance
with the Return Directive.
66. Moreover, according to this Directive, the imprisonment of
a migrant on the ground of having unlawfully crossed the borders
or stayed in the territory of a member State should not take precedence
over the application of the Directive, which otherwise provides
for the protection of migrants’ fundamental rights.
67. I am convinced that the right to full enjoyment of human rights
is not founded on authorisation by the State authorities of an individual’s
presence in the territory. However, an irregular migrant cannot
usually claim rights since he does not have the primary right, that
of residence.
4.1. How loss of social rights relates to illegal activities
68. Policy on the residence of foreigners is no longer
a policy of conferment of rights but a policy of sufferance: the
grant of a residence permit is no longer a right, it has become
a State indulgence.
69. This policy is pursued in a context of intolerance. The practices
of sufferance which presuppose making new migrants “invisible” are
compounded by discourses which criminalise migration, serving to
legitimise repression and the policy of expulsion, as well as refusal
to grant migrants access to social rights.
70. While migrants whose situation is in order (who have income
and/or a “legal” status) can accede to the protection of the revised
European Social Charter (ETS No. 163) and to the host country’s
welfare benefits, those in an irregular situation must cope with
a total or near-total absence of rights. That is why their social situation
is based on survival strategies, and why by force of circumstance
they sometimes have to resort to illegal activities enabling them
to provide for their basic needs.
71. But international law, and especially the Universal Declaration
of Human Rights (UDHR, 1948), generally does not draw any distinction
between nationals and non-nationals from the standpoint of the rights secured
to individuals, and social rights are clearly considered one of
the elements to which the principle of equality applies.
72. The International Covenant on Economic, Social and Cultural
Rights (ICESCR, 1966), ratified by all Council of Europe member
States (except Andorra), also emphasises the absence of discrimination
in the full exercise of the rights recognised and secured by the
UDHR and the ICESCR.
4.2. Social rights
73. The increasingly widespread tendency in Europe to
penalise migrants and people assisting them, an approach now supported
by the legislation of the European Union, forms a general obstacle
to irregular migrants’ effective access to a minimum standard of
protection of social rights.
74. Access to social rights such as housing, health care, education
and free participation in civic and religious life is prescribed
in the European Convention on Human Rights. Indeed, the Convention
applies “to everyone within their [the member States’] jurisdiction”
and “without discrimination on any ground such as … national or
social origin” (Articles 1
and 14).
75. Fear of being put in preventive detention usually makes irregular
migrants avoid any public institution, including medical institutions,
and they are afraid to enrol their children in school and to have
them recorded in the population register.
76. The right to housing, interpreted as the right to a place
where one may live in safety, peace and dignity, is recognised by
the UDHR and the ICESCR and applies in principle to everyone irrespective
of nationality or legal status.
77. Decent housing thus permits enjoyment of other rights such
as the right not to be subjected to degrading treatment, the right
to respect for private and family life and the prohibition of discriminatory
treatment.
78. Furthermore, the right to health care becomes meaningless
in the absence of the right to decent housing, itself not completely
fulfilled unless the person has access to income, that is to the
right to employment.
79. Universally recognised, even today the right to education
presents obstacles to its full enjoyment by the children of irregular
migrants.
80. Despite the fact that all member States espouse the idea of
universal education, legal, administrative or practical obstacles
are raised to prevent access to instruction for non-nationals whose
parents are in an irregular situation (viz. obligation for teachers
to report irregular migrants or withholding of the school leaving certificate
for pupils who are irregular migrants, or the lack of school syllabi
suited to their specific situation).
81. The right to medical care is universally recognised as a fundamental
human right and secured by the international instruments. However,
there is no common consensus on its definition: emergency medical
care (according to a restrictive or a broad interpretation); necessary
or prophylactic care, since the member States do not allow access
to this right in the same way.
82. Thus, where free, anonymous access to medical care for irregular
migrants is concerned, in practice certain European States set up
informal systems de facto barring
access to this care. Lack of financial means, language problems,
fear of being reported (in view of the obligation for doctors to
report undocumented persons), the complexity of the administrative
procedures, care being subject to a fixed abode, or lack of information
(for migrants as much as for health providers) represent real obstacles
to enjoyment of the right to medical care for these people.
83. Irregular migrants, and anyone who employs someone in this
situation, risk prosecution and administrative fines. European Union
Directive 2009/52/EC, which provides for minimum common standards on
sanctions and other measures against employers of illegally staying
third-country nationals, is very clear in that regard.
84. Thus it can be said that the complete closure of frontiers
to lawful migration, which has resulted in the challenging or heavy
restriction of migration for humanitarian or political reasons,
ensures regeneration of a very useful illegal workforce to the advantage
of the underground economy. The sectors in need of great flexibility,
which must weather significant cyclical and seasonal fluctuations
and are highly labour-intensive for unskilled and poorly paid manpower,
are especially partial to these new victims of exploitation.
85. Undeclared workers though they may be, these migrants must
enjoy certain rights granted to all migrant workers in the International
Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families (ICPMW, Article 25.3, 1990). Unfortunately,
to date only three of the Council of Europe member States (Azerbaijan,
Bosnia and Herzegovina and Turkey) have ratified this convention.
86. A vicious circle is forming as migrants who remain in an irregular
situation tend to consider themselves “illegal” and deprived of
their rights: their irregular status often pushes them into illegal
activities, of which they are usually the prime victims (exploitation
on the labour market), and as a result they are caught up in a process of
unlawful and criminal activities which worsens their situation.
87. Nor do these migrants readily have access to housing: the
illegal market, or accommodation made available by the community
(family or “ethnic” network) are the sole possibilities available
to them. But anyone providing help “for financial gain” by way of
housing for an irregular migrant is liable to criminal prosecution under
European Union Framework Decision 2002/946/JHA.
88. Deprived of basic health care and elementary education, irregular
migrants live far outside the principles of protection and human
dignity.
5. Conclusions
89. It has become difficult to emigrate and immigrate
lawfully or freely: the rule against migration breeds crime by making
migration a crime which quite often leads to the deaths of many
migrants and creates the opportunity for lawbreakers or criminals
to benefit from the offence.
90. Constant and increasing incrimination of migrants unarguably
has repercussions on their living conditions, whether their situation
is authorised or unauthorised and whichever category they belong
to.
91. These people are the first to undergo discrimination in access
to employment and are offered essentially atypical and poorly paid
jobs. They are affected by the negative stigmatisation which, in
the daily urban reality, often makes them prime targets of police
scrutiny.
92. This process of criminalisation also generates self-criminalisation
as an outcome of the ban on free, lawful migration, the ethnic characterisation
of informal and illegal activities and the deterioration of the
sending societies.
93. Moreover, the growth in the number of irregular migrants arrested
and detained leads to toughening of the legislation and restrictions
on migration. Closure of borders and limits imposed by the European
countries only increase the flows of unauthorised migration, smuggling
of migrants and human trafficking.
94. Criminalisation of migrants facilitates, even legitimises,
the adoption of migration policies more and more under the sway
of a security-dominated rationale. However, the dangers arising
from the actuation of this process seem far more serious than the
threats attributed to migrants, in so far as this process undermines
the foundations and the very values of European societies.