Doc. 8937

22 January 2001

Transit migration in central and eastern Europe

Opinion1

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Alexander Shishlov, Russian Federation, LDR

I.       Conclusions of the committee

The Committee on Legal Affairs and Human Rights supports the draft recommendation tabled by the Committee on Migration, Refugees and Demography. In the interest of better accuracy and readability, the Committee does, however, propose the following amendments:

Amendment A:

In paragraph 6 delete the words “The main way” and insert the words “One of the main ways “.

Amendment B:

In paragraph 8 i., add after “to review national migration policies” the following words:

      “in all Council of Europe member States”.Am

Amendment C:

In paragraph 8 iv add the following words:

“as well as preventing its causes, including economic causes”

Amendment D

Add, at the end of paragraph 8 v. g, the following words:

Amendment E:

Delete sub-paragraphs 8 v. f.

Amendment F:

Replace paragraph 8 vi. a. with the following sub-paragraph:

*****

II. Explanatory memorandum

by Mr Shishlov, Rapporteur

1.        Transit migration in central and eastern Europe is a very important, but equally complex issue. The sheer scale of the phenomenon, which has developed in the last ten years, gives ample cause for concern. Equally worrying is the illicit nature of much of this migration, and thus the high level of involvement of criminals, who have found that trafficking “human” cargo can be as profitable as drug or weapons trafficking – sometimes even more so.

2.        The report of Mr Iwinski – whom I commend on his excellent work – clearly explains both the origins of the phenomenon, its characteristics, and the impact European Union policies have had, so I will not go into these questions in detail in my opinion. I do find, however, that - at times – the report does not make a clear enough distinction between asylum-seekers and refugees on the one side, and migrants on the other. In addition, it has to be noted that the situation in the different countries of central and eastern Europe is quite diverse. Some countries are, in fact, at the same time countries of origin of migration and transit countries (one could think of Russia and Ukraine, for example, or of Bulgaria). The visa-regimes, immigration and asylum-policies of different countries within the region tend to be equally diverse.

3.        In these circumstances, I think the distinction between asylum-seekers and refugees on the one side, and migrants on the other, is absolutely vital. It is very important that those people in need of international protection receive that protection in a country where they can feel safe from persecution. In practical terms, this translates into the necessity of granting access to asylum-determination-procedures (which correspond to international standards in the field) to such persons also in transit countries, even when these persons have entered the country illegally or have been readmitted to the country after having illegally entered a third country, e.g. an EU member state.

4.        In this context I would like to remark that some of the EU’s policies are anything but constructive, and pose real dangers for refugees. Besides, by practising “refoulement” (a practice which is outlawed by the Geneva Convention, I might add), the EU is unfairly shifting the burden of dealing with asylum-seekers and refugees to the East. A more liberal policy on both refugees/asylum-seekers and immigration from the EU side would thus very much be called for.

5.        As concerns immigration, it is obvious that when borders are closed to any but refugees, many migrants will choose to pose as refugees in order to be admitted. This not only leads to an unnecessary overburdening of the asylum-determination-procedures, but also leads to a criminalisation of migration. I am not sure that the main way to stem illegal transit migration is to prevent illegal trafficking by combating criminal gangs. While it is, of course, important to fight against these criminals, for whom humans are only chattel, it is a fact of life that where there is the demand for a service, this service will be offered. If the only way a migrant can enter an EU country is by paying a trafficker to get him in via a central and eastern European country, then no amount of cross-border co-operation, fines and prison sentences for traffickers (or migrants) will dissuade either of them.

6.        The thesis that the main way to stem illegal transit migration is to prevent illegal trafficking (par.6) seems to me a simplification of the situation. As the Rapporteur correctly points out, a number of potential illegal immigrants arrive in a transit country quite legally as tourists, students, etc., and then attempt to enter another country illegally. As long as the countries in Europe remain attractive in economic and other terms for the people in less developed countries the flow of illegal and semi-legal migrants will probably continue. Thus a wide range of measures could, and probably should, be undertaken to combat this phenomenon, including the improvement of legislation, economic steps and proper defence of borders.

7.        In addition, within the countries of destination and transit there is not only the problem of criminals who have illegally immigrated. There are also a number of actions directed against migrants, regardless of whether they are legal or not. I mean the violent crimes committed by nationals of the receiving and transit countries, which have become a subject of ever-growing concern in recent years. Some politicians base their hopes to be re-elected on such spiteful extreme-right calls for violence against migrants. In these circumstances it might be necessary to prevent such anti-migrant actions by pursuing a policy based on the rule of law, a spirit of loyalty and by instilling tolerance towards immigrants in all central and eastern European states.

8.        Another factor which encourages illegal migration is that most migrants know that, once they have entered the country they wish to stay in, there are people who are willing to employ them irrespective of their irregular status. Unfortunately, since this type of employment is, of course, illegal, many of these migrants end up being exploited. (I am encouraged by the fact that the Committee on Equality between Women and Men is preparing a report on domestic slavery.) In fact this all depends upon the scale of the illegal market sector in the transit country. Moreover, the higher the rate of illegal economic activity within a country, the more intensive the immigration process usually becomes. So not only do economic problems in the countries of origin have to be solved, but also in the countries of destination and transit. In this context, it would be an important item on the agenda - to my mind - for member States to reduce as much as possible the illicit part of their economy. This may be even more important than to implement a policy of border-strengthening.

9.        The heart of the problem is that immigration policies of most European countries (not only EU member states) are so restrictive that illegal immigration remains the only option for many migrants. I think Mr Iwinski is right when he suggests to open up Europe, at least to short-term migration (I would define short-term as three to five years). This so-called “Europe-opening” can be done partly by using the well-known “guest-workers model”. Of course, this is not the only possible or even sufficient solution to the problem, but it might help the transit country to constrain trafficking – while, at the same time, opening a real possibility for potential migrants to legally obtain visas and jobs. Destroying the traffickers’ market in this way is, I believe, the proper way of combating illegal migration, and thus also easing the burden of transit migration on central and eastern Europe.

10.        For many it will be difficult to fully accept the idea of “access to their territory and to their asylum procedures to all persons seeking international protection” (para. 8.v.f). The legislation of most central and eastern European countries provides the possibility to ask for asylum at diplomatic and consular representations abroad. It should also be noted that quite a few people abuse asylum seeking procedures. It is this group of people who often use the territory of Central and Eastern Europe for transit. Obviously it is thus problematic for central and eastern European countries to grant free access to their territory for all those who wish. As to the correction of national immigration policies and policies on granting asylum by these countries, in most cases the policies already meet international standards and are, in fact, quite liberal. For example, Russian legislation and the legislation of some other transit countries clearly define who - and on what grounds –can count on being granted refugee status, and to what State bodies and under what procedures he or she should submit his or her application, and which bodies are responsible at all stages for their receipt and consideration. But we cannot admit free access to the territory of a country for all those who wish to do so under the pretext of seeking asylum, since it would involve vast means being invested into the procedure of determining legal status.

11.        I would now like to sum up the propositions which are before us. If our aim is to fight against illegal migration in any form, we should first of all understand that unfortunately there is no sovereign remedy for it. The number of possible steps to be taken include:

• Traditional police methods and actions (both on domestic and international, pan-European level) directed against criminal gangs (traffickers) themselves, in order to deprive those “businessmen” of the power to earn their money by illegal border-crossings,

• Facilitate access to asylum-seeking procedures,

• Machinery for consultations among the countries of destination and those of transit and the states of origin in implementing their asylum and migration policies,

• Economic reforms both in the countries of origin and in the destination and transit states to prevent the illicit migration phenomena from spreading, and to find some kind of solution for those illegal migrants who are already in the country,

• Political actions (both on domestic and international, pan-European level) in protecting human rights and providing for fair treatment of those who have become the victims of trafficking,

• Co-operation (as close as possible) among the European Union and the Council of Europe member States in solving the current migration problems.

But still the main prerequisite of success here is joint action taken by all countries concerned, i.e. the co-operation between EU member-states and central and eastern European states in pursuing their migration and asylum policies.

Reporting committee: Committee on Migration, Refugees and Demography

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 8293 and Reference No 2352 of 25 January 1999

Opinion approved by the committee on 22 January 2001

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge


1 See Doc 8904 tabled by the Committee on Migration, Refugees and Demography.