Doc. 9522

15 July 2002

Creation of a charter of intent on clandestine migration

Report

Committee on Migration, Refugees and Demography

Rapporteur: Mr John Wilkinson, United Kingdom, European Democratic Group

Summary

Hundreds of people die every year in Europe while trying to cross borders illegally, driven by fear of persecution in their own country or the desire for economic betterment. Many more live in conditions of exploitation and abuse due to their illegal stay in a European country, a wholly unsatisfactory situation which causes public resentment and puts in question the efficacy of immigration control in Europe. Exact data is not available, but the number of foreign nationals living unlawfully in Europe is estimated at several millions, and this figure continues to rise.

The situation of clandestine migrants, who are deprived of normal legal, economic and social rights, contradicts numerous international instruments safeguarding human rights, in particular the European Convention on Human Rights. On the other hand, recourse to clandestine immigration represents an infringement of the right of each state to regulate the entry of foreign nationals and the circumvention of the immigration rules that are enshrined in the law.

In view of its importance the international debate is primarily focused on preventing clandestine migration, but little attention is paid to the situation of irregular migrants in transit and destination countries, including the protection of the rights they are entitled to under several international human rights instruments including the European Convention on Human Rights and Fundamental Freedoms.

In recent years several international instruments have been adopted with a view to addressing specific aspects of clandestine migration, but a comprehensive instrument addressing clandestine migration and the situation of clandestine migrants does not exist.

Your Rapporteur is convinced of the need for a single and comprehensive pan-European instrument addressing the root causes of clandestine migration, its modes, including trafficking and smuggling, the rights of clandestine migrants, and co-operation between countries of origin, transit and destination so that illegal inflows of migrants can be checked and the welfare of host communities as well as of clandestine migrants guaranteed, in the full respect of human rights and dignity of the person.

I.       Draft recommendation

1.       The Assembly is deeply concerned at the increasing number of migrants who lose their lives while attempting to enter the territory of the member states illegally or who live in often extremely dangerous and inhuman conditions before, during and after their illegal entry into Europe. Besides, recourse to clandestine migration represents an infringement of the right of each state to regulate the entry of foreign nationals and the circumvention of the immigration rules that are enshrined in law, a phenomenon of major political, social and economic significance.

2.       The Assembly recalls and reaffirms its Recommendation 1211 (1993) on clandestine migration: traffickers and employers of clandestine migrants, Recommendation 1325 (1997) on trafficking in women and forced prostitution in Council of Europe member states, Recommendation 1449 (2000) on clandestine migration from the south of the Mediterranean into Europe, Recommendation 1467 (2000) on clandestine immigration and the fight against traffickers and Recommendation 1545 (2002) on a campaign against trafficking in women, and reiterates the urgency of addressing effectively the issue of clandestine migration in Council of Europe member states since it is controversial in a number of countries.

3.       The Assembly takes note of the replies of the Committee of Ministers to Recommendation 1467 (2000) and Recommendation 1449 (2000), as well as of the Committee of Ministers' Recommendation (2000) 11 on action against trafficking in human beings for the purpose of sexual exploitation, which contains a number of measures geared at effectively fighting against trafficking, and congratulates the Committee of Ministers for the continuous interest it pays to the issue of clandestine migration with a series of valuable initiatives.

4.       The Assembly notes with concern the absence of an international instrument addressing the phenomenon of clandestine migration as a whole.

5.       The Assembly further notes that existing international instruments concerning particular modes of clandestine migration, such as trafficking in human beings and smuggling of migrants, have not been ratified by all Council of Europe member states, or have not been adequately translated into domestic criminal legislation by a number of them, a deficiency which needs to be addressed.

6.       The Assembly is aware of the ‘grey areas' existing between migrants and asylum seekers, namely that people who do not qualify for international protection may resort to the asylum system in the hope of gaining access to the country of destination, and that people who do qualify for international protection may resort to human traffickers or migrant smugglers.

7.       The Assembly, however, reiterates the binding character of the principle of non refoulement, irrespective of the mode of entry that may have been used to gain access to the territory of the asylum country, in compliance with the Geneva Convention relating to the status of refugees.

8.       In view of its importance the international debate is primarily focused on preventing clandestine migration, but the Assembly regrets that little attention is paid to the situation of irregular migrants in transit and destination countries, including the protection of the rights they are entitled to under several international human rights instruments including the European Convention on Human Rights and Fundamental Freedoms.

9.       The Assembly notes the absence of international instruments specifically relating to the rights of clandestine migrants, and that the UN Convention on the Rights of All Migrant Workers and Members of their Families (1990), which also applies to irregular migrants, has not yet entered into force.

10.       The Assembly is convinced of the need for a single and comprehensive pan-European instrument involving the European Union and all Council of Europe member states addressing the root causes of clandestine migration, its modes, including trafficking and smuggling, the rights of clandestine migrants, and co-operation between countries of origin, transit and destination so that illegal inflows of migrants can be checked and the welfare of host communities as well as of clandestine migrants guaranteed.

11.       The Assembly therefore recommends that the Committee of Ministers elaborates an international instrument on clandestine migration to be open for signature and ratification by member states, taking into account the recommendations that may be addressed by the Commissioner on Human Rights and by the European Union, incorporating the following principles:

i.       the legitimate goal of combating clandestine migration should not be pursued in a manner so as to undermine the obligation of member states to protect those genuinely in need of international protection;

ii.       effective policy to deal with clandestine migration should be made and applied in the context of a reliable system of migration management, in which both citizens of the receiving country and migrants can have confidence;

iii.       clandestine migration should be addressed in a comprehensive and balanced manner, considering its causes, manifestations and effects in the countries of origin, transit and destination;

iv.       there should be a concerted effort between countries of origin, transit and destination to deal with clandestine migration. Partnership should include exchange of information as well as technical and financial assistance, seeking to address the root causes of migration such as gross disparities in economic and social development;

v.       member states should sign and ratify existing legal instruments against smuggling of migrants and trafficking in human beings, as well as introduce and implement appropriate and harmonised national legislation to criminalise these acts while protecting the victims;

vi.       clandestine migrants should not be deprived of their human rights, including the right to welfare for children and particularly vulnerable individuals, the right to emergency health care and the right not to be held in slavery or servitude;

vii.       member states should introduce and impose effective sanctions on employers of clandestine migrants;

viii.       clandestine migrants should be informed of the benefits of voluntary departure when they remain in a country in breach of the immigration rules and, in exceptional compassionate circumstances, of the possibility of regularising their position when this is legally possible;

ix.       member states should develop appropriate information campaigns in the countries of origin and transit to inform potential clandestine migrants about the disadvantageous situations they would find in countries of transit or destination. These campaigns should not be aimed at discouraging those who wish to make use of legal migration channels from doing so or who need to seek international protection;

x.       member states should organise or promote training in the domestic and international frameworks which apply to clandestine migration, to be provided to law enforcement officials, members of the legal profession and the judiciary, always bearing in mind their human rights obligations under existing instruments.

12.       The Assembly requests that the Commissioner for Human Rights of the Council of Europe:

i.       advise, within the humanitarian framework of his mandate, and investigate existing laws and practices of member states with relation to the principles of the Council of Europe as regards their control of clandestine migration;

ii.       ensure thereby that the new charter is fully compliant with these principles.

III.       Introductory memorandum by Mr John Wilkinson

1.       Introduction

1.       On 8 December 2001 eight Turkish citizens of Kurdish ethnic origin, including three children aged from four to eleven, were found dead inside a metal container in the port of Wexford, Ireland. Post-mortem results concluded that the unfortunate stowaways had died of lack of oxygen to the brain. From the account of the survivors it was possible to reconstruct their journey: the container had arrived in Belgium by rail from Italy, and taken to the port of Zeebrugge on 4 December. The smugglers apparently thought that the container would be loaded on board a ferry bound for the south coast of the United Kingdom. Instead, the container was lifted into a cargo ship destined for the south-eastern Irish town of Wexford. The group of stowaways had entered the container just before it was loaded on board the vessel. The stowaways had paid smugglers to be taken to the port of Dover and thought that their journey in a closed container with only four very small air vents would last a few hours. Instead, the container was not opened until almost four days later.

2.       More macabre discoveries were made that month. On 11 December, the bodies of four young men, most likely Romanian nationals, were found inside a container at the port of Livorno, Italy. Two days later, Canadian officials discovered the bodies of two stowaways inside a cargo container on board a vessel in Montreal. The vessel had departed from the Italian port of Livorno. The two persons, a man and a woman, are believed to have been in the container for two weeks.

3.       The list of incidents only for the month of December is not complete: on 20 December 2001, eight Iraqis and one Iranian applied for asylum after the police found them in the back of a truck in southern Sweden. Another three managed to escape. The asylum seekers informed the authorities that they had travelled from Turkey, hidden inside a trailer. On 27 December 2001, after calm had returned to the seas following weeks of strong winds, the Spanish Police apprehended a total of 133 North African and Sub-Saharan migrants who had crossed the Strait of Gibraltar on duck boats (pateras). The total included 44 women, one of whom was pregnant, and two babies, aged three and four months. These latest arrivals brought to 9 803 the total number of illegal migrants intercepted near or along the coast of Tarifa (Cadiz) in 2001.

4.       Hundreds of people die every year in Europe while trying to cross borders illegally, driven by fear of persecution in their own country or the desire for economic betterment. Many more live in a condition of exploitation and abuse due to their illegal stay in a European country, a wholly unsatisfactory situation which causes public resentment and puts in question the efficacy of immigration control in Europe. Exact data are not available, but the number of foreign nationals living unlawfully in Europe is estimated at several millions, and this figure continues to rise.

5.       The situation of clandestine migrants, who are deprived of normal legal, economic and social rights, contradicts numerous international instruments safeguarding human rights, in particular the European Convention on Human Rights. On the other hand, recourse to clandestine immigration represents an infringement of the right of each state to regulate the entry of foreign nationals and the circumvention of the immigration rules that are enshrined in the law.

6.       The Parliamentary Assembly of the Council of Europe has already addressed the issue of clandestine migration in a number of documents, such as Recommendation 1211 (1993) on Clandestine migration: traffickers and employers of clandestine migrants, Recommendation 1325 (1997) on trafficking in women and forced prostitution in Council of Europe member states, Recommendation 1449 (2000) on Clandestine migration from the South of the Mediterranean into Europe, Recommendation 1467 (2000) on Clandestine immigration and the fight against traffickers and Recommendation 1545 (2002) on a campaign against trafficking in women.

7.       Clandestine migration is a complex phenomenon: it includes smuggling of migrants and trafficking of people, raises human rights issues as well as economic and welfare considerations, and is inextricably linked with economic and development disparities among states. In recent years several international instruments have been adopted with a view to addressing specific aspects of clandestine migration. It is the Rapporteur's intention to address the whole phenomenon of clandestine migration in Europe in a single instrument.

8.       The Rapporteur believes that the Council of Europe is well-situated to play a key role in the establishment of a genuine dialogue on clandestine migration and protection of the human rights and dignity of clandestine migrants, whether they have entered illegally by virtue of smuggling, trafficking or travelling by their own means.

2.       Overview of the phenomenon of clandestine migration

      a.       Notion of clandestine migration

9.       The Rapporteur wishes to stress that migration is a fundamental human right, which is enshrined in the European Convention on Human Rights and Fundamental Freedoms (Protocol No. 4)1. By contrast, migrants do not have an absolute right to be accepted into a particular country. In order to enter a foreign country, they must comply with its immigration regulations. Only refugees and others in need of international protection enjoy the well-established and universally accepted right not to be returned to a country where they would risk persecution, and they can be admitted in a state even if they do not meet the general requirements made of foreigners.

10.       There are two ways in which migration may be clandestine. The first refers to the mode of entry into a foreign country. In this case, migration is clandestine when it takes place in breach of the entry regulations of the country in question. The other, much more common way, occurs when a foreigner, having entered a country legally, overstays in breach of immigration regulations.

11.       In consideration of the complexity of the subject and the recent development of certain legal notions, the Rapporteur believes it necessary to explain the terminology that will be used in the present report.

12.       Migration: The term "migration" describes the process of the movement of persons. Therefore it includes the movement of refugees, displaced persons and economic migrants. For the purposes of the present report, migration is generally intended to mean "international" migration, implying the crossing of borders. When migration refers to an internal phenomenon, taking place within the territory of a country, it will be so specified.

13.       Migrant: The Constitution of the International Organization for Migration (IOM) provides the following definition of migrant: "The term migrant (…) should be understood as covering all cases where the decision to migrate is taken freely by the individual concerned, for reasons of personal convenience and without intervention of an external compelling factor". From the above definition, it follows that by "migrant" one is not referring to refugees, exiles or others forced or compelled to leave their homes. The distinction between migrants - who decide freely to leave their country - and asylum seekers - who are forced to leave their country - has become less and less clear: in some parts of the world social and economic deprivation have become so severe as to compel people to leave their homes. This shows that often there is no clear distinction between voluntary and forced migration, and therefore the definition of migrant given above may become blurred.

14.       Clandestine: The Rapporteur has made a deliberate choice to use the term "clandestine", instead of "irregular" migration, which is far more common in legal instruments. The reason of this choice is threefold: 1) "clandestine" is the emotive term which society at large generally uses to indicate "irregular" migration; 2) the term "clandestine" conveys an idea of the way in which "irregular" migrants are forced to live: outcasts from society, for fear of being caught; usually without employment or social security; liable to abuse and exploitation from those who help them arrive in a country or give them illegal work; and 3) the desire to be consistent with previous instruments adopted by the Parliamentary Assembly of the Council of Europe, all of which refer to "clandestine" migration.

15.       Smuggling: According to the UN Smuggling Protocol, this is defined as: "the procurement of the illegal entry into or illegal residence of a person in a State Party of which the person is not a national or a permanent resident in order to obtain, directly or indirectly, a financial or other material benefit". Smuggling always implies the crossing of international borders.

16.       Trafficking: According to the definition contained in the UN Protocol on trafficking, this is "the recruitment, transportation, transfer, harbouring or receipt of persons, by the threat or use of abduction, fraud, deception, coercion, or the abuse of power or by the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation". Therefore, the main elements differentiating between trafficking and smuggling are that trafficking is characterised by exploitation and abuse of power, and that it can take place within a country, without crossing international borders. For the purposes of the present report, any reference to "trafficking" is intended to mean "international trafficking".

      b.       Statistical figures

17.       By its very nature, it is not possible to quantify the phenomenon of "clandestine" migration. Moreover, even when states do have some statistical data concerning entries or attempts at entry in breach of the immigration regulations, these figures are not made public, even to international organisations with a specific competence in the subject, like the International Organization for Migration (IOM). In the absence of confirmed figures, however, it is possible to make rough estimates on the basis of the information provided by voluntary organisations working in close contact with clandestine migrants, or by the states involved.

18.       In this respect, amnesties aiming to regularise the stay of clandestine migrants are a useful source of information on the population living illegally in a country: their number can be inferred from the number of amnesty applications, and the information gathered also includes details about nationality, modes of entry and employment - if any.

19.       According to IOM's World Migration Report, ‘estimates placed the upper limit of unauthorised migrants present in Europe at 3 millions in 1998, as compared to just less than 2 millions in 1991'. The organisation PICUM (Platform for NGOs for International Cooperation on Undocumented Migrants) notes that five million irregular migrants currently in the whole of Europe might be a very moderate guess2. Whichever method of assessment is used, estimated numbers of irregular migrants are based on assumptions.

      c.       Push and pull factors

20.       The economic motivations traditionally at the source of migratory movements stem from the great differences in levels of socio-economic development, employment and income. These differences also exist between member states of the Council of Europe, which explains why a certain proportion of migration - and a lower but still considerable proportion of clandestine migration - in Europe is intra-European. Over time such socio-economic imbalances should be diminished by pro-active aid and trade policies in richer nations.

21.       However, the desire for economic betterment does not explain per se why migrants are pushed towards clandestine migration.

22.       The Rapporteur shares the conviction expressed on a number of occasions by the Parliamentary Assembly that draconian measures on the control of migration increase the likelihood of people entering Europe illegally and that these measures are an ever stronger incentive for unscrupulous exploiters of the hopes of gullible and vulnerable people who seek nothing more than a better life for themselves and their families.

23.       The Rapporteur believes that people are pushed towards clandestine migration by strict immigration regulations on the one hand, and lenient or inadequate enforcement of those regulations on the other. Strict immigration regulations push would-be migrants to put themselves in the hands of criminal organisations who will smuggle them into a country even if they do not comply with the requirements set by destination countries; at the same time, the inadequate enforcement of immigration regulations will facilitate the activities of these criminals and enable the clandestine migrant to remain in the country without being detected by the authorities. In addition, there is a demand for low-cost labour which is not met by nationals and which will ensure that a considerable proportion of those who stay in a country illegally will find some sort of employment. Particular occupations such as the restaurant trade, constructions and domestic service are staffed by large numbers of individuals without the right to work and to the abode in the host country.

24.       The Rapporteur also wishes to point out that immigration regulations are one of the reasons that push migrants with strong economic motivations to abuse asylum systems. Without any possibility of being admitted in a country legally, a number of migrants with economic motivations resort to making asylum applications, thus evading the usual requirements for admission to a country. This harms irreparably the validation of the asylum process, which is intended for those who are in fear of persecution, and creates additional costs for the receiving country in dealing with asylum applications.

25.       The Rapporteur believes that regular migration and irregular migration should not be considered in isolation from one other. The ability of countries to manage the movement of people should be enhanced so as to decrease the incentive to resort to clandestine migration or abuse of the asylum system.

d.       Countries of origin, transit and destination

26.       In the European context, it has become more and more difficult to make a clear distinction between countries of origin and countries of destination, as the same country may be the origin of some and the destination of others. The picture is further complicated by the fact that many countries are also transit countries: clandestine migrants stay no longer than necessary before continuing into another country. In those countries the single border/common travel area under the Schengen agreement facilitates the process of onward migration. However temporary, their presence entails important consequences for the country in question.

      e.       The role of criminal organisations

27.       The smuggling of migrants and asylum seekers is a highly profitable illegal activity. Clandestine migration is sustained by a network all along the entire route. These organisations take care of the journey from the country of origin to the country of destination via other countries, using a variety of modes of transport. Evidence suggests that criminal organisations increasingly determine choices of country of destination and route, according to criteria of ease of entry and exploitation of social security systems and work opportunities upon arrival.

28.       Criminal networks misinform would-be migrants by exploiting their ignorance of what lies ahead for them, and often expose them to physical harm and danger, economic despair, forced labour and vulnerability in destination countries. On a number of occasions criminal organisations who smuggle migrants by sea have not hesitated to throw people, including children, overboard when risking being intercepted by the police or the immigration authorities. Hundreds of clandestine migrants die during the journey due to the inhuman conditions in which they are forced to travel. This state of affairs is nothing short of scandalous.

29.       The Rapporteur believes that the more the organised crime succeeds in this form of human trading, the more it influences the flows and patterns of clandestine migration; and with this further erodes the credibility of regular migration. It also increases the indignation and xenophobia of host communities who feel that their immigration laws are being professionally abused for profit.

3.       Rights and living conditions of clandestine migrants in Europe

30.        Your Rapporteur observes that there is no consolidated international regime presiding to the rights of clandestine migrants, nor a designated international agency to protect them. The International Organization for Migration (IOM) has a mandate to facilitate orderly migration, but it does not have a mandate to protect the rights of migrants, including clandestine migrants.

31.       It is difficult for states to reach an agreement on the rights that should be granted to clandestine migrants who find themselves under their jurisdiction. It is not a case that the main international instrument specifically focusing on migrants, the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, has yet not come into force. Clandestine migrants, however, do have rights, as they are set out in the main international human rights instruments, including the International Covenant on civil and political rights, the Covenant on economic, social and cultural rights and the European Convention on Human Rights and Fundamental Freedoms. All human beings, irrespective of their legal status, have among others the right not to be held in slavery or servitude, the right to emergency health care and the right to education for children.

32.       In practice, however, a number of legal and practical obstacles make the effective enjoyment of these rights difficult for clandestine migrants. Your Rapporteur believes that this issue should be investigated further, and suggests that the Council of Europe Commissioner for Human Rights, in the framework of his mandate, may be in the best position to do so. This opinion is supported by evidence of unequal access to fundamental rights in Council of Europe member states, as it has been brought to the attention of the Committee on Migration, Refugees and Demography during a recent Conference on the situation of illegal migrants in Council of Europe member states (Paris, 13 December 2001).

a.       access to emergency health care

33.       One of the main areas of concern is access to health care3. In most Council of Europe member states undocumented migrants are not entitled to a medical insurance. As a consequence, hospitals refuse to treat them for fear of not being paid. In some countries, like Germany, undocumented migrants do not dare to go to the hospital or to the doctor because public institutions are under a legal obligation to denounce them to the authorities. There are also positive examples: in Belgium and the Netherlands, clandestine migrants have the right to urgent medical care. In France, discussions about the best way to allow access of undocumented migrants to the official health care system have led to the creation of a special administration called AME (Aide Médicale d'Etat). AME provides free access to public health care for undocumented migrants as well as the homeless and covers all costs for emergency and ambulatory care. In Italy, since the entry into force of the amended migration law of 1998, undocumented migrants can register with the national health service. They are identified by an anonymous ‘temporary presence code' which enable them to have access to the complete range of health care services which are available to legal residents. The state will cover the expenditure where beneficiaries do not have the necessary financial resources.

b.       clandestine migrants in employment

34.       It is a fact that most clandestine migrants work. Even if wages in illegal employment are low, for many people fleeing from poverty they seem high, partly because no taxes and social security are paid. Employers use this opportunity to employ cheap labour and save social security costs. One of the main sectors where clandestine migrants find employment is agriculture, and in particular the sector of fruit and vegetables. Undocumented workers are highly dependent on their job and vulnerable to exploitation. They work in heavy or even dangerous conditions and live in abandoned warehouses or barracks, without basic facilities. Trade unions can play an important role in the enforcement of some basic employment rights. In southern Europe, like Spain and Italy, the employment of clandestine migrants is so widespread that some trade unions have established a department for providing them with counselling. Since the ‘70s the International Labour Organisation (ILO) has devoted attention to the issue of the employment of undocumented migrants, with the adoption of the Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunities and Treatment of Migrant Workers4. In line with this Convention and with the above mentioned UN Convention on Migrant Workers, your Rapporteur believes that it is not possible to curb the phenomenon of clandestine migration unless appropriate sanctions are foreseen and implemented against those who employ clandestine migrants.

c.       possibility of regularising the illegal stay

35.       Since the 1980s a number of Council of Europe member states, such as Belgium, France, Italy and Spain, have periodically passed legislation to regularise the illegal stay of immigrants. Such regularisation processes involve a limited number of clandestine immigrants satisfying certain conditions: in general terms, immigrants should be able to prove that their entry into the country has happened before a certain date and/or that if their stay was regularised they could support themselves, for instance because they have received an offer of employment.

36.       The Rapporteur warns Council of Europe member states against a policy of periodical regularisation, since this undermines the credibility of regular migration policy, is a sign of inefficient control of irregular migration flows and finally has the potential to induce further clandestine migration. Any regularisation process should be considered as part of a comprehensive strategy of migration management, and not as a last resort when all other measures have failed.

37.       The Rapporteur also wishes to mention the situation of those clandestine migrants who cannot be returned to their country of origin, for instance because of flight suspension, because their nationality is not determined or due to conditions prevailing in that country. These immigrants should not be left in a state of legal limbo. The Rapporteur believes that where a state acknowledges the impossibility of enforcing expulsion, the individual concerned should be granted a residence permit regularising his/her stay on a temporary basis, until the enforcement of expulsion is possible.

d.        the issue of criminalisation of assistance5

38.       The Rapporteur is aware that criminalisation of assistance provided to clandestine migrants by citizens and citizens’ organisations is one of the most thorny issues in the current debate on irregular migration and that its regulation differs between Council of Europe member states.

39.       Under German law, for instance, anyone who assists undocumented migrants will be penalised if this is done for financial gain, or if it is done repeatedly or in the benefit of several foreigners. Legal proceedings can be brought against those providing assistance to clandestine migrants if their behaviour led the migrants to decide to stay illegally or to overstay. Legal action can also be brought where the clandestine immigrant is expelled or if their status is regularised. If the person providing assistance is a foreigner, s/he can also be deported for doing so. In the United Kingdom, as in most European countries, criminalisation focuses on assistance to illegal entry. In the White Paper of February 2002, however, the Home Office expressed its determination to penalise those who assist ‘residence’. The Belgian Aliens law has introduced a humanitarian clause, excluding from penalisation those who provide assistance out of humanitarian reasons. Even if the wording of this provision is apparently simple, its application has given rise to concerns, since it has been interpreted by some courts as applying only to charity organisations and not individuals, with the consequence that cohabiting partners of clandestine migrants have been sued because they were providing accommodation.

40.       The Rapporteur invites Council of Europe member states which are in the process of introducing into their legislation provisions intended to criminalise smugglers and traffickers to include a clearly-worded humanitarian clause, excluding criminalisation of charity organisations and individuals providing assistance for humanitarian reasons to the victims of unscrupulous traffickers and people smugglers.

4.       Policies to deal with clandestine migration in the national context

41.       During the ‘90s, EU member states, plus Norway and Switzerland introduced broad ranges of measures to combat clandestine migration and passed increasingly restrictive legislation in this field. With a view to facilitating their accession to the EU and bringing their legislation in line with EU and Schengen standards, a number of Eastern and Central European countries are currently engaged in a similar process.

42.       The main measures that the member states of the Council of Europe have taken to deal with clandestine migration include:

43.       The Rapporteur notes that, despite this complex legal apparatus, clandestine migration is growing constantly and is becoming more and more organised. This is a sign of the inadequacy of the relevant national legal framework and practices of immigration control. Tougher domestic legislation is needed to criminalise migrant smuggling of migrants and trafficking of human beings. Above all, laws need to be enforced, cases need to be prosecuted, harsh sentences need to administered to transform these crimes from low-risk into a high-risk activities, with a view to having a dissuasive effect. At the same time, training of law enforcement officials, especially border guards, and the judiciary is of critical importance. This training should convey a two-fold message: recognition of the threat posed by smugglers to security and orderly migration, but also acknowledgement that the smuggled are human beings entitled to the protection of their basic human rights and to humane treatment.

5.       International attempts to deal with clandestine migration

      a.       Global co-operation

44.       The Rapporteur notes that the main efforts of the international community have been directed to combating transnational organised crime. In this respect, the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementary to the Convention against Transnational Organized Crime (15/11/2000) represent a major achievement.

45.       The aims of the Protocols are threefold: to prevent and combat trafficking and smuggling of human beings through the introduction of appropriate penalties for traffickers and smugglers; to protect and assist the victims of trafficking and smuggling; and to promote information-sharing among states to meet these objectives. The Protocol on trafficking will serve as a model for national legislation, detailing provisions such as the type of conduct which should be sanctioned, the severity of punishment and effective measures to prevent as well as punish trafficking.

46.       It is worth mentioning that the Protocol on smuggling calls for criminalisation only of the smugglers and the organised criminal groups behind them, in that migration in itself is not a crime and, therefore, smuggled migrants are not liable to criminal prosecution. In fact, they are victims in need of protection.

47.       The Rapporteur considers the conclusion of these Protocols to be a fundamental step to deal with clandestine migration, and strongly invites the member states of the Council of Europe who have not signed them to do so without delay6.

48.       The Rapporteur, however, is convinced that these instruments, though necessary, are not sufficient to come to grips with the problem of clandestine migration unless accompanied by adequate training of law-enforcement officials and effective implementation and radical initiatives to address the root-causes in countries of origin of emigration flows.

b.       Regional co-operation

49.       Since the early ‘90s EU states have shown a conviction that the development of the European integration process demanded the harmonization of migration policies and a closer co-operation in related fields. Enhanced collaboration between police forces was established as a result of the Schengen agreement. However, it was only with the entry into force of the Amsterdam Treaty that immigration and asylum became a full Community responsibility.

50.       The European Council of Tampere (15-16 October 1999) laid the foundations for the current justice and home affairs policy, of which immigration and asylum are a fundamental aspect. These issues were further addressed at the EU Summit at Seville in June 2002.

51.       The key elements that should inspire migration policy within the EU are: a comprehensive approach to migration, addressing political, human rights and development issues in countries and regions of origin and transit; partnership with countries of origin and transit; management of migration flows; and prevention of all forms of trafficking in human beings. These guidelines are included in recent documents prepared by the European Commission: the Communication on a community immigration policy (22 November 2000)7, the Communication on an open method of co-ordination for the community immigration policy (11 July 2001)8 and the Communication on a common policy on illegal immigration (15 November 2001)9. The Rapporteur invites the Assembly to take note of the position taken by the Commission in these documents and to press the governments of EU member states to address the concerns discussed at the Seville summit.

52.       The Rapporteur is aware of the difficult task that lies ahead for the EU candidate countries, who have to adapt their domestic legislation and practices to the existing EU acquis including that on the the measures to deal with illegal migration. These countries, like other eastern and southern European members of the Council of Europe, are often afflicted by transit migration, trafficking and smuggling, which they try to combat whilst in many cases having insufficient resources to deal effectively with the scale and scope of the problem. In some instances they are even the sources of primary migration into the EU.

53.       The Rapporteur is convinced that the Council of Europe is the appropriate regional forum to develop dialogue, partnership and assistance between countries of origin, transit and destination of clandestine migrants to deal complementarily and fairly in what is in essence a legal, social, economical and humanitarian problem. It has the necessary organisational structure, broad geographic area of responsibility, experience and commitment to liberty and the rule of law to provide credibility and competence.

6.       Conclusions and recommendations

54.       Countless numbers of migrants live in Europe without the right to health care, welfare, schooling or a minimum income. Being illegal entrants or overstayers makes them vulnerable to abuse and exploitation. Migration is a structural feature of human society, and should be dealt with in an appropriate legal framework, which is not universally the case in Europe. These juridical and practical deficiencies are a source of resentment which must be urgently addressed. Failure to do so could provoke dangerous social and political tensions.

55.       The Rapporteur wishes to propose a Charter of intent on clandestine migration, which should endorse the following principles:

Reporting committee: Committee on Migration, Refugees and Demography.

Reference to committee: Doc. 8859, Reference No. 2549 of 9 November 2000

Draft recommendation unanimously adopted by the committee on 27 June 2002

Members of the committee: Mr Iwiński (Chairperson), Mr Einarsson (1st Vice-Chairperson), Mrs Vermot-Mangold (2nd Vice-Chairperson), Mrs Bušić (3rd Vice-Chairperson), Mrs Aguiar, MM. Akhvlediani, Aliyev G., Mrs van Ardenne-van der Hoeven (alternate: Van't Riet), MM. de Arístegui, Arzilli, Bernik, Mrs Björnemalm, MM. Van den Brande, Branger, Braun, Brînzan, Brunhart, Christodoulides, Cilevičs, Connor, Danieli, Debarge, Dedja, Díaz de Mera (alternate: Agramunt), Dmitrijevas, Ehrmann, Mrs Err, Mrs Fehr, Mrs Frimannsdóttir, MM. Grzesik, Grzyb (alternate: Kroll), Hancock, Hordies, Hovhannisyan, Ilaşcu, Ivanov, Jařab, Lord Judd, MM. Karpov, Kirilov, Kolb, Kósáné-Kovács, Koulouris, Kulikov, Kvakkestad, Laakso, Le Guen, Liapis, Mrs Lörcher, M. Loutfi, Mrs Markovska, MM. Matviychuk, Mutman, Naro (alternate: Rivolta), Nessa, Mrs Onur, MM. Ouzký, Popa, Prijmireanu, Pullicino Orlando, Rakhansky, Sağlam, von Schmude, Schweitzer, Mrs Shakhtakhtinskaya, MM. Slutsky, Soendergaard (alternate: Vesselbo), Mrs Stoisits, MM. Telek, Tkáč, Tosić, Vera Jardim, Wilkinson, Wray, Yáńez-Barnuevo, Zavgayev, Zhirinovsky, Mrs de Zulueta, Mrs Zwerver.

N.B. The names of those members present at the meeting are printed in italics.

Secretariat of the committee: Mr Lervik, Mrs Nachilo, Ms Sirtori.

1 Article 2, paragraph 2 of this Protocol reads: "Everyone shall be free to leave any country, including his own".

2 Pieter Muller, PICUM Chairman, Working paper on undocumented migrants in Europe for the Steering Committee meeting of the minorities and multiculturalism interest group, European Foundation centre, Stockholm, May 2001.

3 The information in this paragraph has been provided by the contribution of PICUM to the Conference on the situation of illegal migrants in Council of Europe member states, Paris, 13 January 2001.

4 Convention C143, date of adoption on 24 June 1975.

5 The information in this paragraph has been provided PICUM with a Consultative Paper on Penalizing and criminalizing assistance provided to undocumented migrants, May 2002.

6 The following member states of the Council of Europe have not signed the additional Protocols to the Convention against Transnational Organized Crime: Czech Republic, Estonia, Latvia, Liechtenstein, Lithuania, Poland, Slovakia, Slovenia, Switzerland and Ukraine. Armenia has not signed either the Convention or the additional Protocols.

7 COM(2000) 757 final

8 COM(2001) 387 final

9 COM(2001) 672 final