Irregular Migration and Human Rights: Theoretical, European and International Perspectives [1 ed.] 9781280915505, 9789004140110

Citation preview

IRREGULAR MIGRATION AND HUMAN RIGHTS: THEORETICAL, EUROPEAN AND INTERNATIONAL PERSPECTIVES

IMMIGRATION AND ASYLUM LAW AND POLICY IN EUROPE Volume 7 Editors Elspeth Guild Kingsley Napley Solicitors, London, Centre for Migration Law, Katholieke Universiteit, Nijmegen Jan Niessen Migration Policy Group, Brussels The series is a venue for books on European immigration and asylum law and policies where academics, policy makers, law practitioners and others look to find detailed analysis of this dynamic field. Works in the series will start from a European perspective. The increased co-operation within the European Union and the Council of Europe on matters related to immigration and asylum requires the publication of theoretical and empirical research. The series will contribute to well-informed policy debates by analysing and interpreting the evolving European legislation and its effects on national law and policies. The series brings together the various stakeholders in these policy debates: the legal profession, researchers, employers, trade unions, human rights and other civil society organisations.

The titles published in this series are listed at the end of this volume.

Irregular Migration and Human Rights: Theoretical, European and International Perspectives

Edited by

Barbara Bogusz, Ryszard Cholewinski, Adam Cygan and Erika Szyszczak

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON 2004

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90-04-14011-5 © 2004 Koninklijke Brill NV, Leiden, The Netherlands Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorisation to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands

TABLE OF CONTENTS

Preface Introduction Kees Groenendijk PART I WHO ARE IRREGULAR MIGRANTS? 1. Who Is An Irregular Migrant? Elspeth Guild 2. Measuring Irregular Migration: Implications for Law, Policy and Human Rights Valsamis Mitsilegas 3. Irregular Migration and Migration Theory: Making State Authorisation Less Relevant Dora Kostakopoulou PART II PERCEPTIONS OF IRREGULAR MIGRANTS 4. Criminalisation of “Migrants”: The Side Effect of the Will to Control the Frontiers and the Sovereign Illusion Didier Bigo 5. Porous Borders, Terrorism and Migration Policy David Bonner 6. Irregular Migration and Asylum-Seeking: Forced Marriage or Reason for Divorce? Johannes van der Klaauw 7. Irregular Migration Networks: The Challenge Posed by People Traffickers to States and Human Rights Ryszard Piotrowicz PART III IRREGULAR MIGRATION IN THE CONTEXT OF THE DEVELOPING EUROPEAN UNION ACQUIS 8. European Union Policy on Irregular Migration: Human Rights Lost? Ryszard Cholewinski 9. Irregular Immigration and EU External Relations Steve Peers

vii xvii

3 29 41

61 93 115 137

159 193

Table of Contents 10. 11.

Modes of Governance For an EU Immigration Policy – What Role for the Open Method of Co-ordination? Barbara Bogusz European Union Immigration Policy after Enlargement – Building the New Europe or the New Iron Curtain? Adam Cygan

PART IV INTERNATIONAL AND NON-GOVERNMENTAL RESPONSES TO IRREGULAR MIGRATION 12. Globalization/Migration: Imperatives for Civil Society and International Organizations Patrick A. Taran 13. The International Organization for Migration (IOM) and the Human Rights of Migrants in an Irregular Situation Jillyanne Redpath 14. Irregular Migration and Human Rights: A Council of Europe Perspective Simon Tonelli 15. Human Rights, State Sovereignty and the Protection of Undocumented Migrants Under the International Migrant Workers’ Convention Linda S. Bosniak PART V FOSTERING INTEGRATION 16. Invisible Actors? Irregular Migrants and Discrimination Mark Bell 17. Fundamental Social Rights for Irregular Migrants: The Right to Health Care in France and England Sylvie Da Lomba 18. Coping With Irregular Migration: The Dutch Experience Paul Minderhoud 19. Regularising Migration in the European Union Erika Szyszczak 20. Developments in the Case Law of the European Court of Human Rights Nicholas Blake

221 239

259 291 301

311

345 363 387 407 431

List of Contributors

453

Index

459

vi

PREFACE

This collection of essays is the outcome of an international conference on Irregular Migration and Human Rights held at the University of Leicester on 28th and 29th June 2003. The idea behind the conference was to take a discrete area of migration law and policy which, although not a new phenomenon, is difficult to define and increasingly attracts emotive media and political attention. The subject of irregular migration has not been tackled in a multi-dimensional way in the academic forum and our aim, therefore, was to bring together colleagues from the academic and practitioner world and non-governmental organisations to discuss in a wide-ranging manner various issues relating to irregular migration. Although the discussion explored the global aspects of irregular migration the focus of the papers presented at the conference was upon the implications of irregular migration in Europe. We deliberately did not define what we understood by the term irregular migration, although the choice of the term was deliberate in order to broaden the study of migration away from popular concepts of illegal and clandestine migration, allowing our colleagues to explore their own understanding and definition of the term. The result was a lively and intense conference for which we thank all the participants. Details of the conference and a resource page can be found at http://www.le.ac.uk/law/celi The book includes a short introductory chapter and is then divided into five parts, reflecting different perspectives of irregular migration and human rights. In the Introduction, Kees Groenendijk sets the scene by asking four basic questions about irregular migrants: who is an irregular migrant; are irregular migrants human beings; why did we grant rights to irregular migrants; and can irregular migrants have other rights than human rights? Part One of the book addresses the complex question of who is an irregular migrant. Elspeth Guild shows how State and the European Union legislation and policy, rarely define irregular migration. Instead we see that irregular migration is often a residual category of persons who do not fall within definitions of regular or legal migration. In fact irregular migration becomes almost an abstract idea set out more in political statements and measures than a coherent legal framework. This essay analyses the rules of European Community law, examining the treatment of third country nationals and nationals from the new Accession States. Within the EU framework the essay also records the policy developments in the area of Freedom, Security and Justice which have materialised since the Treaty of Amsterdam. Set against the EU framework the essay also records the findings of the Odysseus Academic Network for legal studies on immigration and asylum

Adam Cygan, Barbara Bogusz, Ryszard Cholewinski and Erika Szyszczak in Europe revealing the various responses at the national level to irregular migration. Alongside the difficulties of defining who is an irregular migrant, the problem of assessing the size and nature of irregular migration poses similar challenges to the EU and individual Member States. States in particular have an interest in knowing how many foreigners are within their territory, from a security perspective as well as for demographic policy planning needs. Valsamis Mitsilegas examines the curious paradox that despite political and media fears of the size and problems relating to irregular migration, actual, accurate and accepted statistics on the numbers of irregular migrants are notoriously hard to collect and analyse. This essay explains the various moves made by the EU during the 1990s to create reliable data on the issue, highlighting a recurring theme: how to define, and ultimately quantify, irregular migration? The essay also discusses how the collection of data and the processing of data on individuals raises a number of human rights concerns. While a clearer picture of the extent of irregular migration may help to inform State and trans-national policy, such policy may not always be beneficial for migrants. Other human rights issues emerge such as the transfer of the policing of irregular migration to private parties and how the collection of data and statistics fits with the principles of good governance in the EU: accountability and transparency. Theodora Kostakopoulou examines conventional analyses of irregular migration which view the role of the State as a central actor in curbing and preventing irregular migration. Such analyses, in her view, focus too much upon ideas of exclusive ownership of territories and the fixing of static boundaries to such territories. This essay charts the rise of the modern nation State and argues that in the increasingly globalised world a radical re-think of the way in which borders are constructed and membership of communities is determined may allow for new forms of spatial organisation which can accommodate some of the problems associated with attitudes towards, and management of, irregular migration. At the heart of her thesis is the idea that it is possible to identify communities with distinctive characteristics, without the need for physical borders as the distinguishing factor: focal territoriality. The essay argues that this approach would remove the justification for State migration policy. The determining factor would be the ability of the individual migrant to prove social membership of the local community in which she/he had settled. This would change attitudes towards irregular migration by moving attention away from borders to looking at the quality of community relationships. It would empower migrants and remove many of the consequences of illegality and vulnerability currently suffered by irregular migrants and documented in later essays in this book. Equally such an approach exposes the tensions within current migration policy where political rhetoric poses migration as a threat to the social fabric of many States, a generator of social tensions, while, at the same time acknowledging the economic need for migration in free markets to maintain productivity and global competitiveness. viii

Preface Part Two turns attention to official and popular perceptions of irregular migrants. Didier Bigo continues with the idea that today political frontiers no longer coincide with economic frontiers and that private power has as much, if not more, power than State power. His essay also charts the evolution of national borders as a political process, the purpose and function of borders changing over time and location. The focus is upon the paradoxical situation of how the liberalisation of migration, especially in Europe, is paid for at the price of increased surveillance, securitisation and the construction of “the other”. The result is not only new perceptions of the migrant but concepts of the “immigrant” with a range of connotations of criminality and the threat of the enemy within. This essay reveals the range of surveillance methods deployed, the secrecy in policy making and decision-taking, perceived security threats (organised crime, drug and people trafficking), the transfer of policing of migration to non-State actors and the responses within the Member States and EU policy. The state of postSchengen Europe. The humanitarian and human rights response to such developments is seen as piecemeal, relying upon legal and judicial procedures and the monitoring of human rights and civil liberty abuses. Didier Bigo concludes that the price paid for the need to create an efficient borderless economic zone is not so much an exclusion of undesirables but new processes designed to separate out undesirables without systematic checking of every migrant. The result is the creation of a waiting zone for irregular migrants where undesirable migrants are at a distance and out of time – a new kind of satellite population. David Bonner examines the effects of the “war on terrorism”, which has been in preparation for some time in the EU but has accelerated in the period after September 11th. This essay shows how the commitment of the EU to a legal order based upon the rule of law, as well as the enduring influence of the Council of Europe’s human rights policy, has tempered official statements setting out the policies and strategies towards tackling the perceived terrorist threat in Europe. Much of the activity has, by necessity, worked within conventional and established legal categories: control of borders, control of entry to a Member State, treatment of refugees and asylum seekers. Similarly, ideas of balancing individual (human) rights against those of the State are important, but not new ideas to lawyers. How far can measures be generalised? Can specific groups challenge stereotyping? Or assert rights under the new discrimination legislation enacted in the EU? Again, definitions are important: what is terrorism? Who is a suspected terrorist? The post-September 11th responses are analysed through the lens of the United Kingdom’s legislation which, unlike its EU counterparts, has reacted with draconian measures which may test the limits of human rights protection under the ECHR. Johannes van der Klaauw looks at a different perception: the linkages in the popular imagination, and in official policy, between irregular migration and asylum/refugee status. It is argued that asylum is seen as a human right and that there are arguments for keeping asylum as a specific and discrete legal idea. ix

Adam Cygan, Barbara Bogusz, Ryszard Cholewinski and Erika Szyszczak But the complexity of irregular migration, as outlined in this book, reveals that arguments can be made in favour of viewing asylum processes through the lens of various aspects of irregular migration, for example, victims of trafficking and political persecution. Johannes van der Klaauw argues that a careful policy balance must be drawn between recognising the rights of irregular migrants and the management of migration. The essay examines this balance through five distinct perspectives set against the background of international measures: combating illegal immigration through border controls, interception and interdiction measures, and sanctions on migrant smuggling and human trafficking; measures aimed at a more orderly and managed entry for refugees; return and readmission of irregular residents and unsuccessful asylum-seekers; strengthening reception capacities in regions of origin; and developing comprehensive policy approaches to refugee and migration challenges. Ryszard Piotrowicz shows how a different kind of forced irregular migration, trafficking, has been addressed in a number of international legal measures. Trafficking is distinguished from people smuggling. The latter usually involves a voluntary process, but both forms of migration pose threats to receiving States, especially as borders within Europe are dismantled. This essay charts the international response to trafficking which embraces defining trafficking and setting in place legal procedures to regulate traffickers and people who have been trafficked. But, as Ryszard Piotrowicz shows, many of these provisions are weak from a human rights perspective and many are aspirational. The proposals to handle trafficking in the EU are exposed by the emphasis upon the criminality of the act and the failure to address the rights of victims. This essay explores a more positive note, showing the awareness in some States of the gender implications of trafficking. But weaknesses are exposed, especially the inability of legal measures to recognise the sex trade as a specific form of abuse. The essay shows the difficulties of addressing the rights of victims within the current categories of rights, for example, the use of asylum and refugee status. Trafficking creates problems related to the vulnerability of the victims whose clandestine presence within a State is regularly exposed by the media but unofficially recognised in public policies, beyond the need for tougher policing of traffickers. Irregular migration finds itself high on the political agenda of the European Union, partly due to the geographical location of a region which attempts to open up internal borders to free movement of persons, partly because of the historical links with other parts of the world and partly because of the perceived economic opportunities, social, civil and political rights enjoyed by Europeans. The EU has for a long time been a magnet for political and economic migrants and for almost thirty years the EU has wrestled with the most appropriate way, collectively, and for individual Member States, to manage the perceived threats raised by irregular migration. Part Three is therefore devoted to irregular migration in the context of the developing EU policies in this area. Ryszard Cholewinski points out that irregular migration issues have long been on the agenda of the x

Preface EU. Estimates by the EC Commission in the 1970s put the total of third country nationals (TCNs) at some one-tenth of the migrant workforce, which at this time was sometimes called the “thirteenth State” of the European Community. More recently popular opinion towards tragedies which have occurred involving irregular, clandestine immigrants has informed policy approaches towards such forms of migration. But set against this background is the cold climate of the perceived security issues outlined in the earlier essays by Didier Bigo and David Bonner. This essay examines how a lack of consensus upon the legal base for an EU immigration policy has resulted in a preference for soft law measures, even after the Treaty of Amsterdam. But soft law has achieved a new governance status in the EU and many of the policies are set out in detailed Action Plans. Where hard law measures have been achieved, it is noted that there is very little serious indication of human rights standards beyond cursory references to the 1951 Geneva Convention Relating to the Status of Refugees. Instead the measures handle classic immigration issues of preventing entry, assisting with expulsion, punishing facilitators of irregular migration, for example smuggling and trafficking. This emphasis upon security issues over human rights issues is carried through in the draft Constitution for the EU, discussed in the Intergovernmental Conference (IGC). But Ryszard Cholewinski raises the possibility that a human rights dimension towards irregular migrants may reappear in the political and legal discourse if the new Constitution clears the way for EU accession to the ECHR and the inclusion of the currently non-justiciable Charter of Fundamental Rights of the EU into the basic Constitution of the EU. Barbara Bogusz builds upon the weaknesses revealed in the EU’s legal responses to irregular migration and examines the new response to co-ordinating migration policy at the EU level through the open method of co-ordination (omc). This essay examines the reasons why the omc has been chosen as a new form of governance in the field of immigration, especially in the context of another recurring theme of this book, the consequences of enlargement of the EU in 2004, looking at the institutional structures which are emerging, the new processes and the actors chosen to participate in the process. The essay returns to issues raised in Valsamis Mitsilegas’ essay, showing why the collection of statistics and data and the creation of common indicators in the field of migration is so important for the EU, and the Member States, in planning responses to irregular migration. Comparisons are made with other uses of the omc as a new governance tool. It is clear that the need to co-ordinate policies in the field of migration is a necessary component of the Lisbon Process which aims to make the EU the most dynamic, competitive global economy by the year 2010. But the essay explores how far migration issues are a politically sensitive issue which history shows need a lighter touch at the EU level and how far the inclusion of migration in the Lisbon Process is part of a wider European Employment Strategy.

xi

Adam Cygan, Barbara Bogusz, Ryszard Cholewinski and Erika Szyszczak Another aspect of the freeing of internal borders analysed by Didier Bigo is the shift in the locus of control of “the other”. A new item on the EU political agenda is the newly constructed idea of the external border of the EU. Adam Cygan examines a new dimension to irregular migration created by the impending enlargement of the EU, pushing the external border several hundred kilometres eastwards. This essay argues that the immediate focus is not upon the sealing of the Eastern frontier. The Schengen acquis has not been applied to the Accession States because of the perceived fear that there are already a number of irregular migrants in these States. An open internal migration policy will allow for free movement of such irregular migrants throughout the existing EU. Many of the issues already addressed in this book – who is an irregular migrant; who is a legal migrant; how are undesirable migrants to be treated; what are the perceptions of such migrants – are magnified in the enlargement process. This essay argues that the EU has an interest in creating a tightly policed formal border and that the gap between countries belonging to the elite club of European integration and those that do not will be even more apparent. Even when the Polish/Ukraine border becomes the final frontier for the EU socio-political and historical factors will lead to local demographic problems, especially for people who recognise local regional and ethnic, community attachments over political frontiers. This picks up a theme already explored by Theodora Kostakopolou. The essay concludes with an examination of whether the EU’s fledgling neighbourhood policy in relation to the States bordering the enlarged EU is the correct response to the emerging issues. Steve Peers examines the treatment of irregular migration from the external relations perspective of the EU. Focusing essentially upon irregular migration from outside of the EU, this essay reveals the increased activity in readmission agreements since the Treaty of Amsterdam and the Tampere European Council. The essays takes a detailed and critical look at the different forms of readmission agreements and the obligations under the agreements with the wide-ranging set of States who have made formal agreements with the EU. An underlying concern of this essay is the lack of realism in the policy initiatives and the drawbacks of linking migration policy with other external policies of the EU. Steve Peers argues that the EU should look towards greater multi-lateralism in its external relations policy, openly acknowledging the root causes of why migration to the EU occurs. Together with a framework for admission to the EU based upon the human rights’ concept of equal treatment, the EU may create a clearer coherent and fairer policy towards non-EU migration. Having focused upon State, regional and national responses to irregular migration, a different dimension, the role of international and non-State/ governmental actors, is introduced in Part Four. The latter are influential in lobbying and directing formal responses to irregular migration and the influence of non-governmental organisations is already seen in the preceding essays. Patrick Taran brings the perspective of the ILO to reviewing the conditions which drive xii

Preface irregular migration and the challenges and constraints facing inter-governmental organisations and non-governmental civil society organisations. This essay looks at issues raised in Steve Peers’ paper of the need to involve the country of origin in irregular migration policy. The activity of NGOs is emphasised in relation to issues relating to the protection of rights, especially human rights relating to dignity. A central thesis is that the countervailing tensions between increases in global mobility of migrants and decreases in rights and basic protection afforded to migrants by States necessitate greater strategic action to strengthen the legal rights of irregular migrants. Jillyanne Redpath offers the perspective of the International Organisation for Migration (IOM). Again, issues of identifying who is an irregular migrant as well as the particular issues relating to irregular migration underpin the IOM policy response. Similar issues to those raised in Patrick Taran’s essay re-emerge: the need to create legal rights to protect the situation of migrants and afford appropriate treatment, based on ideas of dignity. The essay isolates for discussion three important policy areas of the IOM relating to irregular migration: assisted voluntary returns, trafficking and access to health care. The essay concludes by outlining the practical assistance given by the IOM to local and regional NGOs. Simon Tonelli addresses irregular migration, from the perspective of the Council of Europe, an organisation committed to, and influential in developing human rights standards. The novelty of addressing the concept of irregular migration in this book is particularly apparent in this essay since the Council of Europe does not have an official, declared policy on irregular migration. But as this essay shows, the Council of Europe has a long established policy on human rights and migration issues which can be moulded to address some of the issues raised in relation to irregular migration throughout this book. The essay examines how various Conventions, and Charters of Rights, are applicable as well as moving on to looking at the development of a strategy to manage migration. Nicholas Blake QC returns to these issues in the final chapter of the book. Not all the papers presented at the conference are collected together in this book, and one paper which is reproduced here, written by Linda Bosniak on “Human Rights, State Sovereignty, and the Protection of Undocumented Migrants under the International Migrant Workers Convention” was not delivered at the conference. The Convention entered into force in July 2003, soon after the conclusion of our conference. The adoption and ratification of this Convention has taken place against a growing recognition of the problems of migrant workers at the international level. But, paradoxically, and with echoes of Didier Bigo’s essay, recognition of irregular migrants rights constitutes a challenge for States; the very presence of people outside of the regular channels of migration poses a threat to States’ sovereignty. The Convention is an important milestone in the normative development of irregular migrants’ rights by introducing a raft of human rights protection, covering civil, economic and social rights, for undocumented migrants, laying claim to a universality in human rights protecxiii

Adam Cygan, Barbara Bogusz, Ryszard Cholewinski and Erika Szyszczak tion in this field. The Convention is circumscribed, however, by virtue of the fact that it is promulgated under the auspices of the United Nations, which, although being an important source of universal human rights standards, is constrained by States’ powers of national sovereignty, asserting rights to non-interference, especially in areas involving core immigration policy decisions. Until now, much of the discussion on irregular migration has been upon its regulation: how to identify, estimate, document and prevent irregular migration. But, as we have seen, irregular migration has been in existence for a long period, especially in Western Europe, and in some States is officially tolerated by turning a blind eye to the presence of irregular migrants. By breaking the law by their mere presence irregular migrants are nearly always excluded from political, social and economic rights. In 1996, protest movements by irregular migrants in France, started the “sans papiers” response which has spread across Western Europe throwing the spotlight on the twilight conditions people living in the shadow of the law are forced to endure. Research on irregular migration has revealed the discrimination and exploitation faced at work, lack of access to social services, education and healthcare endured by migrants whose inability to access basic social rights within a Member State is conditioned by their irregular status. Many States use the threat of destitution and exploitation by non-State actors as a deterrent against irregular migration. These people are in the “waiting zone” identified earlier by Didier Bigo. From a political perspective, the inability to be publicly recognised by the host State leaves most irregular migrants deprived of access to the political forum which would enable them to make demands upon the State. Part Five of the book examines the different official responses to the demands for the integration of irregular migrants within the host State. The essay by Mark Bell accepts that special rules for irregular migrants do not exist and therefore examines the ways in which irregular migrants may be brought within existing and accepted human rights norms, particularly the principle of equal treatment and non-discrimination as set out in international, regional and EU legal norms. The clandestine nature of some forms of irregular migration and the relationship of such migration with the labour markets in Europe is a recurring theme which has been addressed in other essays in this book. Mark Bell argues that the reality of such forms of irregular migration demands a more sophisticated approach beyond the bare essentials of a non-discrimination/equal treatment human rights standard. Some of the issues are already being addressed within the use of the omc and the European Employment Strategy discussed by Barbara Bogusz. The final part of the essay addresses a number of new policy avenues which could be pursued to match the legal responses to the reality of irregular migration. Patrick Taran and Jillyanne Redpath have already highlighted some of the issues relating to access to social rights of irregular migrants. Sylvie Da Lomba takes as a case study a comparison of the right to access health care by irregular xiv

Preface migrants in France and in England. Although France and England have comparable socio-economic structures, the two countries differ in their approach towards irregular migrants. The impact of different forms of social and political networks is important in determining, not only policy, but also individual access to basic social rights. Yet access to healthcare is recognised as a basic fundamental right in many international and regional Conventions. This essay reveals how, even against the backdrop of human rights protection, it is possible for States to adopt different approaches to the provision of basic rights. Paul Minderhoud’s essay is a different kind of case study, a country specific analysis of the way in which The Netherlands has addressed the issue of irregular migration from the perspective of excluding irregular migrants from access to public services. Statistical evidence revealing the nature and extent of migration to The Netherlands is set against the political background which has recognised a need for more restrictive measures to combat irregular migration, especially migration from Romania and Bulgaria. Many of the traditional instruments used to regulate migration (visas, border controls, residence permits, detention and expulsion) have proved hard to apply without violating fundamental human rights. Detention and expulsion measures form the core of the modern approach, linked to the criminalization of irregular migration. The study shows how criminalization of irregular migration may hinder the expulsion of irregular migrants and, already, The Netherlands is discovering that it does not have the capacity to imprison all the irregular migrants who are detected. As a result of the ineffectiveness of traditional measures and the growing numbers of irregular migrants The Netherlands has deployed new legislative and administrative instruments of exclusion, for example, linking social security numbers to residence permits. The Linking Act 1998 excludes irregular migrants from access to a number of public social services and an integrated aliens’ policy obliges other government policies not to interfere with the aliens’ policy of the Justice Department. The final part of the essay discusses the humanitarian responses to the new exclusion policy towards irregular migrants. Paul Minderhoud’s conclusions echo many of the issues already taken up in this book. The repressive policies to control migration create generalised perceptions of all migrants, usually with adverse connotations and this induces political responses which are often symbolic in emphasising the perceived threat to the State posed by the failure to address the causes of irregular migration. As Elspeth Guild has shown, the legal relationship between a migrant and the State is complex and this theme is taken up by Erika Szyszczak who analyses the ways in which the sophisticated structure of EU migration rights allows for some migrants, particularly third country nationals, to fall through the net of migration law rights. Her essay examines the recent case law where irregular migrants have sought to regularise their legal position within the EU. Her aim is to discover how far the Court of Justice is motivated by human rights concerns and how far the response is purely technical and pragmatic. This essay also xv

Adam Cygan, Barbara Bogusz, Ryszard Cholewinski and Erika Szyszczak examines the new political agenda of the EU to grant citizenship, civic, social and political rights to long term residents in a Member State. The conclusion is that the Court of Justice will continue to be the major source for a human rights approach towards regularising the migration rights of irregular migrants but there are indications that integration measures are increasingly informed by human rights principles and ideas. Finally Nick Blake QC, assesses the contribution the ECHR can make to issues raised by irregular migration. Set against a background of decreasing legal rights for migrants at the national level, this essay draws upon the case law of the ECHR to show that the ECHR and other international human rights’ norms and humanitarian obligations are increasingly proving to be the normative basis upon which the treatment of migrants can be legally challenged. Of particular significance is the core concept of dignity, distributed throughout the ECHR as a founding value. The essay ends the collection of essays on a positive note; migrants have the opportunity to litigate, using a set of legal norms based upon human rights concepts, agreed at the international and regional level, showing that the law of humanity is a progressive force. We are grateful to the University of Leicester, the EC Commission Jean Monnet Fund, the Council of Europe, the British Academy and the Society of Legal Scholars for financial support for the conference. Professor Bob Hepple and Professor Andrew Choo are thanked for their support for the project. Samantha Velluti provided intellectual and practical assistance and Holly Paisey co-ordinated the administrative arrangements. To these colleagues, the speakers and participants, we owe a debt of gratitude for providing us with an enjoyable, intellectually stimulating weekend and this book of essays. Adam Cygan, Barbara Bogusz, Ryszard Cholewinski and Erika Szyszczak

xvi

Kees Groenendijk

INTRODUCTION

FOUR QUESTIONS ABOUT HUMAN BEINGS WITHOUT THE RIGHT PAPERS The first “illegal alien” I ever met was the brother of my mother. My uncle was a respected member of the Amsterdam Bar. In the 1950’s he travelled to New York with the aim of settling a serious dispute involving one of his commercial clients. Upon arrival in the US he was arrested and detained at Ellis Island. After some days he was told that he was an illegal alien because he had tried to enter the US illegally. Some days later, through the Netherlands consulate in New York, he managed to inform his colleagues in Amsterdam, who instructed a friendly law office in New York. My uncle was released on the condition that he returned to the Netherlands immediately. Later he learned that the lawyer of the other party to the dispute, who wanted to prevent a settlement of the issue, had informed the US immigration authorities that my uncle was a communist. That information at the time of Joseph McCarthy’s campaign against un-American activities was sufficient to be treated as a threat to state security. In fact my uncle happened to be an active member of the Dutch conservative party (VVD), the most proAmerican party of the Dutch political spectrum. Having an Arabic name at the gates of the USA (and of Europe) after 11 September 2001 may give rise to similar reactions as being considered a communist in the fifties.1 This little story tells us three things. First, we all may be considered an “illegal alien” one day. Most of us probably have overstayed somewhere some time. Secondly, that status often is temporary only. Thirdly, it illustrates the importance of access to legal aid in order to regularise one’s status, even for a lawyer. In this introduction I will deal with four questions to which the chapters of this book will return. 1. Who is an illegal migrant? 2. Are irregular migrants human beings? 1

See the essay by Bonner in this volume.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular migration..., xvii-xxii © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Kees Groenendijk 3. Why did we grant human rights to irregular migrants? 4. Can irregular migrants have other rights than human rights?

1.

WHO IS AN ILLEGAL MIGRANT?

The answer will depend on the person who is asked the question. A sociologist probably will answer: illegal migrants are a most diverse category of different people who only have one characteristic in common, that the authorities of the place where they live deny or dispute their right to be there. The composition of this group is as diverse as migrants generally. The term covers migrant workers without the required work permit, asylum seekers whose request for protection has been refused, an elderly mother who has overstayed her visa because she is ill, a person travelling on a false passport with the intention to commit a crime, or a foreign student who did not apply for the extension of his or her residence permit. They all are defined as illegal. Some may not even be aware of having that status. A lawyer probably will answer that it is not easy to say where to draw the line. Every non-citizen without a residence permit evidently is too wide a definition.2 There are all kinds of shadowy categories between legal and illegal migrants: non-citizens whose stay is known and tolerated by the authorities. More than 200,000 persons have lived for years in Germany on the basis of a document called Duldung. German authorities will explain that this document is not a residence permit. The status of these immigrants is somewhere between legal and illegal. Laws, authorities and their policies create irregular migrants among others by making it harder to obtain a residence permit. In the Netherlands the presence of this category became an issue only after the recruitment ban in 1973 made it more difficult for migrant workers from Mediterranean countries to obtain a residence and a work permit. A recent example of this creative power is the French proposal discussed in the EU Council of Ministers since October 2002: every third country national whose passport has not been stamped at the external Schengen border should be deemed to be illegally in the Schengen area.3 The purpose of the proposal is to prevent citizens of third countries, who can enter without a visa, from being able to stay for longer than the three months allowed under the 1990 Schengen Implementing Agreement, because it is unclear when those three months actually did start. If the proposal is adopted, the stay of many third country nationals will be automatically defined as illegal already before the three months they are entitled to travel in the Schengen area under the incorporated Schengen rules have elapsed.4

2 3 4

See the essays by Guild and Szyszczak in this volume. Council Doc. 13645/02 (30 October 2002). By incorporating this French proposal in the Common Manual (OJ 2002 C 313/97), Member States would be effectively amending the provisions on the right of third

xviii

Introduction A Dutch NGO that is actively protecting the rights of irregular migrants named itself “Niemand is illegaal” (“Nobody is illegal”). This label stresses that the person is not illegal, but his or her residence status may be unclear or lacking. French NGO’s, politicians and academics make the same point by using the term “sans papiers”. Most “undocumented persons” have some place in the world where they can live lawfully. Human beings are disqualified by being called illegal. The other labels also underline the temporary character of the status. Most persons, who are defined as illegal, have entered the territory in a lawful way with a passport and, if necessary, a visa. They overstayed their visa or lost their residence right for one reason or another. The residence of most irregular immigrants was lawful before and will be lawful one day again, either through an individual or collective regularisation or because they move (more or less voluntarily) to a place where their stay is permitted. In this book the term irregular migrant rather than illegal alien is preferred. In this way, it is hoped to avoid disqualifying the human beings concerned and to imply that the irregularity of their status may be remedied one day.

2.

ARE IRREGULAR MIGRANTS HUMAN BEINGS?

Today this may appear a silly question. The obvious answer is yes. But it took lawyers and judges in most European countries several decades to accept that “everyone” in the European Convention on Human Rights (ECHR) really means every human being, that non-citizens are covered and protected by most of the provisions of human rights instruments, and that these instruments also apply to immigration law and may restrict the right of states to control the exit and entry of foreigners. All this may appear self-evident today. It surely was not clear to me and my colleagues who were practising immigration law in Amsterdam in the early 1970s, twenty years after the ECHR had entered into force in 1953. In 1985, more than thirty years after the Convention had become binding international law, the UK government in the Abdulaziz case5 still argued that Article 8 ECHR did not apply in immigration cases. Only a few provisions of the ECHR apply to citizens or to lawfully resident aliens only. All the other provisions protect citizens and aliens, irrespective of their residence status.6 This applies to most provisions in the International Covenant on Civil and Political Rights (ICCPR) and to the EU Charter of Fundamental Rights.7

5 6 7

country nationals to circulate within the Schengen area in Articles 19 and 20 of the Schengen Implementing Agreement. Abdulaziz, Cabales and Balkandali v. UK (1985) 7 EHRR 481. See the essays by Blake and Piotrowicz in this volume. OJ 2000 C 364/1.

xix

Kees Groenendijk

3. WHY DID WE GRANT HUMAN RIGHTS TO IRREGULAR MIGRANTS? I see at least two important reasons. Firstly, although immigration control is an important aspect of nation states, other values may be weightier and, therefore, have to prevail over immigration control interests. The European Court of Human Rights in Strasbourg had to tell our governments that the preservation of human life and the prevention of inhuman treatment or serious damage to health have priority over the aims and values that are served by immigration control [see Blake’s essay]. In Belgium and the Netherlands fatal incidents had to occur before it became clear to immigration authorities that suffocation or serious brain damage are too high a price for the full implementation of rules on expulsion. Without human rights there would be no limit to the actions of public authorities. Secondly, persons defined and treated as “illegal aliens” may in law be entitled to residence in the country. If persons can be removed from society (to detention camps or to another country) they may in practice be unable to claim protection of those rights and have it established that they are entitled to a residence permit. Habeas corpus and legal aid are essential especially for noncitizens. A good example is provided by a recent reference by the District Court of The Hague to the European Court of Justice in Luxembourg. The national court asked whether a person who is arrested for a minor drugs offence (for which he is not prosecuted) and who claims to be a Union citizen, but who is unable to produce a passport or ID-card, can be detained with a view to expulsion or should he be granted an opportunity to prove that he is a Union citizen.8 The heart of the question referred to the ECJ is this: does EC law allow persons in that situation to be treated as “illegal aliens” until they have produced the document proving they are Union citizens? If they are not at least treated as persons with some minimum rights, they will not be able to bring the issue before a court. And the answer de facto will automatically be negative for the persons concerned.

4. CAN IRREGULAR MIGRANTS HAVE RIGHTS OTHER THAN HUMAN RIGHTS? The largest national federation of trade unions in the Netherlands (FNV) announced in 2002 that it would start providing legal aid to illegal migrant workers. This decision met with a lot of misgivings and protests. The general trend of the reactions was: “Illegal migrants should leave the country. They 8

xx

Reference for a preliminary ruling by the Rechtbank ’s-Gravenhage (District Court, The Hague) by judgment of that Court of 12 May 2003 in the proceedings between Salah Oulane and Minister voor Vreemdelingenzaken en Integratie (Case C-215/03), OJ 2003 C 171/15.

Introduction cannot have rights.”9 We know that this answer to our question is wrong. Irregular migrants may have rights. But those rights may vary in time, from country to country and in accordance with the field of law. A person may be illegal in one respect but not in another. His residence may be lawful, but his employment may be illegal because he lacks the required work permit. Or, the residence may be unlawful, but the worker may still be entitled to medical care, the protection of the labour law or certain parts of the social security law.10 In two international conventions on migrant workers this situation has been explicitly acknowledged. ILO Convention No. 143 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of migrant workers, adopted in 1975, explicitly provides in Article 9(1) that the migrant worker shall, in cases in which these laws and regulations have not been respected [immigration law] and in which his position cannot be regularised, enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits.

Article 9(2) provides that in case of dispute about these rights “the worker shall have the possibility of presenting his case to a competent body, either himself or through a representative.” The same Article in paragraph 4 points to the possibility of regularisation: “Nothing in this Convention shall prevent Members from giving persons who are illegally residing or working within the country the right to stay and to take up legal employment.”11 Similar provisions on equal treatment in labour law, social security, access to courts, protection by public authorities and other rights of irregular migrants are to be found in Part III of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. That convention was adopted in 1990 and entered into force on 1 July 2003. European States actively participated in the drafting of both conventions, but, generally, have been reluctant to ratify these instruments. So far only three EU Member States have ratified ILO Convention No. 143 (Italy, Portugal and Sweden). Twenty-five States are party to the UN Convention on Migrant Workers, predominantly developing countries with large numbers of citizens working abroad. None of the EU Member States are among the 25 state parties. Turkey is the only older Council of Europe Member State, which has signed the UN 9

See NRC Handelsblad, 2 and 3 May 2002.

10 See the essays by Cholewinski, Da Lomba and Bell in this volume. 11 See the essay by Bosniak in this volume.

xxi

Kees Groenendijk Convention. Nevertheless, these two instruments provide clear examples that illegal immigrants can have other rights than human rights. The rights of irregular migrants in national law may vary over time.12 In the Netherlands, until the mid 1980’s generally, rights to social security, public benefits and the protection of labour law were extended to irregular migrants. The main grounds for this policy were: prevention of exploitation of migrants by making them less dependent on their illegal employers, and to avoid, in case of illness or accident, the costs of medical treatment having to be paid out of public funds, rather than from insurance premiums paid by the employers. After 1985 there has been a development in the opposite direction: most rights to social protection and public benefits have been taken away. Immigration control and exclusion now prevail over social protection interests.13 A similar development is visible in Community law. Regulation 1408/71/EEC on the coordination of social security for EC migrants who have worked in more than one Member State, does not deal with the issue whether the migrant or his family members have or had lawful residence. In 1971 it was still very feasible that an EEC migrant or members of his or her family could be treated as an irregular migrant. Today this occurs in exceptional cases only. The question under which circumstances a national of a EU Member State can still be an irregular migrant in another Member State is considered by several authors in this book.14 However, the recently adopted Regulation 857/2003/EC extending the rules on coordination of the 1971 Regulation to third country nationals who have worked in more than one Member State, is applicable exclusively to workers having lawful residence in those states. The EU Charter of Fundamental Rights provides in Article 15(3) that nationals of third countries “who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.” In comparison with similar provisions in the 1975 ILO and the 1990 UN conventions on migrant workers, the clause in the EU Charter, adopted in 2001, is more restrictive in two respects: it does not protect irregular migrant workers and regular migrants workers are only granted “equivalent” not “equal” working conditions. I doubt whether these differences in treatment between citizens and non-citizens and between lawful and irregular migrants can pass the test of sufficient justification as required by the non-discrimination clauses in the ECHR and the ICCPR.

12 See Da Lomba. 13 See the essay by Minderhoud. 14 See the essays by Guild, Bell, Szyszczak. See also A.P. van der Mei, Free Movement

of Persons within the European Community: Cross-Border Access to Public Benefits (Oxford: Hart, 2003).

xxii

PART I

WHO ARE IRREGULAR MIGRANTS?

This page intentionally left blank

Elspeth Guild

WHO IS AN IRREGULAR MIGRANT?

1.

INTRODUCTION

Irregular migration1 is a topic which currently occupies a central place on the agenda of the European Union’s area of freedom security and justice. The issue is one in which the discussion at the institutional level focuses on a fight to combat and prevent illegal migration. The unspoken assumption is that there is no substantive difficulty in defining who is an illegal migrant. The preamble of the Directive on mutual recognition of expulsion decisions2 is a good example: the Treaty stipulates that the Council is to adopt measures on immigration policy including illegal immigration and illegal residence; the Tampere European Council of October 1999 reaffirms the resolve to create the area of freedom, security and justice including the better management of migration flows. These two elements lead directly in the preamble and without any intermediary explanation to the conclusion that “the need to ensure greater effectiveness in enforcing expulsion decisions and the better cooperation between Member States entails…” expulsion action on the basis of illegal status. Illegal migration as a concept covers a number of rather different issues. Three are immediately apparent: a foreigner arriving clandestinely on to the territory of a state; a foreigner staying beyond his or her permitted period of entry and residence; a foreigner working when not permitted to do so or in a manner inconsistent with his or her immigration status. These categories are implicit rather than explicitly stated in law. The national laws of the Member States only rarely specify any definition of illegal entry or presence of an individual.3

1 2 3

While irregular migration as a term is less emotive than illegal migration, the EU Institutions consistently use the latter, which I shall also do in this essay. 2001/40EC, OJ 2001 L 149/34. See Annex 1 prepared by the Odysseus Network – legal network for legal studies on

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 3-28 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Elspeth Guild Instead definitions cover who is legal leaving “the rest” as potentially illegal. The space of legality is then carefully controlled in law. Admission to it is certified by various means all involving the direct involvement of State authorities. What is less clear is what being an illegal migrant means in terms of law. Where an individual does not clearly come within one of the national definitions of legal entry, residence and work, he or she falls into the grey space without the required certificates. The ‘illegal’ individual remains within the jurisdiction of the State within the meaning of Article 1 ECHR and within the meaning of the constitutional settlements of the Member States. Thus for instance, if the individual commits a crime he or she can only be punished in accordance with the criminal law. Even if the crime is an immigration crime, as unauthorised residence is a crime in some Member States (notably the UK where it is a continuing offence) still the individual cannot be punished without the intervention of the criminal courts.4 Further, if an individual is working without permission while the employer may be committing a criminal offence as well as the individual, should the individual be subject to an accident at work, the employer’s liability remains the same as for a citizen of the State. Whether the individual will be able to enforce that liability is quite another matter as by making his or her presence known within the State (which will be necessary to pursue a claim) will make the individual liable to expulsion as someone not within the zone of legality. In this essay I shall consider first who cannot be illegal in EC law. As in respect of national law, there are substantial categories of persons who can only exceptionally be categorised by virtue of EC law as outside the zone of legality irrespective of the provisions of national law. In the next section I shall consider the intersection of an area of freedom security and justice with the concept of illegality of persons. What are the powers and measures which exist in the area? Thirdly I shall consider what protection there is in EC law for persons outside legality in respect of race discrimination. Then I shall review briefly, before concluding, national law in the Member States with specific reference to persons who are outside the zone of legality but nonetheless are somehow tolerated albeit precariously or by state neglect.

4

4

immigration and asylum in Europe coordinated by Professor P. de Bruycker, Université Libre Bruxelles. The indefinite detention of foreigners as suspected international terrorists is something of an exception to the principle, see the Anti-Terrorism Crime and Security Act 2001. The insistence of the UK authorities that detention of foreigners for the purpose of removal is not punishment is also an indication of just how central the idea has become that state violence can only be exercised within a state in accordance with the rules of criminal law.

Who Is an Irregular Migrant?

2.

ILLEGAL MIGRANTS AND EC LAW

A national of a Member State cannot be illegal as regards his or her entry,5 presence or economic activity in a Member State other than that of his or her citizenship unless he or she has been the subject of a specific exclusionary act by the State which can be justified on the grounds of public policy, public security or public health. This has not always been quite so clearly the case. In 1980 a Dutch national in the UK was charged with a criminal offence and treated as illegally present because he had stayed beyond the period of entry granted at the border. The ECJ held that “the issue of a special residence document provided for in Article 4 of Council Directive No 68/360/EEC of 15 October 1968 has only a declaratory effect and for aliens to whom Article 48 EC [now Article 39 EC] or parallel provisions give rights, it cannot be assimilated to a residence permit such as is prescribed for aliens in general, in connexion with the issue of which the national authorities have a discretion.”6 In other words the document, in this case the entry stamp, only evidences the right of the EC national it does not constitute it. The ECJ held its position that any national document issued to a Community national exercising a Treaty free movement right could only have declaratory effect in its subsequent jurisprudence.7 Further, the definitions of public policy, security and health have been narrowly defined in Directive 64/221/EEC and by the ECJ.8 The ECJ also interpreted Community law as not permitting a space between legal presence and expulsion for Community nationals resident as foreigners in a Member State. In Martínez Sala the ECJ found that a Spanish national in Germany who had not worked for many years and was dependent on state benefits was still legally present for the purpose of the application of EC law even though the state refused to accept the legality of her presence though it could not, on account of international obligations, expel her.9 Those third country nationals whose entry and presence on the territory of a Member State is controlled by Community law through their relationship with a Community national principal10 also enjoy protection from becoming illegal There is a question here about the application of the Schengen borders acquis, which requires persons to use specified entry points to enter the common territory, to the entry of Community nationals into the EU. 6 157/79 Pieck [1980] ECR 2171. 7 See for instance C-348/96 Calfa [1999] ECR I-11. Even an activity as a service recipient such as a tourist is enough to provide legality of presence. 8 30/77 Bouchereau [1977] ECR 1999. 9 C-85/96 Martínez Sala [1998] ECR I-2691. 10 Normally this will be a person who has exercised a free movement right by going to and living in another Member State. This does not always have to be the case, see C60/00 Carpenter [2002] ECR I-6279. 5

5

Elspeth Guild under national law. Normally these will be family members of a Community national. The ECJ laid to rest once and for all the issue of whether such family members could be illegally present because they had overstayed their entry permission or entered without the right documents or for any other reason unrelated to a clear and immediately threat to public policy, security or health. They cannot be illegal: 1. On a proper construction of article 3 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families, Article 3 of Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services and Council Regulation (EC) No 2317/95 of 25 September 1995 determining the third countries whose nationals must be in possession of visas when crossing the external borders of the Member States, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of article 10 of Directive 68/ 360 and article 8 of Directive 73/148. 2. On a proper construction of article 4 of Directive 68/360 and article 6 of Directive 73/148, a Member State is not permitted to refuse issue of a residence permit and to issue an expulsion order against a third country national who is able to furnish proof of his identity and of his marriage to a national of a Member State on the sole ground that he has entered the territory of the Member State concerned unlawfully. 3. On a proper construction of articles 3 and 4(3) of Directive 68/360, articles 3 and 6 of Directive 73/148 and article 3(3) of Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, a Member State may neither refuse to issue a residence permit to a third country national who is married to a national of a Member State and entered the territory of that Member State lawfully, nor issue an order expelling him from the territory, on the sole ground that his visa expired before he applied for a residence permit.11

Similarly, third country nationals cannot be illegally working in a Member State if they are the employees of an enterprise based in another Member State and

11 C-459/99 MRAX [2002] ECR I-6591.

6

Who Is an Irregular Migrant? they are providing services for their employer elsewhere in the Union. Whether persons in such a position can enter illegally has not yet been clarified by the ECJ. But their presence and work (as the means of service provision of the employer) on the territory of the host Member State is lawful.12 Third country nationals whose presence and work on the territory is authorised by an agreement between their State of origin and the EC do not become illegal simply because the national certificate has expired. In the case of Turkish workers Decision 1/80 of the EEC Turkey Association Agreement protects the right of residence and work of those duly registered in the labour force on a scale of increasing rights dependent on length of employment in the State: However, it is settled case-law that Article 6(1) cannot be construed as permitting a Member State to modify unilaterally the scope of the system of gradually integrating Turkish workers into the host State’s labour force (see, most recently, Case C-1/97 Birden v Stadtgemeinde Bremen [1998] ECR I-7747, paragraph 37), so that that State no longer has the power to adopt measures regarding residence which are such as to impede the exercise of the rights expressly granted by Decision No 1/80 to someone who fulfils its conditions and, by the same token, is already duly integrated in the host Member State.13

In other words the Member States may not use national law to define such a Turkish worker out of the zone of legality and thus to render his or her residence and employment precarious. The same agreement provides a standstill clause for Turkish nationals who wish to engage in self-employment in the Member States. In interpreting this provision requiring Member States to apply their legislation at the date of the Agreement (or accession to the Union for newer Member States) the ECJ found that EC law did not protect Turkish nationals from becoming illegal before seeking to enjoy the benefit of the standstill. Indeed, if they became illegally present and national law no longer permitted them to benefit from the standstill without leaving the state this was not contrary to EC law. So, a Turkish national’s first admission to the territory of a Member State is governed exclusively by that State’s own domestic law, and the person concerned may claim certain rights under Community law in relation to holding employment or exercising self-employed activity, and, correlatively, in relation to residence, only in so far as his position in the Member State concerned is regular. In the case before the national court, according to the order for reference, after expiry of his tourist visa, the validity of which was limited to one month, Mr Savas did

12 C-43/93 Van Der Elst [1994] ECR I-3803. 13 C-340/97 Nazli [2000] ECR I-957.

7

Elspeth Guild not obtain any further authorisation to remain in the United Kingdom and thus continued to reside there in breach of domestic law. Moreover, his visa expressly forbade him from taking employment or engaging in any form of business activity whatsoever in that Member State. In those circumstances, the fact that Mr Savas did not leave the United Kingdom after expiry of his visa and did engage in business as a self-employed person in that Member State, without authorisation, cannot confer upon him either a right of establishment or a right of residence derived directly from Community provisions.14

In the agreements between the Central and Eastern European countries (CEEC) and the EU, the right of nationals of those States to enter and reside in order to be self-employed in the Member States protects them from becoming illegal provided that they have entered and remained legally. This covers nationals of Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia. All but Bulgaria and Romania will become Member States on 1 May 2004 and thus their nationals on that date become citizens of the Union. Under the transitional arrangements of the Accession agreement, free movement of workers and service providers will be delayed for a minimum of two years with a possible extension to five years and exceptionally to seven years. As the admission of CEEC nationals in these capacities over the transitional period remains a matter of national law, it is open to the Member States to extend full free movement rights earlier as the UK has announced it will do from the date of accession. If, however, CEEC nationals reside unlawfully on the territory of a Member State and then seek to exercise their free movement right for the purpose of self-employment, the Member State can require them to leave the state and seek re-entry for self-employment. In those circumstances … if Polish nationals were allowed at any time to apply for establishment in the host Member State, notwithstanding a previous breach of the condition relating to the authorised duration of their initial stay as tourists in that State, such nationals might be encouraged to remain illegally within the territory of that State and submit to the national system of control only once the substantive requirements set out in immigration legislation had been satisfied. An applicant might then rely on the clientele and business assets which he may have built up during his unlawful stay in the host Member State, or on funds accrued there, perhaps through taking employment, and so present himself to the national authorities as a self-employed person now engaged in, or likely to be engaged in, a viable activity, whose rights ought to be recognised pursuant to the Association Agreement. Such an interpretation would risk depriving Article

14 C-37/98 Savas [2000] ECR I-2927.

8

Who Is an Irregular Migrant? 58(1) of the Association Agreement of its effectiveness and opening the way to abuse through endorsement of infringements of national legislation on admission and residence of foreigners.15

Exactly why working hard and setting up a business should be abusive might be puzzling to some, not least those CEEC nationals who grew up under Communism pining for the chance to be entrepreneurs. The effect of the decision may be interpreted at the national level as meaning that unless the CEEC national is very well off in his or her country of nationality, he or she can be excluded from exercising his or her right of self-employment on the grounds that he or she does not have enough funds from the start to do so. A final group of individuals, nationals of the Maghreb countries (Algeria, Morocco and Tunisia), benefit from agreements with the EC which protect their right to equal treatment in working conditions. The ECJ has held that this is not a sufficiently strong right to give protection against being defined as illegal in national law as regards work or residence: In those circumstances, it must be concluded that, as Community law stands at present, a Member State is not in principle prohibited from refusing to extend the residence permit of a Moroccan national whom it has previously authorised to enter its territory and to take up gainful employment there, where the initial reason for the grant of his leave to stay no longer exists by the time that his residence permit expires. The fact that the adoption of such a measure by the competent national authorities will oblige the person concerned to terminate his employment relationship in the host Member State before the contractual term agreed with his employer comes to an end will not, as a general rule, affect that conclusion. However, the situation would be different if the national court were to find that the host Member State had granted the Moroccan migrant worker specific rights in relation to employment which were more extensive than the rights of residence conferred on him by that State.16

The heterogeneity of the legal framework of illegal entry, residence and work in EC law is impressive. I have not even added here two other groups of foreigners who have special treatment in EC law – nationals of Norway and Iceland under the European Economic Area Agreement and Swiss nationals under the 2002 Agreements between Switzerland and the EU. In these cases the foreigners get rights which are largely similar to those of EU nationals and thus have to try quite hard to put themselves in a position of illegally in any Member State. Nor have I discussed the provisions which permit a long stay visa issued 15 C-63/99 Gloszczuk [2002] ECR I-6369. 16 C-416/96 El Yassini [1999] ECR I-1209.

9

Elspeth Guild by the national authorities of one Member State to be treated as the equivalent of a short stay visa for the purpose of authorising the entry and residence of a foreigner for a period not exceeding three months in another Member State.17 Nonetheless, I have still had to describe seven different categories of foreigners for whom national law will only apply in some circumstances as regards the legality or otherwise of their residence.

3.

ILLEGAL MIGRATION IN THE AREA OF FREEDOM SECURITY AND JUSTICE

The EC competence for illegal migration is to be found in Article 63(3)(b) EC which states that the Council shall adopt “measures on immigration policy within the following areas: ...illegal immigration and illegal residence, including repatriation of illegal residents;”. In the draft Constitution for the European Union (which is intended to be adopted by December 2003) this wording is slightly changed to “illegal immigration and unauthorised residence including removal and repatriation of persons residing without authorisation” (Article III-168(2)(c)). This new wording focuses on exactly the issue which I stressed at the start of this chapter regarding the incoherence at the heart of the concept of illegal immigration. In the TEU Article 29 provides that the objective of providing citizens with a high level of safety within an area of freedom, security and justice shall be achieved by preventing and combating trafficking in persons. At the Tampere European Council meeting in October 1999 guidance was given on how the fight against illegal immigration was to be conducted: The European Council is determined to tackle at its source illegal immigration, especially by combating those who engage in trafficking in human beings and economic exploitation of migrants. It urges the adoption of legislation foreseeing severe sanctions against this serious crime. The Council is invited to adopt by the end of 2000, on the basis of a proposal by the Commission, legislation to this end. Member States, together with Europol, should direct their efforts to detecting and dismantling the criminal networks involved. The rights of the victims of such activities shall be secured with special emphasis on the problems of women and children.

Under this heading the following measures have been adopted:

17 As these provisions do not provide any access to long residence or active economic

activity they do not fall within the same category of treatment: Regulation 1091/ 2001EC, OJ 2001 L 150/4.

10

Who Is an Irregular Migrant? Irregular Migration Member States agree to recognise expulsion decisions of the other without reconsideration of the third country national’s case. Common levels of sanctions on transCarrier Sanctions porters for carrying to the EU third (Directive) country nationals without adequate documents. The Schengen Information System conFunding SIS II tains data on all foreigners to be refused (Regulation) admission or a visa to the EU. It is to be expanded. More powers for the funding of the SIS More funding SIS II II system – needed as SIS is mixed First/ (Decision) Third Pillar competence. Trafficking in perThird Pillar measures on sanctions on sons (Framework persons designated as traffickers in decision) human beings. Facilitating illegal First and Third Pillar measure on entry (Directive punishing persons assisting foreigners to and Framework enter illegally. decision) Mutual recognition of expulsion decisions (Directive)

2001/40

2001 L 149/34

2001/51

2001 L 187/45

2424/2001

2001 L 328/4

2001/886

2001 L 328/1

2002/629

2002 L 203/1

2002/946

2002 L 328

Numbers of measures on illegal immigration and asylum run neck and neck as regards adoption. There are six “successes” in each field, though there is some discussion about the quality of the measures adopted on asylum in particular.18 Three of the measures, the carrier sanctions and the two SIS decisions are the products of the Schengen acquis and its development. The first is an attempt to move the policing of the visa regime onto the private sector by penalising private transport companies for failing to carry out adequate checks on travel documents before permitting a person to enter the form of transport to the EU.19 The next two relate to identifying those persons who are notified on an individual basis for the purpose not to be admitted to the EU territory. The list is maintained electronically in the Schengen Information System and consists of all persons signalled for the purpose by any of the participating states according to their national understanding of the criteria for inclusion and their national interpretation of public order and security. Persons whose behaviour justifies their exclusion from the territory are defined by Article 96 Schengen Implementing Agreement. The definition of these persons for exclusion is usually based on 18 See the special issue of Law and European Affairs, 2001-2002/5, on Asylum and the EU. 19 V. Guiraudon ‘Logiques et practiques de l’Etat délégateur: les companies de trans-

port dans le contrôl migratoire à distance’ Cultures et Conflits, 2/2002; F. Nicholson, ‘Implementation of the Immigration (Carriers’ Liability) Act 1987: privatizing immigration functions at the expense of international obligations?’ (1997) 46 ICLQ 586.

11

Elspeth Guild what they did or represented while they were within the territory. It is here that the divergent conceptions of what constitutes a risk and what is security in the Member States becomes central. What is perceived as a security risk in one state is not necessarily the same in another. This difference of perception of risk as it relates to an individual’s activities the last time he or she was within the Union has been the territory where national courts questioned the legitimacy of the system.20 Mutual recognition of expulsion decisions as a concept and a practice among the Member States raises rather complex problems. Article 3 of the Directive provides that mutual recognition applies to expulsion decisions taken on the basis that the individual is a serious and present threat to public order, national security or safety (defined as conviction and sentence to one year or more imprisonment or serious grounds for believing the individual has committed such an offence) or on the basis of a failure to comply with entry and residence requirements in the Member State. As is apparent from the jurisprudence of the European Court of Human Rights on the right to private and family life, a foreigner may well have acted in a way which under national law means that an expulsion decision can be made but at the same time he or she may have a right under Article 8 ECHR to continued residence. The requirement that one Member State recognise, and indeed it has been proposed that the second Member State would be obliged to execute, an expulsion decision which may not fulfil the requirements of Article 8 ECHR but where all the information and evidence is in another Member State is rather problematic. The final two measures were adopted either wholly or in part in the Third Pillar as they relate to criminal law. They come within the category of measures which bring criminal law into the field of immigration. The system of criminal law in any State represents a defining element in the balance between the powers of the authorities and the rights of the citizens. The way civil liberties are weighed in comparison with public protection duties is in essence a constitutional issue. The treatment of foreigners, particularly in response to their entry into the territory and their potential residence, tends to be a field where state discretion and the concept of exceptionalism are less restrained by constitutional settlements. The rules and administrative measures regarding the entry, residence and expulsion of foreigners are not subject to the same civil liberties guarantees of due process as the ones applicable to citizen’s criminal offences. The interaction of these two fields even at the national level is complex. The introduction of EU legislation is likely to further complicate the field. The policies of illegality and

20 H. Staples, ‘Adjudicating the Schengen External Border’ in K. Groenendijk, E. Guild

and P. Minderhoud, (eds), In Search of Europe’s Borders (The Hague: Kluwer Law International, 2003).

12

Who Is an Irregular Migrant? expulsion in the management of the common border are increasingly designed specifically to be complimentary. As regards major policy initiatives, the Commission issued a Green Paper on a Community Return Policy on Illegal Residents of April 2002,21 with a Communication following it up. A proposal for a Directive on short term residence permits for the victims of action to facilitate illegal immigration was proposed by the Commission in April 2002 as well but there had been no detailed discussion of it by June 2003.22 This has been flanked by a Communication on the integrated management of the external border in May 2002, COM (2002) 233 final. The focus on illegal migration and border controls received a warm welcome from the Seville Council in June 2002 “Measures taken in the short and medium term for the joint management of migration flows must strike a fair balance between, on the one hand, an integration policy for lawfully resident immigrants and an asylum policy complying with international conventions, principally the 1951 Geneva Convention, and, on the other, resolute action to combat illegal immigration and trafficking in human beings.” The Conclusions then go on to focus exclusively on illegal migration.

4. ILLEGAL MIGRATION AND THE RACE DISCRIMINATION DIRECTIVE The introduction of a power to adopt EC legislation to prohibit discrimination on a wide number of grounds took place in 1999 with the Article 13 EC. A proposal for implementing legislation in respect of race discrimination was tabled in 2000. The Commission’s original proposal for a Directive expressly stated in the recitals that it was not intended to prevent differences of treatment based on nationality.23 Member States were reassured about the exclusion of nationality discrimination not only by the limitation of Article 12 EC to Member States nationals but also by the omission of nationality as a prohibited ground of discrimination in Article 13 EC. According to one of the officials involved in the negotiations, Adam Tyson, one of the main reasons for which the Member States were keen to protect their power to discriminate on the basis of nationality against third country nationals was in order to maintain differences in treatment of immigrants in their social protection systems.24 A further ground, according to Tyson, was that some Member States ‘felt that it was not sufficient to preserve certain aspects of their systems, in particular, those dealing with immigration and asylum. Those countries argued, for example, that it was an essential part 21 COM (2002) 175 final. 22 COM (2002) 71 final. 23 A. Tyson ‘The Negotiation of the European Community Directive on Racial Dis-

crimination’ (2001) 3 EJML 199. 24 Ibid.

13

Elspeth Guild of the asylum system to draw differences based on ethnic origin where asylum seekers were persecuted in their country of origin precisely on the basis of their ethnic origin”. The Commission apparently assured these Member States that in any event admission policies were outside the scope of the Directive. The Member States sought a belt and braces approach to ensuring that nationality discrimination could not creep back into the scope of the Directive. Article 3(2) was inserted accompanied by a reinforced recital: Article 3 This directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.25

Once the issue of third country nationals has been dealt with, the EU is able to be generous in the scope, fields of application and remedies in the Directive. As regards the scope it covers all aspects of employment, including professional hierarchy, pay etc; vocational training and guidance; participation in workers and employers associations;26 social protection (including social security and healthcare); social advantages; education; and access to and supply of goods and services. Positive action is safeguarded in Article 5 and the burden of proof for the victim is relaxed somewhat in Article 8. Victimisation is also prohibited and bodies to promote equal treatment must be established to assist in monitoring and assisting individuals. Member States were required to implement the Directive by 19 July 2003.27 The exclusion of third country nationals only applies as regards immigration controls. It does not apply to any other aspect of law within the state. Again the problem arises for anyone who cannot bring themselves within national law provisions that they are de facto excluded, unless they are willing to risk being expelled as seeking to exercise rights will require them to make their presence known to the authorities. Member States are able to take action in the field of immigration which has the effect of making some persons, chosen on the basis 25 The recital which was added states:

“This prohibition of discrimination should also apply to nationals of third countries, but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third country nationals and their access to employment and to occupation.” 26 But see, for instance, the ECJ decision in C-171/01 Zajedno/Birlikte [2003] ECR (nyr) where the Turkish workers were excluded from election to the works council in Austria not, of course, because of their ethnic origin, but because of their nationality. 27 J. Niessen, Migration Policy Group, unpublished.

14

Who Is an Irregular Migrant? of nationality subject to determination as illegal and expelled and to deal with other persons differently. This power is central to understanding the practices at Member State level of immigration and illegality. Taking the UK as an example, the Race Relations (Amendment) Act 2000 applied the prohibitions on race discrimination which have applied since 1976 to private parties to the state. Section 19D(1) provides that “s19(B) does not make it unlawful for a relevant person [state official] to discriminate against another person on grounds of nationality or ethnic or national origins in carrying out immigration and nationality functions”. An authorisation was made under s19D(2)(b) permitting immigration officers to subject some persons to more rigorous examination than others in the same circumstances by reason of the person’s ethnic or national origin.28 Roma are on the list of seven ethnic or national origins. Thus in the May 2003 decision of the Court of Appeal, Lord Justice Laws can say regarding the legality of pre-screening by UK immigration officers of persons seeking to board planes in Prague to come to the UK, “when a Roma and non-Roma both present themselves at the desk at Prague airport and state they wish to visit London for the weekend, the immigration officer at that stage knows nothing of their personal circumstances. He has not seen what evidence they have to support their applications for leave to enter as visitors. All he knows, from their appearance, is that one is Roma and the other is not. He treats the Roma less favourably, by subjecting him or her to a more intrusive enquiry with a lesser prospect of leave to enter being granted. One asks Lord Steyn’s question: why did he treat the Roma less favourably? It may be said there are two possible answers: (1) because he is Roma; (2) because he is more likely to be advancing a false application for leave to enter as a visitor”.29 The Roma, in other words, before he or she even leaves his or her country of origin has been identified as a real risk of illegality. That process of identification and its application is protected by national and EC law, even when the shame of it is laid bare as in this case.

5. NATIONAL LAW OF

THE

MEMBER STATES AND ILLEGAL MIGRANTS

National law of the Member States seems to avoid defining directly who is an illegal migrant. As an exception Portugal has adopted such a definition but one which is rather circular, leading in the end back to whether the State has taken certain steps or acts in respect of the individual. The UK definition is so unclear that it still gives rise to substantial jurisprudence. The concept of illegal entry for instance will include an entry which has been authorised by a state official at the border but because the official was not aware of all the facts which were sub-

28 Ministerial Authorisation, 23 April 2001. 29 European Roma Right Centre & Ors v. Immigration Officer at Prague Airport [2003]

EWCA Civ 666.

15

Elspeth Guild sequently considered to have (possibly) been relevant at the time the foreigner entered, the individual may be categorised as an illegal entrant. Thus the foreigner becomes an illegal migrant when he or she comes in contact with a state authority which categorises him or her as such. If the authority decides not to categorise the individual as an illegal migrant but to grant the individual a status of some sort then the individual comes out of the grey zone of uncertainty in law into the white zone of rights. If the official declines to accept that the individual comes within a set of rules then he or she leaves the grey zone to enter the black zone of illegality. In both cases, it is the moment of interface with the public official which determines the individual’s status. If the individual does not come into contact with an official, but for instance, leaves the state or becomes a citizen of the Union by virtue of his or her state’s accession to the Union, then he or she will come out of the grey zone by other means. Once the state has classified the individual as an illegal migrant, it has a number of options open to it. For instance in Austria the State can decide that it is impossible to expel the individual under Article 57 Aliens Act. In Belgium an order to leave the territory can be suspended without the individual being regularised. In Luxembourg the individual can be given a document acknowledging his or her presence pending the arrangement or removal. In the Netherlands there are two groups, one quite large, rejected asylum seekers who on account of a lack of travel documents cannot be expelled and a smaller group of persons who cannot be expelled because to do so would breach Article 3 ECHR, the prohibition on torture. In the UK illegal residence does not prohibit an application by an individual for a legal status, in fact the requirements for the consideration of such an application are specified in the Immigration Rules. Thus the mechanisms for retaining people in a state of illegality are widespread across the Union in national law. The implication that persons in a state of illegality are awaiting expulsion is only correct if one takes a very long term perspective on expulsion. The heterogeneity of the national legislation indicates a highly ambiguous relationship between the individual and the state as regards legality. What will happen in practice in respect of any particular individual seems rather hard to guess in advance, leaving aside the question of how long it may take a state to enforce an expulsion decision.

6.

CONCLUSIONS

The current EU fascination with illegal migration expresses itself most clearly as an abstract idea. The political value of statements and measures on the subject seems to be rather more in evidence than the coherence of the legal framework. The complexity of rules at the EU level, applying highly differentiated regimes to persons who seem to be in rather similar situations is complimented by highly

16

Who Is an Irregular Migrant? elaborate national provisions which create expectations about state action while leaving unresolved the position of substantial numbers of persons. I was recently speaking to a legal adviser working for a non-governmental organisation providing advice to foreigners held in detention for the purpose of expulsion. She was concerned about a young man who had been held in detention as an illegal migrant for some time and was scheduled for expulsion shortly. He had come into contact with the state when he was questioned by the police in respect of a suspected crime but he was not held on suspicion of the commission of an offence. When he was asked for his documents he was unable to produce any and was then handed over to the immigration authorities which issued him with a decision that he was an illegal migrant and detained him pending expulsion. When the legal adviser got to see him he explained that he was a Community national and asked if he could be sent to his home state rather than North Africa (where his parents had been born). In due course a family member of the young man turned up with his identity card which had been in the process of renewal in his home state. He was released by the immigration authorities. In EC law, the young man was not and had never been an illegal migrant. In the national file on him, he had been duly categorised as such and detained. His case is a particularly clear one of rights but it illustrates the central problem of the individual and his or her classification by the state. The state authorities determined his status in one way and planned to expel him accordingly. His acquisition of rights from another source of law presented an obstacle between the young man and the state which eventually the state was required to acknowledge as superior to its decision that he came within the class of persons against who the political determination to get tough on illegal migration could be expressed.

17

Elspeth Guild

ANNEX 1

ILLEGAL MIGRANTS – AND THEIR DEFINITION IN EUROPE: A SUMMARY OF THE CURRENT SITUATION IN THE MEMBER STATES OF EU30

THE

The Questions: 1. Is there a definition in law of illegal entry and presence in your Member State? If so could you say where it is a briefly and describe what it says? I am particularly interested in illegal stay rather than persons who have a right to remain but have not got their papers in order. 2. Are there situations where a foreigner who is illegally present or has entered illegally can have his or her presence tolerated/expulsion not enforced (for instance like the sans papiers in France or the Duldung in Germany)? Is it possible to set out briefly those situations? We are particularly interested in the situation of persons who are tolerated but not regularised, in other words, not persons who get a definite residence permit. Austria Question 1 Article 31 Aliens Act (1) Aliens reside lawfully in the federal territory 1. if they have entered the country in compliance with the provisions of Chapter Two and without circumventing border control or 2. if they have the right of residence on the basis of a residence title or a regulation concerning displaced persons (Article 29) or 3. if they hold a residence title issued by one of the contracting states or 4. as long as they have the right of residence under the Asylum Law of 1997. (2) Even if aliens meet the conditions set forth in paragraph 1, number 1 above, they shall not be deemed to reside lawfully in the federal territory if they had 30 Prepared by the experts of the Member States who participate in the Odysseus Aca-

demic Network on Immigration and Asylum Law, coordinated by Professor P. de Bruycker, Université Libre de Bruxelles.

18

Who Is an Irregular Migrant? to be taken back under a re-entry takeover agreement (Article 4, paragraph 4) or in line with international practice or have entered the country under a transit declaration (Article 58) or transit permit under Article 67 of the Act Governing Extradition and Mutual Legal Assistance (ARHG) (Federal Law Gazette No. 529/1979) or if a contracting party has notified a fact warranting refusal. (3) The duration of lawful residence of an alien in the federal territory shall be determined by 1. the provisions of intergovernmental agreements, federal acts or regulations or 2. the time limit governing the entry or residence title. (4) Aliens who have filed an application for the issuance of a subsequent residence title prior to the expiry of the last residence title granted to them or prior to the time that the obligation to obtain a visa or residence title arises shall be deemed to reside lawfully in the federal territory up to the time that their application has been decided upon and that decision has taken legal effect. A termination of residence (Article 15) decreed by the competent authority shall be deemed to constitute a decision to that effect. Chapter Two (which is mentioned in Art 31(1)) concerns the entry and exit of aliens, especially the obligation to carry a valid travel document and the obligation to obtain visas or residence titles. Any alien who does not meet the passport- or visa-requirements or who meets these requirements but evaded border control or who does not possess a residence title is staying illegally. Question 2 Article 56 Aliens Act (1) Aliens against whom a residence ban or an expulsion order is enforceable can be ordered by the authority to leave the country (deportation) if 1. it appears necessary to supervise their departure in order to maintain public peace, order and security, 2. they have failed to comply in time with their obligation to leave, or 3. certain facts suggest that they may not comply with their obligation to leave, or 4. they have re-entered federal territory in contravention of a residence ban. (2) Deportation of an alien shall be deferred, upon application or ex officio, (deferral of deportation), for a designated period which shall in each instance not exceed one year, if it is inadmissible (Article 57) or impossible for concrete reasons. Imposition of conditions and revocation shall be governed by Articles 42 and 43, paragraph 1.

19

Elspeth Guild Article 57 Aliens Act (Prohibition of Deportation, Forcible Return and Rejection at the Border) (1) Rejection at the border, forcible return or deportation of aliens to another country shall be inadmissible if any one of these acts would constitute a violation of Article 2 of the ECHR, Article 3 of the ECHR, or Protocol No.6 to the Convention for the Protection of Human Rights and Fundamental Freedoms on the Abolition of Death Penalty. (2) Rejection at the border or forcible return of aliens to another country shall be inadmissible if there are valid reasons to assume that their life and freedom would be threatened in that country on account of their race, religion, nationality, membership of a particular social group or political opinion (Article 33(1) of the Convention relating to the Status of Refugees). (3) Aliens who claim to be exposed to one of the dangers enumerated in paragraph 1 or 2 above can only be rejected or forcibly returned after having been given an opportunity to substantiate such claim. In cases of doubt, the authority is to be notified of the facts prior to rejection. (4) Deportation of aliens to a country in which they are exposed to the dangers enumerated in paragraph 2 but not to those enumerated in paragraph 1 shall only be admissible if they are considered on reasonable grounds to constitute a danger to the security of the Republic of Austria or if they have been convicted by a final judgement on the part of a domestic court of a particularly serious crime and constitute a danger to the community on account of the said criminal act (Article 33(1) of the Convention relating to the Status of Refugees). (5) The presence of conditions outlined in paragraph 4 above shall be determined by administrative decision. In all cases in which an application for asylum is denied or the right of asylum has been forfeited, said administrative decision shall be issued by the asylum authorities, in all other cases by the Security Directorate. (6) Deportation of aliens shall be deemed inadmissible as long as it would run counter to the recommendation of the European Court of Human Rights to apply a provisional measure. (7) In cases where it proves impossible to reject, forcibly return or deport to the third country aliens whose application for asylum has been denied under Article 4 of the Asylum Act of 1997, the Federal Asylum Agency shall be notified immediately. Question 2b There are some Administrative Court decisions about “impossible” as mentioned in Art 56 (2): e.g. if there is no readmission agreement with the state or if the alien is stateless; there is some caselaw about asylum seekers. Art 57 Aliens Act is one of provisions which is in the focus of the Courts. There is too much case law for a short overview. 20

Who Is an Irregular Migrant? Belgium Question 1 There is no definition of an illegal entry or stay which is punished by law: so article 75 of the law of 1980 on aliens says that “L’étranger qui entre ou séjourne illégalement est puni d’un emprisonnement de huit jours à trois mois ou d’une amende”. The law does not define more precisely what is an illegal entry or stay. Penalties are higher for aliens who come back in Belgium before 10 years when they have been expelled (the measures of “renvoi” and “expulsion” forbid indeed an alien to come back before 10 years). But the law makes a difference with aliens who do not accomplish the formalities they are obliged to respect, mainly to register themselves by the commune. This case is covered by article 79: “Est possible d’une peine d’amende l’étranger qui contrevient aux articles 5, 12, 17 ou 41bis ou qui circule sur la voie publique sans être porteur d’un des documents prévus à ces articles ou à l’article 2”. This is what is called in Belgian law “irregular stay” to contrast with “illegal stay” and in that case only a fine is foreseen and not imprisonment. It is interesting to note that a regulation of 9 June 1999 (Arrêté royal) implementing the law of 30 April 1999 on the work of aliens provides a kind of definition of what is a legal stay : Article 1er: pour l’application du présent arrêt, on entend par “séjour légal: la situation de séjour de l’étranger admis ou autorisé à séjourner dans le Royaume ou autorisé à s’y établir, en vertu de la loi du 15 décembre 1980”. Question 2 It is in some cases possible to see an “order of return” (ordre de quitter le territoire) officially suspended (clause de non-reconduite) without the person being regularised. On the basis of article 63/5 of the law of 1980 on aliens the General Commissioner for refugees has to give a “formal opinion” about the possibility to send back an asylum seeker to the country of origin when he decides that the application for refugee status is unfounded. This is used by the Commissioner for persons who are not refugees following the Geneva Convention but who cannot be expelled, for instance due to a civil war. The Minister seems to have accepted to always follow that opinion and not to expel the persons who are however not regularised in that case (but those persons did not enter illegally because they are asylum seekers, but possibly “irregularly”, meaning without the papers and authorisation required by article 2 of the law). These cases were covered by the last procedure for regularisation of 1999 which was a temporary law (régularisation ponctuelle) and not permanent. They will normally in the future be solved on the basis of subsidiary protection after the adoption of the European Commission’s proposal on this question.

21

Elspeth Guild Denmark Question 1 There is no specific definition in Danish law of illegality as regards the entry and presence of aliens. It is possible to make ex contrario inferences from the Aliens Act’s provisions on entry and presence, yet this may result in a too formalistic delimitation of which situations constitute illegal entry and presence. The most relevant basis for defining such situations would seem to be the provisions in section 33 of the Aliens Act, regarding the deadline for an alien’s departure upon refusal of a residence permit. Again here, however, it is conceivable that an alien having passed such a deadline cannot legally be deported, due to prohibition of refoulement, and will therefore still have a right to remain, cf. below. Question 2 Two different situations can best be described in terms of tolerated or ‘de facto lawful’ presence: – An asylum seeker who arrives without the required visa, but who cannot be ‘pre-procedure-returned’ to a ‘safe third country’ or re-transferred under the Dublin Convention, will be allowed to enter and stay in the country during the examination of the asylum application. This is officially referred to as ‘procedurally lawful stay’, i.e. the formal requirements for a legal entry and presence are dispensed with during the asylum procedure. – Upon final refusal of asylum it may nonetheless be legally impossible to deport the alien under ECHR (Art. 3) or similar refoulement prohibitions applying even to aliens excluded from refugee status or from asylum under domestic legislation. Such non-enforcement will lead to the toleration of continued presence in Denmark. Germany There is no definition of illegal alien in German law. In general, every foreigner obliged to leave due to the absence of some kind of a residence permit is considered as illegal. Under the present law a foreigner who does not dispose of a residence permit is entitled to a toleration which in legal terms is not a kind of residence permit but a suspension of deportation. The Courts have decided that even in case of a foreigner preventing deportation by destroying documents there is an entitlement to toleration which means that one cannot be deported for the time indicated. The draft new immigration law has abolished toleration by giving a right to a provisional residence permit unless the foreigner is obstructing deportation. In this case only a certificate will be issued if for factual or legal reasons deportation cannot be carried out. Whether this provision will survive the parliamentary debates is doubtful.

22

Who Is an Irregular Migrant? Greece Question 1 The only general definition of illegal entry in Greek immigration law (Law 2910/ 2001) is the following: Article 50 Illegal Entry into and Exit from the Country 1. Whoever exits or attempts to exit Greek territory or enters or attempts to enter it without complying with the legal formalities shall be punished with imprisonment of three months (at least) and a pecuniary penalty. If the person attempting to leave illegally is wanted by the judicial or police authorities or has any tax or exchange or other obligations to the State or is a recidivist, this shall constitute an aggravating circumstance and imprisonment of six months (at least) and a pecuniary penalty of one million euros shall be imposed. Question 2 There is a series of categories of aliens “tolerated” / with a residence permit of limited duration. Italy Question 1 There is no definition of illegal aliens in Legislative Decree no. 286 of 1998 (which currently regulates the status of aliens). The condition of ‘illegal’ must therefore be inferred from the provisions concerning the entry and stay of aliens contained in the Decree: namely articles 4 and 5. In particular, article 4 sets forth the condition to lawfully enter into the Italian territory: aliens are allowed to enter Italy if they have a valid passport or an equivalent document and an entry visa and the entry must have taken place legally through a border crossing. Article 4 specifies that aliens are allowed to enter Italy if they are able to demonstrate with valid documents the reasons for and conditions relevant to residency, the means of financial support and that such financial means are sufficient for the length of the stay and for return to their country of origin (this last condition does not apply to entry for work purposes). Aliens who do not meet the above criteria or who are considered as a threat to public order or the safety of the State are not admitted into Italy. In addition, aliens who have been expelled (until the prohibition to re-enter has expired), who must be expelled or who have been indicated as aliens not to be admitted based upon international agreement are not admitted to Italy. Finally, aliens must not have been con-

23

Elspeth Guild demned for the listed crimes (in most cases these crimes are connected to illegal immigration). Article 5 points out that aliens are allowed to stay in Italy provided that they have entered lawfully pursuant to article 4, they possess a permit of stay or a residency card issued by the competent Italian authority, or a permit of stay or an equivalent document issued and authorized by a member State of the European Union. Question 2 Legislative Decree No. 286 of 1998, Article 19, Provides that, in Some Cases, Aliens Can Not Be Expelled from the Italian Territory As a matter of fact, an alien, although he/she unlawfully stays in Italy, can never be expelled towards a State where he/she can be subject to persecution for racial, sexual, language, citizenship, religious reasons or for his/her political opinions or personal and social conditions. In the above situations, the concerned alien will be granted a special residence permit for humanitarian reasons. Moreover, aliens cannot be expelled or refouled at the border, for reasons which generally refer to their personal or family conditions. However, in this case the expulsion may be carried out for reasons of public order or national safety, but a decree of the Minister of Interior Affairs is required. These cases include: a) aliens below 18 years, without prejudice to the minor’s right to follow his/her father/mother who has been expelled; b) aliens holding a stay card (i.e. a permit granted to long-term migrants). These aliens may be expelled only for serious reasons of public order or national safety, or if the alien is suspected of carrying on criminal activity or to belonging to a criminal organization for a living, provided that a safety measure has been applied; c) aliens living with family members to the fourth degree or with their spouse, having Italian nationality; d) pregnant women and for 6 months following the birth of the child they care for; the Constitutional Court has extended the prohibition of expulsion to also he husband who lives with the woman. In the above cases a special residence permit will be issued related to their situation: a) for a minor; c) for family reasons; d) for medical treatment. In addition, the Decree has introduced a “permit for reasons of social protection”. Pursuant to article 18 of the Decree, this special stay permit may be granted to irregular aliens who where found out, during police investigations or criminal proceedings, as being exposed to a situation of violence or serious exploitation or danger, further to the attempt to escape from conditioning by a criminal association or because he/she has been a witness against criminals. 24

Who Is an Irregular Migrant? This permit is issued in order to allow the alien to participate in integration and assistance programmes. This lasts for six months and can be renewed for one year or longer if needed. It can be revoked if the alien has interrupted the program or if he/she has conducted himself/herself in a way which is not in compliance with the finality of the program, that is, if the conditions which allowed for the issuance of the permit no longer exist. The permit allows for: – access to social services; – access to study programs; – enrolment in the employment listings; – carrying out dependent work. If at the time of expiration of the permit, the holder has found a job the permit can be extended or renewed for the length of the contract, or in the event the job is for an indefinite period of time, it can be converted into a regular work permit. The stay permit for reasons of social protection can also be issued further to request of the Public Prosecutor or the Surveillance judge of the Juvenile Court, to a foreigner who has served his sentence for crimes committed when he/she was a minor and has participated in a social assistance and integration programme. Luxembourg Question 1 Il n’y a pas de définition utilisant le mot “illégal” dans la loi du 28 mars 1972 sur l’entrée et le séjour des étrangers. Question 2 Il existe un statut similaire à la Duldung allemande pour les demandeurs d’asile déboutés. L’article 13 de la loi du 3 avril 1996 relative à l’examen d’une demande d’asile prévoit qu’une attestation de tolérance peut être remise à l’intéressé, lorsqu’un éloignement ne peut avoir lieu en raison de circonstances de fait. L’attestation de tolérance tient lieu de carte d’identité. Elle est valable jusqu’au moment où la situation permet l’éloignement et confère le droit à une aide sociale. Netherlands Question 1 The Dutch Aliens Act 2000 (Vreemdelingenwet 2000), that entered into force on 1.4.2001, in its Article 8 defines twelve categories of aliens that have lawful residence in the Netherlands. The list includes several categories of persons whose presence is tolerated, e.g. pending the procedure on their asylum request 25

Elspeth Guild or their residence status or who for health reasons cannot be expelled. This list is intended to be exhaustive. All other aliens in the Netherlands have by definition unlawful residence. However, the Act in Article 45(4) mentions a thirteenth category: asylum seekers having received a final negative decision, but who are not expelled because the Minister has made a formal decision that a certain category cannot be expelled because of the situation in their country of origin (the so-called “vertrekmoratorium”; such a formal decision is in force for Iraq at present). Question 2 Under Dutch immigration law illegal entry or residence is not a criminal offence, but a ground for refusal of a residence permit. Only the absence of a long-termresidence visa, if required, is an (almost) absolute ground for refusal of newcomers other than asylum seekers. Two groups of persons are tolerated but not regularized. First, asylum seekers that received a final negative decision, but can not be expelled in practice, mainly because of lack of travel documents. This group is relatively large. The second, smaller group are asylum seekers (mainly from Afghanistan) whose asylum status has been withdrawn or refused on the basis of Article 1F Geneva Convention and who cannot be expelled on the ground of Article 3 ECHR. There was a third group: Dublin-claim-cases, who were denied reception. But after the adoption of the EC Directive on reception conditions these persons are treated as asylum seekers again. Portugal Question 1 Article 136 of the Aliens/Immigration Act (Decree-Law 244/98, amended by Decree-Law 4/2001 and Decree-Law 34/2003, dated 25 February) provides for a legal definition of illegal entry, presence and transit of aliens in Portugal. Pursuant to this article: (1) The illegal entry of aliens in Portuguese territory is in violation of the articles 9, 10 (entry at border check point and border control), 12 (travel documents) 13 (visa, stay permit or residence permit) and 25, paragraph 1 and 3 (grounds for the refusal of entry, aliens are singled out for refusal of entry by the Schengen Information System, or they have been expelled from Portugal, they have been sent to another country under the auspices of a readmission agreement, they have been sentenced to a year or more in prison, etc.) (2) The residence of aliens in Portuguese territory is illegal when this residence is not permitted according the Aliens Act or the Asylum Act and when an illegal entry according to Article 136(1) has been verified. (3) The transit of aliens in Portuguese territory is illegal when they do not have a guarantee of admission in the country of destination (this has been introduced in the Aliens Act by the

26

Who Is an Irregular Migrant? Decree-Law 34/2003, for the purpose of the transposition of the EC-Directive on illegal entry). Question 2 According to paragraph 1 of article 104 of the Aliens/Immigration Act an expulsion cannot be enforced (the execution of an expulsion decision is inadmissible) when the alien must be deported to a country where he or she can be persecuted on a ground that justified the concession of asylum in the terms of the law (Geneva Convention relating to the Status of Refugee and constitutional asylum grounds persecution because of her/his activities for freedom, self-determination of people, human rights, democracy). Pursuant to paragraph 2 of the same article, to avoid the expulsion the alien must invoke fear of persecution and prove it. Paragraph 3 states: “When the expulsion cannot be enforced to the country of destination the alien shall be deported to a country that accepts him or her”. So, if the expulsion cannot be enforced for the reasons mentioned above and the Portuguese authorities are unable to find an alternative country that accepts the alien in question, we must conclude that he or she must be tolerated on Portuguese territory (without regularization). Another situation of tolerated stay is when aliens do not have travel documents. UK Question 1 Illegal entry is defined in s33 (1) Immigration Act 1971 as: a person – “unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws; or – entering or seeking to enter by means which include deception by another person; and – includes also a person who has entered as mentioned in paragraph (a) or (b) above.” Entry is different from arrival (S11(1 IA 1971); even when released from detention or temporarily admitted such persons have not entered the UK in law. Leave to enter may be refused before the individual arrives at the border of the territory (s1 Immigration and Asylum Act 1999). There are four possible types of illegal entry: entry without leave; entry in breach of a deportation order; entry through the common travel area; entry by deception, use of false documents and corruption. Overstayers as defined in s10(1) Immigration and Asylum Act 1999, include persons overstaying their limited leave to enter or remain; persons breaching a condition of their limited leave; those whose continued stay was obtained by deception; and family members of any of the above.

27

Elspeth Guild Question 2 According to the main expert in the field, Ian Macdonald in Immigration Law and Practice (5th ed. Butterworths 2001) “The fact that a person is liable to be removed as an illegal entrant, or an overstayer and so on does not always mean that he or she should be removed. In relation to those who are liable to removal as illegal entrants, the Immigration Rules are silent on the exercise of discretion. But in the case of overstayers, the rules set out factors which the Secretary of State must take into account which are identical to the factors required to be considered in deportation cases.” (p. 759). These factors include: age, length of residence in the UK, strength of connections with the UK; personal history, including character, conduct and employment record; domestic circumstances; previous criminal record and the nature of any offence of which the person has been convicted; compassionate circumstances; any representations received on the persons behalf. Further, the Immigration Rules at para 276B provide that an individual may be granted indefinite leave to remain where he or she has had at least 14 years continuous residence in the UK including periods of unlawful residence. Thus the law itself foresees situations where an individual may remain up to 14 years unlawfully in the UK. Additionally, no one may be removed if this would be inconsistent with the ECHR or the Geneva Refugee Convention.

28

Valsamis Mitsilegas

MEASURING IRREGULAR MIGRATION: IMPLICATIONS FOR LAW, POLICY AND HUMAN RIGHTS

1.

SECURITY, MIGRATION AND NUMBERS

Despite the absence of statistics I think we can give you an idea of the actual situation of illegal immigration and trafficking in human beings…The situation is getting more and more dramatic. We have more and more illegal immigrants and we all estimate that the number of illegal immigrants in the EU is much higher than those of legal immigrants, including asylum seekers.1

Numbers play a central part in the framing of migration as a security issue. The view of migrants as a threat to the identity, political stability and welfare of the host country is largely based on political and media discourses creating the impression that the country has been, is being, or is in the danger of being invaded by large numbers of migrants who have no right to be in the territory. This rhetoric of invasion has been extensively documented and its contribution to the creation of a ‘security continuum’ linking external and internal security ‘through images of tidal waves of immigrants, refugee invasion, and the proliferation of delinquents of foreign origin’ highlighted.2 1

2

J. Storbeck, Director of Europol, oral evidence to the House of Lords European UnionSelect Committee, 10 July 2002, reproduced in the Committee’s Report on A Common Policy on Illegal Immigration (37th Report, session 2001-02, HL Paper 187), emphasis added. D. Bigo, ‘Migration and Security’ in V. Guiraudon and C. Joppke (eds.), Controlling a New Migration World (Routledge: London and New York, 2001) 126. See also D. Bigo, Polices en Reseaux. L’ Experience Européenne (Presses des Sciences Politiques: Paris, 1996) and A. Tsoukala, Migration and Criminality in Europe (in Greek, Sakkoulas publishers, Athens-Komotini, 2001) 52.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 29-39 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Valsamis Mitsilegas Yet this rhetoric, which has led to the introduction of a series of repressive measures aimed at fighting illegal immigration in the EU in recent years, is not backed by concrete data. In its Communication on a common EU policy on illegal immigration, the Commission noted that: It is a widely shared assessment that the level of illegal immigration is significant and cannot be neglected due to its social, economic and political implications in the countries of destination. However, by definition it is impossible to have a clear picture of the scale of the phenomenon of illegal immigration in the Member States of the European Union.3

On the basis of this “widely shared assessment” and without providing any further information on the scale of the phenomenon, the Commission, and even more strongly the Council in its subsequent Action Plan, justified the enhancement of enforcement measures to fight illegal immigration.4 This does not mean that there have been no attempts to measure illegal immigration in the EU. The aim of this essay is to provide an overview of the methods used for that purpose and to cast light on their development and limitations. The discussion will then expand to examine the linkages of measuring illegal immigration with law and policy-making and its implications for good governance and human rights.

2.

EU AND ILLEGAL IMMIGRATION STATISTICS

The need for accurate statistics in the field of migration was highlighted by the Commission as early as 1991. In its Communication on Immigration, the Commission called for the creation of ‘harmonized statistical facilities providing reliable information over a satisfactory timescale’ and the continuous monitoring of migration flows (like an early warning system).5 A year later, a decision by EU Immigration Ministers set up the Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration, widely known as CIREFI. In 1994, the Council Conclusions on the organization and development of CIREFI expanded its remit to collect information inter alia on illegal 3

4

5

30

COM (2001) 672, 15 November 2001, 4. This statement was repeated in the subsequent Council Action Plan to combat illegal immigration and trafficking in human beings in the EU (Doc. 662/1/02, 28 February 2002, para. 41). This essay will follow the terminology used by EU Institutions and refer to illegal rather than irregular migration. For a critical analysis of these measures see the House of Lords EU Committee Report (n.1 above). The Committee lamented the lack of available information on the scale of illegal immigration in the EU and highlighted the need for better data (para. 65). SEC (91) 1855 final, Brussels, 23 October 1991.

Measuring Irregular Migration immigration and unlawful residence, entry of aliens through facilitator networks, and use of falsified documents. Personal data cannot be processed and communicated by CIREFI.6 CIREFI is the main EU body responsible for the collection of data on illegal immigration.7 Efforts to obtain a better picture of illegal immigration in the EU were intensified only towards the end of the 1990s, arguably due to the emergence of the fight against illegal immigration as one of the priority issues on the EU policy agenda. In 1999, a Council Resolution established an Early Warning System (EWS) for the transmission of information on illegal immigration and facilitator networks.8 Its aim was to set up a standardized, permanent communication framework enabling a Member State to report illegal immigration phenomena (excluding personal data) instantly9 and calls were made for the inclusion of Europol in the System.10 Despite this, three years after the Resolution was passed, the EWS was described by both the Commission and the Council as “rudimentary”.11 The challenges surrounding the collection of accurate data on illegal immigration in the EU were highlighted in a Commission Staff Working Paper which was published during the Swedish EU Presidency in 2001.12 The Working Paper referred extensively to issues such as the comparability and availability of data among Member States,13 statistical confidentiality and data sensitivity.14 It called 6 7

8

9 10 11 12 13 14

OJ 1996 C 274/50. EUROSTAT, the EU statistics service undertakes an annual collection of migration data within the framework of its work on demography. The data are collected directly from national statistical institutes of Member States and the collection system is limited to numbers of immigrants and emigrants. Council Doc. 7965/99, Brussels, 11 May 1999. It is interesting to note that the Resolution was not published in the Official Journal – see the submission by the Immigration Law Practitioners’ Association (ILPA) on the Commission’s Communication on a Common Policy on Illegal Immigration, para. 23. http://www.ilpa.org.uk/ submissions/Illegalsresponse.html Commission Communication, point 4.2.3, above n. 3. Conclusions of the Justice and Home Affairs Council of 16 November 2001. The Council called for the active participation of Europol in CIREFI. COM (2002) 175 final, Commission Communication on a Common Policy on Illegal Immigration, point 4.2.3; Council Action Plan, paras. 47-48, above n. 3. SEC (2001) 602, 9 April 2001. For a detailed analysis see part III. Statistical confidentiality is linked with privacy and the protection of the individual. It is a principle enshrined in Article 10, EC Regulation on Community Statistics 322/97 (OJ 1997 L 52/1). It is defined by the latter as ‘the protection of data related to single statistical units which are obtained directly for statistical purposes or indirectly from administrative or other sources against any breach of the right to confidentiality’ and

31

Valsamis Mitsilegas for CIREFI inter alia to refine certain existing categories of data, to include data on sanctions against human trafficking and smuggling and on types of return. Finally, it called for statistics to be made publicly available, invoking the requirement of Article 255 EC that decisions be taken as openly as possible and as close as possible to the citizen by highlighting the Tampere transparency commitments. Many of these calls, most notably those related to openness and transparency, were echoed in the Conclusions of the Justice and Home Affairs Council of 28/29 May 2001.15 Referring to migration and asylum statistics in general, the Conclusions stated that: The approach to statistics in this area should be brought in line with the rules and procedures adopted for statistics in other Community policy areas. Community statistics are publicly available. In the field of asylum and migration statistics, transparency should therefore henceforth become the main principle. As with other areas of Community statistics, exceptions to this principle shall be made to protect the confidentiality of the individual.16

In another move towards greater transparency, the Conclusions called for the publication of an annual public report for policy development based on statistics from EU bodies including CIREFI “to stimulate the political debate on the nature of asylum and migration and the consequences for Community policy and legislation”.17 Reference was also made to the introduction of the electronic dissemination of monthly statistics and the development of a new Action Plan on statistics to be approved by the Council.18 The move towards the publication of illegal immigration data was in principle welcomed by the majority of Member States.19 The intensification of work

15 16 17 18 19

32

as implying ‘the prevention of non-statistical utilisation of the data obtained and unlawful disclosure’. Data sensitivity considerations arise when it is deemed that data should not be disclosed for political, policy or operational reasons. Conclusions regarding common analysis and the improved exchange of statistics on asylum and migration. Doc. 9118/01, http://ue.eu.int/newsroom. Principle 2. It is further stated that due consideration should be given to demonstrable sensitivity concerns (principle 3). Objective 1. Objective 3 and Working Method 2 respectively. With the notable exception of France, which argued that publication of CIREFI data should be restricted to national public services working in the field of immigration and the government authorities to which they answer, as well as to the Commission, the Council Working Parties concerned and Europol. According to the French delegation, the purpose of such data is not to inform the public but to provide information for government use. Council Document 13369/01, Brussels 6 November 2001.

Measuring Irregular Migration in the area resulted in the recent publication of a Commission Communication on an Action Plan for the collection and analysis of Community statistics in the field of migration.20 It is explicitly stated that at the heart of the Action Plan is the political objective expressed in the 2001 Council Conclusions that national asylum and migration statistics should become widely available and that there should be common analysis.21 However, the Action Plan did not give carte blanche for the publication of illegal immigration data. Only annual statistics will be disclosed, in recognition of Member States’ concerns for misuse of statistics. Recent monthly or quarterly statistics on illegal entry will not be available to non-official users, but monthly or quarterly statistics that are at least 12 months old may be available.22 This exception may defeat the very purpose of the Action Plan: it is potentially a significant inroad to the achievement of transparency and the development of an open debate on illegal immigration in the EU.

3.

COUNTING ILLEGAL IMMIGRANTS: METHODS AND LIMITS CIREFI Categories

CIREFI data stem from enforcement action against illegal immigration. The database contains information on refused aliens, the illegal presence of aliens, facilitators, facilitated aliens and removed aliens. While a wide range of data can be gathered on the basis of these categories, the extent to which each of them can produce an accurate picture of the numbers of illegal immigrants in the EU is debatable. Refused Aliens Data relating to refused aliens is produced at the border and concern persons who are refused entry to EU Member States. The limitations of this source of data are evident: there may be cases of multiple border crossings by the same person (who is refused entry more than once) and of course there may be many crossings that take place but are not recorded. This may lead to ‘guesstimates’ of the numbers of aliens crossing the border illegally by national authorities. In its study of human trafficking in Eastern Europe, the IOM criticized early esti-

20 COM (2003) 179 final, Brussels 15 April 2003. 21 Ibid. p. 3. It was also acknowledged that the availability of EU-wide information is

essential for the purposes of monitoring the development and implementation of EC law and policies. (p. 5). 22 This reflects a proposal made by the Greek government for CIREFI data to be published a year after their compilation (see also the comments by Italy). See doc. 13369/01 above, n. 19.

33

Valsamis Mitsilegas mates on the scale of trafficking in Europe because of the fact that these were based on extrapolations from available data on refused aliens.23 Illegal Presence The notion of illegal presence has not been defined. It is a very broad concept and may cover persons in diverse situations ranging from illegal entrants to overstayers. There are considerable differences between Member States sending data to CIREFI as to what constitutes illegal presence, with some defining it in the most extensive manner.24 Spain is a prime example, applying the category to ‘persons found near the border, crossing or intending to cross illegally’.25 Facilitators Data cover only facilitators of illegal entry – with the CIREFI definition of a facilitator being thus narrower than the one in the recently adopted Directive and Framework Decision on facilitation of unauthorized entry, transit and residence.26 Data are based on intelligence records and not final judicial decisions. While this may have been deemed necessary in view of the lack of EU harmonisation in the field (and the absence of an offence of facilitation in a number of Member States), it may provide an inaccurate picture as there may be a difference between intelligence data and the numbers of those actually convicted. In order to obtain a clear picture, and to respect the presumption of innocence, it is essential that after the deadline for the implementation of the facilitation measures data on facilitators are based primarily on final judicial decisions. Yet even if this is the case, there may be considerable differences in national data, in view of the fact that the exemption from criminal liability on humanitarian grounds is not compulsory, but merely optional for Member States.27 Facilitated Aliens There appears to be a level of asymmetry with the definition of facilitators, as data on facilitated aliens include both illegal entry and residence. Again national definitions differ: while France includes aliens remaining in its territory illegally or have entered illegally whether assisted or not, the Italian definition covers 23 IOM, Migrant Trafficking and Smuggling in Europe. A Review of the Evidence with

24 25 26 27

34

Case Studies from Hungary, Poland and Ukraine (IOM, Geneva, 2000) 32. It is noted that the number of apprehensions was multiplied by 4-6, but that there is no indication of how this multiple was derived. Clarification of statistical data gathering in CIREFI, Council Doc. 5649/01, Brussels 1 February 2001. Ibid. Emphasis added. OJ 2002 L 328/17, pp. 17 and 1 respectively. It is interesting to note that the EU measures refer to ‘unauthorised’ and not ‘illegal’ entry. Article 1(2) of the Facilitation Directive, ibid.

Measuring Irregular Migration those who have entered and/or reside illegally with the benefit of assistance from third parties.28 Removed Aliens The definition of removals is potentially very broad. No distinction is made between voluntary and forced removals. As in the case of refused aliens, the number of removals carried out over a period may be higher than the number of persons removed if the latter keep on returning in the host country and are sent back several times.29 However the identity of those removed may be checked more easily thus providing more concrete data. It is interesting to note that the Commission intends to focus primarily on removals data in order to attempt to estimate numbers of illegal immigrants in the EU.30 The danger of inflated numbers via extrapolation is also visible in this case. Regularisations A practice that has been followed by a number of – primarily Southern – EU Member States (but which has not been the subject of EU intervention thus far) has been to regularize illegal immigrants by offering them, in most cases upon fulfillment of certain conditions, legal status in their territory. While deemed as representing a conflict of values for the host State (having to choose between the acceptance of the foreigner and the expulsion of the illegal),31 regularisations are thought by statisticians to be invaluable sources of information – they are one of the few administrative sources that produces data on stocks rather than flows of migrants.32 Regularisations have their limits as a data source, especially

28 Document 5649/01, n. 24 above. 29 United Nations, Department of Economic and Social Affairs, Recommendation on

Statistics of International Migration, Statistical Papers Series M, no. 58, REV 1 (New York, 1998). 30 Statistical Data on Illegal Immigration in the European Union: A Discussion Paper on Policy Needs and Data Availability, Working Paper no. 13, 25 April 2003, submitted by the Commission to the Conference of European Statisticians (Geneva, 28-30 April 2003). The paper states that this choice is justified on the basis of the establishment of working definitions of illegal immigration in the field of removals – but it may also have to do with the ever greater emphasis that is being placed on removals as an element of EU migration policy (for more see part IV). 31 P. De Bruycker, ‘Introduction Genérale: Regularisation et Politique Migratoire’ in P. De Bruycker (ed.), Regularisations of Illegal Immigrants in the EU (Brussels: Bruylant, 2000) 32. 32 United Nations, n. 29 above. A study by Eurostat characterises regularisations as ‘precious’: La Mesure de la Migration Clandestine en Europe (Eurostat Working Paper 3/1998/E/no 7, 1998 – drafted by D. Delaunay and G. Tapinos). The study is a comprehensive attempt to address the issue of measuring illegal immigration in the EU.

35

Valsamis Mitsilegas in cases where they are granted upon the fulfillment of many conditions including lengthy residence in the host country – this may leave outside a number of illegal immigrants that are not eligible for applying. They are however positive measures that may provide a clear picture of numbers of illegal immigrants in a country in a given moment. Censuses, Registers and Specialised Surveys These methods have been used extensively in the US and in some EU countries.33 Their disadvantages are that they do not generally focus on questions of legal status and only cover a limited number of persons.34 Definitions used may not coincide with existing legal definitions.35 It is also likely that illegal immigrants would avoid being sampled in these surveys. While these methods may have the advantage of disassociating illegal immigration data from potentially inflated enforcement data, they may result (as it has been recently demonstrated in the US) in widely differing estimates of the scale of the phenomenon. A solution that has been suggested to overcome this problem is the so-called ethnosurvey, combining ethnographic and survey methods and a quantitative with a qualitative approach.36 The Final Limit: Who Is an Illegal Immigrant? All of the above methods of measuring illegal immigration have limits: most of them reflect administrative procedures (rather than migration movement)37 and all are inevitably fragmentary, offering only a partial picture of the phenomenon.38 But perhaps the most fundamental limit in obtaining a clear picture of the scale of illegal immigration in the EU is the lack of a common legal definition, or even a common understanding among the competent authorities, of who is an illegal immigrant. As has been pointed out by the authors of a Euro33 See D. Massey and C.. Capoferro, Measuring Undocumented Migration, Work-

34 35

36 37 38

36

ing Paper 03-09, Centre for Migration and Development, Princeton University (cmd.Princeton.edu). They cite specialised surveys such as the National Longitudinal Panel in the US and the Socioeconomic Panel in Germany. See also the Eurostat study, n. 32 above. Massey and Capoferro, n. 33 above. This is the case with the International Passenger Survey (IPS), which is the main source of international migration statistics for the UK. It is based on face-to-face interviews with a sample of passengers travelling via the principal UK airports. For more on the IPS see Appendix 3 of The Impact of EU Enlargement on Migration Flows (Home Office Online Report 25/03, drafted by C. Dustmann). Massey and Capoferro, n. 33 above. United Nations, see n. 29 above. Eurostat, n. 32 above.

Measuring Irregular Migration stat study39 – and as Guild demonstrates in detail in this volume – the status of illegality is primarily defined by default. There is no clear legal definition either in Member States or in the EU of who is an illegal immigrant. Definitions may differ between Member States and statuses of illegality may change over time and overlap with statuses of legality – for instance, would a third country undocumented worker who is legally resident be considered an illegal immigrant?40 The CIREFI categories are broad and are not based on a common understanding by Member States of what data are to be inserted in the EU database – this may explain the unevenness of data provided by Member States. A further factor of confusion stems from the fact that data may be provided by a wide range of authorities (police, border guards, administrative authorities) having different agendas and different perceptions of illegal immigration. As pointed out above, these perceptions do not necessarily reflect legal definitions. Steps such as the adoption of a list of working definitions by the EU Action Plan on Returns41 and the introduction of EU-wide criminal offences for facilitation and trafficking42 may be useful in achieving greater consistency of data between Member States. However, these definitions remain rather general, effectively leaving the definitional task primarily to national authorities.43 It remains to be seen whether these steps will lead to the alignment of administrative with legal definitions and the eventual development of a common definition of illegal immigration in the EU.

39 Ibid. 40 See P. Futo and T. A. Tass, ‘Border Apprehension Statistics of Central and Eastern

Europe – A Source for Measuring Illegal Migration?’ in F. Laczko et al. (eds), New Challenges for Migration Policy in Central and Eastern Europe (IOM, ICMPD and Asser Press, 2002) 94. 41 Proposal for a Return Action Programme, Council doc. 13515/3/02, Brussels 19 November 2002. 42 Council Framework Decision (2002/629/JHA) on combating trafficking in human beings, OJ 2002 L 203/1. 43 The Action Plan on Returns, n. 41 above, for instance defines an illegal entrant as ‘any person who does not fulfil the conditions for entry in the territory of the Member States of the European Union’ and an illegal resident as ‘any person who does not, or no longer, fulfil the conditions for presence in, or residence on the country of the Member State of the European Union’. Trafficking in human beings on the other hand includes, under certain conditions, ‘the recruitment, transportation, transfer, harbouring, subsequent reception of a person, including exchange or transfer of control over that person’ (Article 1(1)). It has been argued that the definitions of smuggling and trafficking are left deliberately vague in international instruments, something that allows States to use their own definitions for these activities. Futo and Tass, n. 40 above.

37

Valsamis Mitsilegas

4.

IMPLICATIONS FOR LAW, POLICY AND HUMAN RIGHTS

In spite of the limitations referred to above, attempting to obtain accurate statistics on the numbers of illegal immigrants is a worthwhile and necessary endeavour. It is worthwhile as it may serve to dispel myths of EU Member States being ‘invaded’ by illegal immigrants. It is also a pre-requisite of good governance in the Union in the field of migration, by helping to provide a clearer picture of migration in the EU. Effectiveness in EU policy (including an evaluation of both future impact of policies as well as past experience) is a central principle of good governance put forward by the Commission.44 Subject to respecting privacy and the protection of personal data of individuals that may be identifiable, publication of EU-wide illegal immigration statistics will contribute to the enhancement of the principles of openness and transparency – which are essential components of the democratic life of the Union.45 It is perhaps a paradox that some of the methods that may serve to produce illegal immigration data and thus enhance transparency and quality in decisionmaking at the same time pose direct challenges to human rights. A prime example is the recent proposal by the Spanish Government for a Directive placing air carriers under the duty to provide personal data of all their passengers after boarding, as well as information on foreign nationals carried by them who have not used their return ticket.46 The proposal is far-reaching and, in the name of fighting illegal immigration, establishes a generalized mechanism for the collection of everyday data. Leaving its questionable efficiency aside, it is vague (who are the ‘foreign nationals’?), disproportionate and a direct attack to privacy and principles of data protection.47 It is also reminiscent of the demands by the US Government to EU based airlines to provide passenger data48 – this time in the name of security and the war on terror.49 This is linked with the fact that measuring illegal immigration is rarely an end in itself. As shown above, most methods serving to count illegal immigrants constitute broader policy choices, incidentally producing numbers: enforcement action on the one hand, positive measures granting rights such as regulariza44 European Governance – A White Paper, COM (2001) 428 final, Brussels, 25.7.2001. 45 See Article I-49(1) of the draft Constitutional Treaty, OJ 2003 C 169/1. 46 Council document 11406/03, Brussels, 11 July 2003. 47 See the letters of Lord Grenfell, Chairman of the House of Lords EU Committee,

to Ms Caroline Flint, Home Office Minister, of 16 July and 18 September 2003. The Committee consulted a wide range of NGOs and carrier representatives who share these concerns. 48 For a detailed analysis of negotiations between the US Government and the Commission, and the latter’s data protection concerns, see www.statewatch.org 49 For an analysis of the migration/terrorism nexus, see the essay by Bigo in this volume.

38

Measuring Irregular Migration tions on the other.50 It has been argued that numbers of illegal immigrants are underestimated due to the reluctance of Governments to admit that they have failed to seal their borders properly.51 But these fears are the outcome of policy discourses and choices justifying ‘Fortress Europe’ – in such a climate, any number of illegal immigrants produced could be pictured as excessive. Any numbers produced, in spite of their accuracy, could also be quoted as facts, eventually taking a life of their own.52 This may lead to the narrowing of the discussion only to numbers, and to the setting of unrealistic targets of numbers of immigrants that can be tolerated in the EU. As the current asylum debate in Britain, and subsequent measures adopted aiming to achieve Government-set targets have demonstrated , this move may lead to the introduction of further controls, the lowering of human rights standards and ultimately the de-humanisation of the migrant.53 Illegal immigration statistics lie thus at the centre of a vicious circle: their production may serve to dispel myths on illegal immigration and thus de-securitise migration to some extent; yet numbers cannot have any such impact in a political climate viewing migration primarily as a security issue. Helpful first steps to change such a climate would be to encourage a better understanding of the different statuses and causes of illegality, and to place the latter in the broader context of global movement, beginning perhaps by comparing numbers of irregular migrants to numbers of individuals moving legally. The establishment of an independent EU body studying migration and collecting data not only from Governments but also from international organisations and expert bodies could be instrumental in reframing the debate – it remains to be seen whether ideas such as the creation of a European Migration Observatory will materialise in that direction.

50 While there have been many recent EU initiatives on removals, regularisations have

remained thus far a matter exclusively for Member States. 51 J. Clarke, ‘The Problems of Evaluating Numbers of Illegal Migrants in the European

Union’ in de Bruycker, n. 31 above, at p. 16. 52 Ibid, at p. 21. See also J. Best, Damned Lies and Statistics. Untangling Numbers from

the Media, Politicians and Activists (Berkeley, Los Angeles, London : University of California Press, 2001), 35. Best notes that ‘we think of statistics as facts that we discover, not as numbers we create’. 53 This point was raised by the House of Commons Home Affairs Select Committee in their Report on Asylum Removals. The Committee said that ‘we are dealing with human beings, not numbers, and they should be treated accordingly’: Asylum Removals (4th Report, session 2002-03, HC 654-I) para. 136.

39

This page intentionally left blank

Dora Kostakopoulou

IRREGULAR MIGRATION AND MIGRATION THEORY: MAKING STATE AUTHORISATION LESS RELEVANT

1.

INTRODUCTION

Gone are the days when the dynamics of migration was explained solely on the basis of push/pull factors and cost/benefits considerations drawn from neo-classical economics.1 Rationalist, cultural and institutionalist approaches in political science and law have provided sophisticated explanations of States’ responses to migration flows and the determinants of policy change in migration-related matters.2 The latter include the interests of domestic organised interests, the nature of liberal States, the impact of institutions and national citizenship traditions, the role of trans-national forces and the ethnic origin of migrants. Legal rules, institutions, processes, cultural frames, ideas and past experiences all play a pivotal role in the creation of complex systems of migration control, and in policy reform. Yet, the paradigm of control of population movement tends to be narrow, simplistic, inefficient and often inappropriate. This is not merely due to globalising impulses and trans-national processes beyond state control, which have resulted in what Sassen has termed ‘the failure of immigration enforcement’.3 It See G. Ranis and J.C.H. Fei, “A Theory of Economic Development” (1961) 51 American Economic Review 533. For criticisms, see A. Portes and R. Rumbaut, Immigrant America (California: University of California Press, 1996). 2 See C. Brettel, and J. Hollifield (eds.), Migration Theory: Talking Across Disciplines (London and New York: Routledge, 2000). 3 S. Sassen, Losing Control? Sovereignty in an Age of Globalisation (New York: Columbia University Press, 1996). Cf. G. Freeman, “Modes of Immigration politics in liberal democratic states” (1995) 29 International Migration Review 881; E. Thielemann, “Does Policy Matter? On Governments’ Attempts to Control Migration”, Paper Pre-

1

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 41-57 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Dora Kostakopoulou is also due to the fact that the politics of restriction of migration flows and law enforcement fails to capture the multifaceted, subtle and decisive impact of all forms of migration on domestic structures of power, constitutional principles and the internal dynamics of society. Migration policies are still underpinned by the assumption that individuals are inherently sedentary and must thus be ‘uprooted’ from their national homelands by a combination of factors in both home and migration regions. But this assumption is incorrect. Individuals are not risk averse because they are inherently sedentary.4 The grave risks that undocumented migrants are willing to take in order to enter their chosen destination country undetected confirms this. In addition, while States have an interest in portraying their policies as both rational and legitimate responses to the pressure of migration flows, one cannot overlook the fact that certain migration categories are essentially statist constructs. The category of irregular migration is a good example since irregular migration is, by definition, a by-product of the laws made to control migration5 and of labour market exigencies.6 The fallacy of irregular migration as a by-product, is that, unless actors adopt a reflexive approach, the result often becomes the cause of its own cause.7 This fallacy is evident in policy discussions and in the academic literature on the subject since irregular migration is often seen as an external and objective challenge facing the state, rather than a law-enforcement and labour market event.8 As a consequence, attention shifts from the reflexive assessment of existing policies of migration control to increasing the ‘governmentality’ of migration control by tightening external border controls and internal surveillance. It is interesting that even accounts that highlight the ‘artificial’ character of irregular migration implicitly accept that States have a legitimate interest to prevent or reduce irregular migration flows and to expel ‘illegal immigrants’. Having said this, it is true that Castles and Davidson have expressed reservations about the latter statement, since ‘irregular migration is often tacitly permitted or even encouraged [by gov-

4 5 6 7 8

42

sented to UACES Study Group on the Evolving European Migration Law and Policy, Manchester University, 11-12 April 2003. T. Faist, The Volume and Dynamics of International Migration and Transnational Social Spaces (Oxford: Oxford University Press, 2000) 19. S. Castles and M. Miller, The Age of Migration: International Population Movements in the Modern World (London: Macmillan, 1993) 96. On the various definitions of irregular migration in the Member States of the EU, see Elspeth Guild’s essay in this volume. J. Elster, Sour Grapes (Cambridge: Cambridge University Press, 1983) 43 et seq. But cf. A. Geddes, The Politics of Migration and Immigration in Europe (London: Sage, 2003); M. Samers, “Invisible capitalism: political economy and the regulation of undocumented immigration in France” (2003) 32(4) Economy and Society, 555.

Irregular Migration and Migration Theory ernments and employers], just because illegals lack rights and are easy to exploit’.9 Doubts have also been expressed as to whether domestic barriers can effectively deter irregular migration flows, if they are not accompanied by efforts to reduce the socio-economic disparities between the North and South.10 And whereas it has been argued that heightened levels of irregular migration may be largely attributed to the restrictions put on regular migration, others believe that restrictive measures have some effect in reducing ‘unwanted’ migration.11 Notwithstanding these reservations, the crux of the point is that the state’s interest in curbing and deterring irregular migration has been taken for granted by the literature. This may be due to the fact that undocumented migrants are seen as transgressors of a State’s legal order. From the State’s perspective, they are offenders of migration laws; irregular migrants are ‘outsiders who have no right to be here’, since they do not possess the necessary authorisations concerning entry, residence and employment or they cease to fulfil the conditions that states have attached to their entry, residence and employment.12 In this respect, ‘illegal’ border crossers, legal entrants who overstayed their entry visas or who work without permission, family members of migrant workers prevented from entering legally due to restrictions in family reunification and asylum-seekers who obtained leave to enter by deception13 are ‘illegals’. Lack of State authorisation or consent places them into the domain of illegality, thereby rendering their presence illegitimate.14 After all, it has been a long-established maxim of international law that ‘the reception of aliens is matter of discretion, and every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory’.15 9 10 11 12

13 14

15

S. Castles and A. Davidson, Citizenship and Migration (London: Macmillan, 2000) 73. W. Cornelius, P. Martin and J. Hollifield, Controlling Immigration: A Global Perspective (Stanford CA: Stanford University Press, 1994). Castles and Miller, above n. 5, at p. 103; A. Messina, “The not so silent revolution: Postwar Migration to Western Europe” (1996) 49(1) World Politics. According to Cohen, ‘in any other area of law it is the dead that is unlawful. In immigration control it is the person who becomes illegal’; S. Cohen, No one is illegal (Stoke on Tent: Trentham Books, 2003) 3. Immigration Act 1971, s. 26(1)(c); Bugdaycay v. Secretary of State for the Home Department (1987) AC 514, (1987) 1 All ER 940, HL. According to UK law, an ‘illegal entrant’ is a person a) unlawfully entering or seeking to enter in breach of a Deportation Order or of the immigration laws, or b) entering or seeking to enter by means which include deception by another person, and includes a person who has entered as mentioned in paragraph (a) or (b) above: Immigration Act 1971, s. 33(1), as amended by the Asylum and Immigration Act 1996, Sch 2, para. 4. Oppenheim, International Law (8th edition, H. Lauterpacht, ed., 1955) para. 314, pp. 675-676. According to Vattel, states possess the sovereign power to refuse the entry

43

Dora Kostakopoulou Whereas the literature on migration has paid much attention to the determinants of regular (and irregular) population mobility and the effectiveness or ineffectiveness of policies to deter and suppress irregular migration, the embeddedness of irregular migration on the legal/illegal nexus has been insufficiently theorised. In what follows, I seek to address this lacuna in the literature by examining why State authorisation of entry, residence and employment exerts so much weight in determining the status and treatment of undocumented migrants and whether this is justified from a normative point of view. In particular, I argue that the significance of State consent (– or of the lack of it) cannot be understood without reference to a specific understanding of territoriality modelled upon private ownership law which has characterised national statism. The idea of exclusive national ownership of the bounded territory and the territorial dimensions of nationalism are conducive to the formation of communities of unequal membership in which belonging is tied with formal immigration status.16 In teasing out divergent conceptualisations which may lead to a different assessment of irregular migration flows and thus of appropriate policy responses, I suggest the replacement of ‘boundary-obsessed territorialism’ with what I call ‘focal territoriality’. I then examine the implications of the decentring of the nationalist frame of reference that focal territoriality effectuates for policy reform in the field of irregular migration.

2. THE NATION-STATE’S OWNERSHIP OF LAND AND EXCLUSIVE TERRITORIALITY Space only becomes a territory when it is demarcated and divided. The process of delimiting space and creating bounded place is usually referred to as ‘territoriality’.17 Sack defines territoriality as a spatial strategy designed to ‘affect, influence or control people and phenomena and relationships by delimiting and asserting control over a geographic area...called territory’.18 According to this definition, territoriality does not only bear the decisive mark of human agency, but it is also intimately related to power. Territoriality is both an expression and a component of power relations.19 The latter are legitimised and sustained by discursive articu-

16 17 18 19

44

of ‘undesirable aliens’, to attach whatever conditions they wish to the permission to enter and reside and to deport aliens whenever this is deemed necessary; Law of Nations, Book 1. s.231; book 2, s. 125; cited in Attorney General for the Dominion of Canada v. Cain [1906] AC 542, 546. Cf. Plyler v. Doe, 457 US at 219 n. 19. D. Sack, Human Territoriality: Its Theory and History (Cambridge: Cambridge University Press, 1986). Sack, ibid, at p. 19. J. Penrose, “Nations, states and homelands: territory and territoriality in nationalist thought” (2002) 8(3) Nations and Nationalism 277.

Irregular Migration and Migration Theory lations that infuse territory with meaning and shape how the world is apprehended. Territory is filled with ideologies.20 The most successful ideologies will conceal this fact, thereby making practices of territoriality look objective and natural. In this way, uses of territory become decoupled from the interests, needs and values they reflect and serve, and power relations are maintained. This is precisely the case with the weaving of territoriality with statehood and sovereignty (territorial sovereignty). It is true that the idea of fixed and exclusive territoriality is associated with the rise of the modern nation-state.21 Unlike the ‘parcelized’ and personalised authority of the feudal world, the modern system of political rule ‘differentiated its subject collectivity into territorially defined, fixed and mutually exclusive enclaves of legitimate dominion’.22 Control over a bounded territory became an essential quality of statehood and the modern principle of spatial exclusion replaced the pre-modern principle of hierarchical subordination.23 The consolidation and legitimation of modern States relied on two parallel strategies. First, the drawing of firm boundary lines which delimited the area of the state’s jurisdiction. Boundaries did not only define the jurisdictional authority of the State, but they also moulded human behaviour by separating subjects from aliens and by limiting movement.24 Secondly, the ties uniting the collectivity, to which metaphysical claims to ‘immortality’ were assigned, were ‘territorialised’. Communities became organic entities rooted in space, and territory became an object of political devotion. Both strategies capitalised on the system of private ownership law provided for by Roman law in order to take hold and succeed. Before the emergence of cyberspace, territoriality usually took two forms: political territorial rule and private ownership of land. Although these forms seem distinct, in reality territorial sovereignty is conceptually wedded to private property ownership.25 The connection between sovereignty (imperium) and 20 H. Lefebvre, The Survival of Capitalism (London: Allison and Busby, 1976). 21 J. Anderson, “The Shifting Stage of Politics: New Medieval and Postmodern Territo-

rialities” (1996) 14 (2) Environment and Planning D.: Society and Space 133. 22 See H. Spruyt, The Sovereign State and its Competitors (Princeton: Princeton Univer-

sity Press, 1994); J.G. Ruggie, “Territoriality and Beyond: Problematising Modernity in International Relations” (1993) 47(1) International Organisation 129; C. Tilly, Coercion, Capital and European States, 1990-1900 (Oxford: Blackwell, 1990). 23 R.J.J. Walker, “Security, Sovereignty and the Challenge of World Politics” (1990) 15 Alternatives 3, 10. 24 States have always been ‘the enemy of people that moved around autonomously such as gypsies and nomads’: J. Scott, “Geographies of Trust” in M. Warren (ed.), Democracy and Trust (Cambridge: Cambridge University Press, 1999) 273, 283. 25 F. Whelan, “Vattel’s Doctrine of the State” (1988) 9(1) History of Political Thought; C. Beitz, “Bounded Morality: Justice and the State in World Politics” (1979) 33 (3) International Organisation 405.

45

Dora Kostakopoulou property ownership (dominium) can be traced back to the feudal era. Interestingly, although Roman law distinguished between sovereignty (i.e., political rule over individuals) and property ownership (i.e., individual rule over things), early Teutonic law (i.e., the law of the Anglo-Saxons, Franks, Visigoths, Lombards and other tribes) did not recognise such a distinction. In feudal law ownership of the land and political sovereignty were inseparable; all property was thought of belonging to the Prince. The ‘state’ long continued to be the prince’s estate, so that even in the 18th century the Prince of Hesse could sell his subjects as soldiers to the King of England’.26 The conceptual overlap between political authority and property ownership can be discerned in the medieval usage of the term dominium: dominium signals political rule as well as property ownership.27 In his Defence of the Catholic and Apostolic Faith, for instance, Suarez stated that the Pope has the power to ‘remove a prince, deprive him of his dominion in order to prevent him from harming his subjects, and absolve his subjects from their oaths of allegiance’.28 In addition, unlike the Roman conception of private property, the feudal theory of dominion recognised a conditional right to use property.29 At the close of the Middle Ages, the Roman conception of absolute and exclusive private property began to gain prominence over the feudal theory of dominion. The eventual triumph of the ‘Roman pagan conception of absolute property’ is marked, according to Figgis, by the inception of Roman law in Germany in 1495.30 The intellectual development of private property brought along the conceptual separation of political authority from ownership. In Bodin’s theory of sovereignty, for example, the dictum ‘all to be the prince’s’ referred only to sovereign’s absolute authority (imperium) only. This is because ‘even in the most absolute monarchy...the property and possession of every man’s things must still be reserved to himself’.31 In formulating the law of the Sea, Grotius also made the distinction between dominium and imperium. In De Jure Belli as Pacis, a coastal state’s right of imperium over a part of the sea, such as bays and straits, is contrasted to that of dominium (ownership). Although the coastal

26 M. Cohen, ‘Property and Sovereignty’, in C.B. Macpherson (ed.), Property: Main-

stream ad Critical Positions (Oxford: Blackwell, 1978) 156. 27 Whelan, above n. 25 at p. 73. 28 Suarez, Defence of the Catholic and Apostle Faith, I: 286-287, cit. in Q. Skinner, The

Foundations of Modern Political Thought, 2: The Age of Reformation (1978) at p. 180. 29 R. Schlatter, Private Property: The History of an Idea (London: Allen and Unwin, 1951) at pp. 64, 75. 30 J. Figgis, The Political Aspect of Saint Augustine’s City of God (London: Longmans Green, 1921) 99. 31 J. Bodin, The Six Books of a Commonwealth, K.D. McRae (ed.) (1962) 110.

46

Irregular Migration and Migration Theory state could not have ownership over a part of the sea, it did have the authority to use it and to persecute pirates.32 The demise of the feudal concept of dominion thus made it possible to think of ownership apart from political authority.33 The boundaries between the two concepts continued to remain fuzzy in the seventeenth and eighteenth centuries. This may be due to the fact that dominion over things, invariably, implies a form of imperium over human beings; private property ownership entails a measure of sovereign power since the owner has the right to exclude others from the benefit or use of the object of ownership. By analogy with private property, State ownership of land entails a corporate right to exclude others from the use of state-owned land. Pufendorf observed that this does not imply that visitors and tradesmen cannot enter a state’s territory; they have an imperfect ‘right of hospitality’ that flows from the ‘general duties of humanity or of love’. But the right of hospitality cannot trump the national community’s perfect right to refuse visitors.34 Although Pufendorf stated that the principle of reciprocity could limit a national community’s right to exclude visitors, he viewed states as property holders having ‘the final decision on the question whether [he] wishes to share with others the use of his property’.35 Additionally, he argued that the exercise of the right of ownership can produce differential results in the sense of admitting some and excluding others: ‘the relationship among communities can be compared to the owner of a garden who grants special privileges to one of his neighbours exclusively’.36 Both the idea of exclusive ownership of a certain territory and the boundary obsessed territorialism characterising statehood were made possible by making territory part of the nationalistic ideal. Territory and community had to coincide, and fixed territorial lines placed limits to people’s identifications. Territory itself became the fundamental marker of personal and collective identification, and the state succeeded the church in assigning ultimate ends to territorial collectivities and in defining the enemy. The enemy was no longer the infidel or heretic, but the invader and the subversive.37

32 H. Grotius, De Jure Belli ac Pacis ac libri tres (Joannes Barbeyrac) (1720) 2.3.13, at

pp. 212-215. 33 Schlatter, above n. 29, at p. 76. 34 S. Pufendorf, Of Law of Nature and Nations, (Kennett Basil trans.) (1717), 3.3.1, p.

346; 3.3.3. p. 350, 3.3.8-10, pp. 361-168. 35 Ibid, 3.3.9, at p. 364. 36 G. Cavallar, The Rights of Strangers (London: Ashgate, 2002) 205. 37 A. Pizzorno, “Politics Unbound” in C. Maier (ed.), Changing Boundaries of the

Political (Cambridge: Cambridge University Press, 1987) at pp. 38-39, 48.

47

Dora Kostakopoulou In the process of ‘territorialization of the binding ties’,38 territory itself became a homeland delimiting the boundaries of the nation, which, ideally, should coincide with the boundaries of the state.39 Theorists of the modern State, such as Vattel, made it clear that the sovereignty and ownership of the country were retained by the sovereign nation as a whole, which was politically embodied by the State. According to Vattel, gentes (nations) were congruent with states souverains (sovereign states): ‘every nation that governs itself, under whatever form, and which does not depend on any other Nation, is a sovereign state’.40 Nations have public or ‘supreme ownership’ of the national territory or country and, thus, the collective right to exclude aliens whenever this is deemed necessary. True, the sovereign state’s right to deny entry to ‘undesirable’ aliens, which is derived from the nation’s ‘right of ownership’, must be weighted against the imperfect rights of hospitality,41 but ‘evident danger’, possible corruption of morals, diseases and public disorder formed unequivocal grounds for exclusion.42 The unfolding of the complex logic involved in the association of territoriality with statism and nationalism shows that the nation-state’s mastery of space is premised on ideas derived from private land ownership. Ownership and sovereignty over territories are conceptually linked. It is this link between political authority and collective ownership of land that explains why exclusiveness seems to be logically entailed by the concept of territorial sovereignty. But does this mean that other, less sharp-edged and exclusive, spatial forms of political organisation are impossible? There seem to be three possibilities here. The first possibility is to defend the abolition of borders and the opening of territories to common use and appropriation. This would transform existing territorial states into regions of a larger global commonwealth. The merits and demerits of this option have been sufficiently discussed by the literature and we will not repeat them here.43 It is

38

Ibid. at p. 32.

39 D. Jacobson, Rights Across Borders (Baltimore: John Hopkins University Press, 40 41 42 43

48

1996) at pp. 127-131. Emer de Vattel, The Law of Nations or the Principles of Natural Law [1758], transl. C.G. Fenwick (1916), 1.1.4.,at p. 11. Ibid, Introduction, para. 16; See also Vattel, II. 100, cited in Whelan, above n. 25 at p. 75. Ibid, Introduction, para. 16. O. O’Neill, Bounds of Justice (Cambridge: Cambridge University Press, 2000); D. Archibugi and D. Held, Cosmopolitan Democracy (1995); R. Falk, On Humane Governance: Toward a New Global Politics (1995); D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (Cambridge: Polity Press, 1995).

Irregular Migration and Migration Theory sufficient to say that this option would not advance our thinking about policy reform in the field of irregular migration. The second possibility is to retain existing territorial divisions, but to make borders extremely porous. This might entail the establishment of a right to immigration.44 Although this option seems attractive, its advocates concede that a human right to transborder movement is not a politically feasible option. Instead, it is a critical standard by which existing policies can be assessed.45 The third option is the less obvious possibility of changing the way we think about borders and community membership, and thus making nationalistic narratives and their territorial dimensions ‘weightless’ for the purposes of devising irregular migration policy. This is the option I will pursue in the remainder of this chapter. In searching for alternative understandings of territoriality and borders, it may be observed that movement has always defined nomadic people’s system of life and thinking. In the European Union too, flow, and not place, that is, the right to mobility has been pronounced a fundamental right capable of activating the protection afforded by Community law. Whereas the significance and value attached to borders has been altered for internal market purposes, the EU has not compromised the distinctiveness of political communities by making them parts of a larger cosmopolitan order. To support this insight with another example from the physical environment, the surface of a sphere is finite but it has no edge. By analogy, community boundaries could be culturally significant, instead of physically and politically meaningful. Indeed, if we shift our focus from the sharp-angled realities of borders to internal social relations, we discern that communities contain definite regions of space and thus social relations that attribute distinctiveness and finality to them. The existence of a finite number of regions and of a certain volume of social relations means that communities can be distinguished from each other without making the existence of a physical border the overriding factor in their self-definition. This contrasts sharply with the nationalist strategy of transforming territory and borders from a mere ‘geographical expression of cultural identity into the fundamental basis for defining 44 The right to emigration was established by the Treaty of Augsburg (1555) and was

reaffirmed by the Westphalian Treaty. For a critique of the asymmetry between the right to emigration and the right to immigration, see A. Dummett, “The Transnational Migration of People seen from within the Natural Law Perspective” in R. E. Goodin and B. Barry (eds.), Free Movement (Pennsylvania: Pennsylvania State University Press, 1992) 169. S. Cohen and T. Hayter have argued for the abolition of migration controls and the recognition of international migration as a human right; see S. Cohen, No one is illegal, above n. 12; T. Hayter, Open Borders: The Case Against Immigration Controls (London: Pluto Press, 2000). 45 A. Dummett, “The Transnational Migration of People seen from within a natural law perspective” 179 and J. Carens, “Migration and Morality” in B. Barry and R. Goodin (eds.), Free Movement, above n. 44, 169-180.

49

Dora Kostakopoulou groups and individual identities’.46 All this points to the emergence of a focal sense of territoriality.

3.

FOCAL TERRITORIALITY

If the idea of exclusive national ownership of the bounded territory has shaped the terms of the migration debate, thereby configuring policy options, to what extent would an alternative conception of territoriality lead to qualitative different responses to irregular migration flows? It is important to recall here that irregular migration does not entail the existence of certain objective facts. It involves a judgement on those facts, and it is the state that does the judging. The State has the power to determine the domains of legality and illegality, to construct a taxonomy of migration, and to attach varying degrees of legitimacy/illegitimacy to migrants’ claims. This power is very significant since mere changes in regulations can push previously legal residents into the domain of illegality. The 1962 Commonwealth Immigrants Act which removed the common law right of entering Britain freely for Commonwealth migrants is a case in point. For this reason, the discussion thus far has shifted the focus of attention from the undocumented migrant to the host state and its admission rules, and has emphasised the importance of viewing irregular migration as the by-product of the law-enforcement paradigm of migration control – rather than as the result of the inefficacy of formal migration restrictions and/or of under enforced migration laws. This acknowledgement, however, gives rise to a few disquiet thoughts. The preventative and law-enforcement approach to irregular migration, which has been officially justified on the basis of the alleged need to control migration flows, in reality is designed to make migration control impossible (argument 1). In this respect, to seek to ‘solve the problem’ of irregular migration by strategies of deterrence, prevention of illegal entry, suppression of clandestine movement and deportation of irregular migrants is to show that ‘the problem is insoluble’ (argument 2). Whereas one might concede that the existing restrictive policy paradigm is futile and ineffective (2) and perverse, in the sense that it exacerbates the condition it seeks to remedy (1), this may not necessarily lead to the conclusion that the policy paradigm has failed. This is because the paradigm may have another political functionality; namely, to preordain what policy responses to irregular migration deem appropriate. In other words, the policy option of combating irregular migration by strengthening law-enforcement (i.e., preventing ‘illegal entry’, by mass deportations of undocumented migrants, employer sanctions and so on), perhaps justifies and sustains the need for migration control and law-enforcement in the first place. If the attempt to make impos-

46 Penrose, above n. 19, at p. 283.

50

Irregular Migration and Migration Theory sible migration control possible essentially sustains the alleged need for more migration control in the first place, then one can only break this self-referential character of the existing policy responses to irregular migration by transcending the restrictive and law-enforcement paradigm of migration control altogether. Let us suppose that land ownership ceased to be the lens through which to view the nation’s/State’s relation to territory. The reader may recall that land ownership implies that ‘every state is by reason of its territorial supremacy competent to exclude aliens from the whole, or any part, of its territory’.47 Suppose further that control over territory and borders would no longer strike at the heart of a society’s self-definition (section 2). This would disrupt the ‘ontologisation’ of space that nationalist narratives cultivate, that is, the belief that territory is a form of property to be owned by a particular national group, either because the latter has established a ‘first occupancy’ claim or because it regards this territory as a formative part of its identity.48 To be sure, territory would not change. Nor would borders shift. But the value and weight placed on territory and borders would change. Ownership-oriented territoriality would no longer be the overriding factor in defining the collectivity. Instead, territoriality would be ‘demoted’ to just a geographical expression and an aspect only of collective identification. This would open up alternative possibilities, such as the conceptualisation of territorial space as dwelling place and a postnational understanding of community. Dwelling places are different from homelands in that they are not owned by a people, that is, a dominant national group, but are used and enjoyed by all those who live there. All residents are usufructuaries; they have the right of possession, use and enjoyment of the territory and its resources, without causing damage to it or prejudicing its future use and enjoyment. In Latin terms, this amounts to common dominion understood as use and possession (communio), – not as ownership. While dwelling places are not unbounded places, the process of bounding space does not have a crucial impact on the self-understanding of the community. Rather, importance would be attributed to fostering, protecting and preserving dwelling, by establishing lines of connection and collaboration, partnership and communication, and providing for the institutional mediation of conflicts. What would tie the community together, therefore, would not be the idea that ‘we are not the stranger’, but the need to nurture dwelling and to improve co-existence by excluding particularistic nationalist ideas, racist and xenophobic narratives from the public sphere. In this respect, no group or individual would have more spatial power than others, or feel more entitled than others, to have a view about who should dwell

47 See Oppenheim, above n. 15. 48 See C. Gans, “Historical Rights: The Evaluation of Nationalist Claims to Sover-

eignty” (2001) 29(1) Political Theory 58.

51

Dora Kostakopoulou in cities and towns, how they should dwell and how they ought to be positioned within the territory. And whereas the community would have the power to adopt admission rules and migration regulations, the latter would not serve to legitimate anachronistic national imaginaries. Accordingly, infringement of these rules would neither lead to criminal responsibility nor justify discourses about dangerous aliens and irregular migrant criminality. It would simply mean that an individual failed to comply with migration rules and administrative formalities on entry and residence, and that (s)he would be guilty of a misdemeanour punishable by a fine. Parliaments would authorise the executive to impose and collect fines or other monetary penalties for infringements of migration laws. In this respect, the State would have no power to order the removal of undocumented migrants, owing to unauthorised entry, residence or employment. Removal could only take place on public policy and public security grounds justified on the basis of the personal conduct of the individual concerned. A person who seeks to obtain entry fraudulently by either making a false representation to authorities or possessing a forged passport could be recommended for deportation, since this offence would be punishable by imprisonment. This offence could become time barred after six months. As a consequence, an individual could acquire a status of irremovability after six months, if (s)he became settled and participated in the web of reciprocal ties and obligations associated with social membership. All this suggests that the weight attributed to State consent would be reduced, and lack of express consent by the host country, whose admission rules would have been infringed, would no longer override considerations drawn from an individual’s de facto social membership. Rather, settlement and residence would be normatively relevant in determining the membership status of settled irregular migrants and in justifying their claim to become ‘as much a part of the ‘public’ as anyone else’. By replacing the fetishism of migration control and the exclusionary forms of nationalism, which render the irregular migrant as a threat, with more relaxed forms of association that value partnerships among individuals, irrespective of their nationality and the skills they posses, focal territoriality would de-accentuate the importance given to the lack of state authorisation of an individual’s presence and employment in a country.49 Once more, I must note here that focal territoriality does not imply the utopian prescription of abolishing borders. The change I advocate is not ‘from the outside in’. Rather, changes can be induced ‘from the inside out’, that is, by thinking critically about what we largely take for granted.50 For even though ter49 M. J. Shapiro, “Narrating the Nation, Unwelcoming the Stranger: Anti-Immigrant

Policy In Contemporary America”(1997) 22(1) Alternatives 1. 50 I have explored the application of focal territoriality to citizenship and community

membership in Citizenship, Identity and Immigration in the European Union: Between Past and Future (Manchester: Manchester University Press, 2001).

52

Irregular Migration and Migration Theory ritory and uses of territory appear to be natural, territories open up by virtue of people’s engagement with things and of social interactions. Space is a composite of various acts and states of connection. Accordingly, its meaning is interwoven with the projects people have, the relations they enter into, the values they adhere to and the expectations they have. As Heidegger has argued, space is relational; ‘the relationship between man and space is none other than dwelling, strictly thought and spoken’.51 Because space is appreciated concretely through human beings’ relationships with others and the activities of their own lives, quite often the activities with which space is filled affect how space itself is experienced. The experience of space is, in turn, a significant part of an individual’s relationship with the world; it affects our feelings, our actions and the ways in which we relate to others. Take, for example, the use of territorial boundaries as points of division between ‘us’ and ‘them’ and markers in national identity formation. As noted above, national statism has traditionally portrayed boundaries as barriers or stopping points, particularly as regards the movement of people. Liberal political theory has not called this premise into question. It has conceded that borders form limits, and the scope of justice, equality and democracy does not usually extend beyond the border.52 The boundary-obsessed territorialism characterising modern statism has shifted attention from the centre to the periphery; that is, from the internal practices of dwelling and socio-political organisation of dwelling to territorial boundaries. This has concealed from view the multifarious permeability or porosity of boundaries and the impact of the patterns of exclusion on the political community and its organising principles. Utterances, such as ‘this is our way of doing things here and if you want to belong you must conform’, ‘this is our land and we want to prevent unwanted immigration’, ‘go back to where you belong’, official discourses and negative perceptions about immigration and refugee flows, all spring from such strategic uses of boundaries and space (see section 2 above). By shifting attention to the nature of dwelling, focal territoriality transforms boundaries from political and symbolic limits to points of connection. And unlike the boundary imagery that draws our minds away from social interaction, a focal conception of territoriality prompts thinking and acting for the sake of dwelling. This brings forth the possibility of forms of political organisation that are not defined by the sharp-angled imagery of state power and territorially informed patterns of exclusion. It also brings forth a vision of relaxed communities that value democratic partnerships among co-

51 M. Heidegger, Poetry, Language, Thought (Hofstadter trans.) (New York: Harper

and Row, 1975) at p. 157. 52 For a critique, see O. O’Neill, Bounds of Justice (Cambridge: Cambridge University

Press, 2000).

53

Dora Kostakopoulou venturers in common experiences, irrespective of their nationality (- not among imagined co-owners of the land). But to what extent could focal territoriality prompt a reorientation of irregular migration policy? Focal territoriality would prompt the de-accentuation of tighter control over borders and territory, of deterrence of entry, of detention and removal of irregular migrants. Since dwelling would take priority over control of access to the territory, the multifarious contributions made by migrants would be fully recognised. This implies the opening up of normal migration routes, by lowering significantly the barriers to labour mobility as well as by setting up of migration schemes on seasonal and temporary employment. Liberal rules on family reunification would be added to this menu of liberal migration policies, designed to make irregular entry, residence and employment simply unattractive. Consequently, the value attributed to sharp-edged borders would decrease in both significance and weight, thereby leading to the transformation of political community’s collective identity. Although the above mentioned policies may be criticised on the ground that they are likely to create incentives for migrants to avoid the regular migration channels and regular employment, it can be plausibly argued that their cumulative pursuit is envisaged to decrease incentives for irregular entry and residence by increasing the probabilities of success in admission applications. It is true to say that this may lead to an increase in the volume of migration, but this would only be seen as problematic if one subscribed to the migration control paradigm – that is, if it was accepted that control of irregular migration does not only target ‘illegal entry’, but it seeks to prevent migration flows altogether. The opening up of migration routes would not, of course, eliminate irregular migration. One should not underestimate the ways in which economic forces can undercut formal legal categorisations. But it would deflate the pressure of irregular migration, empower individuals and remove the incentives for activities, such as smuggling. Another criticism that may be anticipated here is that if political communities did not have the right to protect their members’ shared sense of identity and to constrain the flow of migrants, then they would cease to be communities of character, that is, historically ongoing associations of men and women with a special sense of common life.53 The problem with this argument is that it takes national-statism as its basic premise, thereby regarding community and membership as given. In this respect, it does not examine deeply the processes of community formation and boundary drawing, and allows the ‘particularism of history, membership and culture’ to undermine democratic ideals by failing to subject a particular community’s understanding of itself to a critical normative test.54

53 M. Walzer, Spheres of Justice (New York: Basic Books, 1983). 54 T. Kostakopoulou, “Is There an Alternative to Schengenland?” (1998) 46 Political

Studies 886.

54

Irregular Migration and Migration Theory Focal territoriality would also induce a different treatment of irregular migrants and assessment of their claims to civic and political inclusion.55 The present law-enforcement approach to irregular migration is underpinned by the belief that making the settlement of irregular migrants as undesirable as possible ‘will drive illegal aliens out of the country’ and will deter prospective entrants from coming. However, the deterrence thesis reflects more accurately the assumptions of those who operate in terms of the restrictive paradigm of migration control, rather than empirical reality.56 Questioning these assumptions leads us to reflect on and assess the costs entailed by policies of internal control, such as the stepping up of identity checks, the use of biometric technology, the exclusion of irregular migrants from social rights, denial of access of the children of irregular migrants to schools and universities, the imposition of an obligation on employers to check the employment eligibility of new hires and the imposition of sanctions (criminal and/or administrative) on those who hire unauthorised workers. Such policies tend to reinforce ascriptive definitions of membership and to undermine democratic commitments. Indeed, the insertion of undocumented migrants into the social fabric of a community due to their economic engagement and/or familial obligations calls for a paradigm shift from the model of governmental restraint to a horizontal, participation model. If a migration programme does not have the necessary flexibility to do this, then the destruction of the various webs of social interaction and the shattering of expectations may well increase the power of the state, but it will impact negatively on democratic principles. As argued above, democracy does not necessarily presuppose nationality as the qualifying criterion for participation in the decision-making process, and the individuals’ interests as homeowners, parents, employees, taxpayers, neighbours, local participants and consumers do not differ fundamentally in accordance with their ‘citizen’, ‘resident alien’ or ‘undocumented alien’ status. More importantly, such policies undermine the dignity of undocumented migrants by making objects of policy and of governmental power against which they have very little protection since their illegal status prevents them from voicing their claims as to how they should be treated. Instead of fostering an apprenticeship of democracy, apprehension and removal of undocumented migrants after entry thus sends signals to the public that these people are undesirable thereby fuelling intolerance and xenophobia.

55 For an excellent account of the constitutional status of ‘illegal resident aliens’ in

the USA see R. Rubio-Marin, Immigration as a Democratic Challenge (Cambridge: Cambridge University Press, 2000), 155. 56 Rubio-Marin has noted that it is questionable that exclusion of irregular migrants from social benefits and public service will make illegal entry less alluring, at least as long as the employment opportunities remain available and the desire to join their families remains a very strong motivation, ibid, n. 95, at p. 163.

55

Dora Kostakopoulou An unintended (– albeit foreseen) consequence of the expansion of internal control measures aiming at identifying over-stayers is that they may lead to an increase in racial discrimination. The police have a ‘probable cause’ for stopping and searching individuals without distinction. Similarly, worksite enforcement and employer sanctions have been found to lead to widespread discrimination against members of ethnic minority groups. Employers tend to comply with such legal provisions by hiring only persons born in the country or, worse still, by not hiring persons because of their appearance or accent. This cost is compounded by the fact that data on the impact of employer sanctions on undocumented flows shows that sanctions do not have a lasting effect in reducing undocumented immigration. The Labour Government’s White Paper, Secure Borders, Safe Haven: Integration with Diversity in Modern Britain, acknowledges that employer sanctions ‘have not proven to be an effective deterrent’.57 Limiting the eligibility of undocumented aliens for any publicly funded services assistance except those available on an emergency basis, on the other hand, can also lead to the diminution of the long-term lawfully resident aliens’ access to welfare benefits. All this suggests that a new approach to irregular migration is needed. The present restrictive and law-enforcement model does not only operate in variable, fragmentary and paradoxical ways, but it also tends to reproduce the basic assumptions and conditions that have made it possible. It sets the terms within which the debate on irregular migration is conducted and channels political thought and action in certain directions. In this respect, its functionality is not so much related to the effective handling of the various issues associated with irregular migration, but to providing the justification for migration control and for enforcement arrangements. This can be clearly seen in the latest governmental initiative of ‘ensuring end-to-end credibility’ of a migration and asylum system, which commenced with White Paper, Secure Borders, Safe Haven, the Nationality, Asylum and Immigration Bill and culminated in the Nationality, Immigration and Asylum Act 2002.58 It reflects the governmental priorities of migration management and control, and pragmatically embraces a variety of perspectives which, viewed abstractly, seem inconsistent with one another. For example, although it accepts the economic reality of labour shortages and the need for the UK economy to remain competitive, it continues the political rhetoric of restrictionism that limits the number of economically least desirable migrants to the UK. It acknowledges the benefits of migration and diversity, but does not dispense with the negative view of migration as a problem or generator of social tensions. 57 Home Office, Secure Borders, Safe Haven: Integration with Diversity in Modern Brit-

ain, Cm 5387, February 2002, 5.11 at p. 79. 58 Nationality, Asylum and Immigration Bill 2002 (HL Bill 111); Nationality, Immigra-

tion and Asylum Act 2002 (c. 41).

56

Irregular Migration and Migration Theory In order to break this circle, a radical rethinking of the terms of the debate on migration is needed. There is a need to confront the nationalist frame of reference in all its complexity and in all its dimensions, including the territorial ones, which have been overlooked by the literature. The preceding discussion on focal territoriality provided glimpses of the qualitatively different policies on irregular migration that might emerge if migration policy is uncoupled from the nationalist frame of reference and its territorial underpinnings. As expected, critics will object here that my proposals constitute a far-fetched utopia. However, a deeper examination of these issues might reveal that the only difference between the utopia of focal territoriality and the implemented utopia of combating ‘illegal migration’ by strengthening law-enforcement arrangements and by tightening migration control – measures that are designed to make the regulation of migration impossible, is that power relations have elevated the latter to a hegemonic status.

57

This page intentionally left blank

PART II

PERCEPTIONS OF IRREGULAR MIGRANTS

This page intentionally left blank

Didier Bigo

CRIMINALISATION OF “MIGRANTS”: THE SIDE EFFECT OF THE WILL TO CONTROL THE FRONTIERS AND THE SOVEREIGN ILLUSION

1. ABOUT TIME-SPACE COMPRESSION AND CONTROLS: CHANGES OF MODALITIES OF SURVEILLANCE AND PUNISHMENT The phenomenon of trans-national flows of people has a long history. One only need think of the crusades or the history of Africa to be reminded of this. But these flows seemed to accelerate after the Second World War, and an increasing number of players other than states have appeared on the international scene. This situation can be analysed from the perspective of an objective compression of space and time and the undermining of traditional meanings emanating from the philosophy of the state (security, identity, order, border, stranger etc.). Similarly, this could be described as a bifurcation of the world, a ‘retournement du monde’.1 or as the “retreat of the state”. It can be also analysed as the emergence of a new form of governmentality beyond the territorial state by trans-national bureaucracies and elites.2 Surveillance and punishment change. New logics are at work merging the traditional reinforcement of frontier controls and punishment of the poor, the panopticon technologies which permit proactive approaches of control at a distance, by networks of the professionals of security agencies. The boundaries between economy and polity, between inside and outside are relocated, often beyond the state borders. The state is fading but disciplinarisation

1

2

‘A global turning point’. B. Badie and M-C. Smouts, Le retournement du monde, sociologie de la scène internationale, (Paris: Presses de la FNSP, Dalloz , 1995 , 2e éd., 251). F. Ewald, Histoire de l’État providence, (Paris: livre de poche, 1996); D. Bigo, ‘Les conflits post bipolaires, dynamiques et caractéristiques’, (1992) 8 Cultures & Conflits.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 61-91 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Didier Bigo expands. This is paradoxical only when one confuses the state and politics. If not it is just that the state is no longer the only apparatus which frames the microphysic of power and resistances according to its own boundaries. The spread of capitalist economies throughout the world, the emergence of economic agents with many trans-frontier links in particular from the 1950s/ 1960s, called into question the capacity of states to implement different, or genuinely independent, economic policies.3 The economic field no longer coincides with nations or their frontiers. The models of Adam Smith and Keynes view the economies of nations as units, but wealth is now increasingly disconnected from nations and circulates within cross-border networks (either at the level of production [international firms] or, and especially, of finance [international banks, speculation]).4 Many of the models are composed of multiple and autonomous players seeking the most profitable short term alliance and not absolute power. The markets are now political players with more power than the professionals of politics in the running of political decisions concerning the national economy. But wealth has not, as a consequence, been more evenly spread. Certain zones5 concentrate capital and technology and attract labour – so even if delocalisation of capital is important, freedom of movement of persons is useful to maintain boundaries between rich and poor countries and migratory flows are the results of such a concentration. The dynamic of states and markets reframes the territorial stakes but does not eliminate them. Control is de-linking from national borders but identity and population controls are more important than ever, even if the privatisation of the technologies of some controls create less visibility than before. All the people who want to travel are subject to control. As Zygmunt Baumann explained in “Globalisation, the human consequences”(1998) effectiveness of the freedom of movement makes the difference between the new rich and the others, all those people who are prisoners of the local and cannot benefit from the time space compression of the world. The disconnection between the right to move freely and the possibility to move was perhaps never so high. So many people expect to enjoy freedom of movement, especially after the end of the cold war, and to have the new opportunities they saw associated with the right, but as soon as they want to move without enough money to consume, they are considered a danger, a threat. The framing of the question of migration and control of cross border flows of people is structured towards a “policy of forgetting” in respect of the difference between the freedom –even if light and

3

4 5

62

F. Halliday Islam and the Myth of Confrontation (London: Tauris, London); J. G. Ruggie, “Territoriality and Beyond: Problematizing Modernity in International Relations” (1992) 472 International Organization 139. J-P. Fitoussi, Economie politique, 1996. The European Union, NAFTA, Japan and the new industrialised countries.

Criminalisation of “Migrants” private controls exist – for the rich when they travel, and the heavy and coercive control of the poor who want to flee to another country (even if the idea has yet to be formulated in their minds), by the trans-national bureaucracies of surveillance. The controls need to be different between the rich and the poor and in that sense a global and homogeneous panopticon, or Orwellian situation, has never existed. The controls are always differentiated and sometimes have contradictory effects. They came from multiple technologies and disciplines. Control of cross-border flow of people is associated, for the best or the worst, with economic globalisation, with the process of the international division of labour, and with the economic cycle, although the demand for labour is present even during periods of crisis. And everybody uses the term “trans-national” to speak about the cross-border flow of people, especially migration. But first of all, cross border flow is not reduced to migration. Many other factors have to be taken into account – differential demographic development, internal migration in Third World countries and, especially in the countries which border the European Union or the United Sates, the effects of the diffusion of the ‘Western model’, linguistic policies affecting the major languages – English, French, German – the reinforcement of images through television, the explosion of the number of television channels via satellite, the promotion of the model of ‘market democracy’ to the countries which border the big blocs, the desire by refugees to escape authoritarian state control structures, and violent conflicts. So to present nomadism, mobility of people, like a trans-national or trans-state problem is in some way a narrow picture. It is the picture of the governments, not of the people. Mobility of people increased rapidly during the sixties and, if it is cross-border (immigration, refugees, trans-frontier workers and especially tourism), that involved the states; migrations were scarcely affected by the oil crisis in the mid seventies. They continue afterwards even if they became illegal. So, at that time the problem of controlling effectively a large number of people at the frontiers was posed by the states governed by the rule of law, with prosperous economies.

2. THE CONSTRUCTION OF THE MIGRATION PROBLEM AS A SOLUTION TO CONTROL FREEDOM OF MOVEMENT ? From the beginning of the eighties, politicians of these rich countries analyzed globalisation, mobility of people and what they call migration, not as an opportunity, but as a danger. They accept mobility of capital and mobility of rich people, of consumers in transit, of rich tourists, but they refuse the same “freedom” of movement to the poor people, to the vagabonds, to the people fleeing ecological, economic or political disasters. Markets and politicians construct (im)migration as a political and security problem.6 Even through strong differ6

D. Bigo, ‘Conflit, guerre et territoire’ in Badie B. and Smouts M.C., ‘L’International sans territoire’ (1996) 21, 22 Cultures & Conflits; O. Waever, Concepts of Security

63

Didier Bigo ences exist between the US and Europe, and inside European countries, they always make differences between the high level profile migrants who are considered as welcome and the “others”, the “real” ones, that is the “poor” migrants who are seen often through the lenses of cultural colonialism. Sayad (1998) has shown how we are, as analysts, prisoner of the state thinking concerning the framing of who is a migrant. Migrant is not foreigner. Migrant does not come from “Law”, even if law tries to define it. “Migrant” is a shibboleth, a word which encapsulates the signification of danger. Migration of the poor, and of the people obliged to flee from their own country –that is asylum seekers- is seen as the equivalent of an “invasion”, based on the idea that people coming that way, want to settle definitely in the prosperous economies to benefit from the welfare state. The discourses vary from the left to the right but for a majority of politicians and in the name of “the defence of the society”, they do not take into account the pendular migrations, so important in agriculture for example, and they refuse to understand the long term strategy of the diasporas as semi-settled migrants.7 They analyse society as “one thing”; one “body” and they create confusion between voluntary migrants and forced migration through the notion of economic refugee with the effect to decrease the level of protection given before to the refugees, because everything coming from the outside of the society is potentially a threat. In doing that they hope to show that, even if they do not control capital and information flow, at least they continue to control movement of people. They hope to show that, at least security is “their” thing, their task, that they are responsible in this domain. So, it is not that they don’t know what they are doing. But, they try to legitimate themselves as the representatives of the polity. They try to create a unity by naming a new enemy, a new threat, the migrant. It is a general anonymous political strategy of control and identity.8 The economy of the political discourses are framed in such a way. It is a truth regime which supports all the discussions and disputes between left and right concerning the role of the state and private sector, or the difference between genuine and bogus refugees. It is not at all a plot of some politicians, but the result of the field struggles inside the security and political fields at the western level. We cannot analyse here all the differences between the US formation and the European one as well as the differences on the narratives concerning the role of the migrant towards society. The genealogy differs as well as some of the stakes concerning economy and identity, but the EU situation is not out of touch with the US situation.

7 8

64

(Copenhagen: Institute for Political Science, University of Copenhagen, 1997); J. Huysmans, Contested Community: the EU and the politics of migration (1997). M.O. Heisler, The Transnational Nexus of Security and Migration (IPSA, 1996); J. Cesari, Faut-il avoir peur de l’islam? (Paris: Presses de Sciences Po, 1997). D. Bigo, ‘Nouveaux regards sur les conflits’ in Smouts, M.-C. ‘Perpectives critiques internationales’ (Presses de Sciences Po.1998).

Criminalisation of “Migrants” To simplify, controlling migration became a priority in the public discourses concerning security when politicians were confronted with economic difficulties and urban crisis in the mid-seventies, early eighties. They need a simple and visible “explanation” for the consequences of the side effects of their own policies of the sixties. Some researchers speak of scapegoating of the migrants but it is more a moral stance than a description of effective practices in democracies. In return, we can say that the technology of governmentality, of logic of surveillance and controls was set up in a quite original form with a securisation through insecurisation, or a government by fear/re-insurance where the securisation comes after the “manufacturing of unease”. To say that, is not to say that politicians invent problems, they choose inside all the troubles of a “risk society”, what is and what is not a political problem, a threat for security.9 The construction of the problem is based of course on ‘facts’ and controlling people at frontiers seems to be a basic function which determines most cross-border practices. Security is not only a state affair, it is also a boundary function.10

3. THE TECHNOLOGY OF CONTROL: THE ROLE OF STATE FRONTIERS But, what is exactly the connection between “frontiers” and “immigration control”? At first glance, as John Crowley emphasises ‘this may seem a rather silly question. After all, immigration is most appropriately defined in legal terms as entry into a country, by a non-resident, for the purpose of residence, which obviously involves crossing frontiers or borders’.11 However, looking at the social practices, the border does not in fact have a privileged position in either immigration politics or immigration policy, and furthermore there are strong theoretical reasons not to expect it to. If we avoid the general and normative statements about what a state needs to be, to look at the social practices of control by the different agencies, if we look at the technologies of government, it is another picture we can draw. The reduced significance of the state border is not simply a consequence of freer movement of people. It is rather that differential freedom of movement creates new logics of control that for practical, institutional reasons are located elsewhere (remote policing, policing in networks).12 So “the border in its conventional territorial configuration is thus eroded relatively – and not just absolutely

M.J. Edelman, Pièces et règles du jeu politique, (Paris: Seuil, 1991, 249 (La couleur des idées),Trans. of ‘Constructing the political spectacle’; U. Beck, The Reinvention of Politics (Cambridge: Polity Press, 1996, orig 1993). 10 A. Mathias, Security As Boundary Function (Toronto: IBO, 1997). 11 J. Crowley, “Where Does the State Begin?” in D. Bigo and E. Guild, (eds), forthcoming, (Ashgate, 2004). 12 D. Bigo, supra n. 6 (1996). 9

65

Didier Bigo – as a site of control”.13 The border of the State is less than before, at the symbolic level, a powerful boundary. It involves of course the founding myths of the nation-states whether it is Hobbes’ security pact, Locke’s social contract, the monopoly of legitimate use of force in a given territory, to use Weber’s formula, the different national or nationalist tendencies; to present plural identities as if they were homogeneous and unique, these myths are used to justify the authority of the state. And from that frontiers of states became territorial based codes of obedience in a binary form – one against the other, ones to be protected and ones to be mistrusted, friends and enemies. This Schmittian vision of politics is still used by a lot of political theorists or in International Relations Theory. But the functions of borders change with the regime (political and economical) through time, and against Carl Schmitt we need to say that it is not natural. Frontier functions are not always the same, even when they were traced a long time ago. No small part of the thinking in this area fails to question the permanence of frontiers, instead accepting it as an explanation of the permanence and pertinence of some conservative rhetoric. Further, sometimes they justify the reemergence of this rhetoric. Thus it is important to return to past social practices, to plot the actual changes and to understand why some people refuse to accept the changes. For a long time the enemy – the ‘natural’ enemy – was the territorial neighbour; the frontier served as a protection against the neighbour. The frontier was a “military zone” (more than a barrier even if the term is very often used). State making and war making were linked through this territorialisation of the State and its capacity to differentiate internal and external zones of control. Fortresses were built on the state borders. They can sometimes stop the enemy. But aerial warfare, the disappearance of any distinction between the military frontline and civilian zones, and the development of atomic weapons destroyed this notion. European integration and the Atlantic Alliance have, in the case of France, driven the enemy back from the immediate frontiers. The frontier was no longer a “barrier” it could become a “junction”, a place for exchange. Economic growth, linked to the reduction of the barrier function of the frontier, has been diminishing the plausibility of the security argument concerning the protective function of frontiers. Democratisation and Europeanisation have changed the traditional security vision of the frontier for a more open frontier where economy has priority. The frontier is never ‘natural’ or a matter of physical geography and has never a permanent function. It is always a political process – an institution defining difference with the outside world and attempting, by influencing mentalities, to homogenise the diverse population inside the frontier. It is therefore a political ‘technology’ which records the balance of power at a particular time,

13 D. Bigo, ‘When two become one: internal and societal security’ (Copenhagen: 1997).

66

Criminalisation of “Migrants” and projects it in space. But it is also a political technology which is now under pressure. From this starting point on the significance of frontiers, control and globalisation, this article seeks to analyze the political strategies involving increasing the salience of frontier controls. The symbolism of the frontier as a protection against danger still has appeal, and is frequently used in speeches on security. One can still mobilise populations with the spectre of the ‘nation in danger’. But border practices have changed irrevocably and this change is what will mainly be at stake in the next century. Turning, to concrete examples concerning social practices of controls and of the public rhetoric concerning these controls I will seek to combine some political sociological approaches towards frontiers with some hypotheses from international relations. The themes of frontiers, of security (both internal and external) and of identities are the subject of a large number of studies in history, sociology, political science and international relations.14 But little has been done either using interaction between these fields, or in terms of a general analysis. For example, the theme of identities has been much explored in research on exclusion, but often from a very philosophical or social interactionist perspective. The perceptions of otherness, the relations of otherness, hardship and discrimination and other matters are frequently discussed in this literature but, paradoxically, controls of identity and the production of identity documents (national identity cards, passports, etc.) have been little examined. Few field studies observing control at frontiers or in those urban areas thought by governments to be at risk have been conducted – still fewer have been conducted since the implementation of the Schengen agreements. The contrast between the creation of a free movement area and the tendency towards closure of frontiers will have to be analysed, especially as expressed in specific forms of surveillance. The economic dimension of the flow of persons often restricts the implementation of policies reinforcing security. Beliefs in a climate of insecurity (produced by international disorder, internal difficulties and risks of urban disorder) have the same tendency because the compensatory measures implemented are often considered insufficient. In manipulating notions of frontiers and citizenship, civil servants in charge of implementing free movement often undoubtedly have the impression of treating difficult, but certainly resolvable, technical and organisational questions. But in considering these matters, they are touching on forms of legitimisation, and of symbolic power relating to the political obligation of citizens to the nation states. They call into question relations of authority, obedience and, to some extent, the allocation of resources between citizens and governments. It takes place in a broader framework concerning the birth of a security continuum, and the formation of a transversal and trans-national field of secu14 D. Bigo (1996) supra n. 6; M. Anderson and E. Bort, Boundaries and Identities: the

Eastern Frontier of the EU (Edinburgh: University of Edinburgh Press, 1996).

67

Didier Bigo rity driven by privatisation and technology. This field of security will come to depend on security networks, agreements between countries and security agencies, and even on private companies… it will depend on the reactions from the different social groups with regard to the practical consequences of European citizenship on national life. It will depend on the evolution of the power struggles between the security agencies at a trans-national level where internal and external security is in a process of merging. Some basic questions are obscured by the public rhetoric on sovereignty and frontier control. Where are controls located? If the frontier remains a significant location for controls, Europeanisation has opened the possibility of shifting controls to frontier zones, or so-called high risk areas or areas with a high proportion of foreign residents. How are the controls carried out? What knowledge, what knowhow, what technologies (legal, computer, electronic) are deployed? Which agents are charged with administering controls, according to what criteria? Who is controlled? On what legal basis, and on what practical criteria? Among the persons crossing the frontier, how are nationals distinguished from other EU citizens or from third country nationals? How are some individuals controlled and others allowed to pass unchecked? Why are certain groups controlled more than others? How is an image of ‘risk groups’ constructed? How are the identities constituted which are imposed or assumed by the groups who feel themselves the main targets of controls? Who controls? Which agencies are charged with checking entry documents and with identity controls in the national territory of each European country?

4. EUROPEANISATION AND ITS CONSEQUENCES FOR CRIMINALISATION OF MIGRANTS Immigration, as well as tourism, cross-border circulation and all kinds of nomadic behaviour, seem to undermine classic conceptions of state capacity to govern. Even security is now a place where the state is in retreat. Susan Strange has made a mistake in believing that, by difference with wealth credit and information, security continues to be in the hands of the state. Security is affected by the same movement as other structures. But the retreat of the state does not result in less control than before nor is it the triumph of anarchy. As John Torpey explained “modern states, and the international state system of which they are a part, have expropriated from individuals and private entities the legitimate means of movement particularly though by no means exclusively, across international boundaries. An understanding of the processes whereby states monopolized the legitimate means of movement is thus crucial to an adequate comprehension of how modern states actually work”.15 Torpey insists on the fact that states claim

15 J. Torpey, Coming and Going (APSA, 1996).

68

Criminalisation of “Migrants” the “right” to control and not the obligation to control everybody. Patrick Weil has shown that more and more controls are now done at the frontiers if we compare with the period of the sixties where they were said to be systematic.16 But in a way the state is in danger. It cannot implement what it pretends to do, the control of movement. In everyday life, people disobey the state’s will to control. And from that, contradictions between liberal, economic, political and security logics become apparent and possible to resolve. Free movement of people cannot be managed in the same way as goods and services, even if liberalism refuses to make a difference. Security and economic priorities do not coincide and when economy needs men, security arguments continue in public discourses but are not implemented very far.17 Markets win. Contradictions are highlighted by, on the one hand, a discourse about ‘immigration control’ while, on the other hand, by the practical strengthening of the bonds between the cross-border activities of countries of the European Union. As Christian Lequesne and Andy Smith have shown, the nation state seems destined to change – and Europe looks like a confused attempt to find a post-national, post-state form of governmentality where a trans-nationalisation of the bureaucratic systems of control correspond to (or even anticipate) the trans-national flows.18 So, if trans-nationality is blurring the distinction between internal and external, destabilizing the related concepts of sovereignty, territoriality and security,19 the governments play also with the trans-national to continue to hold power. The traditional form of the state is certainly changing because the traditional controls over the governed are changing. But this does not signify that they “lose” power, on the contrary. Executive powers are more and more in evidence and are more and more in networks. Bureaucracies of control of the western world are more connected than ever. Those who lose power are the representatives and the people. The claims for sovereignty always mask this new distribution of power. It masks also the extension of the boundaries of power beyond the state borders. It is true that sovereignty must adjust to the processes of European construction and economic globalisation. But in the process it becomes apparent that the border is not essential. The notion of borders is giving way to that of fronts and indeterminate zones without changing the capacity of the governing to govern. Where are the checkpoints for the French and Belgian borders? On their physical borders which are now essentially nothing more than internal 16 P. Weil, Patrick, La France et ses étrangers (Paris: 1991). 17 See the essays by Mike King, Anastasia Tsoukala, Ayse Ceyhan in Cultures & Con-

flits (1997). 18 See Lequesne in Cultures & Conflits (1997). 19 B. Badie, La fin des territoires, Essai sur le désordre international et l’utilité sociale du

respect (Paris: Fayard, 1995); Y. Lapid, Identities, Borders, Orders: new cartographies for security studies (Toronto: 1997).

69

Didier Bigo European borders? On the external Schengen borders (which include some countries such as Norway and Iceland that are not Union members) or on the Union borders? The discussion seems central but in some way it is subordinate to another one which is: where are the locus of controls and surveillance inside the trans-national field of security20 where the state really starts? Where the state embraces the society?21 Looking at the first question informs the second one, but the second question is the main issue. The loci of control are now simultaneously at the European level and at the local one. The target is not the foreigner but people who look like migrants, extra communautaire. They are under surveillance not only at the border but from their country of origin and after the crossing of the border they will continue to be subject to some subtle forms of surveillance if they have the chance not to be rejected. But the efficiency of these controls is not so high. They cannot block the flow of circulation of people and services without damaging the economy. (Im)migration is often regarded as synonymous with the cross-border flow of people, but some phenomena creating these flows are often forgotten, in particular tourism. In the sixties, immigrants were thought of as workers who would return home – ‘long-term tourists’ beneficial to the economy, working in a country where they were welcome, although brought up in another. With economic crisis, a new discourse on immigration emerged. One image – the single migrant worker – is replaced by another – the permanently resident immigrant family. In France, Republican values were immediately contrasted with Islamic values, and marginality, immigration and crime were linked: a negative relationship assumed between immigration, unemployment, family and social benefits. The immigrant, considered beneficial in a period of economic growth, acquires a negative image during economic recession, ruining the welfare state by fraudulently claiming social security benefits and unemployment benefits,22 clandestine workers, entering the country illegally or staying longer than allowed, breaking the law without regard to the consequences of their actions. The image of the immigrant merges into that of the unemployed, the thief, the smuggler and the criminal – an image used by parties of the extreme right.23 The immigrant is the one who is different, who has other customs, and some formulas where immigration was seen as a threat to a national identity of the nation endorse this vision of the migrant as a virtual enemy, as an enemy within. And we can see that it is not the fact to cross the border, to be an alien which is at stake. White Americans 20 D. Bigo, ‘L’europe de la sécurité intérieure: penser autrement la sécurité’ in Le Gloan-

nec Anne Marie Entre Union et Nations: l’Etat en Europe (Paris: Presses de Sciences Po, 1998), 296. 21 Torpey 1998, supra n. 15. 22 Cessari supra n. 7.; A. Ceyhan Ayse, Migrants As a Threat: A Comparative Analysis of Securitarian Rhetoric in France and in the US (Toronto: 1997). 23 D. Bigo, L’europe des polices et de la sécurité intérieure (Bruxelles: Complexe, 1993).

70

Criminalisation of “Migrants” crossing European borders disturb less than an Englishman of Pakistani origin or a French citizen of North African origin who just wants to leave in his own country. The debate on immigration becomes ‘taboo’ because public figures were afraid to discuss it for fear of helping to promote the views of the Front National, but they succeed to the contrary because they create a link between race, migration and European citizenship by the distinction of “intra and extra communautaire”. Connected with institutional practices of racism by some security agencies,24 the uncertainty about the boundaries of citizenship, of the inside and the outside reinforce security arguments and explain why a part of the “left” just abandoned its values and became a supporter of reinforced national controls and surveillance of the migrants already in the country, even if they say that the controls need to remain “humane”. The delocalisation of the control from the national border to another locus (the so-called external European border) justifies practices of control inside of any place where migrants or minorities live. Since other countries, such as Germany and the Netherlands, have relatively similar situations, it was tempting to transfer the question of immigration to the European Union arena. But immigration policies and nationality entitlement cannot easily be standardised; they remain different because political interests, as well as countries of origins of the migrants, are too diverse. However, with the negotiation of bilateral agreements (commencing in the 1980s), the establishment of an ad hoc European immigration group (1986), the signing of the Schengen agreement (1985 and 1990), with the Palma document (1989) and the Dublin Convention (1990), with the Third Pillar of the Maastricht Treaty (1992), and of Amsterdam (1997), the countries of the European Union embarked on a course of transforming immigration from a political question to a ‘technical one’, by presenting it as a matter of security technology.25 This move was possible for different reasons but the main reason at the political level was the involuntary connection between discourses on freedom of movement and fears of immigrants. In the eighties, the reduction of frontiers as barriers (tariff/customs barriers) and the principle of free movement was directed to create a dynamic opening up of European societies. But, in the event, due to world recession, all the rich countries tended to take a tough stance on the migration of people, contrary to the Union’s aspiration to encourage the free movement of people, initially for European nationals but with an inevitable widening to others, in the absence of practical and legitimate criteria for discrimination. If we look closely to the texts which were at the beginning of these, discourses linking security and freedom of movement of people inside Europe, we can see that the White Paper of the European Commission on the Single Market had as its theme the abolition of barriers, and created anxieties among those whose jobs depend upon 24 J. Solomos, and L. Back, Racism and Society (London: Macmillan, 1996). 25 D. Bigo (1996) supra n. 6.

71

Didier Bigo controls at frontiers (e.g. customs officers and border police). If the part of the White Paper on free movement was generous (and in the spirit of the founders of the Union) it also explained that protection against drugs and terrorism necessitated new forms of control and created at that time the idea to compensate a security deficit.26 The distinction between an internal and external frontier of the Union was born. Differences over this distinction continue of course, in particular between continental Europe and the British; the latter refuse to lose the right to ‘insularity’ and assert that they will maintain control at frontiers, as ‘an essential element in the fight against crime and immigration’. Among the Schengen countries, varying interpretations of the agreements make for significant differences in frontier controls, exemplified by the situation in the Netherlands and Italy. Change in the global situation in the 1990s has caused further problems for the straightforward and generous idea of free internal movement with the controls pushed back to the external frontiers of the Union. Now, with the envisaged enlargement of the EU, it is uncertain which countries remain outside the Union and for how long. The uncertainty about the borders of the EU plays a major role about feelings of fear among the population but it creates also the capacity for governments to manufacturing unease and to use it as a technology of domination where the control of some people is more important than the control of the territory at the borders.

5. UNCERTAIN EUROPEAN FRONTIERS: AN OPPORTUNITY FOR A NEW TECHNOLOGY OF CONTROL OVER THE “POOR” The territorial framework of the European Union is not stable. On the contrary, it is undergoing a profound transformation. Union members are not in agreement on policy, not even in the harmonisation of policy on frontiers and frontier control techniques. But 80 per cent of ‘illegal’ immigration is due to overstaying tourist visas, while only 20 per cent result from illegal frontier crossing. Agreements are exclusively concerned with short stay visitors and even on this issue the British are firmly committed to a different position. Denmark was in an uncomfortable position between the Union and the Nordic Union in the Europe of the Twelve. The expansion of EU members to fifteen in 1995 introduced another complicated situation by isolating Norway as a non-member of the European Union but still within the Nordic free movement zone. The EU expansion projects favoured by the Germans and others in the IGC pose even more questions: membership of Poland, Slovenia and the Czech Republic would push back the EU frontiers a long way East. Internal migration problems would become as great as external ones. Would Schengen be ‘an EU internal security cordon between the most developed countries and the others – inside the EU?

26 D. Bigo (1996) ibid.

72

Criminalisation of “Migrants” Paul Masson from the French Senate Commission in his last report envisages this role for Schengen much more than the introduction of European citizenship and free movement. New fears are involved with the arrival on the agenda of Turkey’s admission inside the EU. The instability of the framework, of the Union’s exterior, is not simply geographic, it is more and more the instability of ‘different Europes’, differentiated according to policing areas. The single currency would not include the same countries as defence which would again be different to the ‘home affairs’ Europe. If there are as many Europes as pillars, this makes the task of defining frontiers very difficult. The maps of these different Europes are analogous to the maps of the Holy Roman Empire, with micro-states and overlapping jurisdictions. The geography of free movement will not follow the Union boundaries and state-controlled territoriality cannot be managed as before. To understand the relationship between flows of people and territories, we must return to concrete practices and the thinking which informs them. What is at stake is inherently symbolic and involves our conception of the state. The European Union is built on fears of imaginary enemies. It has analogies with processes of state formation, and states built on strong identities, on conflict and enmities, play a part in building the European Union. This explains the heated controversies over immigration control (while there are none on tourism or cross-border activity), and it explains the distinction between community and non-community. Above all, it explains a focus on erroneous assumptions, such as that it would be possible, if the political will existed, to control systematically foreigners at frontiers while allowing the citizens of the Union to cross freely.

6. THE RHETORIC OF ‘SIEVE’ EUROPE AND ‘FORTRESS EUROPE’ A lot of people, especially in the media, now demand a reinforced barrier role for the state borders against migrants in the name of nationalism. They use rhetoric from the nineteenth century to the effect that borders function as bottlenecks, that they constitute or need to constitute barriers. They believe “that the idea of belonging which is at the root of the concept of citizenship is threatened when people cross borders, leaving spaces where they “belong” and entering those where they do not”.27 And the debate, at the public policy level, is not yet finished concerning migration and citizenship. So, the “political spectacle” is full of arguments for or against border controls, even if everybody knows that it is impossible to seal the borders in Europe.28

27 Torpey, supra n. 15. 28 D. Bigo, Monde Diplomatique Oct 1996.

73

Didier Bigo (a)

Sieve Europe

The content of the public debate in France, but also in other countries, is conditioned by the way its terms are established: in this case, the terms took the form of a confrontation between those who found the content of the agreements insufficient (sieve Europe/Europe passoire) and those who found them excessive (fortress Europe/Europe forteresse). The terminology sieve Europe is not well known in Anglo/American literature because they use the same formula “fortress Europe” to describe the discourses for more controls and the discourses against this reinforcement of controls. But it was because English people were excluded from the first debates concerning Schengen. From the documents of Schengen in 1985 and 1990, and from the analysis of all the intermediary stages of the intergovernmental discussions, we can see that a strong opposition was set up between the people who want more controls at the borders because they fear a security deficit and the people who believe that it was possible to remove the controls at the national borders. The first ones speak immediately of a sieve Europe where criminals, mafiosi, immigrants will come freely. The success of this discourse was immediately important inside all the administrations. We have analyzed in other works the reason of this success explaining that there is nothing necessary about its triumph.29 It came mainly from the fears of the professionals of internal security to loose their jobs, and their influence as a lobby. It is not a more realistic discourse than the fortress Europe discourse but it benefits from the legitimacy of the people who enounce it. It became the actual basis of legal provisions of the most recent texts and converted an extremist rhetoric into a symbolic power engaging the authority of the State. The change of paradigm which came about with the end of the security/ freedom opposition to the benefits of a debate on free movement and the necessary compensatory security. The principle of free movement went largely unnoticed, due to the tensions which arose, not between those advocating total freedom of movement and those wanting safeguard measures or compensation, but between those who accepted the principle of free movement and extension of border controls beyond the limits of their own sovereignty (which implies a minimal confidence in principle of free movement countries) and those which totally refused to give up controls. The British, immediately, affirmed that they would maintain border checks, which in their view constituted an “essential element in the fight against criminality and immigration” and refused to give up the “privilege” of their insularity. This ‘ultra’ position allowed partisans advocating border control reductions for reasons of economic prosperity and increase in the trans-border traffic especially, and to a lesser extent for implementing the principle of free movement, to present the compensatory measures position

29 D. Bigo (1996) supra n 6.

74

Criminalisation of “Migrants” as progressive, reasonable and positioned at the right level. The pro-Schengen group, comprised of the Belgian, Dutch, Luxembourg, German and French governments, could thus, according to the moment, insist either on free movement or compensatory measures, as the international enclosures, and opinion trends allowed. The structuring of the debate by the media as a conflict between the British and European progressives for Schengen which was occurring at the arrow head of the European Union configuration, was extremely successful. It masks that the debate was by no means a question of disagreement with the British about control objectives but instead a divergence between European governments concerning the means, technologies, and the credibility of police co-operation. The idea of free movement becomes a pretext, a justification for security measures and measures to fight against clandestine immigration and fraud asylum cases. During five years nothing came out in the media, even if most of the more important decisions were set up at that time (especially the Palma document 1988). It is only when the Schengen agreement was obliged to be ratified by the Parliament that public opinion knew a little bit about these agreements. The discussion was only important in France and Nederlands where the Parliaments discussed more the opportunity of these agreements.30 But in France the public debate was largely connected with the positioning towards the themes of the Front National and it explained why this notion of sieve Europe became so popular. By reading only the main article in Schengen on free movement (article 2.1) without reading the other articles, some of those on the right (not only the far one) accused Schengen and Maastricht of increasing the risk of international criminality and immigration. In France, Pierre Mazeaud emphasised in the National Assembly the risks of an influx of immigrants from Central Europe and Africa by, for example, taking advantage of the breach in Schengen external frontiers created by the German-Austrian agreement allowing East Europeans to enter Germany and from there to go to other EU countries. Immigration from the Maghreb could happen, Mazeaud alleged, through Italy or Spain whose lax frontier controls are notorious. Europe will be destabilised, argued Francois d’Aubert, by the infiltration of the Italian mafia into France; drugs will come from the Netherlands, argued Gerard Larcher; Turkish immigrants, asserted Charles Pasqua, a theme later taken up by Jean-Louis Debre, driven out from Germany by the arrival of the East European immigrants, will invade France. Based upon forecasts by Lesourne and Chesnais of potential immigration from the Maghreb countries into Europe in the next millennium, some members of Parliament now in government spoke of ‘an immigration explosion from the Maghreb countries’.

30 L. Van Outrive, Renault G. Vanderborght J., ‘La collaboration policière en Europe’,

Déviances et sociétés, vol. 20, n° 2, juin 1996.

75

Didier Bigo The argument is often founded on invasion and inassimilability. It raises identity questions in an essentialist manner and opposes block against block, cultures and civilizations whose values are seen as antagonistic. It claims at the same time that the globalisation and the unequal distribution of wealth in the world push the poor to emigrate towards the prosperous countries and to remain there. It considers that this presence ruins the national homogeneity, splits up the nation and puts the security of the State in danger. It thus sees immigration as a simultaneous attack on the security of society, because it affects coherence of national identity, and on State security, because it favours terrorism, drug trafficking, urban riots, and delinquency. Some people reject this argument of inassimilability. Immigrants can be assimilated. They can be integrated under specific conditions: through a loyalty statement to the host country, socialization through language, institutions (schools, army...), work, duration of their relation to the country. This argument is strongly structured by the idea of Sovereignty and the relationship with the Law. The Republic needs to be a strong regime. The borders need to be controlled by the national state only. Debré but also Chevènement are not so far from this nationalist position and fears of Europe opening. A third argument was made at the limits of sieve Europe and succeeded to a greater degree than the two others which were too extremist. It is indeed necessary to block clandestine immigrants, but the best strategy is to control them at the borders of the Community, through European police cooperation. It could ensure some free movement of people and goods but a freedom under surveillance. Paul Masson, President of the Schengen Control Commission in the French Senate says: ‘Each weakness, each act of clumsiness in implementing the agreements (of Schengen) will lead, I am sure, to many French people contesting the idea of Europe itself which would become for them a Europe of insecurity and dubious activities.’ Xavier de Villepin and Masson particularly emphasised both the limited but recurrent problems of refugees from conflicts such as Yugoslavia and the necessity for ‘burden sharing’. They noted: ‘It is likely that the abolition of controls at internal frontiers will be interpreted as a signal to all the poverty-stricken of the world, in particular those in the South and the East’ – reviving the spectre of an immigration invasion and, in a manner repeated by some members of the European Parliament, justifying their position by the necessity of firmness now in order to avoid the need to be repressive later. They ended their plea: ‘neither fortress Europe nor sieve Europe, the Europe of the Schengen agreement, must be a Europe of freedom because it must be a Europe of firmness.’ If one analyzes the reports of the French Parliament on immigration, the police, the city, immigrants’ foyers, Schengen agreements; if one looks at law implementation directives; if one analyzes the few available documents concerning the Trevi Groups and then the Third Pillar, one always finds a mix of these three arguments. They do not strictly correspond to political tendencies 76

Criminalisation of “Migrants” or bureaucratic positions. But they all ask for new technologies and new loci of controls in addition to, or in replacement of, internal border controls. They all ask for more visa requirements in the name of prevention of terrorism, and the right of rejection without reasons, the computerisation of consulates, the harmonisation of Schengen procedures, penalties on airline companies. They ask for police cooperation with the establishment of a frontier zone (a zone of 20 km as in Schengen with joint police stations) and through SIS, Interpol and Europol. Since people are still getting inside, because it is too difficult to seal the borders, it is argued that illegal immigrants already in the country must be located, marriages of convenience prevented, people pretending to be students or tourists identified, and search and detection of illegal immigrants facilitated by checks in schools, social security offices, workplaces, and places of residences. The welfare agencies become the places where to check the people. Whatever variant forms it may have, the discourse on sieve Europe and the securitisation of immigration is based on debatable beliefs concerning a certain reading of History (as a permanent war between people, civilizations, races), the relationship between man and the territory (feeling of ownership of the first occupant and fear of invasion), the mechanism of constitution of identities (which would presuppose the existence of an enemy to structure a “we”), the secularisation of law (positive law, not natural law) and State prerogatives (State reason just as much as sovereignty, pre-eminence of national interest over all other criteria) administrations’ border control capacities (control of migratory flows, fight against illegal entries, discovering frauds and misuse of procedures). It also relies upon statistics from administrations with security responsibilities alone (constitution of statistics on immigration and delinquency, irregular foreigners and unemployment). It is the doxa of almost all police and customs officers and considerable politicians, which give it an authoritative character, a strong social legitimacy on which the media in particular television, largely rely. It is a discursive formation sufficiently large to provide many variants and to give to the social actors the impression that they are very different, even though all these actors are prisoners of the maximalist statements emanating from the extreme right wing parties because they are positioning themselves in front of these statements.31 The theory of the “écarts distinctifs”. Following this vision new legislation in France introduced by Pasqua, Debré and even Chevènement have created and reinforced a category of unauthorized persons who are not strictly illegal immigrants and who have been living in France for many years: the so called “sans papiers” (undocumented). The legal position of every person of foreign origin thus becomes a matter of permanent suspicion. Immigration control has become analogous with enemy infiltration, against which we have to be protected by systematic control at frontiers or else-

31 P. Bourdieu Pierre, La distinction (Paris: Ed. De Minuit, 1979).

77

Didier Bigo where, by a sort of electronic Maginot line. The actual Minister of Interior JP Chevènement has tried, first, to avoid this suspicion, and the law for the sans papiers and for the asylum seekers was changed but the practices of the agencies are not so far from the right period and the Minister now justifies them. In the name of laicity and moral order, Islam continues to be seen as a threat in general. Illegality, even created by the state itself, is seen as a reason to be expelled. Youth is seen in the suburbs as people without morality, without a sense of justice and fairness. The idea that urban violence could come from a sense of injustice and not from the opposite is flatly rejected. More than ten years of hearing the same story from the media, right wing parties and some politicians of the left, as well as a lot of people inside the security agencies have created a “structuration” of the present time.32 This discourse does not need to be explained. It is seen as evidence, as a truth (in the Foucault sense). This form of rhetoric is not confined to France – it closely corresponds to the discourse of German, Belgian and even Dutch conservatives. Political milieux throughout the EU share a belief that controls at external frontiers must be seriously reinforced, and that the co-operation between frontier police forces is necessary to avoid the growth in crime and to support the policy of ‘controlling immigration’. (b)

Fear of Reinforced Controls: ‘Fortress Europe’

Humanitarian associations rejected the idea of sieve Europe since they saw reinforced controls and new levels of policing as involving a harmonisation by the Fifteen at the most repressive end of the spectrum. In France, Amnesty, the League of Human Rights, France Terre d’Asile (pro-asylum organisation) criticise Schengen, stressing the risks of attacking the right of asylum and providing reminders that this is contrary to the Geneva Convention. These associations managed to include the right of the UNHCR to examine the articles concerning asylum. Although the UNHCR denounced risks of ‘compensatory measures’, and accused Europe of withdrawing into itself, forgetting its duty to asylum seekers, they accepted compensatory measures as ‘a necessary evil’. Their fight has consisted of a rearguard action to introduce ‘safety clauses’ of a judicial nature for countries where, in the name of effectiveness and speed, governments relied upon administrative procedures for dealing with asylum cases. From the beginning, it is necessary to note the delay of the ‘Fortress Europe’ discourse formulation if we compare with the security discourse of sieve Europe. It is only at the time of the first public debates, thus towards

32 A. Giddens, The Nation State and Violence (Cambridge: Cambridge Polity Press,

1985, 1987 in French).

78

Criminalisation of “Migrants” the end of 1980’s that this discourse starts to oppose the discourse on border securisation and immigration and with the theses on the necessary securitization of sieve Europe. The Mouvement contre le Racisme, l’Antisemitisme et pour l’Amitié entre les Peuples (anti-racist and peace movement) as well as the Groupe d’Information et de Soutien aux Travailleurs Immigrés (information and support group for the immigrant workers) argued that the logic of Schengen was anti-democratic not in 1985 or 1990 but when it was applied in 1995. They are among the few in France to make the link between the control of foreigners at frontiers and the situation of immigrants already in the country, seeing a possible drift from control to racial prejudice. But they have a small audience and give the impression that they are swimming against the tide; since the trend towards closure is unanimous at the level of the Fifteen, they seem to regard it as ‘inescapable’. Although perhaps isolated, these associations are not alone in adopting the discourse on ‘Fortress Europe’. The European Parliament accepted aspects of it, in particular in a Resolution of June 1987. It subsequently became less polemical and complained only about ‘lack of democracy’, arguing primarily for reinforcing its own powers rather than for a change of policy. Governments of third countries (especially in the Maghreb and Central Europe) interpreted as directed against them the Schengen and Maastricht tightening of police controls on immigrants and refugees. They pressured the governments of the EC into contorted statements on emphasising international co-operation with countries bordering the EU. Countries of origin of immigrants introduced into discussions with the EU on economic development to remove causes of migration and to support their efforts to eradicate drug transit and production. At the rhetorical level, the European Council made repeated statements on the risks of the creation of ‘Fortress Europe’. Some officials consider the image of Europe abroad is already affected by anti-immigration measures and by the statements about ‘immigration invasion’. This offends neighbouring countries and the other nationalities living within the whole European Union and reinforces their belief that Europeans refuse to accept the fact that resident non-Europeans are different. But, if one summarizes the reasons for the weakness of this discourse formation of ‘Fortress Europe’, it is due to their weak presentation by their promoters, and also to historical chance which plays a part in the game. The end of bipolarity is described as undermining the discourse on the stable environment of Europe. The projects of free movement and citizenship would be blocked by the “preliminary” question of the European identity and the borders of the Union. The promotion of free circulation of people and goods will no longer be able to be considered as one and same freedom. In the other countries, human rights associations faced the same difficulties. Statewatch in England published a disturbing report on the state of civil liberties in Europe. The debate on ‘Fortress Europe’ went further in the Scandina79

Didier Bigo vian countries and included arguments to the effect that the opening of internal frontiers modified democratic practices by strengthening controls at external frontiers, by reinforcing controls over foreign populations already in the European Union, by increasing identity checks to locate illegal immigrants, and by toughening the conditions to obtain asylum. Academics mobilized themselves alongside the associations. Particularly strong criticisms on the securisation of immigration questions were made in the Scandinavian countries. Conferences took place in Denmark, in Switzerland, in Belgium and in the Netherlands. Networks were constituted, including via internet. Electronic reviews and newspapers circulated. An axis of resistance to the dominant discourses in Germany, France and the United Kingdom was established by those coming from Northern Europe and the Netherlands. From 1995, one notes a slight transformation in power struggles. Little by little, secrecy surrounding the measures is lifted and one especially criticizes the fact that they were made in secret. The public servants of the various countries taking part in the meetings of the third pillar are all accused of being “eurocrats”, even though at the same time, they often oppose the Members of the European Commission and consider themselves above all as national public servants. The Treaty of Amsterdam instigated new power relations by forcing the de-inking of immigration and asylum questions and questions of organized crime, even if the hopes of the NGOs concerning more transparency and democracy inside the third pillar were not realized. The defeat of conservative governments in France and the United Kingdom changed partly the situation. As in the case of the sieve Europe discourse, various arguments structuring the discourse on Fortress Europe can be distinguished. The first one concerns an appraisal of difference and diversity as mutually enriching. It is based on a certain cosmopolitanism, a metes ethic and an ideology of a world without borders between humans. Through the media, Daniel Cohn Bendit became the main voice of this cosmopolitan conception. Paradoxically, it is hard to find such a conception in European NGOs, except in some Scandinavian countries, but it is as such that many American academics interpreted the ‘Fortress Europe’ discourse. The second argument is founded in a Grotian conception of life in society and with the idea of multiculturalism. Borders exist between human beings, and even inside the States, between the basic communities. The boundaries between the latter are central, not the others. So migratory flows must then be fixed according to a quota system which respects the equilibrium in the host countries. This discourse often emanates from humanitarian, cultural associations or from immigrant associations themselves. It is found significantly in the Benelux countries and the United Kingdom, but very marginally in France with S.O.S racism. The third argument is based upon the defence of civil laws and freedoms. The measures taken to securitize immigration insecuritize all the citizens, encourage racism, endanger the rule of States, and even evoke Fascism. Briefly, in the discourse of ‘Fortress Europe’, one accuses politicians (and 80

Criminalisation of “Migrants” sometimes also public servants in Brussels) of being responsible for racism and for transforming it into institutional racism by security laws which criminalise immigration and transform asylum seekers into defrauders and economic refugees. Thus, this discursive formation is built on a mirror fear, a fear of a revival of racism, of the re-birth of fascism. This fear overestimates the danger to freedom, forgetting that, statistically, few of the rejected asylum seekers are in any event escorted back to the frontier; overburdened police officers have the feeling it is them who are swimming against the tide. Tough policies recommended in the reports are not put into practice. This leads to a central paradox which is at the heart of this reflection. This paradox which the discourse on ‘Fortress Europe’ has become caught up in and has to be “believed” by governments when they evoked their capacity to control, and to have evoked all the dangers of such controls without being sure of their effectiveness. They consider the rationality of governmental projects but not the rationality of control agencies. In this sense, the discourse on ‘Fortress Europe’ is itself a propaganda discourse more than a description of the effective social practices. It is purely a reaction to the discourse on sieve Europe. So the Fortress Europe discourse does perhaps describe a governmental ideology, or even a political strategy of certain bureaucratic groups who are particularly cynical and “ready to do anything” in the name of “national interest”, but it does not truly describe generalized social practices. Thus, even if it seems to be in opposition with almost all the elements of the sieve Europe discourse, the two discourses of ‘Fortress Europe’ and sieve Europe are paradoxically founded on the same presupposition: if one has the political will, one can close the borders or at least control foreigners who want to enter inside the territory.

7. FALSE PRESCRIPTION: MAINTENANCE OF SYSTEMATIC FRONTIER CONTROLS The discourse of ‘firmness’ and the discourse of ‘anti-racism’ reflected a belief that governments can close the frontiers if they so decide or, at a minimum, they can control the foreigners entering their territory. There is an additional assumption that the legal rules have a practical application and thus change significantly cross-border flows. But one can legitimately ask two questions. Does anyone have a clear picture of cross-border flow of persons and the methods of control? What are the practical implications of tight control of foreign populations for economic prosperity and free movement of goods and services, civil liberties and liberal values? Demands are made that the law be rigorously enforced even though the laws are based on erroneous assumptions about social practices. There is a desire to make reality conform to political objectives, and hopes are expressed that new governments, unlike old ones, are going to ‘halt crime’, ‘declare war on drugs’, ‘eradicate terrorism’, ‘control immigration’. In respect of frontier controls, poli81

Didier Bigo ticians are not ready to accept publicly that governmental autonomy is reduced by economic interdependence (bolstered by speeches on deregulation and the benefits of international trade). They cling to the dogma of sovereignty and turn security policies into a central political issue to regain some credibility. The immigrant becomes a political opponent of all security professionals who feel personally insulted that he or she has managed to cross the frontier. But even by co-ordinating their practices, harmonising policies (bilateral agreements of police co-operation and readmission agreements between the main countries of the Union, the Maghreb, Central and Eastern Europe, the multilateral agreements of Schengen, the Trevi action programme, the complicated architecture of the Third Pillar of Maastricht), they are not able to control immigrants. This is because the public policies with regard to security and immigration are ‘symbolic’. Immigration depends upon millions of decisions which cannot be totally regulated by the governments, without closing the frontiers. A ‘double bind’ is created: by deciding to control immigration completely and by aspiring to total security, we put at risk economic prosperity and political liberties associated with open societies so that the solution to immigration becomes worse than the problem. To fight against the illness, the patient has to be killed. As Patrick Weil says the problem is, ‘not simply the results would be unsatisfactory, but there is a contradiction between the presentation of the objectives and the implementation of policies’. The structural separation between the security rhetoric and concrete measures is not due to a lack of political will to implement declarations but is explained by cynicism – it is fully understood that declarations cannot be implemented, but speeches continue to be made in the name of State security and for electoral purposes – to influence part of the electorate defined as xenophobic. They are grounded on the fact that “not to belong is to be constantly vulnerable to the accusation of trespass – even when in legalistic terms it is utterly groundless”. The strategies against the migrants are for some bureaucratic “elites”, not to seal effectively the state borders, but to create new social and electronic boundaries targeting specific peoples whilst a majority continue to live in freedom.33 In the name of ‘realism’, denunciation of immigration is deemed to have a dissuasive effect – the flood of immigrants will be slowed by declaring they are not wanted. Transferring questions of immigration to the European level to avoid discussing them, only amplifies feelings of unease, especially when European statements replicate national declarations and are based on the same ‘myth’ of control. As long as the problem is viewed at the European level as a problem of immigration control, and analyzed almost exclusively on the basis of the notion of ‘control’, this prevents a wider economic, social or cultural under-

33 D. Bigo (1996), supra n. 6.

82

Criminalisation of “Migrants” standing of the issues. No overall response to immigration can emerge. The main European fora on immigration are the ad hoc group on immigration set up by the Ministers of the Interior and of Justice and two dependent bodies: the Centre d’Information et de Reflexion et d’Echange sur l’Asile (Information and Exchange Centre for Asylum) and the Centre d’Information et de Reflexion et d’Echange sur les Frontières et l’Immigration (Information and Exchange Centre for Frontiers and Immigration). These have investigated all the legal methods of stopping migrants and asylum seekers by a strict interpretation of the texts and adding of new techniques based on dissuasion, control and surveillance. The criminalisation of certain groups (immigrants, asylum seekers, diaspora, the descendants of immigrants... and eventually the tourists?) who, for one reason or another, cross the frontiers, seemed to some a temporary stop gap solution before controls could effectively be extended. But this latter strategy could contribute, through a security discourse, to the creation of real insecurity by a self-fulfilling prophecy that these groups are prone to criminality. A security strategy which acts as a substitute for political debate has undesirable consequences and, in this case, its basic assumptions are erroneous. Nevertheless it is increasingly important and undermines the legitimate role of European police co-operation in the field of crime prevention; police officers can thus be the victims of this strategy. Immigration control in Europe cannot continue as if it were possible to prevent those people (not as many as commonly supposed) who are ready to uproot themselves from trying their luck elsewhere. Controls can only be effective if they are based on an accurate understanding of realities, and when policy is adjusted to these realities by devices such as targeted help to some countries of the Third World, allowing legal immigration (with or without quotas) and repression of illegal employment. At the moment, illegal immigrants are surreptitiously absorbed by employers turning a blind eye. Many employers are discreet in commenting on illegal immigrants and security, in contrast to the media message that immigration is controlled by dramatic actions such as sending back scores of illegal immigrants in chartered planes. A labour force, liable to be ruthlessly exploited because they are illegal, nonetheless exists to meet the needs of some economic sectors (the building industry, public works, cafes and restaurants, the fashion and clothing industries). Government action is therefore limited to statements giving a ‘feeling of security’ instead of either admitting that the economy needs these people or prosecuting the employers of illegal workers. The ability to administer systematic frontier control belongs to the past, and probably to a mythical past. The politicisation of police and security questions has not changed realities, nor has the recent turning of migration and asylum policies into matters of security. The blind alley of more and more promises of efforts of control and of the practice of targeting groups incapable of causing real political opposition can only produce negative effects. Frontiers will continue to separate societies with different levels of economic development but 83

Didier Bigo they no longer act as filters which designate and help to homogenise an ‘inside’ and an ‘outside’. Work, social rights, citizenship, nationality and collective identities are no longer spheres which coincide with the physical boundaries of the State. The uncertain quality of frontier controls should not lead to a quest for total security but more reflection on possible options. A free society, it must be remembered, is one with open frontiers, open minds and plural identities. The belief that controls are applicable simply because they are said to be, inhibits an understanding of the actual practices of control. A different perspective is required – we should consider these practices of borders control through their “rationale”, that is to say on what calculations and strategies are they based? 34

8.

PRACTICES AT FRONTIERS

General border controls (national or European) are simply quite impossible to achieve without changes to the economic and political system. The technological myth of electronic security is in practice hopeless. The new rationale is not more efficient than the traditional controls. The figures which follow enable us to illustrate this fact and aim above all to demonstrate that it is impossible to sort and filter border crossings according to objective and legal criteria, just as it is impossible to determine the motivations of those who cross borders on the basis of entrance modalities (tourism, trans-border traffic, short stay for family visits, seeking employment or a better standard of living, exodus due to wars or famine, individual political persecution). Henceforth one cannot carry out border controls of immigration and simultaneously maintain significant transborder economic activity. The annual number of crossings by land, air and sea at external frontiers, delimited by the agreements of Schengen, including France, Germany, the Benelux countries, Spain and Portugal (still excluding Austria and Italy), totals to about 1.7 billion crossings. 864 million cross the German frontiers alone. Much of this is local cross-border traffic, but clearly very strong economic and human links exist between the Schengen countries and their neighbours. Even temporary closure of the frontiers is unrealistic. Annual crossings of internal frontiers of the Schengen area number about 1.2 billion. Movement in and out of French territory totals 291 million each year – by air (600 airports), by sea (4 720 km of coasts) and by road (2 490 kilometers). Three quarters, in the region of 230 million crossings, are made at the land frontiers (762 roads between Dunkerque and Menton, Le Perthus and Hendaye) which are, with the exception of those with Switzerland, internal frontiers. To control these frontiers (by the operational staff of the Central Directorate for the repression of illegal immigration and employment (DICCILEC), the customs and the Gendarmerie), each 34 F. Ewald, Histoire de l’État providence: Les origins de la solidarité (Paris: Grasser,

1996).

84

Criminalisation of “Migrants” official must control about 40 kilometers. Assuming that systematic controls are maintained and that the people entering the country do so through official checkpoints (not necessarily the case for illegal immigrants), it requires the time of officials to check, including visa checks, the 230 million people crossing; according to estimates, 15 per cent of the 130 million foreigners require visas (about 20 million). Unless the political regime changes, the resources in men and equipment cannot keep up with the rhetoric of systematic control. For example, the cost of the proposal to take the fingerprints of foreigners applying for a resident permit has been estimated at hundreds of millions of euros. Projects to develop passports and identity cards containing microchips which would record all movements of people and provide intelligence surveillance would be even more expensive. Billions of euros would be spent for nothing – to reproduce a system which reminds us of the Berlin Wall. To give the staff of Social Security, doctors, teachers or priests a jail sentence if they do not inform on illegal immigrants would change society by creating suspicion but would not achieve the objective of ending immigration. Closing frontiers immediately generates queues lasting for many hours and even days, a phenomenon which can be observed at two land frontiers more controlled than others, the German-Polish and the American-Mexican frontiers. The United States under Nixon attempted to close the frontier with Mexico with operation ‘Wetback’ and, more recently, operation ‘Gatekeeper’, continued as operation ‘Hold the line’. The result in both cases was immediate economic damage, tensions between social groups and almost zero effect on illegal immigration. The first operation was stopped after a few days, and the second was ‘symbolic’ since, although implemented, it simply diverted the traffic from Texas to New Mexico. The current US debate on immigration, particularly in California, demonstrates that, in the country where the ideology of the “melting pot” reigns, a political strategy similar to that found in Europe is affecting mentalities and transforming practices. The building of a “technological wall” at Tijuana on the frontier with San Diego had a psychological impact but little practical effect. This example of reliance on technology using technique derived from military experience – approaching the frontier like a front with strategic depth – is the product of a naive belief that machines compensate for the lack of staff. The high technology system in California was jammed by the most simple counter-measures (chewing gum in machines, aluminium paper to baffle sensors). Technologies in Europe are perhaps less military in origin, but a trend in the same direction exists. Examples are mobile checks made within the country itself, policing ‘at a distance’ by transferring controls into the neighbouring countries or the country of origin of migrants, and European police networking. Even using the most sophisticated technologies, systematic controls at European land frontiers are impractical. Although control at airports and seaports can be achieved technically, this is not the case at the land frontiers. Gerard Moreau, Director of the International Migration Office, has empha85

Didier Bigo sised the impossibility of conforming to parliamentary wishes to make border crossing rules more restrictive. Tightening rules reduces the number of persons eligible to enter the territory; it simply increases the number of illegal, expellable immigrants, but does not stop them getting in. It is impossible to construct “the fortress”. The dogma of sovereignty which underpins our image of absolute control of territory by the State is associated with obsolete practices. The logistics, in terms of men and material, that such rhetoric supposes, will never be provided unless there is a change in political regime. The project for recording fingerprints of all foreigners requesting resident permits for France, for example, was estimated at several hundred million euros. The same applies for projects for passports or identity cards which would record all the movements of people and military technologies for border surveillance. Even if one were to envisage dramatically updating technology or increasing personnel by a hundred or even a thousand times, this would not be sufficient. It is quite impossible to control terrestrial borders, whether they be internal or external, in a sufficiently credible way to dissuade illegal entrants. Once they have entered the country, it is even more difficult to then find them and physically send them back to the border if they have entered the country legally and then prolonged their stay. Robert Broussard, Director of the DICCILEC admitted this and tried to convince the governments on this point. From his estimation that 88% of clandestine immigration is via terrestrial borders, he argued that it could only be possible to adopt other methods and even then their results would always be haphazard. An important step to a realistic approach has already been made if one understands that immigration is dependent on millions of individual decisions and that governments, unable to close their borders, will never be able to completely regulate immigration. We must get rid of the myth about zero (clandestine) immigration. One manufactures an arbitrary handling of the weakest and those who abide to the laws most closely without preventing trafficking from occurring. Blocking asylum seekers in third world countries is certainly possible given the contemporary power relations and as Jean Christophe Rufin has denounced one can instrumentalise the States situated at the Western periphery, by treating them as “filters” (limes) for blocking barbarians.35 But is this cynical policy realistic? Certainly not. Moreover, Germany apart, the other governments, including France, seem to have few illusions about the possible success of such a policy. Perhaps what one is speaking about here is a strategy that some consider to be relevant and which aims at constituting buffer zones in the long term to use the formula of Mike King again. But the ‘Fortress Europe’ discourse and the “Filter” geopolitics must be seriously relativized. If it does perhaps describe a governmental ideology, or even a political strategy of certain bureaucratic groups who are particularly cynical and “ready to do anything” in

35 J.C. Rufin, le piège humanitaire (2è ed) Pluriel, les économies de guerre, Pluriel 1996.

86

Criminalisation of “Migrants” the name of “national interest”, it does not truly describe generalized social practices. Concentrating on driving immigrants back, expulsions, readmission agreements could become counter-productive for NGO’s as the practical stakes concern upstream controls, police collaborations at the time of departure and not readmission. Focusing on borders is an error which is made just as much by discourses on sieve Europe as it is by discourses on ‘Fortress Europe’.

9.

DELOCALIZING CONTROLS: A NEW SURVEILLANCE LOGIC

Delocalizing controls is partly done through amending legal texts but it is not limited to this. If one is concerned with civil and political freedoms, one must look away from borders. It is necessary to examine the network logics of those who supervise and control populations wanting to enter the European territory. Europol still has no real implementation but yet, it is an organization which is becoming increasingly important in terms of people. What does it do? Does it only deal with narcotic trafficking and “organized crime”? Does it only work with Europeans or has it already woven a series of contacts with all immigration and asylum countries? And if so, what modalities have been used? Don’t these modalities belong to the new surveillance logic? Amending legal texts is a first indicator of delocalizing controls, and sliding from territorial security to security of populations. The border line has become a border zone, thereby making it possible to play out the illusion of absences in controls absences in posts that symbolize the border line, but to the benefit of a much broader and more discrete control zone. One can understand the bilateral agreements, the Schengen agreements and many of the discussions, as negotiations based on this new conception whereby at least two European police forces can control a common zone. Besides, it is necessary to focus on the remote police force, on distant and poorly visible control mechanisms, and on the vigilance of associations. The stakes indeed lie in blocking upstream trans-national flows and in power relations which are played out in a more subtle way. In the case of Europe, upstream blockages to prevent people from leaving their territory is a proactive (preventive) measure which seems to have replaced or been added to the policy of border refusal (passive policy). In this sense, it is situated within the global evolution of police methods and follows their broad orientation. Many of the most recent measures of European police collaboration are in keeping with this “prevention” or “proactive” activity in the countries of origin. These measures were undertaken in a very discrete manner; they included informal agreements, liaison officers sent to third world countries without the agreement of the host state and on the basis of very unclear or even non-existent legal text. The practice of sending police officers outside their territory to intervene upstream is old and Nadelman, analyzing the practices of the American DEA recently exposed the strategies of implantation on the drug transit and production sites. We carried out a similar study on French police who were implicated in 87

Didier Bigo the fight against drug trafficking. As early as the 1970’s French police and police from other European countries operated in liaison with Pakistani, Colombian or Moroccan police. But what is a recent development, is the deployment of liaison officers in countries that are known, not for their participation in drug trafficking, but for their surge in immigrants (Romania and another Central European countries, Black francophone Africa) or asylum seekers (Sri-Lanka). Some of these police officers have no other function than to analyze situations and help with procedures (liaison officers), others have a more “operational” role (French DICCILEC and SCTIP). The latter are responsible for combating illegal immigration by training local police and air transport companies to identify false papers. Theoretically, they are also responsible for looking after asylum seekers who obviously cannot request a passport from their authorities and who thus cannot obtain a visa for a European country. But collaboration of these police officers with the local police is by no means the best way of installing confidence in people who fear for their lives. Their presence thus has more of a dissuasive than operational effect. In addition, the visa policy is conceived as the real strategic objective in this policy of delocalizing controls. Let us suppose that an asylum seeker succeeded in obtaining a passport from his authorities or that he had to buy forged papers to escape, he will only be able to board the plane if he has a visa for one of the European countries. With the policy of elaborating a common list of the countries requiring visas which expanded from 70 in 1985 to 110 in 1990, and now has reached 126, it is very likely that he will have to request a visa from the consular authorities of one of the signatory countries (with the risk of been located by the police of the country that has understood the stakes well: i.e. Togo or Morocco). However, it would seem that the consular co-operation between represented Schengen countries, which was developed after the Summit of Madrid in July 1993, is more concerned with combating illegal immigration through refusing tourist and other visas than with granting visas to asylum seekers. And since the first refusal paves the way for future refusals, the initial choice becomes crucial. The French consulates are now interconnected via an information processing system called “Worldwide visa” which regroups files on people classed as undesirable by the Ministry for the Foreign Affairs, wanted people, and files on those that Ministry for the Interior judge to be undesirable. Thus, obtaining a visa has definitely much more difficult than before. On what grounds can one appeal if one is refused a visa? Can one be given the reasons for refusal? This does not seem to be the case. It is perhaps here that we are confronted with one of the most serious risks concerning public freedom. The discretionary possibility of the consul to accept or refuse a visa without justification is indeed the source of serious discrimination. Finally, by inflicting sanctions on carriers that agree to transport people without passports or visas, the Schengen and Dublin agreements have pushed private companies into multiple preventive controls that are carried out between 88

Criminalisation of “Migrants” entry into the airport and boarding the plane. Certain companies have engaged private agencies which, on behalf of the flight commander and his security, intervene behind official controls. What happens with an asylum seeker who is stopped by these agents and who risks being handed over to the authorities that he is trying to flee? Can he convince them to let him board the plane when the company is responsible for paying for the return ticket if he is refused? What appeals can he make? Only the “humanity principle”, the idea of evoking sympathy through his distress, can save him. But the limits of sympathy are quickly reached when other interests come into play (financial for the company, and fear of sanctions on the part of the individual if it makes his company lose money)? Is not one in fact forcing these people to make a first “judgement” on who is an immigrant and who is an asylum seeker and this, without them having neither the competences, the means nor the time to judge? One could multiply the examples of practices having an arbitrary character which is not often seen by those who advocate the ‘Fortress Europe’ discourse because they fail to look in such specific places and remain focused on borders and public discourses. Changing the laws on the right to nationality or proposing a new law on asylum, – even if this is very important as it puts an end to a logic motivated by suspicion – are insufficient. We want to conclude with a very specific fragment of these new logic of control and surveillance at a distance, that is the case of the international zone at the border. They concentrate in a microcosm all the elements we have described along the general process.

10. THE WAITING ZONE OR THE CONTEMPORARY LOGIC OF CONTROLS; THE BAN OPTICON

THE

LOCUS OF

“We are all in a waiting zone,” even if we do not want to know what happens at the airport borders, in these places where foreigners refused entry into our states are detained. We live de facto, under the same constraints as they do, in the “hotel jails”. The nomadisation and “the empire of the speed” condemns us to want to circulate farther and faster; perpetually to hurry up and wait. The detention or so called “waiting” zone is then to our society in the process of globalisation what the jail was at the dawn of modern society and the national State. It is at the same time a “condensed” locus and the most arbitrary place. Michel Foucault has insisted in his work on the fact that the prison was not a specific place, radically different from the society, a closed institution upon itself and which, by that, would be exceptional, apart from the norm. He has emphasised the fact that the prison concentrates all the disciplinary mechanisms, which exist elsewhere in a more diffuse way but nevertheless exist. The jail is in continuity with the hospital, the school, the factory, the army. The jail informs the society. If the hypothesis of the panopticon has a meaning in his work, it is not because it has effectively been applied in the plans for construction of jails, it is 89

Didier Bigo rather that it realizes the rationality of plans for devices of surveillance, connecting their diversity, their heterogeneity, the variation of their application points, the multiplicity of the institutions engaged. This hypothesis of the panopticon has been much discussed and criticized in its historic ambition and in its time frame of modernity, in its analysis of the rise of a pastoral power in rupture with the modes of sovereignty. One sometimes confounded this hypothesis with the thesis of the maximal security, of the risk of the rise of a soft totalitarianism. Whereas it is far distant from this idea in the sense that the Foucaldian framework refuses to homogenize the devices and to look at them as a single and unique ensemble. The world described by Orwell is the one of a big anonymous brother but effectively controlling the population, the one of Foucault is on the contrary, the one, heterogeneous, in which resistances and power interact at the molecular scale. That picture of the world is nearer than the one of Orwell, to the social practices of our liberal societies. The panopticon is not fully coherent. It is fragmented and yet at every moment, in every place it has its own consistency and a specific bridge with the other fragments. It is in this sense that our work continues the research of Foucault about the transformation from the territorial State to the State of population. The waiting zone defines the “diagrammatic” modes of contemporary imprisonment and the connection that this imprisonment has with the “free circulation” of people on the global scale. The waiting zone is at one and the same moment a unique, specific “fragment” of the logics articulating the manner of carrying out police work, and the significance of a certain type of social relation that it condenses to the extreme. The waiting zone is an exception within the legal order and appears like the point of enclosure of the legal, territorial and sovereign system upon itself. The waiting zone is a fragment because one could not read its economy except in relation with the mechanisms of visas, of detection of fraud, of computerization of data, of the proactive logic of policing at a distance. The waiting zone is exemplary because the maintenance in waiting for the entry into a given territory is homologous with the congealment of time permitting to the administration to manage the “files”, and with the paradoxical liberty “to go anywhere except where one wants to go”. The waiting zone is then a “Ban” “optic” not a “Pan” “optic”. It does not stand anymore for legal detention or as a support to the penal system, with the reformers’ promise of remission for good behaviour, as the prison does. It is not even the administrative retention which depends on a logic of fault and presents itself as a security measure necessary to prevent disorder from those unruly. It is the correlative of a freedom of circulation which does not allow entry into a territory. The surveillance of everybody, at the period of liberal globalisation, is no longer at stake. The “panoptic” is too expensive in means, in missions, in social legitimacy. The surveillance of the borders, to be efficient, cannot penalise the economy or politics. The traditional heavy security measures are obsolete as 90

Criminalisation of “Migrants” they are too visible both in terms of numbers of enforcement officers and arms. Now, the State wants to be unpretentious, unobtrusive. It delegates to the private sector the prerogatives of the use of violence. It is ready to delegate to the great global firms trans-border crossings. It does not exercise the control function provided that it can nevertheless intervene and take back its power where it deems necessary. The relationship of public and of private sector in its commercial and singular shape is changing. Where the State actually controls is diminishing, instead this is carried out by groups informed by the knowledge of the experts in criminology. Where it does supervise, this is through a proactive logic which designates the risks and the threats, locating the potential adversaries before even they have any consciousness of being a threat to others. Those who are in the “norm”, by contrast, must not be controlled, this is the new imperative. The political programme of liberalism at the world level is committed to freedom of movement. But it is not applied in an homogeneous manner. The free movement of the capital, of the goods, of the services is a source of profitability, but that of people is not so. It is necessary to separate those who are profitable and economically solvent from those who are not. But it is necessary to do this without checking everybody. The management of speed also has a price. Sort out, anticipate, simulate in order to avoid the control of everybody, supposes paradoxically a generalized involvement to the enterprise of “sorting” in order to supervise only some and push them to an internal exile in terms of relegation or in terms of deportation and of refoulement. It will be necessary to define collectively what and who is “exceptional”. It will be necessary, in the interests of reducing “insecurity”, to define who is dangerous or threatening, who is a source of uncertainty and to leave its regulation to the professional agencies of security. These will be in charge of the Ban, of the relegation and of refoulement of the “undesirable”. It is a way to put at a distance – geographical, social, cultural, mental – those that a social optic and a political determination designated as such. Their job is to hold “out there” these people, these folks that proximity identifies as a stranger, suspect, enemy or potential smuggler. The waiting zone is then the juridical/physical manifestation of a spatial temporal compression generating locally effects of unification and of division which are isomorph of those of globalisation. The space between exile and asylum is played out indeed, within the zones of waiting and of transit, a long march for these excluded people, where circulation is tolerated but where stopping for any purpose is not permitted. The ban is then the freedom to leave where one doesn’t want to go. In time it is circulation without end, of the rotation. It is to be in orbit and to create a satellite population. This population is then held in a weightlessness, at a distance and out of time. The population is considered as useless and undesired therefore undesirable and abandoned. The form of the ban varies depending on the different historic developments in different European countries and differs from the panoptic control without replacing it.

91

This page intentionally left blank

David Bonner

POROUS BORDERS: TERRORISM AND MIGRATION POLICY

1.

INTRODUCTION AND OVERVIEW

The post September 11th ‘war on terrorism’ has seen EU States marching to the beat of drums other than the purely national. While purely national concerns cannot be downplayed, the responses have very much also been shaped by the demands of a number of international bodies. Those of the UN, the EU and the Council of Europe are delineated here.1 In UN Resolution 1373 (2001),2 the Security Council characterised the attacks of September 11th, like other acts of international terrorism, as a threat to international peace and security, and reaffirmed the need to combat them by all means available. It reiterated the message after terrorist attacks in Bali,3 Moscow,4 Kenya,5 and Bogota.6 At its extraordinary meeting of 21 September 2001, the European Council made the fight against terrorism “a priority objective”, and there approved a

1

2 3 4 5 6

This paper does not examine whether these calls impose legal or merely political obligations. Note, in addition, that NATO characterised the September 11th attacks on one Member as an attack on all. On the OSCE response see its reports to the UN Security Council Counter Terrorism Committee (doc. S/2002/34). This and country reports can be found at: http://www.un.org/Docs/sc/committees/1373/. S/RES/1373 (2001) 28 September 2001. Resolution 1368 had already, on 12 September, condemned the attacks. S/RES/1438 (2002) 14 October 2002. S/RES/1440 (2002) 24 October 2002. S/RES/1450 (2002) 13 December 2002. S/RES/1465 (2003) 13 February 2003.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 93-113 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

David Bonner plan of action for: enhanced police and judicial cooperation; the development and implementation of international anti-terrorist legal instruments; putting an end to the funding of terrorism; the strengthening of air security; and coordinating the EU’s global action. It is clear that a EU policy on terrorism – in preparation for some time before September 11th – was accelerated by the catalyst of September 11th – and that it has also affected immigration and asylum policy.7 The Committee of Ministers of the Council of Europe, having condemned the attacks and aligned itself with the United States, issued guidelines on human rights and the fight against terrorism. The condemnation in the preamble regards terrorism as seriously jeopardising human rights, a threat to democracy. It reaffirms the duty of States to protect their populations against possible terrorist acts – in part a positive obligation flowing from the right to life in Article 2, European Convention on Human Rights (ECHR) – and stresses that States must cooperate and do everything possible “so that the suspected perpetrators, organisers and sponsors of terrorist acts are brought to justice to answer for all the consequences, in particular criminal and civil, of their acts”.8 It also emphasised, however, the necessity of fighting terrorism while respecting human rights and international instruments for their protection, the rule of law and, where applicable, international humanitarian law. States parties to the ECHR had to follow its obligations as interpreted by the European Court of Human Rights. That has been reiterated by the Parliamentary Assembly of the Council of Europe, which, while recommending that States ratify without reservations international terrorist conventions, and that the political offence reservation facility be removed from the European Convention on the Suppression of Terrorism, also resolved that Member States iv. refuse to extradite suspected terrorists to countries that continue to apply the death penalty ... unless assurances are given that the death penalty will not be sought;

and significantly, given the United Kingdom response, examined later in this paper

7

8

94

E. Brouwer and P. Catz, “The European Union: Terrorism and the Struggle for Competence in Community Law” in E. Brouwer, P. Catz and E. Guild, (eds.) Immigration, Asylum and Terrorism: A Changing Dynamic in European Law, (Nijmegen: Recht and Samlenleving 19, 2003) 140; Niels Bracke, of the Council Secretariat, speaking in a personal capacity at the ERA Conference, “The Anti-Terrorism Package: New Legislation in the EU”, Trier, 25 January 2002. Preamble, para (e). The text is available at: http://www.coe.int/T/E/ Communication_and_Research/Press/Theme_Files/Terrorism/CM_Guidelines_ 20020628.asp#TopOfPage.

Porous Borders: Terrorism and Migration Policy v. refrain from using Article 15 [ECHR] (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).9

Demand and response thus go wide, with a prime focus on measures to combat the financing of terror. Each organisation, however, has a significant focus on immigration and asylum policy. In paragraph 2 of UN Resolution 1373 the Security Council decided that States must (c) Deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens; (d) Prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens; [...] (g) Prevent the movement of terrorists or terrorist groups by effective border controls and controls on issuance of identity papers and travel documents, and through measures for preventing counterfeiting, forgery or fraudulent use of identity papers and travel documents.

In paragraph 3, it called on States to (a) Find ways of intensifying and accelerating the exchange of operational information especially regarding actions and movements of terrorist persons or networks; forged or falsified travel documents .... ; [...] (f) Take appropriate measures, in conformity with the provisions of national and international law, including international standards of human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts; (g) Ensure, in conformity with international law, that refugee status is not abused by the perpetrators, organisers or facilitators of terrorist acts, and that claims of political motivation are not recognised as grounds for refusing requests for extradition.

The Conclusions of the EU Extraordinary Justice and Home Affairs Council Meeting of 20 September 2001 contain a section on ‘Measures at borders’.10 The

See Res. 1258 (2001); Rec. 1534(2001); Res. 1271(2002) [from which the quotation is taken]; Rec. 1550 (2002), available at http://assembly.coe.int/. 10 SN 3296/6/01 REV 6, paras. 24-30. 9

95

David Bonner Council called on Member States to strengthen controls at external borders. It invited consideration of ways to strengthen the surveillance measures provided in Article 2(3) of the Schengen Agreement.11 It recommended that States exercise utmost vigilance when issuing identity documents and residence permits, particularly where duplicates were concerned, and a more systematic checking of papers to detect falsification.12 Visa policy should be rigourous, local consular cooperation was recommended and the Council invited the Commission to draw up for consideration proposals “for establishing a network for information exchanges concerning the visas issued”.13 States party to the Schengen Information System (SIS) were invited to provide more systematic input into its system of alerts.14 The Council was to study arrangements for a coordinated recourse to the possibilities afforded, particularly under Article 2(2), in the event of an exceptionally grave terrorist threat.15 In addition, the Commission was invited to undertake (and has done so) an urgent examination of “the relationship between safeguarding internal security and complying with international protection obligations and instruments”.16 Each organisation recognises constraints set by international human rights law, in particular, by the Geneva Convention and Protocol on Refugees, which embodies a ‘national security’ exception to its principle of ‘non refoulement’.17 As regards citizens of EU States, there are, of course, for all Member States, the limitations set by Community rules on free movement of persons, with the result that restrictions on them must be necessitated by public policy or public security, with Schengen setting more specific parameters for those party to it. EU States must in addition respect ECHR rights and freedoms. Three are of particular relevance here. The first is Article 8. This requires respect for family life, which, if engaged because of significant length of residence in the State and the fact that the continued existence of an effective family life is not reasonably possible in the destination State, is nonetheless restrictable, subject to principles of proportionality, inter alia to protect public safety and national security. Here, as Elspeth Guild has noted, ECHR jurisprudence has developed rapidly over the past ten years, primarily in relation to young criminals, nationals of North African countries who have lived most of 11 Ibid. para. 24. 12 Ibid. para. 25. 13 Ibid. para. 26. 14 Ibid, para. 27. 15 Ibid. para. 28. 16 Ibid. para. 29. See COM/2001/0743 final. 17 This theme runs through all the relevant EU instruments. Note also Commission

Document, above n. 16.

96

Porous Borders: Terrorism and Migration Policy their lives in Belgium and France and have most of their family connections in those countries. This line of jurisprudence has increased the security of residence of foreign nationals in Council of Europe countries against which those States may not offend.18

The second, and more fundamental, right in the ECHR is the prohibition in Article 3 of torture, inhuman and degrading treatment or punishment. Framed in absolute terms, this makes no concession to contexts of terrorism or organised crime. A State will breach its obligations under it where it seeks to expel someone from its borders –by refusal of entry, deportation or extradition – where there are substantial grounds for believing that if s/he is returned to the destination State s/he faces a real risk of subjection to treatment outlawed by Article 3, whether at the hands of State or non-State actors (the Soering principle). Finally, since Protocol 6 has outlawed the death penalty in peacetime, States can only return someone to a country where assurances are given that an available death penalty will not be sought or imposed.19 Much rhetoric has been expounded on the need also to deal with the causes that spawn and sustain terrorism; on the need to avoid presenting matters as 18 E. Guild, “Introduction” in Brouwer et al, above, n. 7, at p. 10. She further states:

“The decision [of the Court of Human Rights in Al-Nashif v. Bulgaria] in June 2002 on the right of a foreigner not to be expelled, confirmed the priority of the right to family life even where allegations of terrorist activities (which are not the subject of criminal proceedings) are made by the State.” With respect, the case does not go so far. A violation of Article 8 was found not because family life ‘trumped’ national security, but rather because the expulsion law did not meet criteria of ‘lawfulness’ in Art. 8(2) because there was no right of recourse to an independent body able to review the evidence and issue a decision binding the executive. ‘Legitimate aim’ and ‘proportionality’ aspects were not dealt with. Clearly, an interest in national security will carry great weight in the balancing process inherent in Art. 8, especially given the margin of appreciation in ‘security’ cases, but the Commission Report in Chahal [(1997) 23 EHRR 413] provides some support for her wider proposition, since the Commission accepted that in that particular case family life outweighed what the Commission found a not very compelling threat to security (paras. 134-140). Unfortunately, the Court in Chahal did not deal with the Art. 8 aspect; given its finding that Art. 3 precluded deportation, and that the UK would abide by the Court order, the Art. 8 issue was rendered ‘hypothetical’. See further, N. Blake and R. Husain, Immigration, Asylum and Human Rights (Oxford: OUP, 2003), chap. 4. 19 C. Ovey and R. White, Jacobs and White: European Convention on Human Rights, 3rd ed, (Oxford: OUP, 2002), 47-48; Committee of Ministers, cited n. 8, above, Guideline XIII(2). See further, Blake and Husain, above n. 18, chap. 2. Human Rights Watch has expressed concern about Sweden and Austria deporting suspects to Egypt on receipt of what it describes as “hollow” assurances of no maltreatment: see http: //www.hrw.org/press/2002/04/valenciaspeech0413.htm.

97

David Bonner a West/Islam conflict; and that measures taken avoid racism, discrimination, Islamaphobia and xenophobia.20 It has oft been stated that the response should avoid further restrictions in immigration and asylum regimes to protect bona fide applicants.21 This welcome attitude also translated into practical measures in that the United Kingdom Government introduced into Parliament as part of its ‘emergency’ Anti-terrorism, Crime and Security Bill, proposals for new criminal offences of inciting religious hatred, to deal with the problem that, since Muslims are not a racial group, some expressions of Islamaphobia would not be caught by existing laws on inciting racial hatred. These provisions were rejected by Parliament, and only provisions on increasing sentence for violent crime because of an aggravating factor of religious hatred found their way into the Act.22 A significant problem, however, is that despite such laudable rhetoric, other policy statements and action are dangerously ambiguous, arguably helping to bring about the very result the rhetoric states that policy makers are anxious to avoid. A swing to the Right in terms of values and actions in this area is reflected not just in the popular or tabloid Press or in the statements and varying electoral success in a number of countries of racist and anti-immigration parties. Even the policies and statements of Centrist Parties and Governments have become tainted by pandering to the prejudices feeding this rightward move: “the racists (and fascists) rather than being disowned, have found their views embraced by EU governments in order to retain power”.23 Thus, in the United Kingdom, Prime Minister Blair, stole some of the Conservative Opposition’s ‘clothes’, when suggesting that the time was ripe not only for reviewing the Refugee Convention but also for considering the option of withdrawing from the ECHR and rejoining having entered a Reservation limiting the preclusive impact of Article 3 ECHR on the ability to deport.24 The statement was rapidly and welcomely contradicted 20 Preamble, para. (h); Guideline II; President Prodi, EU Institutions Press Releases

21 22

23 24

98

DN: Speech/02/377; SN140/01, at p. 4; Parliamentary Assembly of the Council of Europe Resolution 1258 (2001), para. 11 (26 September 2001). Ibid. Resolution 1258 (2001), para. 13; European Commission, COM/2001/0743 final, Introduction. Anti-terrorism, Crime and Security Act 2001, Part V which also extends the racial hatred offences in the Public Order Act 1986 to hatred stirred up against racial groups abroad. T. Bunyan, “The ‘War on Freedom and Democracy”, Statewatch Analysis No. 13, at pp. 7-8, available at http://www.statewatch.org/news/2002/sep/04freedom.htm. P. Wintour, “Blair warning on rights treaty”, The Guardian, 27 January 2003 available through Guardian Unlimited at: http://www.guardian.co.uk/guardianpolitics/story/ 0,3605,882921,00.html. Leading Counsel’s Opinion for Liberty was that the move would be of questionable legality (see: http://www.liberty-human-rights.org.uk/issues/pdfs/pannick-opinionart-3.pdf).

Porous Borders: Terrorism and Migration Policy by Home Secretary Blunkett,25 but it is reported that, as part of a general process of Council of Europe reconsideration of redrafting the ECHR for the modern age and in light of the proposed EU Constitution, a “number of leading EU governments (including the UK) are considering backing a proposal to confine the Article 3 prohibition to ‘torture’ ”.26 The House of Commons Home Affairs Select Committee recently warned that an increase in asylum seekers risked social unrest and a political backlash likely to result in the election of “extremist parties with extremist solutions”.27 Despite its overall positive stance on the proper approach to refugee and asylum law, the European Commission suggested that September 11th means that the Court of Human Rights will have to rule on questions relating to Article 3, in particular how far on the matter of to what degree there can be a balancing act between the protection needs of the individual, set off against the security interests of a State.28

After September 11th there is a very much colder climate for migrants and asylum seekers; despite statements that the asylum route is not a likely one for bringing new terrorists into the EU,29 the threat of terrorism has further highlighted the deterrence and restriction aspects of an already highly ambivalent asylum and immigration policy, a steady undermining of the right to asylum.30 The United Kingdom derogation under Article 15 ECHR claims that foreign nationals [are] present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned

25 Wintour above n. 24, and see also the Home Secretary’s earlier statement condemn-

26 27 28

29 30

ing the “wilder myths” about asylum seekers and terrorism, reported in The Guardian, 20 January 2003 available at: http://www.guardian.co.uk/guardianpolitics/story/ 0,3605,878056,00.html. Bunyan, above n. 23, at pp. 8-9. Home Affairs Committee, Fourth Report, Asylum Removals, HC 654 (Session 2002/ 2003), para. 1 (April 14, 2003). COM/2001/0743 final, para.2.3.1 (legal obstacles to removal). Note that this argument was the one raised by the UK in Chahal and rejected by the Court. See (1997) 24 EHRR 413, paras. 75-79. Such a change by the Court would be a massive U turn. That the Court can radically change its attitude is seen in the jurisprudence with respect to transsexuals, but arguably that was rather a culmination of a trend towards liberalism on positive obligations of States with respect to transsexuality. This unlikelihood may be why a number of States may promote a Protocol confining Art. 3 ECHR to ‘torture’. Guild, above n. 7, Introduction. C. Harvey, Seeking Asylum in the UK: Problems and Prospects (Oxford: OUP, 2002), 73, 74, 76.

99

David Bonner or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.

Since asylum is often obtained because the person is politically at odds with the government of his homeland, it would be naive not to accept that within migrant communities there may be ‘sleepers’ or at least persons whose disaffection with Western values as well as their homeland regimes may provide a fertile recruiting ground for terrorist groups. In that limited sense, it is unsurprising that such communities have proved one target for new anti-terrorist powers. Most of the to-date small group of people detained indefinitely in the United Kingdom under post September 11th anti-terrorist legislation are reported to be Islamic and to have sought or been granted asylum.31 Such policies are undoubtedly weakening the rights of resident third country nationals in the EU, have been characterised as institutionally racist and said to be breeding a culture of suspicions against Muslims and people of Middle Eastern appearance, who are increasingly treated in the same way as were ‘enemy aliens’ during the first and second world wars.32

More conservatively, as the thematic report of EU experts on Human Rights puts it the international dimension of this phenomenon can threaten the free movement of persons, and potentially the right to asylum, particularly when certain States are considered as possibly sheltering potential terrorists. This can encourage discriminatory attitudes towards people of certain nationalities or certain religious convictions.33

In the light of these demands for, constraints on, and dangers of, action in the immigration and asylum field, the remainder of this essay analyses central elements of what the EU and some of its Member States have done in that field since September 11th, emphasising aspects of the approach taken by the United Kingdom. It will be shown that while all have responded in ways which fall to be adjudged against the mainstream parameters of international obligations 31 P. Catz, “The United Kingdom: Withdrawing from International Human Rights

Standards” in Brouwer et al, above n. 7, at p. 88. 32 Bunyan, above n. 23, at pp. 7-8, citing L. Fekete, “Racism: the hidden cost of Septem-

ber 11” (Institute of Race Relations). 33 EU Network of Independent Experts in Human Rights, The Balance between Free-

dom and Security in the Response by the European Union and its Member States to the Terrorist Threat, (Thematic Comment, 31 March 2003) available at: http: //www.statewatch.org/news/2003/apr/CFR-CDF.ThemComment1.pdf, at p. 8.

100

Porous Borders: Terrorism and Migration Policy as normally interpreted (not tantamount to a statement that the responses are necessarily all ECHR compliant), the United Kingdom alone has thought it necessary to take measures against non-nationals – detention without trial where deportation is precluded by international obligation or some practical reason – supportable only by a public emergency derogation under Article 15 ECHR.34 Furthermore, it has, very recently, undermined the accepted position of migrants granted the ‘security’ of its citizenship, by enabling a politician to strip of it those dual nationals whose words and/or actions are thought to prejudice vital interests of the State, thus holding over them the spectre of deportation or detention without trial.35

2.

CONTROL OF ENTRY

Here, policies to combat terrorism intertwine with those on migration (irregular or otherwise) and asylum.36 Since increased vigilance is at the heart of all this, EU measures on enhanced aviation security, while directed to other more obvious ends, have some relevance in contributing to a climate of enhanced security.37 Regulation of immigration begins abroad, with management of visa control by consular officials, and continues prior to the border with use of carrier personnel as proxy immigration officials, the result of a variety of schemes imposing penalties on carriers who transport passengers with inadequate documentation.38 Cooperation between them and officials is crucial,39 and cooperation with 34 Anti-terrorism, Crime and Security Act 2001, Part 4. 35 Asylum, Nationality and Immigration Act 2002, s.4 (inserting a new s.40 and 40A

36

37

38

39

into the British Nationality Act 1981), which entered into force on 1 April 2003. See Bill Morris, “Why I fear Blunkett’s rap at my door”, The Observer, 6 April 2003, 31. E. Brouwer and P. Catz, “The European Union: Terrorism and the Struggle for Competence in Community Law” in Brouwer et al, above n. 7, at pp. 98, and 141 where they state: “the general EU policy on immigration has always been restrictive, aimed at preventing large influx of immigrants and even tended to criminalise immigration. The events of September 11 were, in the first place, used by the European Union as a trigger to adopt new policies, measures and legislation, which has been waiting for enough support for some time”. See Regulation (EC) No. 2320/2002 of the European Parliament and Council, 16 December 2002, OJ L355/1; Commission Regulation (EC) No. 622/2003, 4 April 2003, OJ l 89/9. See also welcoming of the policy by the Parliamentary Assembly of the Council of Europe, Rec.1549 (2002), available at: http://assembly.coe.int/. Council Directive 2001/51/EC of June 2001 (OJ L187/45) supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 sets out 3 optional systems. SN 3296/6/01 REV 6, para. 26. See also Council Decision 2003/170/JHA of 27 February 2003 on the common use of liaison officers posted abroad by the law enforcement agencies of the Member States, OJ L67/27.

101

David Bonner France and Belgium, to the extent of having United Kingdom immigration officials operating there in conjunction with their French and Belgian counterparts, is hailed by the United Kingdom Government as a major plank in its security response.40 Important also is the proper training of key personnel; recently, the Odysseus programme has been replaced by the ARGO programme of support for training in a variety of immigration and asylum activities to help ensure that, for example, Member States apply effective border controls in compliance with the common principles and implementing rules laid down by Community legislation.41 The EU has also imposed specific restrictive measures against persons connected with Usama bin Laden, the Al-Qaida network and the Taliban.42 The problem of ‘identity theft’ and ‘bogus documents’ necessitates measures for preventing and detecting forgeries in visa, identity and passport documentation. Here the EU has extended to residence permits43 its minimum standards on security characteristics, already in place with passports and other identity or travel documents44 and in issuing visas45, including, as regards Schengen States, those exceptionally issued to third country nationals at Borders rather than through the usual route of the Member State consulate abroad.46 The EU and a number of Member States are actively pursuing an agenda of adding biometric data (e.g. facial recognition, fingerprint or iris scanning) to passports.47 Coupled 40 Border Control: Strengthened Security, Home Office Website Information at: http:

//www.homeoffice.gov.uk/terrorism/govprotect/borders/index.html. 41 Council Decision 19 June 2002 (2002/463/EC) OJ 2002 L161/11 (not covering Ireland 42 43

44 45 46

47

or Denmark). Council Common Position of 27 May 2002: 2002/4202/CFSP, OJ 2002 L 139/4. Council Regulation (EC) No 1030/2002 of 13 June 2002, OJ 2002 L157/1. The security measures incorporated are to comply with Council Regulation (EC) No 1683/95, 29 May 1995 laying down a uniform format for visas (OJ 1995 L164/1). Resolution of the Representatives of Governments of the Member States meeting within the Council of 17 October 2000, OJ 2000 C310/1. Council Regulation (EC) No 1683/95, May 29 1995, OJ L164/1. See, e.g., Council Regulation (EC) No. 415/2003 on the issue of visas at the border, including the issue of such visas to seamen in transit, 27 February 2003 OJ 2003 L64/ 1 (not covering Ireland, Denmark or the United Kingdom). On the United Kingdom see: Home Office Press Releases 123/2003 “Modernising Border Controls for the 21st Century” and 128/2003 “Common Standards on Biometrics Agreed” by the G8; HC Debs, Vol 383, col. 357 (Mr Blunkett, Home Secretary on ‘Operation Hornet’). On Germany, see its Report to the UN Security Council Counter-Terrorism Committee, UN S/2002/11, at pp. 11, 13-14, S/2002/1193, at p. 17 and see E. Brouwer, “Germany: Controlling Data” in Brouwer et al, cited n. 7 above, at pp.37-38 (inclusion of biometric data). On Ireland see S/2001/1252, at p. 9, S/2002/ 675, at pp. 11-12. On Finland, see S/20011/1251, at p. 8. On France see S/2001/1274 at p. 26. On the Netherlands see S/2001/1264 at p. 9. These reports can be accessed at the UN source above n. 1.

102

Porous Borders: Terrorism and Migration Policy with better scanning equipment, this should enable heightened security and the more rapid processing of travellers, thus also aiding convenience of movement. Control at the boundaries of EU States varies according to whether the State concerned is party to the Schengen acquis, which focuses attention on the policing of borders with third countries, enabling free movement, without border checks, between the territories of Member States. Control at external borders has been tightened, with joint patrols in some areas, and moves afoot to try to establish an EU Border Guard and to enhance common arrangements for external borders48 All Member States’ laws permit exclusion on security grounds.49 Internal border controls may be re-imposed for a limited period under Article 2(2) where public policy or national security so require, but no Member State appears to have invoked it. Indeed, the Netherlands rejected doing so since it perceived no concrete threat to national security.50 France, however, seems to have made use of Article 2(3) by heightening checks of documentation in areas within 20 kms of internal borders and in areas accessible to the public at ports, railway stations or coach stations open to international traffic (the ‘intensified’ level of Le Plan Vigiparate), increasing the number of irregular migrants detained for identification, and involving the assistance of the armed forces, as well as police, gendarmerie and customs officers.51 Also, in effect, Germany extended inland for 30-50 km its ‘external’ land and sea borders.52 Italy made use of its armed forces for surveillance and control of sensitive areas, and there was “a crackdown on Muslim organisations”.53 The exchange of information

48 See S. Peers, “European Commission: EU Border Control Communication” State-

49 50 51

52 53

watch Analysis of Commission Communication COM (2002) 233, available at: http: //www.statewatch.org/news/2002/may/06Aborder.htm. This Communication “sets out a number of proposals for developing common control of the EU’s external borders. The principal elements in this plan are a ‘common unit’ of senior border control officials to control the implementation of a common border control policy; further exchange of information between a large number of authorities, including the Schengen Information System, the visa information database, police authorities and Europol; and the development of a Common European Border Corps with powers to check people at the border, deny them entry, board vessels and arrest individuals.” See their Reports to the UN Security Council Committee on Counter-Terrorism, UN source above n. 1. P. Catz, “The Netherlands: Small Steps on Beaten Tracks” in Brouwer et al, above n. 7, at p. 62. See France’s Report to UN Security Council Counter-Terrorism Committee, document S/2001/1274, at p. 25, UN source above n. 1., E. Brouwer, “France: Focussing on Internal Security” in Brouwer et al, above n. 7, at pp. 18-19, 23-24. E. Brouwer, “Germany: Controlling Data” in Brouwer et al, above n.7, at p. 37. A. Geddes, “Italy: Emphasising Exclusion”, in Brouwer et al, above n.7, at pp. 49, 53.

103

David Bonner through the SIS is seen by all participatory countries (including the United Kingdom54) as very important, as is other bilateral cooperation, but (like the definition of ‘terrorism’) has raised concerns about inappropriate targeting of protestors.55 Spain has proposed an extension of SIS.56 Exchange of data with the United States, and a requirement on carriers to provide it with passenger information, have both proved highly controversial.57 For the United Kingdom and Ireland, who opted out of most of Schengen, all borders, except with each other, count as external, and immigration control applies to all travellers including European citizens. The United Kingdom has in addition for almost thirty years operated an anti-terrorist security control on air and sea travel between both parts of Ireland and Great Britain. Since September 11th this has been extended to all internal air and sea journeys.58 International passengers face both an immigration check and this random security check, generally by officers from the Special Branch of the police force in whose area the port or airport is situated. The development of a common European asylum policy is well-charted elsewhere.59 Post September 11th developments include ‘Dublin II’,60 the introduction of the EURODAC identification system61 to be used in conjunction with those arrangements for establishing the criteria and mechanisms for determining the responsible Member State in respect of an asylum application by a third country national, consideration of extending use of EURODAC fingerprint data into 54 Council Decision 2000/365/EC of 29 May 2000 OJ 2000 L131/43 (concerning UK

participation in SIS other than its system of alerts). 55 See Statewatch Bulletin Vol 12 No. 2 March-April 2002. 56 Initiative of Kingdom of Spain OJ C160/5, 4 July 2002. 57 See http://www.statewatch.org/news/2003/mar/24spain.htm;

58 59

60

61

“EU-USA agreements: the drafts on the Table” available at: http://www.statewatch.org/ news/2003/apr/01Auseuag.htm. On UK/USA cooperation see Home Office Press Release PR 100/2003, 1 April 2003. Terrorism Act 2000, s. 53 and Sched. 7, as amended by ATCSA 2001. C. Harvey, Seeking Asylum in the UK: Problems and Prospects (London: Butterworths, 2000) chap. 3; S. Peers, “Statewatch Analysis: EU Immigration and Asylum Discussions” available at: http://www.statewatch.or.asylum/obserasylum3.htm; S. Craig, “The European Commission’s proposals for directives to establish a common European asylum system: the challenges of accession and the dangers of negative integration” (2002) 27 European Law Review 492; Brouwer and Catz, above n. 7. Council Regulation (EC) No. 343/2003 of 25 February 2003 (including Ireland and United Kingdom, but not Denmark to whom ‘Dublin I’ arrangements continue to apply), OJ 2003 L 50/1. Council Regulation (EC) No. 407/2002 of 28 February 2002, OJ 2002 L62/1, which lays down certain rules for comparison of fingerprints under the EURODAC system.

104

Porous Borders: Terrorism and Migration Policy the anti-terrorist field,62 and a Council Directive setting minimum standards for the reception of asylum seekers (third country nationals and stateless persons) which, while generally providing for free movement within a Member State, also enables national law to confine asylum seekers to a particular place when necessary, for example for legal reasons or reasons of public order.63 Finally, September 11th has influenced the further development of measures to prevent the facilitation of unauthorised entry, transit and residence, including strengthening the penal framework, without prejudice to the protection afforded refugees and asylum seekers under Articles 31 and 33 of the Refugee Convention.64

3.

CONTROL AFTER ENTRY

All within the jurisdiction of a State are amenable to criminal prosecution, whether for ‘ordinary’ crimes or specialist terrorist offences committed there, and, increasingly, because international obligations in the anti-terrorism fields require extra-territorial jurisdiction, for offences committed outside that State. One EU anti-terrorist policy is to require its Member States, not party to such Conventions, to sign up to them.65 Since the problem of the moment is international terrorism, those persons, citizens or not, belonging to ethnic minority or migrant groups, may find themselves disproportionately the target of such offences66 and the investigative powers of the police which accompany them.67 It is beyond the scope of this chapter to cover the full range of potentially applicable criminal laws (which will vary as between Member States), but important to say something about post September 11th moves towards a degree of harmonisation in this field. In addition, of course, those who are not citizens are amenable to exclusion or deportation from the State on security grounds, whether as an alternative or a supplement to criminal prosecution.

62 Council Reg (EC) No. 407/2002 O. J. 2002 L 62.; Council Reg (EC) No. 2725/2000 OJ

63 64

65 66 67

2002 L 316; German Report to UN Security Council Committee on Counter Terrorism document S/2002/11 at pp. 13-14, at UN source above n. 1. Council Dir 2003/9/EC, 6 February 2003, includes UK, but not Ireland or Denmark, OJ 2003 L 31/18, see especially Article 7. Council Directive 2002/90/EC OJ C276 1 October 2001; Council Framework Decision 2002/946/JHA OJ 2002 L328/1, 5 December 2002, (includes UK and Ireland); Commission Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the EU, 2002/C 142/02 and C/142/23. For the latest ‘roadmap’ on progress, see Presidency Note 13909/1/02 REV1, 14 November 2002. EU Network of Independent Experts in Human Rights, above n. 33, at p. 8. See further Bigo’s essay in this volume.

105

David Bonner In endeavouring to achieve a degree of harmonisation in anti-terrorist laws, the Framework Decision on Combating Terrorism had to recognise that it could not write on a clean slate in every State – some have long had to respond both to domestic (sometimes separatist) terrorism and to international terrorism: France, Germany, Ireland, Italy, Spain, and the UK all had anti-terrorist laws of long-standing.68 The EU definition of terrorism draws heavily on UN Conventions, is redolent of the definition in the United Kingdom’s Terrorism Act 2000,69 and attracts similar criticisms about overbreadth and possible impact of public protest and certain kinds of industrial action.70 The Framework Decision,71 however, is stated not to alter the obligation, set out in Article 6 TEU, to respect fundamental legal rights and principles, essentially as set out in the ECHR and the EU Charter of Fundamental Rights, particularly Chapter VI. Moreover, paragraph 10 of the Preamble states that nothing in the Decision is to be interpreted as being intended to reduce or restrict fundamental rights or freedoms such as the right to strike, freedom of assembly and association or of expression, including the right of everyone to form and join trade unions with others for the protection of his or her interests and the related right to demonstrate.

An amplificatory, but not legally binding,72 Council Statement issued at the time of adoption of the Decision further emphasises that it cannot be construed so as to argue that the conduct of those who have acted in the interest of preserving or restoring those democratic values, as was notably the case in some Member States during the Second World War, could now be considered as ‘terrorist’ acts. Nor can it be construed so as to incriminate on terrorist grounds persons exercising their fundamental rights to manifest their opinions, even if in the course of the exercise of such right they commit offences.73 68 See F. Reinares (ed.), European Democracies Against Terrorism: Governmental Poli-

69 70

71 72 73

cies and Intergovernmental Cooperation, (Aldershot: Ashgate, 2000), with chapters covering France, Italy, Spain and the United Kingdom, as well as the pre-2000 EU dimension; on these and other EU countries see their reports to the UN Security Council Committee on Counter-Terrorism, established pursuant to para. 6 of Security Resolution 1373, available at: http://www.un.org/Docs/sc/committees/1373/. s. 1. See S. Peers, “EU Responses to Terrorism” (2003) 52 ICLQ 227; Bunyan, above n. 23, above. http://www.statewatch.org/news/2002/sep/04freedom.htm; EU Network of Independent Experts, above n. 33, at pp. 7-8, 11-16. OJ 2002 L 164/3. Bunyan, cited n. 23, above. Council doc. 14845/1/02, at 15; quoted in Peers, cited n. 70, above, who notes that its

106

Porous Borders: Terrorism and Migration Policy Within those parameters, Article 1 requires Member States to criminalise certain specific acts committed in a particular context with a terrorist aim.74 The specific acts in large part correspond to international obligations in other UN ‘extradite or prosecute’ Conventions dealing with specific manifestations of terrorism (e.g. the Terrorist Bombing Convention, the Hostages Convention, the Nuclear Materials Convention).75 The specific acts covered are: attacks on someone’s life which may cause death; attacks on a person’s physical integrity; kidnapping or hostage taking; causing extensive destruction to a Government or public facility, a transport system, an infrastructure facility, including an information system, a fixed platform on the continental shelf, a public place or private property likely to endanger human life or result in major economic loss; seizure of aircraft, ships or other means of public or goods transport; manufacture, possession, acquisition, transport, supply or use of weapons, explosives or nuclear, biological or chemical weapons, as well as research into, and development of, biological and chemical weapons; release of dangerous substances, or causing fires, floods or explosions the effect of which is to endanger human life; interfering with or disrupting the supply of water, power or any fundamental natural resource the effect of which is to endanger human life; and threatening to commit any of the above acts. The context is that the acts may seriously damage a country or international organisation. As to terrorist aim, the acts (or threats) must be committed (or uttered) with the aim of seriously intimidating a population; or of unduly compelling a Government or international organisation to perform of abstain from performing any act; or of seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation. Article 2 requires the creation of offences of directing or participating in a structured terrorist group, while Article 3 lists as offences linked to terrorist activities ones of aggravated theft, extortion and drawing up false administrative documents, and Article 4 deals with inchoate offences with respect to the first three Articles. Such offences are generally to be punishable as custodial offences, with penalties greater than similar ‘ordinary’ offences to reflect the aggravating factor of the specified aim,76 with an ability to reduce such penalties for those offenders whose cooperation, for example, aids the identifica-

legal status and scope remain unclear. He cites at p. 236 (n. 44) as preferable on scope a European Parliament recommendation distinguishing between “acts whose aim is to alter ... structures in States governed by the rule of law by actually threatening to use violence or resorting to violence, as distinct from acts of resistance in third countries against state structures which themselves employ terrorist methods.” 74 I have borrowed here the language of Peer’s excellent analysis above n. 70, at p. 228. 75 Peers, above n. 70, at pp. 230-232. 76 Art. 5, and see on the liability of legal persons (e.g. corporate bodies) Arts. 7 and 8.

107

David Bonner tion or bringing to justice of the other offenders.77 The offences are to be extraditable, and States are to establish jurisdiction over these offences where committed in whole or in part on its territory (regardless of where the terrorist group may be based), on its flagcraft, by one of its nationals or residents or for the benefit of a legal person established in the State, or where the offence is committed against its institutions or people or against an EU body established in that State. States can extend their jurisdiction to cover offences committed in another Member State, and must ensure that it has jurisdiction to prosecute such offences in cases where it refuses to hand over or extradite to another Member State or third country a person suspected or convicted of such an offence.78 In addition, a number of Common Positions and connected Decisions require States to increase police and judicial cooperation with respect to domestic and international terrorism and to freeze the assets of and prohibit transfer of funds to certain named terrorist groups and individuals.79 The EU has also set in motion a system of peer evaluation of the anti-terrorist laws of its Member States.80 In terms of scrutiny of residents, there is new EU provision on uniform format for residence permits.81 Schengen States have been asked to make use of the facilities for surveillance permitted by Art 2(3), and both Germany and France have enhanced controls in this area whether through new laws or changes in practice under existing ones.82 Surveillance of residents is obviously easier in States, which require the carrying of, and permit the inspection on demand of, identity cards. In the United Kingdom, powers randomly to stop, search and question as a means of preventing terrorism are limited to airports and seaports, although powers enabling all police officers to randomly stop and search vehicles, passengers and pedestrians can be invoked for a limited period in particular locations by a senior police officer with the approval of the Home Secretary for a period beyond 48 hours where invocation of the powers is thought expedient for preventing acts of terrorism.83 Driving licences with photograph are optional. Home Office proposals for a United Kingdom system of identity cards have always met strong opposition, but a ‘smart card’ for asylum seekers has been introduced.84 Proposals for a general obligation to carry an identity card in the 77 Art. 6. 78 Art. 9. 79 Peers, above n. 70, at pp. 237-239. 80 Council Decision 2002/996/JHA of 28 November 2002 OJ L 2002 349/1. 81 Council Reg (EC) No. 1030/2002, OJ L157 15 June 2002. 82 On Germany see E. Brouwer, “Germany: Controlling Data” in Brouwer et al, above

n. 7, at pp. 37-38 (inclusion of biometric data). on France see E. Brouwer, “France: Focussing On Internal Security” in Brouwer et al, cited n. 7, above, at pp. 18-20. 83 Terrorism Act 200, ss.44-47. 84 See: http://www.homeoffice.gov.uk/docs/entitlement_cards.pdf.

108

Porous Borders: Terrorism and Migration Policy Netherlands are also likely to meet opposition.85 Most Member States have provisions in national law enabling non-citizens to be required to report to the police or immigration officials on a regular basis, or to impose limitations as to place of residence.86 In all Member States, residence may be curtailed, renewal refused, or deportation ordered on a range of ‘security’ grounds, differently formulated and subject to variegated systems of review or appeal rights. 87 EU law mandates mutual recognition of expulsion decisions.88 Member States have been encouraged to sign up to a variety of ‘extradite or prosecute’ Conventions, a similar obligation is part of the Framework Decision’s regime on terrorist offences, and the Council of Europe has opened for signature a Protocol to the European Convention on the Suppression of Terrorism, further limiting the already limited role of the ‘political offence’ exception.89 Within the EU, extradition between Member States is being replaced by the simpler but controversial procedures of the European arrest warrant, and joint action between investigative bodies and prosecutors is sought to be enhanced by EUROPOL, enhanced mutual assistance arrangements and EUROJUST.90 A key question, however, is what happens if an international obligation or practical circumstances preclude deportation or extradition? This is not likely to result from the Refugee Convention, because of its exceptions for those threatening a State’s national security91 and as regards persons guilty of acts contrary to the purposes of the United Nations, which appears to cover those engaged in terrorism.92 The most likely obstacle is the ‘absolute’ Article 3 ECHR but a case could be based on Articles 2, 8 or Protocol 6 and their ICCPR equivalents. The response of all Member States is that removal without consent is precluded. For most Member States, protection of security interests would then have to come through criminal prosecution or the subjection of the person to such surveillance measures short of detention as are permitted in national law (e.g. reporting to the police or immigration officials, interception of communications). The United Kingdom response, unique in Europe but available also in the United States, is striking and draconian – detention without trial under its Anti-terrorism, Crime and 85 P. Catz, “The Netherlands: Small Steps on Beaten Tracks” in Brouwer et al, above 86 87 88 89 90 91 92

cited n. 7, at p. 66. See country reports, UN source above n. 1. Ibid. Council Dir 2001/40/EC, OJ L149/34, 2 June 2001 (not Denmark). See http://cm.coe.int/stat/E/Decisions/2003/828/d10_1b.htm. See OJ C257/1 (mutual assistance), OJ L190/1 (arrest warrant); L162/1 (joint investigation teams); OJ l063/1 (Eurojust). Arts. 32(1), 33(2). Art. 1F.

109

David Bonner Security Act 2001 (ATCSA) of those international terrorist suspects who lack British citizenship.93 The Home Secretary’s certification of someone as a suspected international terrorist whose presence threatens national security enables indefinite detention under a range of immigration provisions the effect of which would otherwise be limited temporally. Unlike those held by the United States in Guantanamo Bay, detainees under SIAC are not left in a legal ‘blackhole’. They have a right of appeal to a specialist public law ‘security’ court, the Special Immigration Appeals Commission (SIAC), with status equivalent to the High Court, and SIAC must in any event review periodically the detention. SIAC’s decision can be appealed to the Court of Appeal by either side on a point of law only, and from there on law only to the House of Lords. Under the Human Rights Act 1998 (HRA), SIAC and the appellate courts must strive so far as possible to interpret the legislation compatibly with ECHR rights94 and, where that is not possible, can make a declaration of the legislation’s incompatibility with those rights.95 Such a declaration does not affect the validity or operation of the law so impugned, but acts as a pressure point in a dialogue with those with power to change the law – the executive/legislature partnership – enabling them to repeal or amend the legislation as necessary either through the primary legislative process or, in cases of urgency, a fast-track remedial procedure through which secondary legislation can amend or repeal primary legislation.96 A detainee can obtain release by agreeing to be removed to a country that will take him. Two have done so. Thirteen persons remain in detention.97 A chal93 ATCSA 2001, ss. 21-34. For more detailed treatment and comment, see: C. Walker,

94 95 96

97

Blackstone’s Guide to The Anti-Terrorism Legislation (OUP, 2002), esp. chaps. 1 and 8; H. Fenwick, “The Anti-Terrorism, Crime and Security Act 2001: A proportionate Response to September 11?” (2002) 65 Modern Law Review 724; A. Tompkins, “Legislating Against Terror: The Anti-Terrorism, Crime and Security Act 2001” [2002] Public Law 205; D. Bonner, “Managing Terrorism While Respecting Human Rights? European Aspects of the Anti-Terrorism, Crime and Security Act 2001” (2002) 8 European Public Law 497; Liberty, Anti-Terrorism Legislation in the UK, http://www.liberty-human-rights.org.uk/resources/publications/pdf-documents/antiterrornew.pdf ; Lord Carlile, Anti-Terrorism, Crime and Security Act 2001, Part IV Section 28 Review, (2003), which can be found at: http://www.homeoffice.gov.uk/ docs/crime-and-security-act.pdf HRA, s. 3. HRA, s. 4. HRA, s. 10. See further D. Bonner, H. Fenwick and S. Harris-Short, “Judicial Approaches to Interpreting and Using the Human Rights Act: The Story So Far” (2003) 52 ICLQ 549. House of Lords/House of Commons Joint Select Committee on Human Rights, Continuance in Force of Sections 21 to 23 of the Anti-Terrorism, Crime and Security Act 2001, HL 59/HC 462 (Fifth Report Session 2002-03), para. 10 (from Home Secretary’s memo to the Committee). The choice for a detainee – detention or the risk

110

Porous Borders: Terrorism and Migration Policy lenge to the Convention rights aspect of their cases was initially upheld by SIAC, which declared the relevant ATCSA provisions incompatible with Article 5 read with 14 as discriminatory on grounds of national origin, since those terrorist suspects threatening security who held British citizenship could not be detained. That decision was overturned on appeal by the Court of Appeal98 on the basis that the proper pigeonhole for the legislative scheme was ‘immigration’ which of necessity distinguishes, as recognised in international law, between citizens and aliens, and that the greater threat to security (paying the due deference to the opinion of the Home Secretary required by law) 99 came from foreign nationals, so that the detention only of such nationals was not discrimination contrary to Article 14 ECHR. Both SIAC and the Court of Appeal – the former paying the due deference to executive opinion that the law requires, and the latter deferring to that and to SIAC as the only court which had seen the ‘security’ evidence’ – held that there existed in the United Kingdom, because of the devastation possible if a September 11th type attack by Al Qaida operatives were not prevented, an imminent public emergency threatening the life of the nation.100 That conclusion was reinforced since both courts saw the United Kingdom, standing shoulder to shoulder with the United States in the war on terrorism, as at greater risk than other European States.101 Again paying the required due deference to executive opinion,102 the detention measures taken did not go beyond what the exigencies of that emergency situation required; they were not disproportionate and, because of the availability of SIAC appeal and review options, the deprivation of liberty imposed was subject to adequate safeguards.103 The latter is clearly supportable, but the former finding may be criticised since neither court explored the viability of less restrictive alternatives (e.g. electronic tagging).104 Since SIAC has to hear the ‘security’ evidence in closed session – that is in the absence of the detainee and his lawyer and only disclosing to them such of the material as is consonant with security – an issue of ‘fair hearing’, stipulated in

98 99 100 101 102 103 104

of treatment contrary to Art. 3 ECHR – is an awful one. Whether forcing that choice breaches Art. 3 remains to be seen. So far complaints under Art. 3 about conditions of detention have been rejected by SIAC and the Court of Appeal. Returning a terrorist to a State thought to sponsor terrorism hardly seems conducive to preventing terrorism. A and Others v. Secretary of State for the Home Department [2003] 1 All ER 816. Secretary of State for the Home Department v. Rehman [2002] 1 All ER 122. A and Others, above n. 97, at paras. 33-35, 83-90. Ibid. Rehman, above n. 98. A and Others, above n. 97, at pp. 831-836, 844-846. See Bonner, above n. 92 and Lord Carlile’s Review noting Professor Walker’s evidence, above n. 92.

111

David Bonner Articles 5(4) and 6 ECHR, arose. That had to be adjudged in light of the SIAC scheme providing that in closed session security cleared counsel to the Commission, appointed by the Attorney General, plays ‘devils advocate’ with the security material, but does not as such take instructions from the detainee or his lawyer and cannot disclose to them matters relating to the security material. The Court of Appeal stated gnomically that the right to a fair hearing contains a national security exception.105 Since Article 6 itself only does so as regards the public character of the proceedings (i.e. it permits the exclusion of press and public), it is assumed here that the Court must have had in mind the indications of the European Court of Human Rights in Chahal that such a system, modelled on one version of the Canadian security regime, would satisfy ECHR procedural fairness requirements and afford an effective remedy.106 Doubts very much remain on that point, however.107 Currently, the detainees are seeking leave from the House of Lords to appeal these HRA/ECHR issues to that court. Should leave not be granted or, if granted, the appeal be decided against the detainees, the matter will be taken to the European Court of Human Rights, domestic remedies having been exhausted on the ECHR aspects. Meanwhile, proceedings on the merits of each individual case (that is whether they are rightly regarded as international terrorists threatening national security), adjourned pending the outcome of the HRA/ECHR challenges, have been heard by SIAC and the detentions have been upheld as proper.108 These detention powers, as has been stressed, apply only to persons who are not British citizens. The United Kingdom, traditionally relaxed about dual nationality, has extended its powers to deprive persons of citizenship beyond cases where those obtaining it through voluntary act (naturalisation or registration), rather than operation of law (birth, adoption or descent), are shown to have done so through fraud or false misrepresentation or concealment of a material fact.109 The result is that a British citizen – whether through birth, adoption, descent or voluntary act – can, on the order of the Home Secretary, be stripped of it, so long as doing so will not result in statelessness, if that politician is satisfied that s/he has done anything seriously prejudicial to the vital interests of the United Kingdom or a British overseas territory, a statutory embodiment 105 A and Others, above n. 97, at p. 836 (para. 57). 106 (1997) 23 EHRR 413. The Court reiterated this in Al-Nashif v. Bulgaria (2003) 36

EHRR 37, citing SIAC, but declined to give an opinion on whether the SIAC system conformed with the Convention (para. 97). 107 See Amnesty International Report on the Anti-Terrorism, Crime and Security Bill at http://web.amnesty.org/library/index/ENGEUR450172002. 108 See N. Cohen “The greatest threat”, The Observer, 25 May 2003: available at: http: //www.observer.co.uk/comment/story/0,6903,963074,00.html. 109 British Nationality Act 1981, s. 40(3), as substituted from 1 April 2003 by Asylum, Nationality and Immigration Act 2002, s. 40(3).

112

Porous Borders: Terrorism and Migration Policy of the language of Art. 7(1)(a) of the European Convention on Nationality.110 The Home Secretary’s decision is appealable to SIAC and from there, on a point of law to the Court of Appeal and House of Lords.111 The prime target will be those persons, suspected of terrorism, that hold dual nationality. Removal of citizenship opens the way to their deportation, or, if that is precluded because of international treaty obligation or some practical reason, to detention under ATCSA.

4.

CONCLUSION AND ASSESSMENT

The EU climate, never warm for migrants and even colder for irregular ones, has turned positively icy since September 11th. In particular there are very worrying calls for reviewing the Refugee Convention and Article 3 ECHR, a sense of governments adopting rather than resisting arguments from the Right for further restriction. There are legitimate concerns about the overbroad scope of the EU definition of ‘terrorism’ and of some of the corresponding powers of information and data gathering. The response of all others in the European family of nations calls into question the necessity for the United Kingdom’s draconian detention regime, especially when no other State has derogated and no Schengen State has thought it proper to invoke the ‘national security’ provision in Art. 2(2) of that agreement. Those factors make interesting the prospective decision of the Court of Human Rights, should the House of Lords reject the detainees’ appeal. It will be a case that will test to the full the worth of European human rights norms and their protective institutions, and how much ‘margin of appreciation’ they will accord governments.

110 British Nationality Act 1981, s. 40(2), (4), as substituted from 1 April 2003 by

Asylum, Nationality and Immigration Act 2002. For text of the Convention see ETS No. 166. 111 British Nationality Act 1981, s. 40(2), (4), as substituted from 1 April 2003 by Asylum, Nationality and Immigration Act 2002.

113

This page intentionally left blank

Johannes van der Klaauw 1

IRREGULAR MIGRATION AND ASYLUMSEEKING: FORCED MARRIAGE OR REASON FOR DIVORCE?

1.

INTRODUCTION

Asylum-seeking has been considered traditionally as an issue to be regulated by a specific international law framework with no specific linkages to policies concerning migration management or combating irregular migration.2 Article 31 of the 1951 Convention relating to the Status of Refugees acknowledges that refugees may enter the territory of their asylum country in an irregular manner, i.e. without the required travel documents, yet this should not be a reason for States to impose penalties – provided the refugees present themselves without delay to the authorities and show good cause for their irregular entry or stay. The treatment of asylum-seekers and refugees should meet States’ obligations deriving from international refugee law instruments rather than be subjected to the socio-economic, demographic or other orientations of States’ migration policies. There is thus a need to clearly distinguish – in States’ entry and residence policies, as well as in the public debate – between refugees fleeing persecution and violent conflict, and persons moving for purely economic or social reasons. Necessary as it may be to maintain the distinction between asylum and migration policy, there is a case to be put forward to explore their linkages, particularly as regards the nexus between refugee protection and control of irregular migration. Asylum-seekers and refugees, while not migrants, increasingly move 1 2

The views expressed in this paper are those of the author and do not necessarily reflect the positions of UNHCR. We prefer the term ‘irregular’ over ‘illegal’ immigration to avoid the connotation that those entering or residing without meeting States’ legal requirements are without any legal identity or entitlement to just and humane treatment.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 115-135 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Johannes van der Klaauw within broader migratory flows which include both voluntary and forced movements. Although refugees and asylum-seekers only constitute a small part of the global migratory movements, they are nevertheless a visible group within these composite flows. A number of them try to find protection close to their homes, yet for lack of any means to reconstitute their lives, or because of continuing insecurity, they move onwards, often in an irregular manner, and thus become part of a broader migration movement. States’ responses to these composite flows focus mainly on measures aimed at combating irregular movement, sanctioning migrants smuggling and human trafficking, strengthening border controls and readmission and return of irregular residents. Amongst those moving irregularly, however, are refugees and asylum-seekers, who are thus affected by such measures. Those uprooted often move for a mixture of reasons: when fleeing political or religious persecution, ethnic tensions or generalised violence, persons often also try to move away from economic marginalization, environmental degradation, or lack of good governance. Their movement is often both forced and voluntary. The ‘push’ factors include persecution and violence resulting in seeking asylum abroad, as well as poverty, unemployment, and substandard living conditions which prompt persons to migrate in search of a better life. Here too, the issue of asylum-seeking must be analysed within the context of broader migration movement. The linkages between asylum-seeking and migratory movement are also apparent where economic migrants, in the absence of legal migration options, seek entry and residence by using, or in the view of many, misusing the asylum channel as the only available entry procedure. Here, the line between migrant and asylum-seeker progressively blurs in the public mind. As a result of this phenomenon, States also tend to distinguish less in their policies between migration management and refugee protection, the latter becoming subjected to imperatives of migration control. These are just few reasons why the issues surrounding contemporary forms of asylum-seeking cannot be dissociated from the analysis of irregular migratory movements. Yet does this mean that the imperatives of refugee protection should be addressed automatically within the broader framework of migratory flows? Should States, in their laws, policies and practices, not preserve a distinct focus on asylum in order not to tinker with the specific and time-honoured legal framework for a vulnerable group of persons amidst the larger migratory movements? There is indeed a good cause to make for respecting the distinction between asylum and migration: the right to seek and enjoy asylum is a human right, regulated by an international instrument. The offer of protection is a legal and moral obligation on the part of States. Migration policy considerations, however, are dictated by developments in the economic, demographic, social and cultural make-up of States, and, increasingly, inter-State co-operation.

116

Irregular Migration and Asylum-Seeking However, the international regulatory framework in migration3 is much less developed than the refugee protection regime, and legal standards in the latter area require full and proper application. As for the management of both asylum and migration, this requires different tools and mechanisms, and in the area of asylum-seeking these have been developed in response to specific procedural requirements and material conditions as part of States’ asylum systems. Nevertheless, the linkages between asylum and migration cannot be denied: in the reality of life, refugees are part of mixed flows of uprooted people, economic migrants pose as asylum-seekers, asylum-seekers are rightly or wrongly rejected as irregular migrants, victims of human trafficking are forced to use the asylum system in order to escape their racketeers. The legislative and operational responses to these linkages must address the complexity of this reality. They must strike a careful balance between legitimate measures to control entry and State obligations to provide protection to those in need. As much as migration control instruments must include safeguards to identify those in need of protection, asylum systems must be buttressed against misuse for migration purposes, not least through the streamlining and ‘frontloading’ of eligibility procedures: well-resourced procedures particularly during first stages of processing, for producing sound decisions as expeditiously as possible. In this contribution we shall analyse various critical areas of the asylummigration nexus: 1. Combating irregular immigration through border controls, interception and interdiction measures, and sanctions on migrants smuggling and human trafficking; 2. Measures aimed at a more orderly and managed entry for refugees; 3. Return and readmission of irregular residents and unsuccessful asylumseekers; 4. Strengthening reception capacities in regions of origin; and 5. Developing comprehensive policy approaches to refugee and migration challenges.

2. COMBATTING IRREGULAR MIGRATION AND BORDER MANAGEMENT During the last decade, European states have adopted a plethora of instruments, including at EU level, in support of the fight against irregular immigration. 3

In addition to certain ILO Conventions (notably nos. 97 and 143) since 1990 a UN Convention on the Protection of the Rights of all Migrant Workers and Members of their Families exists as one of the very few international migration oriented international instruments. The latter entered into force on 1 July 2003, after having received its 20th ratification. Mainly developing countries are parties to the instrument (Bosnia and Herzegovina being the only European country having acceded to the instrument).

117

Johannes van der Klaauw In February 2002 the EU adopted an Action Plan to combat illegal immigration and trafficking in human beings.4 Implementation of the Action Plan has resulted in a strengthening of practical co-operation between border guards, joint operations at external borders and on the high seas, and the establishment of networks for the exchange of information and analysis of trends and risks. A European Union Agency for border controls was also under preparation during late 2003. The EU Action Plan, which follows a Commission Communication of November 2001 on the same subject, includes a brief chapter on States’ international obligations under refugee law and human rights law, particularly Article 31 of the 1951 Convention. The Plan also refers to potentially vulnerable groups such as minors and women whose special needs must be attended to in any measures aimed at stemming migrant smuggling and human trafficking. From an asylum perspective, the Plan emphasises the need to strengthen co-operation with partner countries at the beginning or half-way along the chain of displacement, in order to provide protection closer to the place of origin. It also emphasises the priority to be given to standard-setting and practical co-operation at EU level in regard to readmission and return of irregular residents In addition, EU Ministers of Justice and Home Affairs adopted an Action Plan on integrated border management in June 2002. This Plan builds on a Commission Communication published one month earlier which outlines the main components of a Community policy on border management, including the establishment of a common corpus of legislation, the establishment of a common risk evaluation mechanism, the implementation of pilot projects and joint operations, common training programmes and a financial burden-sharing mechanism.5 A Common Unit for external border practitioners has been established since for the co-ordination of joint actions and the development of common strategies based on common risk assessments and needs analysis. As for the linkages with asylum, the preparation of a common core curriculum for the training of border guards has proven to fertile ground for co-operation with refugee actors. UNHCR managed to include in the curriculum references to international refugee law and human rights law instruments, as well as training tools for screening and interviewing techniques aimed at the prompt identification and referral of asylum-seekers at border points. Moreover, some initial contacts have been made by UNHCR and other refugee advocates with individual Member States involved in the joint operation of controls at external land borders and on the high seas, i.e. the Mediterranean basin, yet so far these have not yet resulted in an operational or monitoring role for refugee agencies. 4 5

Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the European Union O.J. 2002 C 142/02. Plan for the Management of the External Borders of the Member States of the European Union (Council of Ministers of the European Union 1001/02 FRONT 58 COMIX 398) 13 June 2002 (not yet published in the O.J.) COM (2002) 233 final.

118

Irregular Migration and Asylum-Seeking The various EU legal instruments adopted so far to foster co-operation in the fight against irregular migration include references to State obligations in regard to refugee protection, yet in most of the cases these have been formulated in rather general and non-binding language. The EC Directive on carrier sanctions,6 aimed at strengthening the relevant provisions of the Schengen Implementation Agreement, includes a humanitarian exception yet this provision does not explicitly acknowledge that a person with a well-founded fear of persecution may have to seek illegal entry for which a carrier should not be penalised. Efforts by UNHCR and non-governmental organisations to insert a so-called ‘savings clause’ in the Directive were only partially successful. A proper clause of this kind would have read that sanctions should not apply where the undocumented migrant seeks international protection under the 1951 Convention and the 1967 Protocol or other international human rights instruments because of a well-founded fear of persecution or other threats to his or her life or freedom. Instead, Member States contented themselves with a generally worded paragraph stipulating that the imposition of carrier sanctions should be subject to States’ obligations in cases where the passenger seeks international protection. Following the adoption of the Directive a round table process bringing together the transport sector, Government administrations and the humanitarian organisations reviewed inter alia how humanitarian concerns could be reconciled with the various elements of carriers’ liability regimes. It was concluded that further implementing rules and regulations would be needed in regard to humanitarian exception, coupled with a clear set of rules on competencies and responsibilities for all actors involved. Another key flanking measure adopted at EU level in the fight against irregular migration which has significant repercussions on access by asylum-seekers to EU Member States’ territory is the Framework Decision on combating migrant smuggling. This instrument, an initiative by the (then) French Presidency submitted in September 2000 and finally adopted in late November 2002,7 includes a general savings clause subjecting the provisions of the instrument to obligations under international refugee law and human rights law instruments. However, the text is lacking in a reference exempting smuggled refugees and asylum-seekers from criminal liability. Moreover, the act of migrant smuggling is defined in the accompanying Council Directive8 in a manner inconsistent with the relevant 6

7

8

Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985, O.J. 2001 L 187/45. In October 2003, eight Member States still had to transpose this Directive in national law and practice (which they should have done by February 2003). Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, O.J. 2002 L 328/1. Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorized entry, transit and residence, O.J. 2002 L 328/17.

119

Johannes van der Klaauw provisions of the UN Protocol on Smuggling of Migrants attached to the UN Convention against Trans-national Organised Crime.9 Also, a clause exempting smugglers from penalties if they have acted out of purely humanitarian motives has been worded as an option rather than an obligation. In addition the EU has adopted a Framework Decision on combating human trafficking.10 In contrast to the relevant UN Protocol on Trafficking in Persons attached to the UN Convention against Trans-national Organised Crime, the EU instrument does not include any specific provisions on the protection and assistance of victims. It has been argued that those provisions can be found in a separate EU instrument on the standing of victims in criminal proceedings,11 yet that text does not address the specific situation and needs of victims of trafficking. In the absence of such victim-oriented provisions, trafficked persons who may be in need of protection may not be identified as such under this EU legislation and may be prevented from seeking asylum.12 The EU has taken additional measures to strengthen its border controls and enhance its capacity for combating irregular immigration, not least in cooperation with third countries, particularly those neighbouring the enlarging Union. A formal network of immigration liaison officers in consular offices

The Community has signed both Protocols to the UN Convention and is soon to be expected to ratify the texts, so it is somewhat surprising that in the EU Framework Decision it has departed from the internationally agreed definition of the UN Protocol. This may become an interesting case for judicial scrutiny of potential diverging implementation of EU and international standards by EU Member States. The reason for the EU not to follow the internationally agreed definition of smuggling in regard to the facilitation of illegal entry (as opposed to illegal residence) is the stated lack of means to prove in court that the act of smuggling was committed for material or financial benefit. See J. van der Klaauw, The Trafficking of Human Beings into the European Union: Specific Problems of Victims and Asylum-Seekers, in Claudia Faria (ed.), Managing Migration Flows and Preventing Illegal Immigration: Schengen – Justice and Home Affairs Colloquium, (Maastricht:EIPA, 2002) 29. 10 Council Framework Decision of 19 July 2002 on combating trafficking in human beings (2002/629/JHA), O.J. 2002 L 203/1. 11 Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA), O.J. 2001 L 082/1. 12 Refugees can be among the victims of trafficking, and trafficked persons can build a valid claim to refugee protection if after being returned to their home country they would fall victim of reprisals of trafficking rings, risk to be re-trafficked or subjected to severe family or community ostracism amounting to persecution which the authorities are unable or unwilling to redress. The UN (Palermo) Protocol on Trafficking in Persons recognises the linkage with refugee protection through the insertion of a so-called savings clause, which, however, is absent in the EU Framework Decision. See van der Klaauw, n. 9. at pp. 35-36. 9

120

Irregular Migration and Asylum-Seeking in third countries will be established.13 Pilot projects and joint operations for improved co-ordination and co-operation in border controls, interception and mutual assistance are mushrooming. Although these joint operations have not yielded immediate success, their improvement and increased efficiency have been a main priority for the EU Member States.14 Nowhere in the various documents and reports related to these ad hoc centres, pilot projects and joint operations in external border management can one find a reference to States’ obligations under international refugee law and international human rights law. It is apparently taken for granted that in screening asylum-seekers at border points or intercepting refugees on the high seas, referrals to the asylum system will be made instantaneously. Any involvement in, let alone monitoring by, asylum bodies of the implementation of these initiatives has yet to be reported.15 The developing common policy in visas has been another significant element of the EU fight against irregular immigration which has had a direct impact on access to territory by asylum-seekers. The Council Regulation of 15 March 2001,16 which was recently updated,17 lists more than 130 third countries whose nationals are in need of a visa18 as a condition to enter the territory of any of 13 Initiative of the Hellenic Republic with a view to adopting a Council Regulation on the

14

15

16

17

18

creation of an immigration liaison officers network, in O.J. 2003 C 140/12. These officers recruited from EU Member States are to contribute to the prevention and combating of irregular immigration, the return of irregular migrants and the management of legal migration. They are to be posted in Western Balkan countries, the Middle-East, South-east Asia and East, Central and West Africa to assist local authorities and carriers alike in intercepting irregular migrants. Adopted on 19 February 2004. For an overview of the various pilot projects, joint operations, progammes and ad hoc centres established during 2002 – 2003 in support of the common management of the external borders, see Council Presidency Report of 11 June 2003, 10058/1/03 REV 1 (FRONT 70 COMIX 354). The issue of protection safeguards in interception measures was also dealt with by the 2003 UNHCR Executive Committee meeting . The text as finally adopted has been less ambitious as originally hoped for by refugee advocates, although it includes a welcome reference to the “primary responsibility” for addressing protection needs of intercepted persons by the State within whose sovereign territory or territorial waters interception takes place. Council Regulation (EC) No. 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, O.J. 2001 L 81/1. Council Regulation (EC) No. 453/2003 of 6 March 2003 amending Regulation (EC) No 5390/2001, O.J. 2003 L 69/10. The amendment concerns the inclusion of Timor Leste and Ecuador in the list of states whose nationals need a visa to enter any of the EU Member States. This would also include refugees recognised by and residing in that third country who wish to travel to an EU Member State (Article 3 of the Regulation).

121

Johannes van der Klaauw the EU Member States. These include countries which are known for generating larger numbers of refugees as a result of documented evidence of persecution, violations of human rights, and ethnic conflict or civil war. The list is part of a series of measures in the area of visa policy which should reinforce the Union’s action against irregular entry and movement. These measures are problematic in so far they do not discriminate between persons in need of international protection and those moving for other reasons. Where operated in combination with sanctions on transport companies carrying undocumented passengers; visa requirements may prevent refugees from seeking access and safety in EU Member States’ territory. They therefore should be implemented with the necessary flexibility where an undocumented person can make a reasonable claim that his or her departure from the country of origin was prompted by a risk to his life or liberty. These examples show that, in the various EU instruments, protection safeguards have been factored into migration control legal instruments in a partial and often non-binding manner only. As for their implementation, no initiatives have been reported to ensure that control and interception measures have due regard to the protection needs of refugees and asylum-seekers. With the exception of the core curriculum for training of border guards, none of the initiatives mounted so far incorporates appropriate means to identify asylum-seekers and refugees from among intercepted persons at borders or on the high seas. It seems that asylum issues are kept outside this operational field, on the assumption that one deals here with clearly identifiable irregular migrants only – the reality of mixed flows appears to be disregarded.

3.

MORE ORDERLY AND MANAGED ENTRY OF ASYLUM SEEKERS

In an effort to alleviate the pressures on States’ asylum systems, various proposals have been launched, including at European level, to achieve a more “organised and orderly intake” of asylum-seekers and refugees. Such projects include the establishment of resettlement schemes, possibly as part of a European burden-sharing mechanism, and the introduction of so-called protected entry procedures in regions of origin. An EU wide resettlement scheme would ideally harmonise the various steps in the process from policy formulation regarding eligibility criteria, through the setting of annual targets, up to the selection, transfer, arrival, settling and integration of resettled cases. Such a scheme would be given a legal base and a financial underpinning at EU level.19 As regards protected entry procedures, these should allow persons in need of international pro19 It should be recalled that resettlement can serve as a durable solution, and, hence,

contribute to a better managed intake of refugees in host societies, particularly those with sufficient integration potential, yet, first and foremost, resettlement is meant as a protection tool to address the needs of groups with particular vulnerabilities.

122

Irregular Migration and Asylum-Seeking tection to approach the diplomatic representation of a potential asylum country in the region of origin with a request for a humanitarian visa. At EU level, the establishment of a regional Task Force is under consideration to undertake a number of functions, such as information dissemination to potential migrants and refugees on immigration and asylum options on offer in the EU, assistance for processing of asylum applications in the region, and for resettlement to EU Member States, if possible as part of the EU-wide scheme. Both proposals have been the subject of studies20 and have been introduced in rudimentary form in a recent Commission Communication.21 Such proposals are considered advantageous above the current situation of spontaneous yet often irregular asylumseeking, in that they allow for a better use of managerial tools and financial means invested in the asylum systems. Organised arrival may also boost public confidence in the asylum systems, and most importantly it is considered to ease access to effective protection, closer to refugees’ homes and in a timely manner. Such schemes can have a beneficiary effect also on the protection systems of countries of first asylum in regions of origin, since – through resettlement, but also flanking support measures for domestic asylum processing – they may alleviate some of the pressures on those systems, making room for further initiatives for improved burden-sharing between Europe and other regions. Those States which have practised to date policies allowing applications for asylum at diplomatic representations abroad have reduced or even abolished their implementation and it can be questioned whether a EU scheme will ever see the light of the day in a climate of decreasing State interest.22 The establishment of such channels, in the words of the European Commission, could also be helpful to properly inform candidate economic migrants on possibilities for legal migration into the EU, and from deterring them from using the asylum route as an inappropriate means for entry. However, EU Member

20 G. Noll, J. Fagerlund and F. Liebaut, Danish Centre for Human Rights, Study on the

feasibility of processing asylum claims outside the EU against the background of the common European asylum system and the goal of the common asylum procedure, European Commission 2003; and J. van Selm, T. Woroby, E. Patrick, M. Matts, Migration Policy Institute, Study on the feasibility of setting up resettlement schemes in EU Member States or at EU level, against the background of the common European asylum system and the goal of the common asylum procedure (European Commission 2003). 21 Commission Communication, Towards more accessible, equitable and managed asylum systems, COM (2003) 315 final, 3 June 2003, pp. 13-16. 22 The Netherlands and Denmark recently abolished the practice, thereby joining Greece, Finland, Sweden and Norway which never formally opened such channels. Other States practice a protected entry procedure on an exceptional basis only and in an informal fashion (Belgium, Germany, Ireland, Italy, Luxembourg, Portugal). Only Austria, France, Spain, the UK and Switzerland have formalised such a procedure, yet have applied it in practice to a differing degree.

123

Johannes van der Klaauw States so far have shown no interest whatsoever to develop a Community legal framework for economic migration: a proposal for a Directive, submitted in 2001, has not been negotiated seriously so far, and individual States prefer to pursue national policies in this area. It is to expected that similarly low levels of interest exist in regard to the establishment of an EU co-ordination mechanism or the adoption of a legal framework based on minimum standards by way of a Directive for operating protected entry procedures in diplomatic missions. Whereas diplomatic asylum can still be provided, as well as evacuation in urgent cases, States appear less inclined to offer possibilities to apply for asylum at their embassies abroad. The contrast with increased externalisation of immigration controls at diplomatic representations is striking. Any moves towards a more managed entry of asylum-seekers in EU Member States should not result in the creation of a separate class of “genuine refugees” to the discredit of spontaneous asylum-seekers. The systems for processing the spontaneous claims and those for organised entry and application should function in a complementary fashion. The creation of legal channels for migratory purposes, e.g. for employment, studies or family reunion, could ultimately have a greater impact on improving the management of States’ asylum systems than the limited number of organised arrivals of persons in need of protection based on resettlement schemes or entry via humanitarian visas delivered abroad. Although the Thessaloniki Summit called on the European Commission to explore these proposals in more detail and come forward with a report by mid 2005,23 it can be asked whether such measures will contribute significantly to a decrease in irregular movement of migrants and asylum-seekers in the future. Given these doubts on the part of Member States, they continue to conduct the fight against irregular migration with their own repressive tools and practices. By and large, this programme remains disconnected from efforts to put in place more accessible and equitable procedures for obtaining refugee protection in the European Union. As part of moves towards improved management of States’ asylum systems, particularly in response to the problems put forward by manifestly unfounded applications and obstacles preventing the return of rejected cases, proposals have been put forward to establish mechanisms to separate the non-refugee element of the caseload of persons seeking asylum, that is the manifestly unfounded cases, from the asylum process. In this way, the inappropriate use of the asylum procedure by those seeking access for economic or other non-asylum related reasons could be reduced. In their most extreme form, processing centres outside the EU have been proposed to deal expeditiously with those claims, accompanied with sweeping statements that such processing, to be organised in transit centres outside the EU, should concern the large majority of asylum

23 Thessaloniki European Council, 19-20 June 2003, Presidency Conclusion No. 26.

124

Irregular Migration and Asylum-Seeking applications.24 UNHCR has come forward with a proposal to examine the manifestly unfounded applications of economic migrants in an accelerated procedure with simplified appeal at the external borders of the EU, in a procedure based on common procedural standards and subject to judicial scrutiny and parliamentary control. Processing should be done in closed reception centres, and rejected cases should be returned to their countries of origin, whereas accepted cases should be distributed evenly among EU Member States.25 While these proposals have been heavily contested by human rights advocates,26 the European Commission has suggested to study these proposals in more detail.27 The Thessaloniki Summit, without taking any further position, suggested that improved access to solutions through strengthening of protection capacity in regions of origin would be the preferred way forward.28 These various proposals show that efforts are underway to combat abuse of the asylum system by irregular migrants through the development of more effective management tools as part of asylum schemes. However, such initiatives are modest in comparison to the large spectrum of measures aimed at controlling irregular entry and residence. Also they require strengthened co-operation with countries of origin and transit which should be willing to invest in their own protection system in a spirit of responsibility-sharing. Moreover, they are likely to be successful only if coupled with measures to create legal channels for labour migration, since the latter are expected to make a greater difference in the management of migratory flows.

4.

RETURN AND READMISSION

The nexus between asylum and irregular migration is also visible in the problem of the return of unsuccessful asylum-seekers. Return to the country of origin of irregular migrants, including unsuccessful asylum-seekers, is not only an imperative for a viable and effective policy to combat irregular migration. It can 24 Most recently this was proposed by the UK in its A New Vision for Refugees, Final

Report, Cabinet Office/Home Office, January 2003. 25 UNHCR Working Paper “UNHCR’s Three-Pronged Proposal”, April 2003. The

proposal for expeditiously processing manifestly unfounded applications and co-ordinating return of rejected cases fits within a broader framework which also includes proposals to improve the domestic asylum processes of EU Member States and enhance capacities for providing protection in regions of origin. 26 See for a critical analysis Amnesty International, UK/EU/UNHCR – Unlawful and Unworkable – extra-territorial processing of asylum claims (IOR/61/004/2003) 18 June 2003. 27 Commission Communication, Towards more accessible, equitable and managed asylum systems COM (2003) 315 final, 3 June 2003. 28 Presidency Conclusions, Thessaloniki European Council, No. 26, 19-20 June 2003.

125

Johannes van der Klaauw also contribute to preserving the integrity of States’ asylum systems. The lack of return of those screened out clearly impacts negatively on public support for the asylum system. In April 2002, the European Commission published a Green Paper29 on the subject, which was followed by a Communication in October 2002.30 This prepared the ground for the Council to adopt a Return Action Programme on 28 November 2002.31 This programme provides the framework for a Community return policy situated within a comprehensive migration and asylum policy. As a concrete expression of this new approach, the EU adopted an Action Plan for the return of Afghans32 on the same day aimed at co-ordinating returns of Afghan refugees, rejected cases, and persons with an undetermined status during the pre-departure, return and post-arrival stages of the process. The various documents refer to refugee protection and human rights standards and considerations in relation to assessment of the conditions conducive to return, pre-expulsion detention, the conduct of return, and the prospects for post-arrival reintegration. The adoption of standards to regulate the return movement of irregular residents, including failed asylum-seekers, can be welcomed. In so far as rejected cases are considered to be subject to return, whether voluntary or forced, these can only include those who, after due consideration of their claim in a fair procedure, have been found not to qualify for refugee status on the basis of the Geneva Refugee Convention, nor to be in need of protection on other grounds, including, but not exclusively, obligations under international human rights instruments, and who are not authorised to stay in the country concerned for other compelling reasons. The Community is increasingly involved in regulating the return of irregular residents on the basis of readmission agreements. These serve the facilitation of return of nationals found not to be in need of international protection, yet can also result in a transfer of responsibility for determining the protection needs of those asylum-seekers who have not been allowed access to the territory and, hence, remain in an irregular situation, e.g. at border points, and are subject to the provisions of readmission agreements. In order to ensure that those asylum claims are examined by one or the other contracting party, readmission agreements should include specific safeguards to address the needs of those asylumseekers. Although the allocation of responsibility for examining an asylum 29 Commission Green Paper on a Community Return Policy on Illegal Residents, COM

(2002) 175 final, 10 April 2002. The publication of the paper was followed by a public hearing on 16 July 2002. 30 COM (2002) 564 final. 31 Council Proposal for a Return Action Programme, 14673/02 (MIGR 125 FRONT 135 VISA 172) of 25 November 2002. 32 Council EU Plan for Return to Afghanistan, 15215/02 (MIGR 131 RELEX 269) of 4 December 2002.

126

Irregular Migration and Asylum-Seeking request should ideally be arranged on the basis of Dublin-type mechanisms, in the absence of such arrangements, readmission arrangements should respect the principle of non-refoulement and allow for access to an asylum process for those irregular arrivals who claim to be in need of protection. The readmission agreements concluded thus far by the Community with third parties – Hong Kong, Macao and Sri Lanka – only partially envisage the situation of asylum-seekers who are moving in an irregular situation and are considered to be subject to readmission under the terms of the agreements.33 Return and readmission are situated on the axis where asylum and migration policy meet: they concern both migrants and – “failed” – asylum-seekers, and they serve the interest of both proper migration and effective asylum management. They do not, or should not, include persons with a need for international protection, as these persons are to be treated in the asylum system, and, as appropriate, have to benefit from integration schemes. In order to be effective, return policies should not be developed and implemented on their own, but must be conducted in conjunction with other policies. The latter should include measures to strengthen and streamline domestic asylum procedures, in order to buttress them against abuse, services preparing for return, such as counselling and training, and, most importantly, support for asylum capacity-building in transit countries and the delivery of targeted development aid in countries of origin, in order to ensure the proper processing of asylum applications and the sustainable reintegration of returnees in regions and countries of origin.34

5.

STRENGTHENING RECEPTION IN THE REGION

Recently the debate on the need to enhance capacities to provide protection close to refugees’ home countries has received renewed impetus, not least through contributions from the United Kingdom, the European Commission and UNHCR in the discussion on the need for better managed asylum systems.35 It is assumed that a better managed global system based on equitable sharing of responsibilities and burdens can only be achieved if the quality and effectiveness of protec33 See Article 16 , the so-called non-affection clause in the agreement with Hong Kong,

in conjunction with Article 12, the so-called transit clause. Both clauses are deficient from a refugee protection perspective in so far as the non-affection clause does not refer to the principle of non-refoulement and specific human rights instruments (including the 1951 Convention), and the transit clause is formulated in a non-binding and rather imprecise manner. 34 This holistic approach to return policy has been recognised by the Commission in its Green Paper. See also UNHCR Comments on the Commission Green Paper on A Community Return Policy on Illegal Residents, July 2002, n. 29. 35 The debate is not new, see e.g. the discussions in the Geneva-based Inter-Governmental Consultations on Asylum, Refugee and Migration Policies on Reception in the

127

Johannes van der Klaauw tion in countries in regions of origin of refugees can be improved. It is argued that, if protection can be accessed closer to the source of refugee movements, interception en route can be avoided, and irregular movement of refugees and asylum-seekers reduced. Efforts aimed at strengthening reception in the region however must not result in Europe absolving itself of its responsibilities to address the protection needs of those entering its territory. Rather these efforts should be made as an expression of more effective co-operation between countries of origin, transit and destination supported by international organisations and non-governmental organisations, in which all partners take their share in human and financial resources. Measures to strengthening protection capacity should benefit primarily states burdened by protracted refugee situations, and should be part of national and regional development agendas which contribute to the longer-term welfare of host communities and the self-reliance and integration of refugees alike.36 In this context, the notion of ‘effective protection’ has recently been re-introduced as a guiding concept, in the context of EU Member States’ efforts to facilitate the return of asylum-seekers and refugees to their regions of origin. Efforts to enhance capacities in third countries to provide effective protection, while primarily motivated by a desire of EU Member States to apply the “safe third country” or “first country of asylum” to these countries, could ultimately lead to creating a viable asylum space within the region of origin. It can also help reduce future irregular migratory flows, and contribute to efforts combating migrant smuggling and human trafficking, and preventing multiple asylum applications and ‘orbit’ cases.37 Benchmarks for when refugees and asylumseekers can be deemed to have found effective protection – in their region of origin – are the absence of a well-founded fear of persecution on any of the 1951 Convention grounds, respect for fundamental human rights in the host state in accordance with applicable international standards, including no real risk to life, or of torture or cruel, inhuman, degrading treatment or punishment in the host state, and no real risk of being deprived of liberty without due process. Furthermore, effective protection in a third country can be considered to be ensured only if that third country scrupulously adheres to the principle of nonrefoulement and is implementing the international refugee and human rights law instruments in practice. It should also grant access to an asylum process, or in Region of Origin, Working Paper September 1994 and Draft follow-up to the 1994 Working Paper, August 1995. These IGC discussions, as well as the present ones, have been stimulated primarily by the Netherlands, now also supported by the UK and Denmark. 36 See also Agenda for Protection, Goal 3, UN Doc. A/AC. 96/965/Add. 1. 37 See the Conclusions of the Lisbon Expert Roundtable, 9 and 10 December 2002 (organised by UNHCR and the Migration Policy Institute in the context of the implementation of the Agenda for Protection).

128

Irregular Migration and Asylum-Seeking the absence of an individual screening system provide prima facie recognition of refugee status. It would also offer, in addition to legal and physical security, access by the refugee or asylum-seekers to means of subsistence to maintain an adequate standard of living. Whether the theory behind this concept becomes reality depends largely on the political will of states to implement these benchmarks by adhering to the legal standards and by providing sufficient means. Yet, even if additional resources are injected in development budgets to support protection capacities of countries in regions of origin, such countries cannot be expected to be transformed speedily into havens of peace, stability and prosperity. For this to happen, other measures are needed, such as diplomatic pressure for settling conflicts and crises, human rights intervention, support for good governance, strengthened economic co-operation, the establishment of an advantageous trade regime for the host country, poverty reduction measures and support for social stability. Improved conditions in regions of origin, however, are far from a secure guarantee that irregular movement of refugees, asylum-seekers or migrants from the region will be substantially reduced. Such movement is prompted by a variety of push and pull factors, including the disparity in income levels between the developing and industrialised world, the availability of – undeclared – work in industrialised countries, the expansion of trans-national social networks, access to information and the availability of resources required to migrate, whether legally or in an irregular manner. Last but not least, continuing violence and conflict as well as political, social and economic instability in many developing countries contribute to the persistence of patterns of irregular migration from particular source countries. The “regionalisation of the refugee-intake” seems an attractive and advantageous option, as a means to reducing irregular movement and combating smuggling and trafficking, as well as a tool for creating adequate protection closer to home – thus making repatriation also a more likely and less expensive option at a later stage. Such efforts may also help lower the costs of the asylum systems in Europe, with the potential for transferring expenditure to development budgets. However, they cannot become a substitute for industrialised countries taking their share of the responsibility for receiving and hosting refugees, whether in response to spontaneous arrivals or as part of an organised resettlement scheme. Moreover, improving the reception conditions in regions of origin cannot be a simple matter of creating, through the injection of financial and human resources from EU Member States, “zones of protection” or “safe areas” where asylum-seekers can have their claims processed.38 Initiatives to that effect, as recently floated by the United Kingdom, raise complex legal questions about State sovereignty and accountability and jurisdictional issues on applicable law 38 For a brief, critical analysis, see J. van der Klaauw, Building partnerships with coun-

129

Johannes van der Klaauw (including issues of effective domestic remedies). There will also be practical questions of resources, continuity and quality of processing. Most importantly, investing in processing in regions of origin cannot stand alone: asylum-seekers who are accepted as refugees must be provided with a meaningful integration prospect – or resettlement option; whereas those rejected must be helped to return. The role of the host State as well as international organisations, UNHCR included, must also be clarified in such endeavours. Generally, efforts to create conditions for effective protection in regions close to refugees’ host countries must be part of a long-term programme to develop a viable and sustainable asylum system in the host country. However, suggestions made by some EU Member States indicate that such efforts should rather serve their political agenda to return asylum-seekers to their region of origin, irrespective of whether or not they have set foot in the region before, or maintain any meaningful link with any of the countries in that region. International refugee law standards stipulate however that no asylum-seeker should be sent to a third country for processing of his or her asylum claim in the absence of sufficient guarantees that the person will be admitted to that country, enjoy effective protection, in particular against non-refoulement, have the possibility to seek and enjoy asylum, and will be treated in accordance with accepted international standards. The applicant should also have a connection or close link with the host country so that it appears reasonable that he or she be called upon first to request asylum there.39 Where such safeguards would not be upheld, transfer of responsibility for the treatment of asylum claims may result in indirect refoulement and infringe on refugee and human rights standards.40 Efforts to strengthen reception capacity in the region of origin are certainly to be welcomed as the way forward to a better sharing of burdens and responsibilities based on more effective co-operation and strengthened partnership between countries of origin, transit and destination, as well as UNHCR and, as appropriate, non-governmental organisations. They can contribute to the empowerment of refugee communities to meet their own protection needs, and anchor refugee issues within the development strategies of host countries and multilateral agencies. They can help refugees find stability and security closer to home, and, hence, contribute significantly to the reduction of irregular movetries of origin and transit, in C. Marinho (ed.), Asylum, Immigration and Schengen Post-Amsterdam, A First Assessment, (Maastricht: EIPA, 2001), 21. 39 UNHCR Executive Committee Conclusions No. 15 (XXX) of 1979, para (h) (iv); No. 58 (XL) of 1989, para (f); and No. 85 (XLIX) of 1998, para (aa). 40 This point has been made by Amnesty International in its critique of the UK, Commission and UNHCR proposals (see n. 26). See also G. Noll, “Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones” (2003) 5 European Journal of Migration and Law.

130

Irregular Migration and Asylum-Seeking ment. If coupled with resettlement programmes for refugees with serious protection vulnerabilities, such capacity-building efforts are expected to be met with a receptive audience in the host countries themselves. However, one should not expect that these initiatives are the panacea for curing the world of irregular migration, smuggling of migrants or trafficking in human beings. For that to happen, a host of measures need to be taken, preferably in relation to a specific geographical situation or caseload, within the framework of a comprehensive policy approach.

6.

DEVELOPING COMPREHENSIVE POLICY APPROACHES

The need to develop comprehensive approaches to refugee and migration challenges has been mentioned in the past as the best option towards lasting solutions. They combine a variety of policy instruments, management tools and operational measures in order to address the full cycle of displacement, including root causes of flight, secondary movement, transit migration, large-scale arrivals, resettlement and readmission and return. They require the involvement of all stakeholders, that is States, international organisations and implementing partner organisations. The various measures intend to achieve synergies in the areas of foreign relations, crisis management and conflict prevention, human rights, humanitarian aid, development assistance, migration and asylum. All those partnering in such approaches would do so on the basis of an equitable sharing of burdens and proper apportioning of responsibilities, whether in the area of return to and reintegration in the country of origin, integration in the host country, or resettlement to a third country. Examples of such approaches are the Comprehensive Plan of Action developed for the Vietnamese boatpeople and the Central America CIREFCA process of the 1980s. Such approaches have also been suggested for other regions, such as the former Soviet Union after its break-up, which led to various forms of movement of economic migrants, refugees, stateless persons, irregular movers and victims of trafficking.41 An integrated, cross-pillar approach to asylum and migration has also been tried by the European Union, albeit in an aborted version, through the activities of the High Level Working Group on Migration and Asylum. This initiative however quickly turned out to be less ambitious than originally hoped for, in that it mainly focused on a better management of the broader migratory flows originating from selected source countries and regions to the European Union, with

41 See the study undertaken by Prof. Guy Goodwin-Gill for UNHCR and IOM

“Towards a Comprehensive Regional Policy Approach: the Case for Closer InterAgency Co-operation”, Conference on Security and Co-operation in Europe, Human Dimension Seminar on Migration, including Refugees and Displaced Persons, Warsaw, 20-23 April 1993.

131

Johannes van der Klaauw much less attention to the challenges of protracted refugee situations, sustainable refugee return, or EU Member States’ asylum and resettlement policy.42 Recently, in September 2002, the UN High Commissioner for Refugees launched his Convention Plus initiative as part of efforts to strengthen the international refugee protection framework by building on, not revising, the 1951 Convention.43 The initiative is about the search for comprehensive policy approaches to selected refugee situations in the world. It should result in the creation of effective protection in regions of origin and the reduction of irregular, secondary movements of refugees and asylum-seekers. Special agreements would have to be concluded, based on a clear articulation of roles and responsibilities of countries of origin, transit and destination, in a spirit of burdensharing. These agreements should be worked out between States and UNHCR as written arrangements intended either to be legally binding or to reflect an important degree of political commitment. They can be generic or situationspecific, the latter involving particular groups of refugees or regional situations. Such instruments should be premised on inter alia an agreed understanding of what constitutes “effective protection” in the region of origin, what criteria would designate countries as “safe” countries of origin or asylum, how burdensharing arrangements can be instrumental in enhancing protection capacities in host countries, what safeguards should govern any interception and interdiction measures and what standards and procedures should guide the return of unsuccessful asylum-seekers to their countries of origin. They would also include protection arrangements to be established in regions of origin, orderly departure programmes for economic migrants and protected entry procedures for refugees, often in combination with resettlement schemes. If effectively implemented, a comprehensive policy approach indeed carries the ingredients for reducing and preventing irregular movements of refugees and asylum-seekers, and for addressing adequately the various elements of the asylum and migration nexus. Such an approach, however, should strike a proper balance between protection and control measures, and attend to the needs and priorities of countries of origin, transit and destination. EU Member States situated at the end of the migration chain tend to prioritise measures to repress irregular movement through heightened border controls, including at airports and seaports in third countries, the imposition of visa requirements and carrier sanctions and interception at sea. Their interest in strengthening co-operation 42 For a critical analysis of the work of the EU High Level Working Group in rela-

tion to the search for comprehensive approaches, see J. van Selm, “Immigration and Asylum or Foreign Policy: The EU’s Approach to Migrants and their Countries of Origin” in S. Lavenex and E.M.Ucarer (ed.), Migration and the Externalities of European Integration (Lanham: Lexington Books 2002) 143.; J. van der Klaauw, fn. 38. 43 Statement by the High Commissioner for Refugees at the Informal Justice and Home Affairs Council, Copenhagen, 13 September 2002.

132

Irregular Migration and Asylum-Seeking with third countries in the management of migratory flows lies in combating irregular migration and human trafficking, in concluding and implementing readmission agreements, and in organising the return, under humane and dignified conditions, of illegally residing third country nationals. As an afterthought, EU Member States are also prepared to co-operate in elevating the status and extending the rights of legally residing third-country nationals, through a more vigorous integration policy. Given the predominantly justice and home affairs perspective on joint migration management, co-operation in improving the situation of refugees and asylum-seekers is not a priority. The EU is interested mainly in stepping up joint management of migratory flows with those countries which are responsible for sizeable (transit) migratory flows to the EU, are geographically close, are lacking in capacity to manage the flows and whose attitude towards co-operation in migration management is reason for concern.44 These countries are not necessarily those which are known for serious refugee problems, and if they are, they are selected for the purpose of addressing migration, not refugee challenges.45 It is only in the area of the EU’s development policy that the need to address the plight of refugees as part of the nexus between development and broader migration movement is recognised. Recently the EU acknowledged that its development assistance should inter alia target protracted refugee situations in developing countries as well as support the sustainable reintegration of returnees.46 It has been accepted that generally a larger segment of the EU’s development aid should be directed towards assisting refugees in the region, while targeting poverty reduction in host communities.47 The EU has focused its co-operation in migration management with partner countries so far primarily on the return of irregular migrants and efforts to “contain” the flows of irregular migrants in regions of origin. EU support for asylum capacity-building is part of a broader agenda focusing primarily 44 Council of the European Union, General Affairs/External Relations, 18 November

2002, “Intensified cooperation on the management of migration flows with third countries”. 45 In a first selection, the EU has decided to step up its dialogue and co-operation in migration with Morocco, Tunisia, Libya, Turkey, Albania, Serbia and Montenegro, China, Russian Federation and Ukraine. Even if some of these countries are important refugee producing countries, or countries of asylum, they are singled out for strengthened co-operation with the EU in order to increase their border management, fight against irregular migration and human trafficking, and accept the conclusion of readmission agreements. 46 Council of the European Union, General Affairs/External Relations, 18 May 2003 “Intergrating migration issues in the EU’s relations with third countries: migration and development”. 47 This has been promoted by the UN High Commissioner for Refugees with his initiative “Development Assistance for Refugees” which aims at better equipping refugees

133

Johannes van der Klaauw on reducing irregular transit migration and combating human trafficking and migrant smuggling, mainly in Eastern Europe, Western Balkans and – to a much lesser extent – the Mediterranean basin. Such activity should help the EU secure the integrity of its internal area of freedom, security and justice. In the area of humanitarian aid and development co-operation, refugees and asylum-seekers are included in EU assistance programmes, with lately increasing EU attention to the contribution refugees can make to their host countries, rather than remaining passive as recipients of humanitarian aid. Given the different policy priorities attached to migration and refugee issues as they emerge from the EU’s justice and home affairs policy on the one hand and its humanitarian aid and development assistance on the other, the EU is still far away from developing comprehensive approaches to address broader migratory movements, including refugees and asylum-seekers.

7.

CONCLUSION

Where do these observations lead us to? It may be clear that the problem of irregular immigration will persist so long as States, international organisations, and the various social and economic actors are incapable of effectively addressing the number of push and pull factors causing this phenomenon. Both voluntary and forced migration, including asylum-seeking, are a fact of life. The causes of economic migration and those of refugee flight may not be the same, but migrants, asylum-seekers and refugees often move within larger groups and given the tightening immigration controls imposed by receiving countries, they often arrive in an irregular manner. Migration control measures have an impact on the ability of refugees to seek safety in industrialised countries. In the absence of legal channels for labour migration, those seeking a better life resort to the asylum channel to seek entry. Smugglers and traffickers exploit persons who wish, or are compelled, to move. The growing number of irregular residents who should, but cannot be returned, and this for a number of factors, not least the unwillingness of source countries to take their nationals back, puts a strain on States’ sound migration management and impacts negatively on the credibility of their asylum systems. In order to adequately address the nexus between asylum-seeking and irregular migration States have to put in place mechanisms to better identify and properly respond to the needs of asylum-seekers and refugees moving within these broader migratory flows. Immigration control measures must be mitigated with adequate protection safeguards which appropriately differentiate between persons who need protection and those who do not. Such safeguards must be for self-reliance or local integration in their host country, or sustainable reintegration in their country of origin, whilst also providing concrete support to, and burdensharing with, host countries and communities.

134

Irregular Migration and Asylum-Seeking binding on States and implemented to the full in practice. This is particularly true for interception measures and those aimed at combating migrant smuggling and human trafficking. It is unlikely that States’ asylum systems in future will be unaffected from use by economic migrants, smuggled and trafficked persons or other persons in an irregular situation. Measures can be taken to diminish the impact of irregular migration on States’ asylum systems. The creation of legal channels for labour migration is one of them, the establishment of entry procedures for asylumseekers via diplomatic representations abroad is another. A more strategic use of resettlement options can also contribute to a better managed intake of refugees. Moreover, the push factors leading to secondary movements of refugees and asylum-seekers can be reduced through strengthening the protection capacities of host countries in regions of origin. Above all, the international community needs to invest in measures to address the root causes of irregular movement, whether voluntary or forced: political instability, economic deprivation, lack of good governance, human rights violations in countries of origin. The current problems States are confronted with in managing their asylum systems mainly result from the inefficient treatment of manifestly unfounded claims and the obstacles preventing the return of rejected cases. Measures aimed at tackling these issues must preserve the core principles of the existing international refugee law framework. Special agreements as proposed by the UN High Commissioner for Refugees as part of his Convention Plus initiative could show the way forward, particularly for caseloads in specific geographical situations.48 The rationale for such strategies is precisely that solutions to refugee problems can be best found in comprehensive strategies addressing broader migration movements. Migration and asylum are not to be married forcibly, nor separated artificially: as separate but related issues, they can be considered best to be living apart together in the global village.

48 One example currently under investigation for such an agreement concerns the

Somali asylum-seekers and refugees. In a number of European countries they account for the third largest group of asylum-seekers. Many have moved on in an irregular manner from countries in the region, lacking proper protection and assistance there. Many others continue to languish in refugee camps in Kenya without a viable integration prospect. Return movement suffers from lack of sustainability. A special program based on an agreement committing all partners – EU Member States, Somali authorities, neighbouring countries, UNHCR – could promote solutions to the various problems within a comprehensive strategic framework.

135

This page intentionally left blank

Ryszard Piotrowicz

IRREGULAR MIGRATION NETWORKS: THE CHALLENGE POSED BY PEOPLE TRAFFICKERS TO STATES AND HUMAN RIGHTS

1.

INTRODUCTION

Erich Honecker knew how to deal with irregular migration. He simply organized the construction of the Berlin Wall; and the Wall, along with the fence dividing East and West Germany, did the trick for nearly thirty years – at massive State and human cost. Irregular migration is frequently seen as an issue of concern more for the destination State than for the source State. But in fact the phenomenon may well have serious ramifications for source and transit States as well as those countries where irregular migrants end up. The departure of significant numbers of people may destabilize their country; their arrival in another can certainly have significant political and economic repercussions. Even transit States are at risk from the criminal activities of those who use their territory simply as a means to go elsewhere. The walls and fences have mostly departed the scene in early 21st century Europe, but States are just as devout in their belief that borders have to be protected against uncontrolled influxes, whether mass or gradual. And the challenges are significant: asylum seekers, those fleeing armed conflicts, illegal workers – they all require a response from the destination State. But perhaps one of the greatest challenges – the more so because it is so difficult to obtain firm evidence of its prevalence – is that posed by the people traffickers. Trafficking is a major challenge because of the potential for destabilisation caused by what is effectively a clandestine form of migration over which States have little if any control. It is a challenge also because of the scope for corruption of law enforcement and border control personnel. And it is a challenge to the individuals who are trafficked because of the serious breaches of fundamental human rights to which they are in fact exposed. This essay addresses the Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 137-155 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Ryszard Piotrowicz threat posed to fundamental human rights by trafficking. It also considers some of the threats posed to States. Success in tackling trafficking (and its causes), both through prevention and punishment, should help to reduce both the incidence of trafficking and the threat to those at risk. However, the interest of States in fighting trafficking is not only one of executing their duty to protect human rights; it is also an interest in securing national frontiers and controlling migration. The advancement of these State interests is not always necessarily consistent with the protection of human rights. One of the challenges for the law is not so much to strike the right balance, which suggests give and take even where it may be very difficult, legally, to give at all; but to find ways in which both interests may be recognized and protected.

2.

CONTEMPORARY PEOPLE TRAFFICKING

People trafficking may be a relatively recent challenge but it is not a new phenomenon.1 For centuries, across the globe, people have been sold into servitude: compelled to work for somebody else for little or no reward. Nowadays trafficking is most notorious in the sex trade, but its victims are also subjected to other forms of forced labour, arranged marriages (themselves sometimes a means of securing victims for the sex trade), adoption of children and may even be exploited for their body parts.2 It is, in most cases, a kind of slavery.3 The victims are mostly, but not only, women and children. 1

2

3

For general information on trafficking, see the website of the International Organisation for Migration. This contains special reports as well as the quarterly bulletin, Trafficking in Migrants at: http://www.iom.int. See also various United Nations documents, including: United Nations Office for Drug Control and Crime Prevention, Global Programme against Trafficking in Human Beings (February 1999): http://www.uncjin.org/ CICP/traff_e.pdf. See also K. Knaus, A. Kartusch and G. Reiter, Combat of Trafficking in Women for the Purpose of Forced Prostitution. International Standards (Vienna: Ludwig Boltzmann Institute of Human Rights, 2000) and related country reports published by the same Institute, outlining the situation with regard to trafficking in individual European countries. On trafficking of children, see IOM, Trafficking in Unaccompanied Minors for Sexual Exploitation in the European Union (2001); and UN Commision on Human Rights, Report of the Special Rapporteur on the sale of children, child prostitution and child pornography, Ms Ofelia Calcetas-Santos, E/CN.4/1999/71. Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000 (Trafficking in Persons Protocol, or TIPP), Art. 3(a), A/AC.254/4/ Rev.9; (2001) 40 International Legal Materials 377. See, on reasons for trafficking of children, the Report of the UN Special Rapporteur, note 1, above, at 12-18; Trafficking in Human Beings: Implications for the OSCE, ODIHR Background Paper 1999/3, sections 2.1, 2.2, 2.3. Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law 9th ed. (London and New York: Longman, 1992) at pp. 978-983.

138

Irregular Migration Networks Trafficking of people is a kind of forced migration. The victims are generally taken to another country against their will. They may not even know to which country they are being taken. Once there they are held against their will, generally subject to the complete physical control of their traffickers or those who have bought them, and may be subjected to serious abuse.4 Even if they escape from their traffickers, they may face serious, sometimes insurmountable, difficulties in regularizing their status because of inability to prove their citizenship either to the destination State or to their home State.5 International law has not been silent on trafficking. In addition to older anti-trafficking measures, such as the UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others 1949,6 recourse may also be had to the UN Convention for the Elimination of All Forms of Discrimination against Women 1979,7 the UN Convention on the Rights of the Child 1989,8 its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 2000,9 international laws against slavery,10 and various ILO conventions.11 Furthermore, general human rights law,12 as well

Trafficking is different from people smuggling. People who are smuggled across national frontiers are also vulnerable to exploitation. They may have paid substantial sums of money to the smugglers to facilitate their entry to another country. They are often at great physical risk during the journey. Assuming they reach their destination they will be there illegally. They may have to work under very exploitative conditions in the destination State, and at some point their freedom may be so restricted that they have effectively been trafficked. Nevertheless, people who have been smuggled fall into a different category because of the voluntary element in the process: the fact that they have agreed to be smuggled to another country. 5 R. Piotrowicz, “Victims of Trafficking and de facto Statelessness” (2002) 21 Refugee Survey Quarterly 50. 6 96 UNTS 271. 7 (1980) 19 International Legal Materials 33, especially Art. 6. 8 (1989) 28 International Legal Materials 1448, especially Arts. 32, 34 and 35. 9 (2000) 39 International Legal Materials 1290, especially Art. 3. 10 Slavery Convention 1926, 60 LNTS 253; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956, 266 UNTS 40. 11 Forced Labour Convention 1930 (ILO Convention No. 29); Abolition of Forced Labour Convention 1957 (ILO Convention No. 105). More recently, the ILO adopted the Worst Forms of Child Labour Convention 1999 (ILO Convention No.182), supplemented by the Worst Forms of Child Labour Recommendation 1999 (Recommendation 190). 12 See, for instance, the Universal Declaration of Human Rights 1948, Art. 4: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. GA Res. 217 A(III). 4

139

Ryszard Piotrowicz as laws on the protection of migrant workers,13 may play a role. There is a rapidly developing specialised regime in the European Union context,14 the Council of Europe has sought to address the issue,15 as has the OSCE,16 and even the International Maritime Organisation has adopted anti-trafficking measures.17 Nevertheless, during the 1990s there was an increasing perception that the older instruments, even where supplemented by regional initiatives, did not entirely address the challenge to States’ and human rights posed by people traffiicking. Accordingly, when the United Nations Convention against Transnational Organised Crime18 (UNCTOC) was opened for signature in Palermo in December 2000, simultaneously adopted was the Trafficking in Persons Protocol, or TIPP .19 13 Convention on the Protection of the Rights of All Migrant Workers and Members of

their Families 1990, (1991) 30 International Legal Materials 1521. 14 Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking

15

16

17 18 19

of Human Beings in the European Union, 14 June 2002, OJ 2002 C 142/23; Council Framework Decision of 19 July 2002 on combating trafficking in human beings, OJ 2002 L 203/1; Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities, COM (2002) 71 final of 11 February 2002; Brussels Declaration on Preventing and Combating Trafficking in Human Beings, September 2002; Communication from the Commission to the European Parliament and the Council in View of the European Council of Thessaloniki on the Development of a Common Policy on Illegal Immigration, Smuggling and Trafficking of Human Beings, External Borders and the Return of Illegal Immigrants, COM(2003) 323 final of 3 June 2003; Council Conclusions of 8 May 2003, O.J. 2003 C 137/01. A detailed study on protection schemes in Europe was published in 2003: J. Apap and F. Medved, Protection Schemes for Victims of Trafficking in Selected EU Member Countries, Candidate and Third Countries (Geneva: IOM, 2003). Recommendation No. R (2000) 11 of the Committee of Ministers to member States on action against trafficking in human beings for the purpose of sexual exploitation (adopted 19 May 2000), and the Recommendation and Resolutions referred to therein. See also the Commitment and Plan of Action adopted at the Budapest Conference of 20-21 November 2001 in preparation for the Second World Congress against Commercial Sexual Exploitation of Children. OSCE Permanent Council, Decision No. 557, OSCE Action Plan to Combat Trafficking in Human Beings, PC.DEC/577, 24 July 2003 is the most recent relevant initiative of this body. Interim Measures for Combating Unsafe Practices Associated with the Trafficking or Transport of Migrants by Sea, 16 December 1998, MSC/Cird.896. A/AC.254/4/Rev.9; (2001) 40 International Legal Materials 353. Above, n. 2. On TIPP, see A. Gallagher, “Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis”, (2001) 23 Human Rights Quarterly 975; R. Piotrowicz, “Traffic in people gets the red light”, (2001) 75 Australian Law Journal 35.

140

Irregular Migration Networks TIPP acknowledges in its Preamble that there was, despite the measures outlined above, “no universal instrument that addresses all aspects of trafficking in persons”. It is intended to fill the gap. However, there are several reasons to consider alternative legal means of tackling trafficking and assisting its victims. First, TIPP is not in force and will not do so until it has attracted forty ratifications and accessions.20 Second, even after this has been achieved, the effectiveness of the Protocol will depend on the will, and ability, of States to enforce it individually and to cooperate in that enforcement. In the meantime, trafficking is a major growth industry and is responsible for some of the most egregious breaches of human rights taking place in the world today.21 Third, TIPP deals with trafficking as a transnational offence only, albeit with a rather generous definition of “transnational”.22 It does not purport to deal with trafficking that 20 Art. 17. 21 See, for instance, the country reports published by the Ludwig Boltzmann Institute of

Human Rights, Vienna, above, n. 1: S. Hybnerova and H. Scheu, Legal Study on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in the Czech Republic (1999), K. Levchenko, Legal Study on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Ukraine (1999), P. Burcikova, H. Kollarova and T. Kruzliakova, Legal Study on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Slovakia (1999), M. Popa, Legal Study on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Romania (2000), L. Feher, Legal Study on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Hungary (2000), R. Pencheva Filipova, Legal Study on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Bulgaria (2000) and M. Radovanovic with A. Kartusch, Report on the Combat of Trafficking in Women for the Purpose of Forced Prostitution in Bosnia and Herzegovina (London: Virago, 2001). For an account of the situation in Asia, see L. Brown, Sex Slaves. The Trafficking of Women in Asia (2000); Annuska Derks, Combating Trafficking in South-East Asia. A Review of Policy and Programme Responses, IOM Migration Research Series 2/2000; IOM, Deceived Migrants from Tadjikistan. A Study of Trafficking in Women and Children (August 2001). On the USA see A. O’Neill Richard, International Trafficking in Women to the United States: A Contemporary Manifestation of Slavery and Organized Crime, DCI Exceptional Intelligence Analyst Program (2000). 22 TIPP is to be read in conjunction with UNCTOC, the framework convention, which it supplements (Art. 1(1)). Art. 3(2) of UNCTOC defines a trans-national offence as any of the following: an offence committed in more than one State; an offence committed in one State but a substantial part of its preparation, planning, direction or control occurs in another State; an offence committed in one State but involving an organised criminal group which is active in at least two States; an offence committed in one State but having substantial effects in another. The definition of trafficking in Art. 3(a) of TIPP is wide enough to allow substantial scope to States to tackle trafficking if they wish to. It includes “…recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position

141

Ryszard Piotrowicz takes place entirely within one country. Thus a woman who has been trafficked in her own country but succeeds in fleeing to another would not be a victim of trafficking for the purposes of TIPP. Nor would a woman who has been trafficked within one foreign country, who in any case would, in the normal scheme of things, be expected to rely upon the protection of her home State, should she escape those controlling her, rather than that of the country within which she has been trafficked. TIPP is however aimed more at tackling the trafficking than protecting the victims. As a universal instrument attracting substantial international support, it offers a useful standard with which to work. However, its protection regime is relatively weak, which is why it is necessary to look beyond it to identify what international law has to offer the victims. One problem is that there has been such a bewildering array of initiatives, many of them of a soft-law character (although often including existing human rights obligations), that there is a risk of the human rights regime becoming too diffuse. It is certainly cumbersome. Any attempt to identify the ambit of the human rights regime with regard to victims of trafficking has to take account of this wide array of international law as well as the various instruments that have been produced by interested international organizations. Ideally there should be a standardized rights regime in treaty form for victims of trafficking. Against this there are at least two major arguments. First, the sheer length of time required to draft any multilateral instrument means that it could be years before such an initiative would come to fruition. In the meantime human trafficking goes on. Second, the need to take into account so many diverse interests and perspectives might result in the adoption of an instrument that actually offers rather less in the way of protection than can be obtained from the existing array of measures. Therefore we currently have to work with what we have got: operate within the existing system for the foreseeable future and make the most of what is there despite the difficulties of operating with so many sources.

of vulnerability or of 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”. There is no reference here to the trans-national aspect of the process. The definition is clearly intended to cover those involved at all stages of the trafficking process, even though many might claim that there is no trans-national element to what they are doing. The offence of trans-national trafficking is perpetrated not only by those who actually cause the victim to cross the frontier; also responsible are all those involved in the process of getting the victim from where she first came under the control of the traffickers to the destination where she will be exploited.

142

Irregular Migration Networks

3.

TRAFFICKING DEFINED The TIPP Regime

Article 3 of TIPP specifies three elements that must be present for trafficking: – the act (recruitment, transfer, harbouring or receipt of persons) – the method (threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability, giving or receiving of payments or benefits to achieve consent of a person who has control over another person) – the purpose (as a minimum – exploitation, including exploitation of the prostitution of others, other forms of sexual exploitation, forced labour or services, slavery, servitude, removal of organs). Although not in force (there were 31 parties in August 2003; 40 are required) it is very likely that this definition will become the standard. It has been widely cited and referred to, and has the advantage that it was adopted by States from all parts of the world, while not being restricted to trafficking for the sex trade. One of the criticisms leveled at TIPP has been that, despite recognising that trafficked people are victims, it nevertheless offers only limited guarantees. Against this one must bear in mind the reluctance of States to accept open-ended guarantees for victims, since that could entail permitting them to remain for lengthy periods, in some cases, on their territory. TIPP accordingly contains a mixture of hard obligations and soft provisions for the benefit of those who have been trafficked. Article 6 obliges parties to protect the privacy and identity of victims of crimes covered by TIPP, where appropriate “and to the extent possible under domestic law”. This formula reflects the awareness that justice should be seen to be done and that some legal systems may strictly limit the occasions when the identity of victims may be concealed. It is clear from the travaux preparatoires, however, that open proceedings would be the norm. Parties are furthermore obliged to ensure that their legislative and administrative frameworks allow for the provision to victims of trafficking of appropriate information about relevant judicial proceedings, as well as assistance in having their own views and concerns presented. Article 6(3) specifies the assistance that States should try to give, and, from a human rights perspective, is weak because it is expressed in aspirational terms. “[T]o the extent possible”, parties have to consider measures for the physical and psychological recovery of victims, including appropriate housing; counseling and information in a language they understand (especially with regard to their legal rights); medical, psychological and economic assistance; employment, educational and training opportunities. This is potentially a substantial burden on destination States – hence the non-obligatory language. But what is 143

Ryszard Piotrowicz important is that the provision recognises that those who have been trafficked to destination States are actually unwilling victims, rather than active conspirators in some criminal enterprise. And, while the language may not be compulsory in the sense of demanding immediate assistance for victims, parties to the Protocol are undertaking that they will, in good faith, look seriously at the adoption of measures aimed at relieving the plight of the victims. For prosperous western States, at least, it will be difficult to maintain that they cannot offer any of the assistance outlined in Article 6(3). Status of the Victim Victims of trafficking will almost always be aliens with no right of residence in the destination State. Accordingly, once discovered they may be deported subject to any limitations based on human rights grounds. The special, and vulnerable, position of victims of trafficking in the destination State, as well as perhaps irrevocable and fundamental changes in their circumstances, is reflected in the obligation (Article 7(1)) to consider the adoption of legislative or other measures that enable victims to remain in the territory, whether temporarily or permanently. This may arise because the victim has left a war zone or circumstances of extreme poverty. There may also be cultural reasons why it is difficult for the victim to return home, or they may simply have no home to go to, even where their State of origin is known. One thing is clear: whatever the victims have been through, a forced return to their home country may not be the best way to start to remedy the situation. In these cases the duty is rather limited: to consider allowing victims to remain. The problem perceived here by many countries was that an outright duty to let victims remain could be used as a means of illicit immigration. The provision is a compromise. It creates no right for the victims to remain, thereby reflecting their status as aliens, but destination States clearly are obliged to do what they can to let genuine victims remain, at least for a period of time. Article 7(2) provides that implementation of Article 7(1) shall be carried out with appropriate consideration of “humanitarian and compassionate factors”. The phrase denotes, in the former case, general human rights instruments applicable to all persons; in the latter case personal circumstances of the victim such as their family situation and age. Repatriation This is potentially very fraught: some victims of trafficking may have nothing to return to; just a right of entry to the country they came from, where indeed their exploitation probably commenced. While they may be in a desperate situation in the destination country, that does not mean that that State can do nothing for them. Nevertheless, the principal obligation, in Article 8(1), is to repatri144

Irregular Migration Networks ate victims, and the State to which they are to be repatriated must receive them “without undue or unreasonable delay”. The provision refers to the victim’s State of nationality or permanent residence “at the time of entry into the receiving State”. This formulation is intended to avoid any temptation for the State to which repatriation is to take place to block it by revoking residence or citizenship rights. The adoption of TIPP has not stifled initiatives from other sources. There has been a bewildering array of drafts, principles, guidelines, recommendations and measures from international organizations, intergovernmental organizations and NGOs, all attempting, from one perspective or another, to address the matter. Their activities have resulted in the adoption of practical measures to address the immediate difficulties faced by victims of trafficking, as well as attempts to outline States’ obligations. To some extent these various instruments replicate each other. Furthermore the soft-law nature of many of these instruments (even although their content may reflect hard law) risks obscuring the fact that States do actually have serious international obligations towards victims of trafficking under general, well-established, human rights law.

4.

THE HUMAN RIGHTS IMPERATIVE

The essential point stressed in most of these instruments is that the human rights of trafficked persons should be the guiding principle in all efforts to prevent and punish trafficking. This imperative has been emphasized, for example, in the Recommended Principles and Guidelines on Human Rights and Human Trafficking of the United Nations High Commissioner for Human Rights.23 Principle no.2 provides: States have a responsibility under international law to act with due diligence to prevent trafficking, to investigate and prosecute traffickers and to assist and protect trafficked persons.

This responsibility should be discharged in light of Principle no.1: The human rights of trafficked persons shall be at the centre of all efforts to prevent and combat trafficking and to protect, assist and provide redress to victims. (emphasis added)

These Principles, while not in themselves binding, reflect not only the fundamental importance of human rights but also seek to direct the development of antitrafficking measures. One may query precisely how the human rights imperative

23 Adopted July 2002. E/2002/68/Add.1.

145

Ryszard Piotrowicz may apply in concrete cases. Nevertheless, the duty to respect the basic rights of trafficked persons is one that needs to be emphasised and, furthermore, adhered to in all aspects of anti-trafficking activity. The human rights dimension seems to be so well-recognised now that it seems almost trite to repeat it, but it should be recalled that, for long enough, trafficking was perceived as essentially a migration issue. The UNHCHR approach contrasts starkly with that of TIPP, the focus of which is rather on efforts to combat trafficking (which of course, to the extent that such efforts are successful, should have the effect of promoting respect for human rights). Where TIPP does address human rights, its provisions are, as indicated above, comparatively weak. But this assessment should not be construed as a generalized criticism of States’ response to people trafficking, so far as TIPP is concerned. Human rights are generally understood as rights possessed by individuals vis-à-vis States. Yet trafficking is essentially a criminal activity undertaken by private citizens. State involvement in trafficking is therefore to be understood not so much in the sense of positive breaches by States of their human rights obligations towards those within their jurisdiction; rather it takes the form of complicity and neglect (through corruption or failure to act against traffickers), or else trafficking flourishes through the inability (due to lack of resources, prioritization) of the State to take effective action against it. From this perspective, in the absence of active involvement by the State in trafficking, it is not unreasonable that States’ activities be focused on prevention of the act. Furthermore, it must be recognised that States do have a legitimate interest in controlling access to their territories and the security of their frontiers. That interest entitles them to treat trafficking not only as a human rights issue but also as a security matter that raises potential threats to national order. Nevertheless, States’ actions in the field of trafficking cannot be restricted to anti-trafficking measures. Their human rights obligations may, and do, require them to address positively the threat posed to victims of trafficking, at the very least because States have to act so as not to cause individuals to be exposed to a danger that is so serious that, in some situations, it may constitute a crime against humanity.24 In particular, States may have obligations under refugee law (in the wider sense) to provide a haven for victims of trafficking.

5.

THE TENSION BETWEEN STATES AND HUMAN RIGHTS

The legitimate interest of States in controlling access to their territories is not absolute. In the migration context this is illustrated very effectively by the obligation to provide international protection to those who are unable to live safely in their own States because of serious threats to their human rights. The essen24 Statute of the International Criminal Court 1998, Art. 7(1-c,g), Art. 7(2), (1998) 37

International Legal Materials 999.

146

Irregular Migration Networks tial flaw in addressing trafficking primarily as a threat to the State is that such an approach may fail to attribute sufficient weight to the human rights dimension and, through that failure, reduce the chances of success in tackling trafficking. Even where an instrument is aimed aggressively at trafficking as a threat to the State, it may in the long run be more likely to succeed if it takes due account of the interests of victims, whose cooperation in providing evidence against the traffickers is essential. A good example of this policy is the Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities25 (Proposal) of 11 February 2002. This instrument proposes that victims of trafficking who break all links with their traffickers and agree to give evidence against their traffickers should be permitted to remain in the prosecuting State for the duration of the criminal proceedings.26 It is one of several initiatives at EU level purporting to address various aspects of trafficking, which have also been criticised for their failure to address the rights of victims.27 The essence of the Proposal is that it offers something (limited residence permits) in return for something (evidence against traffickers). The practical issue is whether the deal is attractive enough to achieve what it is meant to, viz, successful prosecutions against people traffickers. That depends on the legal guarantees offered to the victims who might give evidence. The Proposal is seriously flawed, first because of internal contradictions that become apparent on a careful read25 Above, n. 14. For detailed commentary see R. Piotrowicz, “European Initiatives in

the Protection of Victims of Trafficking Who Give Evidence Against Their Traffickers” (2002) 14 International Journal of Refugee Law 263. 26 Arts. 1, 16(1). 27 The Council Framework Decision on Combating Trafficking in Human Beings, in its Proposal form, was criticised by the UNHCHR and the UNHCR for its failure to address sufficiently the interests of victims of trafficking (Observations by the United Nations High Commissioner for Human Rights and the United Nations High Commissioner for Refugees on the Proposal for an EU Council Framework Decision on Combating Trafficking in Human Beings, para.4) (June 2001) (Observations). The apparently rather lame protection provisions of the Proposal contrast rather vividly with another instrument addressing the matter, Special Protection Measures for Trafficking Victims Acting as Witnesses, the Outcome document of the Working Group Meeting on “Victim/Witness Protection” produced by the Stability Pact for South Eastern Europe Task Force on Trafficking in Human Beings on 26-27 March 2003, which suggests: “Trafficking victims acting as witnesses…have unique characteristics and are subject to unusual risks which require special protective measures. In particular, the potential of a victim to give evidence and his/her decision to co-operate with law enforcement authorities and to testify as a witness in court proceedings can have a strong impact on the level of risk and can call for additional measures of protection.” (emphasis in the original).

147

Ryszard Piotrowicz ing of its terms and the Explanatory Memorandum that accompanies it; and second because it is unlikely to achieve its basic aim: to secure the cooperation of victims of trafficking giving evidence. The essential contradiction in the Proposal is that it seeks to allow very limited rights to victims while simultaneously recognising that the threat to them may not be adequately addressed by the assistance it offers. This is not at first sight the case. Article 4 provides: This Directive shall be without prejudice to the protection extended to refugees, to beneficiaries of subsidiary protection and persons seeking international protection under international refugee law and without prejudice to other human rights instruments.

On the face of it, that should be enough. Anyone entitled to international protection will remain entitled to it because the Proposal (which of course could not in any case lawfully exclude international protection obligations that exist) explicitly acknowledges that the two regimes coexist. To this extent, the Proposal can be seen as offering something extra: a short-term residence permit. But that permit does not come cheap. Anyone who has been trafficked has already suffered a severe breach of her basic human rights. Even if she does nothing positive to harm her traffickers after escaping or being freed, she may still be at risk. To take the further and, from the perspective of the traffickers, exceptionally hostile step of giving evidence for the prosecution, that person is assuming an additional, perhaps life-threatening, risk of retribution. The contradiction arises because the actual protections offered (principally, limited right of residence with no guarantees after the victim’s judicial usefulness has expired) are inadequate compared to the risk being taken by the victim. Insufficient account is taken of the interest of the victim, in that the protection offered is only short-term, while the existing obligations of the State (in particular against refoulement), although acknowledged in Article 4 and elaborated in the Explanatory Memorandum, are not expressed in such a way as to provide the victim with necessary reassurance. Of course, general international law is quite clear that the victim may not be returned against her will to her State if she is entitled to refugee status or subsidiary protection, but she may only find out whether she qualifies (a decision for the State to make) after she has given her evidence. The clear recognition, both in TIPP and various EU instruments and proposals, that those who have been trafficked are victims, is not adequately reflected in the terms of the Proposal. On the other hand, the Explanatory Memorandum does not claim to be trying to assist victims in terms of their human rights. It provides, quite explicitly:

148

Irregular Migration Networks …the proposed Directive introduces a residence permit and is not concerned with protection of either witnesses or victims. This is neither its aim nor its legal basis. Victim protection and witness protection are matters of ordinary national or European law.28

In a way this approach is defensible. It proposes a particular scheme to address one aspect of trafficking, while acknowledging the residual obligations of member States. But it may not be workable because it requires victims of trafficking, whose trust in others, including State authorities, is likely to be minimal, to make a massive leap of faith in the hope, with no guarantee, that everything will turn out all right in the end.29 A further contradiction in the proposal is to be found in the notion that various integration programmes may assist the victim to commence restructuring her life during the duration of the short-term residence permit, when it is clear that she has no guarantees once she has outlived her usefulness as a witness.30 Perhaps the scheme is not intended to operate like that. Perhaps, in fact, the various discretions built into it will allow for sympathetic and flexible treatment for all those who give evidence. But there is too little in the Proposal to indicate how likely this is. And yet the type of treatment to which victims of trafficking are frequently exposed means that at least some victims of trafficking will acquire an entitlement to remain in the State to which they have been trafficked because

28 Above, n. 14, point 2.3. 29 See also Anti-Slavery International and ECPAT UK, Briefing on a proposal for Coun-

cil Directive (COM (2002) 71 (final) undated, arguing in favour of treating victim and witness protection measures together with residence permits. The provision also sits uneasily with the Proposal for a Council Framework Decision on combating trafficking in human beings COM (2000) 854 final/2 of 22 January 2001, Art. 8 of which provided: “Each Member State shall ensure that a victim of [trafficking] is given adequate legal protection and standing in judicial proceedings. In particular Member States shall ensure that criminal investigations and judicial proceedings do not cause any additional damage for a victim.” This potential problem was avoided by removing Art. 8 from the Proposal before it was adopted. The UNHCR has stated: “The role of States in combating trafficking extends not only to law enforcement efforts or at another level, providing humanitarian assistance to victims, but also to protecting victims’ other fundamental rights”, Contribution to the OSCE Implementation Meeting on Human Dimension Issues, Session 15, Trafficking in human beings, 26 September 2001, para. 19. The UNHCR is not necessarily saying that each of these elements of the role of States must be reflected in every instrument or initiative, but it is pointing out the importance of victims’ fundamental rights, something which the Proposal on short term residence permits neglects. 30 Proposal, above, n. 14, Explanatory Memorandum, point 2.1; Art. 12; see also the commentary to Art. 12, Proposal, at p. 14.

149

Ryszard Piotrowicz of the risk that they may be subjected to torture or inhuman or degrading treatment should they be returned to their home State. It is not being suggested here that it is illegitimate, or unreasonable, for EU Member States vigorously to pursue a fight against organised crime, in particular trafficking: quite the contrary. States are entitled to protect their own national order, and their citizens, against such threats and must be able to take effective action to achieve this. But any action needs to be taken in the knowledge that appropriate account is taken of the human cost to those, already victims, who risk their own safety and lives by giving evidence. The Proposal offers a short-term residence permit and a guarantee that victims will be returned to their home States (from which they were probably trafficked in the first place) after a prosecution is over unless they can demonstrate that they have an entitlement to some form of international protection. Failing this, the most they can hope for is that they will be permitted to remain, on sufferance, on a humanitarian basis. Is this enough to persuade any woman to give evidence? A State may legitimately respond that, if the victim has failed to demonstrate any need for international protection, then actually they are not only acting within their rights but they are also acting reasonably in expecting that the individual will depart, since the person is being treated like any other alien. The reality of the situation within which the law must operate is that the individual has been a victim of serious crimes and is being asked to make an active contribution to a prosecution against those who may well have associates in the woman’s home State, and whom she may reasonably fear. In such situations, a scheme based on short-term residence permits may simply not be enough. Therefore, even although States are acting within their rights, they may nevertheless have to consider offering more if they want to pursue the fight against trafficking through the criminal law. Effective cooperation is more likely to be secured if States offer more, perhaps explicitly linking good faith cooperation and a real opportunity to remain in the State in the longer term. The main problem with this is that it may require States to offer residence rights to non-citizens. This appears an extreme step in that it challenges the interest of States in not creating open-ended residence rights for aliens. However, against this can be weighed the opportunity to take meaningful and effective action against traffickers, whose activities pose not only the most serious threat to fundamental human rights, but also a major challenge to national order. In fact, the Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the European Union, which is primarily focused on fighting trafficking as a crime, itself acknowledges the need in principle to assist victims as an element of that fight.31 31 Above, n. 14, para. 91: “It is important to clarify the status of victims of trafficking

in terms of certain benefits or special assistance when they are prepared to cooperate

150

Irregular Migration Networks

6.

DEVELOPMENTS IN THE VICTIM-CENTRED APPROACH

The increasing awareness of trafficking, particularly in the European context, has been accompanied by an emerging appreciation that victims may be entitled to protection under human rights instruments that, on the face of it, are not necessarily concerned with the particular threats raised by trafficking. This is readily acknowledged by States: hence the recognition in Article 4 of the Proposal on short-term residence permits for victims of trafficking, discussed above, that it could not affect existing rights to international protection. This was also acknowledged in the Proposal for a Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the European Union. That instrument referred to obligations under the Geneva Convention on Refugees and the European Convention on Human Rights.32 Until recently, it was generally considered that victims of trafficking were not refugees, and hence not entitled to refugee status and the benefits that such status confers.33 However, there is evidence of movement in this area.34 Some courts have shown themselves willing to treat victims of trafficking as refugees under the Geneva Convention, and the UNHCR has stated that some victims may be entitled to refugee status.35 This development has been facilitated by the growing awareness of genderrelated persecution and the possibility that such persecution may qualify the victim for refugee status. Gender-related persecution is not recognised as a separate ground of persecution under the Refugees Convention. However, it is now accepted that the refugee definition can encompass gender-related claims.36 Essentially, for a trafficked woman to be entitled to refugee status as a trafficked

32 33

34

35 36

in investigations against their exploiters. On the one hand, such a clarification would provide a platform for more structured assistance and protection focusing directly on the victim’s individual situation and needs, and, on the other hand, on the need of the law enforcement authorities to conduct efficient investigations against traffickers.” Ibid, para. 11. Observations, above, n. 27, para. 9. UNHCR, Contribution to the OSCE Implementation Meeting on Human Dimension Issues, Session 15, Trafficking in Human Beings, para. 11, Warsaw, 26 September 2001, above, n. 29. In its Agenda for Protection (10 June 2002), which has come out of the Global Consultations process, the UNHCR proposes that States ensure that their asylum processes are open to receiving claims from individual trafficked women and girls who can base their claims on grounds which are manifestly not unfounded (p. 9). Above, n. 33. See also Refugee Women (EC/GC/02/8), section V, paras. 14, 19, 4th meeting of Global Consultations on International Protection, April 2002. UNHCR, “Summary Conclusions: gender-related persecution”, San Remo, September 2001, in: E. Feller, V. Türk and F. Nicholson (eds), Refugee Protection in International Law, (Cambridge: Cambridge University Press, 2003) at p. 351; UNHCR,

151

Ryszard Piotrowicz woman, she would need to demonstrate a well-founded fear of persecution either by the State or by non-State actors where her State is unable or unwilling to provide effective protection, because of her membership of a particular social group. This is because, if the persecution is based on another Convention ground (race, nationality, religion or political opinion) there is no problem. But in reality many women are not trafficked for any of these other Convention grounds.37 There is clearly scope to treat some victims of trafficking, at least with regard to the sex trade where the vast majority of victims are female, as refugees. The consequences for States could be very significant because the resources that may have to be devoted to addressing claims to asylum and, if they are successful, providing the benefits attributable to refugee status, could be very substantial. Irrespective of any entitlement to refugee status, there is a strong case that many victims may be entitled to international (subsidiary or complementary) protection, at least under European Union law, because of the type and seriousness of threat to which trafficking victims are exposed in their home States. Subsidiary protection status is currently the object of attempts at codification within the EU.38 The concept recognises that there are people who do not qualify for refugee status under the Geneva Convention but who nevertheless have an entitlement to international protection because of some other serious threat to certain basic human rights. While State practice varies, there is agreement at least that those who would be at serious risk of suffering serious breaches of certain fundamental rights have an entitlement to international protection, which would include protection against refoulement. Such fundamental rights include some non-derogable rights recognised under the ECHR and the ICCPR. In particular, where there is a risk that the individual’s right to life, or freedom from torture or inhuman or degrading treatment or punishment is under threat should that person be returned to the national territory, it is accepted that such

Guidelines on International Protection: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/01. 37 Victims of trafficking as members of a particular social group is the subject of a separate study being undertaken by the author. 38 Proposal for a Council Directive laying down minimum standards for the qualification and status of third country nationals and stateless persons as refugees, in accordance with the 1951 Convention relating to the status of refugees and the 1967 protocol, or as persons who otherwise need international protection, COM(2001) 510 final of 12 September 2001. On subsidiary protection generally see: D. Bouteillet-Paquet (ed.), Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention? (Brussels: Bruylant, 2002); R. Piotrowicz and C. van Eck, “Subsidiary Protection and Primary Rights”, (2004) 53 International and Comparative Law Quarterly (forthcoming).

152

Irregular Migration Networks persons have a right to international protection, including against refoulement.39 This includes not only a threat from the State but also from non-State actors where the State is unable or unwilling to offer effective protection.40 If one considers the types of risk and ill-treatment to which victims of trafficking are exposed, it is clear that they could easily be victims of torture, inhuman or degrading treatment or even murder, and that the State may in some cases bear responsibility for that. In such cases the obligation of the State to provide subsidiary protection must include victims of trafficking within its ambit. But one can go further: the logic allowing subsidiary protection to those at risk of breaches of these non-derogable rights must apply also to those at risk of being subjected to slavery, freedom from which is also a non-derogable right under the ECHR and the ICCPR: the risk of slavery or servitude should a person be returned to their State of citizenship or residence easily constitutes “serious harm”, to use the Commission’s own terminology.41 Article 4(1) ECHR provides: “No one shall be held in slavery or servitude”. This has not really been much of an issue in Council of Europe States until the collapse of communism.42 The threat posed by the crime of people trafficking to the fundamental rights of its victims is well recognised, both at international law43 and within the EU system.44 The EU has recognised that people trafficking is not only an immigration issue (although it tends to be categorised as such) but 39 See, for example, Soering v. United Kingdom, (1989) 11 EHRR 413; Ahmed v. Austria

(1994) 24 EHRR 278. 40 See, for example, HLR v. France (1997) 26 EHRR 29. 41 Proposal, Commentary on Articles, above, n. 38, at p. 13. 42 There is also evidence of the relevance of this provision in Dutch case law, concern-

ing an applicant belonging to the black population in Mauritania, who faced the risk of being enslaved after return. Although slavery has been formally abolished several times in Mauritania, it still exists: Rb Zwolle, 11.3.1997, Nieuwsbrief Asiel en Vreemdelingenrecht 1997, No. 4, S. p. 336. In German Case law, return to Laos of an applicant to face the risk of forced labour in a “resocialisation” camp for alleged dissidents was considered under Art. 4(2) ECHR, VG Ansbach, 2.1.1997, AZ: AN 12 K 95.33534. 43 TIPP, above, n. 2, requires parties, inter alia, to consider permitting victims of trafficking to remain on their territory in cases where requiring the victim to return to the home State may give rise to a real threat of danger or harm to her (Art. 7(1)). 44 Treaty on European Union, Art. 29; Vienna Action Plan, December 1998, paras. 18 and 46; Tampere European Council, 15-16 October 1999, Presidency Conclusion No. 23; Laeken European Council, 14-15 December 2001, Conclusion No. 42; Council Framework Decision of 19 July 2002 on combating trafficking in human beings (especially Preamble para. (3), above, n. 14; Proposal for a comprehensive plan to combat illegal immigration and trafficking of human beings in the European Union, 14 June 2002, above, n. 14. The Proposal (at para. 11) specifically referred to the need to balance the right to decide whether to accord or refuse admission to third coun-

153

Ryszard Piotrowicz a serious crime that poses grave threats to basic human rights.45 It is hard to see, therefore, why slavery and servitude (of which people trafficking is frequently a contemporary example) can be excluded from any subsidiary protection regime that reflects the existing obligations of the States. People trafficking is so serious that, in some cases, it may be considered a war crime or crime against humanity:46 offences sufficiently serious to establish individual criminal responsibility for them at international law. Once one adds this to the non-derogability of Article 4(1) of the ECHR, it becomes increasingly difficult to see how anyone who is at serious risk of being subjected in their home State to harm that would breach that provision could not be entitled to some form of international protection.

7.

CONCLUSION

From a human rights perspective, the challenge is for States to meet their international obligation to provide genuine protection to the victims of trafficking whilst retaining effective control over entry to their territories. That requires cooperation from victims of trafficking. This is not a one-way street. The cooperation of victims in the war against trafficking will be more readily secured if their own needs are met. One way of addressing these needs is to ensure that try nationals and the obligation to protect those genuinely in need of international protection. Para. 11 then specified that this concerned “in particular, obligations for protection arising from the European Convention on Human Rights, particularly Article 3 thereof, and the Geneva Convention on Refugees, most notably Arts. 33 and 31”. This might be said to support the notion that subsidiary protection should not be extended beyond those who are covered by these provisions. There is another and, it is suggested, better, way to look at it: Art. 3 ECHR and Arts. 31 and 33 of the Geneva Convention are singled out but they are not exclusive. The term used is “in particular”, suggesting that other parts of those treaties may be relevant here. If that is the case, then surely the most immediately relevant rights would be those which are so fundamental that no derogation from them is permissible. The joint IOM/EU Brussels Declaration on Preventing and Combating Trafficking in Human Beings (September 2002) also acknowledges the human rights dimension. Finally, the Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities, above, n. 14, goes some way, especially at Art. 4, to recognising the possible need of victims of trafficking for international protection. 45 See in particular the joint IOM/EU Brussels Declaration on Preventing and Combating Trafficking in Human Beings (2002), ibid. 46 Statute of the International Criminal Court, Arts. 8(2)(b)(xxii) and 7(1-c, g), above, n. 24. See also Prosecutor v. Kunarac, Kovac and Vukovic, Case No. IT-96-23-T and IT96-23/1-, Judgment of 22 February 2001, para. 542, International Criminal Tribunal for the Former Yugoslavia.

154

Irregular Migration Networks those who assist in the prosecution of traffickers are given appropriate incentives, including some explicit recognition of their needs. A more open recognition of their entitlement to protection would surely assist this. But the final point here is crucial: even those who decline to help must still be given protection if they qualify. States may not like it but they do not have a choice if they wish to remain within the law. A willingness to apply human rights law as outlined above for the benefit of victims of trafficking may actually better promote States’ anti-trafficking agenda than the plethora of trafficking-specific measures that have been adopted in recent years.

155

This page intentionally left blank

PART III

IRREGULAR MIGRATION IN THE CONTEXT OF THE DEVELOPING EUROPEAN UNION ACQUIS

This page intentionally left blank

Ryszard Cholewinski*

EUROPEAN UNION POLICY ON IRREGULAR MIGRATION: HUMAN RIGHTS LOST?

On August 1 [2002] the bodies of thirteen African immigrants, men and women from the Kingdom of Morocco, were washed up at Tarifa, on the coast of the Straits of Gibraltar, in Spanish and European Union territory, in a repetition of the kind of tragedy which has already claimed the lives of thousands of people over the last few years. What steps is the Council taking vis-à-vis Spain and the Kingdom of Morocco to try to create the conditions needed to ensure that such appalling events do not happen again?1

1.

INTRODUCTION

This parliamentary question from a Spanish MEP received a reply from the Council three months later underlining the prominence which the Seville European Council had given to this issue in June 2002 and detailing a number of recent measures that the European Union (EU) had taken to “fight” or “combat” the problem of irregular migration, including moves to adopt a readmission agreement with Morocco. The answer focused wholly on preventive measures * 1

I am grateful to Steve Peers for drawing my attention to many of the EU documents referred to in this paper. Written Question E-2529/02 by MEP Camilo Nogueira Román (Greens/European Free Alliance) to the Council (11 September 2002) OJ 2002 C 92/180. Unfortunately, the tragic events continue. As EU leaders were meeting in the European Council at Thessaloniki on 20 June 2003, reports came in that about 200 African irregular migrants were feared dead after a boat capsized in the Mediterranean off the Tunisian coast. S. Arle, “200 Presumed Dead After Overladen Refugee Boat Sinks. Rescuers find little hope for survivors on illegal migrant route from Africa to Italy”, The Guardian, 22 June 2003.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 159-192 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Ryszard Cholewinski with no reference to any activities aimed at protecting the fundamental human rights of irregular migrants themselves. Irregular migration, or illegal migration as it is more commonly referred to,2 and the relationship of the EU and its Member States to this phenomenon is not a new development. In the early 1970s, a number of similarly high profile tragic incidents involving migrants attempting to evade immigration controls in Western Europe3 resulted in irregular migration becoming a matter of concern for a number of international organisations with the protection of human rights and social justice at the heart of their mandates. The United Nations (UN), the International Labour Organisation and the Council of Europe all adopted several hard and soft law measures to address the worst aspects of irregular migration, particularly the increasing resort by migrants to human traffickers and smugglers.4 It is perhaps not surprising that this question came to the fore shortly after the introduction of stricter immigration controls in many Western European countries to counter the negative economic effects of the oil crisis at the turn of the decade. Despite the fact that the European Commission had limited competence generally to address the situation of third-country nationals in the Community, irregular migration found its way on to the Commission’s agenda. In 1974, the Commission estimated that there were approximately 600,000 irregular migrant workers (not including family members) in the then 12 Community Member States or one-tenth of the lawful migrant labour force.5 Some thirty years later, irregular migration once again finds itself high on the political agenda of EU policy makers and Member State governments, triggered in part by more tragic events involving irregular migrants in all the corners of Europe. African migrants continue to die at sea every year attempting to reach the coasts of the Southern Mediterranean EU Member States and

2 3

4

5

This article uses the term “irregular migration” rather than “illegal migration” to avoid the connotation of illegality and criminality often association with the latter. One such incident in 1973 was the discovery of over 59 barely alive African migrants from Mali in a closed truck container in the Mount Blanc Tunnel: R. Böhning, former Director, ILO Multidisciplinary Advisory Team Southeast Asia and the Pacific (SEAPAT), speaking at the Regional Workshop on the ILO in Manila, 11-12 January 1999, organised by the Canadian Human Rights Foundation, the Ateneo Human Rights Center and the Asia Foundation. See respectively: ECOSOC Resolution 1706 (LIII) of 28 July 1972, G.A. Resolution 2920 (XXVII) of 15 November 1972, G.A. Resolution 3224 (XXIX) of 6 November 1974; ILO Convention No. 143 of 1975 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers; and Committee of Ministers Resolution 78 (44) of 26 October 1978 on clandestine immigration and the illegal employment of foreign workers. European Commission, Action Programme in Favour of Migrant Workers and Their Families, COM (74) 2250 of 18 December 1974.

160

European Union Policy on Irregular Migration Asian migrants, particularly from China, have perished in the containers of articulated lorries arriving in the United Kingdom.6 The European Police Office (EUROPOL) estimates that some 500,000 persons annually enter the EU without authorisation.7 During the last two years, the EU has adopted a number of policy measures, often at bewildering speed, to address the perceived problem of irregular migration. In November 2001, the Commission published a Communication on a Common Policy on Illegal Immigration,8 which, prompted by the Conclusions of the Laeken European Council in December 2001,9 was quickly followed up by a Council Comprehensive Action Plan to Combat Illegal Immigration and Trafficking of Human Beings in the EU adopted at the end of February 2002.10 This plan is currently being implemented. Further impetus at the highest EU political level to developing a common policy to prevent irregular migration was given by the Seville European Council on 21-22 June 200211 and the subsequent Danish Presidency introduced a Road-map, updated at regular intervals, to track the implementation of the Seville European Council’s Conclusions on asylum and migration with a clear focus on the prevention of irregular migration.12 In April 2002, the Commission advanced a Green Paper on the return of illegal residents, which, after a short period for consultation, resulted in a Communication on the same topic published in October 2002. This was swiftly followed by agreement in the Council on a Return Action Programme at the end of November 2002.13 The Council also adopted at the same time a spe6

7

8

9 10

11 12 13

In a highly publicised incident in June 2000, immigration officials in the English port of Dover discovered 58 deceased Chinese nationals in the container of a lorry. They had died of asphyxiation while attempting to enter the United Kingdom unlawfully. See T. Reid et al., “58 Die in Lorry Ride to Hope”, The Times, 20 June 2000. Cited by the European Commission in its Communication to the Council and the European Parliament on a Community Immigration Policy, COM (2000) 757 final of 22 November 2000, 13. European Commission, Communication to the Council and the European Parliament on a Common Policy on Illegal Immigration, COM (2001) 672 final of 15 November 2001. Presidency Conclusions: Laeken European Council, 14-15 December 2001, Bulletin EU 12-2001, points I2-I29, Conclusion 40, first indent. Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Brings in the European Union (28 February 2002) [hereinafter Council Plan to Combat Illegal Immigration], OJ 2002 C 142/23. Presidency Conclusions: Seville European Council, 21-22 June 2002, Bulletin EU 62002, points I2-I33 [hereinafter Seville Conclusions], Conclusion 30. For a recent publicly available version of this Road-map, see Council Doc. 6023/6/03 REV 6 (13 June 2003). See respectively European Commission, Green Paper on a Community Return Policy on Illegal Residents, COM (2002) 175 final of 10 April 2002; European Commission,

161

Ryszard Cholewinski cific Plan concerning the return of Afghan nationals following the conclusion of the conflict in Afghanistan.14 This frenetic activity has been supplemented by a series of soft law and operational measures, including those taken within the framework of the developing EU policy on external borders,15 as well as activity in the context of EU external relations policy with third countries, which is described in another chapter in this book.16 Such measures have outnumbered legally binding instruments adopted under the relevant provisions of Title IV of Part Three of the Treaty Establishing the European Communities (EC Treaty) on visas, asylum and immigration and other policies related to free movement of persons 17 and Title VI of the Treaty on the European Union (EU Treaty) on police and judicial cooperation in criminal matters in relation to preventing and combating the crime of trafficking in persons.18 The intense EU activity in the sphere of irregular migration continues unabated. At the beginning of June 2003, in preparation for the European Council in Thessaloniki, where irregular migration was to occupy a prominent place on the EU’s asylum and migration agenda, the Commission published a review of the developing EU policy in this area.19 As expected, the European Council Conclusions devoted considerable attention to this question.20 Is the EU today any nearer to adopting a comprehensive, equitable and feasible policy to prevent irregular migration than it was some 30 years previously? It would appear that these efforts have not made significant inroads in reducing irregular migration. Moreover, the EU has consistently failed to adopt positive

14

15 16 17

18 19

20

Communication to the Council and the European Parliament on a Community Return Policy on Illegal Residents, COM (2002) 564 final of 14 October 2002; Council Return Action Programme (28-29 November 2002), Doc. 14673/02 (25 November 2002). EU Plan for Return to Afghanistan (28-29 November 2002), Doc. 15215/02 (4 December 2002). The Plan was due to enter into force no later than Spring 2003. Ibid., para. 10. Plan for the Management of External Borders of the Member States of the European Union, Doc. 10019/02 (14 June 2002). See the essay by Peers in this volume. Art. 63(3)(b) TEC mandates the Council to adopt measures on immigration policy in the area of, inter alia, “illegal immigration and illegal residence, including repatriation of illegal residents”. Art. 29, second indent TEU. European Commission, Communication to the European Parliament and the Council in View of the European Council of Thessaloniki on the Development of a Common Policy on Illegal Immigration, Smuggling and Trafficking of Human Beings, External Borders and the Return of Illegal Residents, COM (2003) 323 final of 3 June 2003 [hereinafter Development of a Common Policy on Illegal Immigration]. Presidency Conclusions: Thessaloniki European Council, 19-20 June 2003, Bulletin EU 6-2003 [hereinafter Thessaloniki Conclusions], Conclusions 11-23.

162

European Union Policy on Irregular Migration measures in this field, particularly those that address the pressing need to safeguard the fundamental rights of irregular migrants at all stages of the migration process. EU institutions have only paid lip service to such positive measures without being able to generate the necessary political will to take concrete steps in this direction.21 This contrasts somewhat with the earlier approach, initiated in the early 1970s and still evident in an important Commission Communication in 1994, where the protection of human rights occupied a more prominent place in EU policy, although disappointingly less so in terms of its realisation. The need to ensure that a “control” and “security” approach by EU Member States under the guise of “migration management” does not undermine the protection of the rights of irregular migrants is also an important conclusion of a November 2002 report of the United Kingdom House of Lords Committee examining the developing EU policy in this area: Governments need to manage migration in a way that controls illegal immigration effectively. But in doing so they must not forget that they are dealing with people, most of whom are motivated simply by a desire for a better life for themselves and their families; and in devising measures to control illegal immigration they must ensure that they scrupulously observe their human rights obligations.22

This essay traces 30 years of Community policy on irregular migration: from the early legislative attempts in the 1970s, which contained a number of enlightened provisions protecting the rights of irregular migrants; the soft law of the era of intergovernmental cooperation outside of Community structures and under the auspices of the former third pillar on cooperation in justice and home affairs established by the Maastricht Treaty; to those measures adopted following the transfer of asylum and immigration matters to the Community pillar by way of the Amsterdam Treaty. In a selective examination of some of the recent and most important legally binding and non-binding measures, the essay contends that a coherent and comprehensive EU policy on irregular migration must be constructed on a more concrete foundation, which needs to be bolstered by the mobilisation of political will in EU Member States. The measures adopted under this policy should also be rooted firmly within a principled legal frame21 See R. Cholewinski, “Control of Irregular Migration and EU Law: A Human Rights

Deficit” in S. Peers and N. Rogers, (eds.) The Foundations of EU Immigration and Asylum Law: Implementing the Treaty of Amsterdam (The Hague: Kluwer, 2004) and R. Cholewinski, “The EU Acquis on Irregular Migration: Reinforcing Security at the Expense of Rights” (2000) 2 European Journal of Migration and Law 361. 22 UK House of Lords, Select Committee on the European Union, Session 2001-02, 37th Report, A Common Policy on Illegal Immigration, HL Paper 187 (5 November 2002) [hereinafter HL Report on Illegal Immigration] at p. 17, para. 47 and p. 30, para. 97.

163

Ryszard Cholewinski work based on respect for the human rights of all migrants regardless of their legal status. Indeed, the development of such a framework in the migration field generally will become unavoidable if the provisions of the new draft EU Constitutional Treaty, giving legally binding status to the Charter on Fundamental Rights23 and mandating EU accession to the European Convention on Human Rights (ECHR), are adopted.

2.

EARLY POLICY (1974-1989)

The limited legal competence to adopt measures concerning third-country nationals together with the lack of political will in Member States24 also made it difficult to adopt Community measures on irregular migration. Nonetheless, in the activities that were undertaken, this period is generally characterised by a balanced approach to the problem. In December 1974, the Commission proposed an Action Programme in Favour of Migrant Workers and Their Families identifying, inter alia, irregular migration as a growing concern, which could only be adequately addressed by the adoption of a common approach to deterrent measures among Member States.25 The Commission also highlighted the precarious status of clandestine migrants, who “with the constant threat of discovery and deportation are vulnerable to exploitation and intimidation”.26 The Action Programme was submitted to the Council, which adopted a Resolution in February 1976, in which it underlined the importance of strengthening cooperation among Member States in the campaign against irregular migration and ensuring that appropriate penalties were applied to counter trafficking and the abuses connected with irregular migration.27 But the Council also considered it important to ensure “that the obligations of employers are fulfilled and the rights of workers relating to the work they have carried out safeguarded without prejudice to other consequences of the unlawful nature of their residence and employment”.28 In November 1976, the Commission advanced a proposal for a Council Directive on the harmonisation of laws in the Member States to combat illegal 23 OJ 2000 C 364/1. 24 See Cases 281/85, 283-285/85 and 287/85, Re. the Immigration of Non-Community

25 26 27 28

Workers: Germany, France, Netherlands, Denmark and the United Kingdom v. EC Commission [1987] ECR 3203, discussed at length in E. Guild, Immigration Law in the European Community (The Hague: Kluwer, 2001), 234-240. Action Programme in Favour of Migrant Workers and Their Families, above n. 5, at p. 24. Ibid. Council Resolution of 9 February 1976 on an action programme for migrant workers and members of their families, OJ 1976 C 34/2, para. 5(b). Ibid.

164

European Union Policy on Irregular Migration migration and illegal employment.29 This was amended in April 1978 in response to criticisms by the European Parliament and the Economic and Social Committee that the proposal failed to devote sufficient attention to the protection of irregular migrants.30 The proposed amended Directive recognised that “in view of the growing interdependence and integration of national labour markets” Community action to combat the illegal employment of third-country nationals was necessary.31 It encompassed measures in the four areas identified in the Council’s February 1976 resolution: “strengthening of cooperation between Member States in the campaign against illegal migration and employment; the adoption of appropriate penalties; the fulfilment of employers’ obligations; and the protection of workers’ rights relating to the work they have carried out”.32 The balanced nature of the proposal was reflected in its dual purpose to approximate the legislation of the Member States “concerning the prevention and suppression of illegal migration and illegal employment… [and] to mitigate the hardships suffered by illegal migrants by reason of their situation…”.33 The proposed Directive imposed an obligation on Member States to take necessary measures to ensure that employers fulfil all their obligations arising from the previous or present employment of irregular migrants, particularly in respect of remuneration, redundancy payments and any annual leave not taken by the worker as well as social security contributions and taxes.34 The rationale for this approach was to deter the employment of irregular migrants by ensuring that as a consequence of the fulfilment of employer obligations and safeguarding the rights of migrant workers the cost of irregular labour would equate with or even exceed that of the lawful labour force.35 Further enlightened provisions in the measure included the possibility of suspending deportation in the event of

29 COM (76) 331 final. 30 European Commission, Amended Proposal for a Council Directive concerning the

31 32

33 34

35

approximation of the legislation of the Member States, in order to combat illegal migration and illegal employment, COM (78) 86 final of 3 April 1978 at p. 1, para. 1 (Explanatory Memorandum) [hereinafter Amended Proposal for a Council Directive on illegal migration]. Recital 4 of the draft Directive (ibid., Annex I at p. 2). Amended Proposal for a Council Directive on illegal migration, above n. 30, at p. 2, para. 5 (Explanatory Memorandum) and the fifth recital of the Draft Directive (ibid., Annex I, at p. 2). Art. 2 (ibid. at p. 4). Art. 7(1)(a) (ibid. at pp. 6-7). Equal treatment with nationals was also foreseen in respect of migrant workers subject to deportation regarding credit or reimbursement of social security contributions paid by them and their employers. Art. 7(3) (ibid. at p. 7). Amended Proposal for a Council Directive on illegal migration, above, n. 30, at p. 4, para. 12 (Explanatory Memorandum).

165

Ryszard Cholewinski an appeal and the provision of free legal aid.36 In the two other areas covered by the proposal, the Directive foresaw Member State obligations in respect of the provision of accurate information to potential migrants, including collaboration with third countries in this respect, and the application of sanctions (including imprisonment in serious cases) to those persons who “organise, aid or abet or participate in illegal immigration and employment”.37 While this provision clearly encompassed smugglers and employers, it also appeared regretfully to include irregular migrants themselves in contradiction to the protective measures discussed above. Unfortunately, however, the Commission’s efforts to adopt this comprehensive and generally balanced instrument on preventing irregular migration under the general Treaty rules for Community action38 were not pursued in the Council. The reasons for the Council’s inaction are not entirely clear, although in its 1985 Communication on Guidelines for a Community Policy on Migration, where support for the validity of its earlier approach towards irregular migration in the proposed Directive was restated, the Commission noted “difficulties of a political and legal nature in the Council”,39 which should presumably be read as a reference to the lack of political will in Member States to take this matter forward despite the Council’s earlier promptings and the limited Community legal competence in this area. The subsequent Council Resolution on the Commission’s guidelines contained no reference to the question of irregular migration.40

3. INTERGOVERNMENTAL COOPERATION AND POST-MAASTRICHT TREATY MEASURES (1990-1999) In contrast to the 1970s and 1980s, where legal competence over third-country nationals was circumscribed and where activities were largely confined to intergovernmental cooperation among Member States outside of the Community framework, the subsequent period has seen intense activity with the adoption of numerous measures relating to the prevention of irregular migration. However, as noted in the Introduction, many of these measures are not legally binding, although this does not mean of course that they have not had a significant impact on the development of the laws, policies and administrative practices in individual Member States.

36 See Arts. 6 and 7(3) respectively (ibid., Annex at pp. 6 and 7). 37 See respectively Arts. 2(1)-(2) (ibid. at pp. 4-5) and Art. 4 (ibid. at pp. 5-6). 38 Art. 94 TEC (formerly Art. 100 EC). 39 COM (85) 48 final of 1 March 1985. 40 Council Resolution of 16 July 1985 on guidelines for a Community policy on migra-

tion, OJ 1985 C 186/3.

166

European Union Policy on Irregular Migration The entry into force of the Maastricht Treaty,41 which saw the birth of the European Union, was significant because it formalised and integrated into the EU framework the intergovernmental cooperation in which Member States were already engaged some years previously, both in the ad hoc Immigration Group and in the context of Schengen arrangements.42 “Combating unauthorized immigration, residence and work by nationals of third countries on the territory of Member States” was identified in the former third pillar (Title VI) of the Maastricht Treaty as a matter of common interest for cooperation.43 While Member States were also able to agree restrictive positions in the field of legal migration on the status of third country nationals who are long-term residents and the admission of third-country nationals for the purpose of employment and self-employment,44 such measures were far outnumbered by those aimed at the prevention of irregular migration, which are listed according to their subject matter in Table 1 in the Annex. None of these measures on irregular migration focused to any great extent on the protection of the rights of irregular migrants despite the fact that the Commission had laid down a solid foundation for the development of a comprehensive and coherent policy on asylum and immigration, including irregular migration, in its 1994 Communication on asylum and immigration policies.45 The Commission’s proposed comprehensive approach to address the problem of irregular migration was based on adopting measures at four levels: preventing irregular migrants entering EU territory; identifying those illegally resident in the EU; defining minimum standards for the treatment of irregular migrants and facilitating their repatriation.46 With regard to the third level of action, the Commission saw this as “a necessary step which will… 41 OJ 1992 C 191/1. 42 Convention applying the Schengen Agreement of 14 June 1985 between the Gov-

43 44

45

46

ernments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, 19 June 1990. For the text of the Convention and the measures adopted thereunder (the Schengen acquis), see OJ 2000 L 239/19. Former Art. K.1(3)(c) of the Treaty on the European Union. See respectively: Council Resolution of 4 March 1996 on the status of third-country nationals residing on a long-term basis in the territory of the Member States, OJ 1996 C 80/2; Council Resolution of 20 June 1994 on limitations on admission of thirdcountry nationals to the territory of the Member States for employment, OJ 1996 C 274/3; and Council Resolution of 30 November 1994 relating to the limitations on the admission of third-country nationals to the territory of the Member States for the purpose of pursuing activities as self-employed persons, OJ 1996 C 274/10. European Commission, Communication to the Council and the European Parliament on Immigration and Asylum Policies, COM (1994) 23 final of 23 February 1994 [hereinafter Communication on Immigration and Asylum Policies]. Ibid. at pp. 27-28, para. 104.

167

Ryszard Cholewinski help ensure the credibility of restrictive policies concerning illegal immigration”.47 Moreover, it viewed the signature and ratification of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which lists the human rights of migrant workers, including those in an irregular situation,48 as a measure that would give practical expression to this goal.49 In this regard, the Convention could be seen as being complementary to the Commission’s comprehensive approach, as defined at the time, in view of its dual aim of preventing irregular migration and also protecting the human rights of irregular migrants.50 Given that the consequence of the introduction of the third pillar at Maastricht was essentially to underline the intergovernmental nature of activities in the asylum and immigration field by sidelining the Commission, which was required to share its right of initiative with Member States, and marginalizing the role of the European Parliament, which only had the right to be informed,51 it is hardly surprising that the Council took the lead in developing measures in this area. As indicated in Table 1 in the Annex, most of the measures adopted were concerned with the prevention of irregular migration by focusing on the detection of illegal employment, facilitation of expulsion and readmission, and addressing the problem of trafficking and smuggling of human beings.

4.

POST–AMSTERDAM MEASURES (1999-)

The transfer of asylum and immigration matters to the Community pillar by virtue of the amendments to the EC Treaty introduced by the Treaty of Amster47 Ibid. at p. 29, para. 109. 48 UN GA Res. 45/158 of 18 December 1990 (Part III of the Convention). Twenty-five

countries have now ratified the Convention: Azerbaijan, Belize, Bolivia, Bosnia and Herzegovina, Burkina Faso, Cape Verde, Colombia, Ecuador, Egypt, El Salvador, Ghana, Guatemala, Guinea, Kyrgystan, Mali, Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Tajikistan, Timor Leste, Uganda, and Uruguay. The Convention has also been signed by Bangladesh, Burkina Faso, Chile, Comoros, Guinea-Bissau, Paraguay, Sao Tome and Principe, Sierra Leone, Sudan, Togo, and Turkey. The Convention entered into force on 1 July 2003. 49 Communication on Immigration and Asylum Policies, above n. 45, at p. 29, para. 110. 50 For a more in-depth discussion of this apparent tension in the Convention with reference to the drafting process, see R. Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Oxford: Clarendon Press, 1997) at pp. 188-190. A similar dual aim can be discerned in Part I of ILO Convention No. 143, above n. 4, which, in addition to outlining a number of preventive measures, includes the general State obligation “to respect the basic human rights of all migrant workers” (Art. 1). Rights arising out of past employment are also safeguarded (Art. 9(1)). 51 See Arts. K.3(2) and K.6 respectively.

168

European Union Policy on Irregular Migration dam52 and the integration of the Schengen acquis,53 which contains a host of measures relating to irregular migration, has given rise to the adoption of a number of legally binding Community instruments, prompted initially by an Action Plan of the Council and Commission, adopted in Vienna in December 1998 and the Presidency Conclusions of the special European Council on asylum and immigration in Tampere, Finland, in October 1999.54 A number of these measures build on the Schengen acquis. However, as demonstrated in Table 2 in the Annex, the Council and Member States retain a preference for soft law and operational measures and, arguably, the most important measures adopted to date fall into this category. 4.1

Legally Binding Measures

The legally binding instruments concerning irregular migration adopted since the entry into force of the Amsterdam Treaty contain very little human rights content apart from a few selective cursory references in some of these measures to their conformity with the 1951 Geneva Convention Relating to the Status of Refugees and the 1967 amending Protocol as well as human rights instruments.55 Most measures are concerned with preventing migrants entering without authorisation, assisting with the expulsion of irregular migrants from the Member State concerned and EU territory as a whole, and imposing sanctions on those who facilitate irregular migration. 4.1.1 Preventing Entry With regard to policing entry, the carrier sanctions Directive builds on the Schengen acquis 56 and on individual Member State measures already in place by 52 OJ 1997 C 340/1. 53 Protocol No. 2 integrating the Schengen acquis into the framework of the European

Union, OJ 1997 C 340/93. 54 See respectively Action Plan of the Council and the Commission on how best to imple-

ment the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, adopted by the JHA Council on 3 December 1998, OJ 1999 C 19/1 and Presidency Conclusions, Tampere European Council, 15-16 October 1999, Bulletin EU 10-99, points I.2-I.16. 55 For example, see Art. 6 of Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, OJ 2002 L 328/1. 56 Art. 26 of the Schengen Implementing Convention (OJ 2000 L 239/19) imposes obligations on air, sea or land carriers to assume responsibility for third-country nationals refused entry at the external EU border; to take all necessary measures to ensure that non-EU nationals carried by air or sea possess the requisite travel documents for entry; and to impose penalties on carriers, which transport non-EU nationals by air

169

Ryszard Cholewinski imposing additional obligations on transport carriers with regard to the return of third-country nationals.57 The Directive also stipulates that the penalties to be applied to carriers for failing to ensure that third-country nationals possess the necessary travel documents are to be “dissuasive, effective and proportionate” and sets out options with regard to the minimum and maximum financial penalties to be applied to transport carriers.58 While the Directive provides that applicable penalties are “without prejudice” to Member States’ international protection obligations and that carriers should have “effective rights of defence and appeal”, there is no explicit exemption in relation to third-country nationals without adequate documentation who seek asylum.59 A recent Spanish initiative proposes the imposition of a further obligation on air carriers to communicate to Member States’ authorities the details of all passengers coming to the territory of the EU and, if requested by these authorities, information on third-country nationals who have not left the EU on the date stipulated on their travel ticket.60 This proposal has been criticised for transferring further the State duty to control borders to the private sector and for containing insufficient safeguards in respect of the collection of personal data and its transmission.61 With a view to facilitating the application of the Dublin Convention determining the State responsible for examining an asylum application lodged in one of the Member States,62 which has now been replaced by a Council Regulation (Dublin II),63 but also with the secondary aim of preventing irregular migration, the ‘Eurodac’ Regulation imposes obligations on Member States to promptly fingerprint all persons aged 14 and over who make an asylum application on their territory as well as those apprehended in connection with the irregular crossing of the external border and to send this data to the Eurodac central or sea without the necessary travel documents. 57 Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Arti-

58 59 60 61

62 63

cle 26 of the Convention Implementing the Schengen Agreement of 14 June 1985, OJ 2001 L 187/45, Arts. 2 and 3. Ibid., Art. 4. Ibid., Arts. 4(2) and 6 respectively. Initiative of Spain with a view to adopting a Council Directive on the obligation of carriers to communicate passenger data, OJ 2003 C 82/23, Art. 1. Immigration Law Practitioners’ Association, Submission to the Select Committee on the European Union (Sub-Committee F) on the Proposal for a Council Directive on the obligation of carriers to communicate passenger information (September 2003), available from http://www.ilpa.org.uk/ OJ 1997 C 254/1. Council Regulation 243/2003/EC of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ 2003 L 50/1.

170

European Union Policy on Irregular Migration database.64 Member States retain the discretion whether to send the fingerprints of illegally resident persons found within their territories to this database with a view to checking whether they have previously applied for asylum in another Member State.65 In the former two instances, however, the Regulation does at least specify that the fingerprinting is to take place in accordance with the safeguards laid down in the ECHR and the UN Convention on the Rights of the Child, without, however, referring to any specific procedure. Mere references to international human rights instruments are clearly insufficient and stronger and more specific substantive and procedural safeguards should be provided in such instruments to ensure that fundamental human rights are not abused. EU border and visa policy also targets those countries that are considered to be a significant source of irregular migration. For example, preventing irregular migration constitutes one of the governing criteria for the establishment of a common EU list of countries whose nationals require a visa to enter the EU for a period of up to three months.66 Indeed, the recent addition of Ecuador to the negative list was premised on Member States reporting an increase of irregular migrants from that country.67 As argued in more detail elsewhere, the EU border and visa rules, in terms of their vague drafting and inconsistent application, are particularly susceptible to allegations of discrimination.68 The projected Visa Information System (VIS),69 which is likely to require Member State consulates to enter into a database details of all short-term visa applications to the EU, including copies of travel documents and agreed biometric identifiers such as fingerprints, as well as refusal decisions, should constitute a considerable obstacle to those third-country nationals whose visa applications have been refused 64 Council Regulation 2725/2000/EC of 11 December 2000 concerning the establish-

65 66

67

68

69

ment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ 2000 L 316/1, Arts. 4(1) and 8. Ibid., Art. 11(1). Council Regulation 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2001 L81/1, Recital 5. Council Regulation 453/2003/EC of 6 March 2003 amending Regulation 539/2001/ EC listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2003 L 69/10, Recital 1 and Art. 1(1)(b). See R. Cholewinski, Borders and Discrimination in the European Union (London/ Brussels: Immigration Law Practitioners’ Association/Migration Policy Group, 2002). See Guidelines for the introduction of a “common system for an exchange of visa data”, Doc. 7309/3/02 REV 3 (7 May 2002); Council Conclusions of 5 June 2003 on the development of the Visa Information System (VIS), Doc. 9916/1/03 REV; Thessaloniki Conclusions, above n. 20, Conclusion 11.

171

Ryszard Cholewinski from attempting to make applications elsewhere (frequently referred to as “visa shopping”) and facilitate the removal of those who overstay the period of time permitted in their visa. But if the rules establishing the VIS are insufficiently clear, leave considerable discretion to consular authorities and fail to provide adequate remedies in the event of a visa refusal, the likelihood of their discriminatory application in respect of third-country nationals will increase. 4.1.2 Assisting with Expulsion With regard to the expulsion of irregular migrants, the Directive on mutual recognition of decisions on the expulsion of third-country nationals70 aims to assist with the enforcement of expulsion decisions in the EU and to promote cooperation among Member States by enabling the competent authorities of one Member State to apply and enforce the expulsion decisions issued by authorities in another Member State. Although the application of the Directive is limited to specific expulsion decisions, the relevant criteria are formulated in a general manner with the result that considerable differences among Member States can be accommodated.71 The resort to the mutual recognition approach in this area has been criticised for its potentially discriminatory effect because its unequal application may result in serious consequences for the unfortunate third-country national concerned.72 Given that arbitrary expulsion or unfair expulsion processes have important human rights implications, as noted in Section 4.2 below, the absence of precise and detailed human rights safeguards in this particular measure is particularly disturbing.73 The Directive was supposed 70 Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of deci-

sions on the expulsion of third country nationals, OJ 2001 L 149/34. 71 According to Article 3(1) of the Directive, mutual recognition may take place in cases where the expulsion decision is based on a “serious and present threat to public order or to national security and safety” in two specified cases (“conviction of a third country national by the issuing Member State for an offence punishable by a penalty involving deprivation of liberty of at least one year” and “the existence of serious grounds for believing that a third country national has committed serious criminal offences or the existence of solid evidence of his intention to commit such offences within the territory of a Member State”) or the “failure to comply with national rules on the entry or residence of aliens”. 72 Cf. K. Groenendijk, “The Directive on Mutual Recognition of Expulsion Decisions: Symbolic or Unbalanced Politics?” in P. De Bruycker, (ed.), The Emergence of a European Immigration Policy (Brussels: Bruylant, 2003) 447. 73 Art. 3(2) of the Directive, above n. 70, merely obliges Member States to “apply [the] Directive with due respect for human rights and fundamental freedoms”. The Directive also recognises in the fourth recital of the Preamble that decisions on the expulsion of third country nationals have to be adopted in accordance with fundamental rights as safeguarded in particular by the ECHR, the Geneva Convention Relating to the Status of Refugees and constitutional principles common to the Member States.

172

European Union Policy on Irregular Migration to be implemented by 2 December 2002, although the Commission reported in June 2003 that “a majority of Member States have failed so far to communicate to the Commission any measures incorporating this Directive into national law”.74 The Commission has also proposed, with the view to the implementation of Article 7 of the Directive on financial compensation, a supplementary measure to compensate any financial balances that might result from the Directive’s application,75 although it argues that a bilateral financial compensation system cannot work properly in the long term without sufficient information on expulsion decisions of other Member States.76 The removal of irregular migrants from the whole of EU territory is the objective of readmission agreements, which the Commission has negotiated and continues to negotiate with a number of third countries on behalf of the EU.77 These agreements will enable competent authorities in Member States to return the citizens of those countries who are deemed to be illegally resident in their territories as well as those other third-country nationals where it can be proved that they have entered from the third country concerned. The lack of human rights safeguards clearly reiterating the principle of non-refoulement in respect of the return of persons seeking protection is a negative feature of these instruments.78 Member States have also proposed a number of measures to facilitate the expulsion process.79 While all these measures refer to important instruments,

74 Development of a Common Policy on Illegal Immigration, above n. 19, at p. 9. 75 European Commission, Proposal for a Council Decision setting out the criteria and

76 77

78 79

practical arrangements for the compensation of the financial imbalances resulting from the application of Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals, COM (2003) 49 final of 3 March 2003. Development of a Common Policy on Illegal Immigration, above n. 19, at p. 9. Readmission agreements have been signed with Hong Kong and initialled with Macao, and Sri Lanka. Agreements are being negotiated with Albania, Algeria, China, Morocco, Pakistan, Russia, Turkey and the Ukraine. See Road-map, above n. 12, at p. 5. Negotiations were concluded with Albania in 2003: COM (2004) 92. See the essay by Peers for the details of these agreements. Initiative of Germany with a view to adopting a Council Directive on assistance in cases of transit for the purposes of removal by air, OJ 2003 C 4/4; Initiative of the Italian Republic with a view to adopting a Council Decision on the organisation of joint flights for removals of third-country nationals illegally present in the territory of two or more Member States, OJ 2003 C 223/3; Initiative of the Italian Republic with a view to adopting a Council Directive on assistance in cases of transit through the territory of one or more Member States in the context of removal orders taken by Member States against third-country nationals, OJ 2003 C 223/5. The Council has reached agreement on the text of the German proposal, Directive 2003/110/EC, OJ 2003 L 321/26. The second Italian initiative was adopted as Conclusions (Doc. 15998/1/03 REV 1).

173

Ryszard Cholewinski such as the Geneva Convention, the UN Convention on the Rights of the Child and the ECHR, they are devoid of detailed human rights safeguards. 4.1.3 Punishing Facilitators of Irregular Migration The remaining legally binding measures have been concerned with the punishment of those who facilitate irregular migration. In this regard, a distinction must be drawn between two kinds of facilitation, human trafficking and smuggling, which are defined in the Annex to the Europol Convention and more comprehensively in the Anti-Trafficking and Smuggling Protocols to the UN Convention against Transnational Organised Crime.80 Both the EU and its Member States have signed these instruments, although a full complement of ratifications remains quite a distant prospect.81 The Council has adopted two measures on human smuggling, a Directive under Title IV TEC defining the crime of facilitating illegal migration, and a Framework Decision under Title VI TEU, establishing a minimum framework for the application of penalties.82 The definition of facilitation is particularly problematic from a human rights perspective because it may potentially criminalise those humanitarian organisations, which assist irregular migrants and which have no intention to gain from the provision of such assistance. The Direc-

80 G.A. Res. 55/25 of 15 November 2000. See the essay by Piotrowicz in this volume. 81 See Council Decision 2001/87/EC of 8 December 2000 on the signing on behalf of

the Community, of the United Nations Convention against transnational organised crime and its Protocols on combating trafficking in persons, especially women and children, and the smuggling of migrants by land, air and sea, OJ 2001 L 30/44. The Convention entered into force on 29 September 2003 (see the web site of the UN Office on Drugs and Crime at http://www.unodc.org/unodc/en/crime_cicp_signatures.html), the Protocols entered into force on 25 December 2003 and 28 January 2004. To date, the Convention has been ratified by 61 States Parties, including the following EU and European Economic Area (EEA) Member States and EU candidate countries: Bulgaria, Cyprus, Denmark, Estonia, France, Latvia, Lithuania, Malta, Norway, Poland, Romania, Slovakia, Spain and Turkey. Anti Trafficking and Migrant Smuggling Protocols have been ratified by 46 and 41 States Parties respectively. Cyprus, France, Spain, Bulgaria, Lithuania, Malta, Norway, Poland, Romania and Turkey have ratified both Protocols; Denmark has ratified the Anti-Trafficking Protocol; and Latvia has ratified the Anti-Smuggling Protocol. The European Commission has issued a Communication proposing that the EU ratify the Convention and both Protocols. See COM (2003) 512 final of 22 August 2003. 82 See respectively Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence, OJ 2002 L 328/17 and Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, above n. 55.

174

European Union Policy on Irregular Migration tive enables Member States to include a “humanitarian defence” in their laws, but they are under no firm obligation to do so.83 As far as the prevention of trafficking is concerned, the relevant Council Framework Decision84 omits any unequivocal references to the protection of victims in contrast to the UN Anti-Trafficking Protocol. A subsequent Commission proposal for a Council Directive, advanced in February 2002, envisages the granting of a short-term residence permit to the victims of both trafficking and human smuggling, but only if a number of conditions are satisfied, inter alia if the victims’ presence is deemed “useful” for the investigation or the prosecution of the suspects and if they have shown a clear intention to cooperate with the authorities.85 Moreover, there is no possibility in this proposal to grant more secure residence to such victims, as found in the UN Anti-Trafficking Protocol,86 unless the victim applies for international protection in the Member State concerned.87 In contrast to all the other frenetic activity to prevent irregular migration, the political importance attached to this limited proposal is perhaps best reflected in the fact that discussions on the text in the Council only commenced in July 2003. 4.2

Soft Law and Operational Measures

The soft law or operational measures adopted thus far are arguably more significant and are likely to have a greater impact in Member States, at least in the short-term. While the Commission was prepared to propose a coherent and comprehensive Community measure in the form of a Directive addressing various aspects of irregular migration in 1976, a similarly straightforward, 83 Council Directive defining the facilitation of unauthorised entry, transit and resi-

dence, above n. 82, Art. 1(2). 84 Council Framework Decision 2002/629/JHA of 19 July 2002 on combating traffick-

ing in human beings, OJ 2002 L 203/1. 85 European Commission, Proposal for a Council Directive on the short-term residence

permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities, COM (2002) 71 final of 11 February 2002, draft Art. 10(1). 86 Arts. 7(1) and (2) of the Protocol on combating trafficking in persons read: (1) “[E]ach State Party shall consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases. (2) In implementing the provision contained in paragraph 1 of this article, each State Party shall give appropriate consideration to humanitarian and compassionate factors”. Emphasis added. 87 Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities, above n. 85, draft Art. 4.

175

Ryszard Cholewinski integrated and all-encompassing approach has not been proposed to date nor indeed is likely to be. The vast majority of legally binding measures and proposals considered in Section 4.1 above focus on specific “control” issues relating to irregular migration. 4.2.1

Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Beings in the EU As outlined in the Introduction, the current so-called “comprehensive approach” originates in the November 2001 Commission Communication on a Common Policy on Illegal Immigration, which was quickly followed by the Council’s Comprehensive Plan to Combat Illegal Immigration, adopted at the end of February 2002. This Action Plan is couched in “siege mentality” language referring frequently to the “fight against illegal immigration”88 as if the problem of irregular migration is wholly external to the EU and not linked to any economic forces operating within the territory of Member States. In this context, the description “Fortress Europe” remains very apt (despite the pleas from EU and Member State officials that this label is not fairly applied), although arguably the more appropriate image is that of an ailing vessel in which sailors work frantically to plug the leaks. Such an image is particularly resonant when the Council, in underscoring in the Plan the need to enforce existing common rules effectively in the context of the creation of an area of freedom, security and justice, speaks of the “common security system” as being “only as strong as its weakest point”.89 The emphasis here is on Member States working “towards a genuine partnership based on mutual confidence in each others law enforcement activities”, which echoes the principle of mutual recognition criticised in Section 4.1 above. Moreover, the absence of a strong human rights component in the Council’s Plan is very disquieting. The references to the protection of the human rights of irregular migrants or indeed to the protection of human rights generally are limited and selective. The Plan recognises that irregular migrants in need of international protection should be guarded against refoulement, whether under the Geneva Convention Relating to Refugees or under Article 3 of the ECHR, and that refugees should not be penalised on account of their illegal entry or presence in a country (Article 31 of the Geneva Convention),90 but other wider international human rights instruments and standards, which provide safeguards in the context of detention and expulsion for example, fail to receive a mention.91 With regard to the victims

88 Council Plan to Combat Illegal Immigration, above n. 10, at paras. 2, 5, 11, 12, 14, 17,

69. 89 Ibid., para. 19. 90 Ibid., para. 11. 91 The Plan does recognise the need to promote “peace, political stability, human rights,

democratic principles and sustainable economic, social and environmental develop-

176

European Union Policy on Irregular Migration of trafficking, the Plan only envisages their protection in a law enforcement context if they cooperate with the authorities,92 which resembles the approach taken by the Commission in its proposal for a Council Directive to grant a short-term residence status to victims of traffickers and facilitators, considered in Section 4.1 above. In lending support to a common EU return policy (discussed below), the Plan underlines what it describes as an important common principle, confirmed in the Tampere Conclusions, namely “the strengthening of the obligation under international law to readmit own nationals”.93 This is a very traditional view of international law, which focuses on conventional notions of State responsibility where human beings are treated as objects of their governments and where there is little place for viewing them as autonomous actors holding a package of inalienable rights that should be upheld regardless of their connection to the State. There is no reference to the right of all persons to leave any country, including their own,94 or to the authoritative interpretation that this right is not necessarily restricted to nationals or persons lawfully within the territory but can also be exercised by irregular migrants, who should be able to choose their destination country on expulsion provided the latter country agrees to admit them.95 While there is also a right to enter one’s own country,96 which must logically include the corollary State obligation to readmit its own nationals, it is arguable that such an obligation can only be imposed in the context of individuals who wish to exercise their right to return freely or voluntarily. The Plan also contains a number of other features, which by virtue of their ambiguity, raise further human rights concerns. Whereas the Seville European Council Conclusions drew back from making the provision of EU development assistance specifically dependant on the willingness of third countries to cooperate with EU Member States to prevent irregular migration, they did nonetheless make clear that closer relations might be hampered by insufficient cooperation.97 ment” at the beginning of the migration chain in countries of origin. Ibid., para. 13. 92 Ibid. para. 91: “It is important to clarify the status of the victims of trafficking in

93 94

95 96 97

terms of certain benefits or special assistance when they are prepared to cooperate in investigations against their exploiters”. Emphasis added. Ibid., para. 71. See Art. 2(2) of Protocol No. 4 to the ECHR (Strasbourg, 16 September 1963, European Treaty Series No. 46) and Art. 12(2) of the 1966 International Covenant on Civil and Political Rights (ICCPR) (16 December 1966, 999 UNTS 171). See UN, Human Rights Committee, CCPR General Comment 27: Freedom of Movement (Art. 12), UN Doc. CCPR/C/21/Rev.1/Add.9 (2 November 1999), para. 8. Art. 12(4) ICCPR. Seville Conclusions, above n. 11, Conclusions 34-36. Similar wording has been included in the Council Conclusions of 19-20 May 2003 on integrating migration issues in the European Union’s relations with third countries: migration and development, Doc. 8927/03, para. 10.

177

Ryszard Cholewinski The Plan persists with this theme by bluntly urging the EU to “use its political weight to encourage third countries which show a certain reluctance to fulfil their readmission obligations”.98 This perniciously ambiguous and open-ended terminology reflects a “stick” rather than a “carrot” approach to cooperation with third countries in the asylum and migration field and can hardly be conducive to the protection and promotion of the human rights of irregular migrants in EU Member States or transit countries, or indeed the economic or social rights of those still in their country of origin. Moreover, in the section on so-called ‘PreFrontier Measures”,99 where financial and technical support for actions in third countries is discussed, the Plan identifies a number of areas that could be the subject of targeted migration and asylum projects, including the “establishment of reception centres for illegal migrants in transit countries”.100 This mirrors to some extent the draconian ideas of the United Kingdom Government, which it wished to sell to its EU partners, to transfer asylum-seekers arriving in the UK (and the EU) to facilities in third countries for the processing of their claims.101 While these plans appear to have floundered as a result of strong opposition from civil society and a number of Member State governments,102 the establishment of such centres for irregular migrants and presumably for rejected asylumseekers remains on the agenda. 4.2.2 Return Action Programme Similar criticisms can be made of the Council’s Return Action Programme, which mirrors essentially the Commission’s earlier Green Paper and Communication on the subject, which were roundly criticised by certain sections of civil society.103 The Action Programme refers to a number of pertinent international instruments, such as the ECHR, the Geneva Convention Relating to the Status of Refugees and Protocol, the UN Convention on the Rights of the Child and 98 Council Plan to Combat Illegal Immigration, above n. 10, para. 76. Emphasis added. 99 This label itself implies that any such measures should have a security objective,

namely to protect the external EU frontier. 100 Council Plan to Combat Illegal Immigration, above n. 10, para. 54. 101 “Blunkett Pushes Asylum Havens”, BBC, 27 March 2003; A. Travis, “Asylum

Requests may be handled in Russia: EU to consider Blunkett Plan for Transit Centre outside the Union”, The Guardian 27 March 2003. See also COM (2003) 315 final, 5-7. 102 A. Travis, “Britain Waivers on Asylum Plan”, The Guardian, 16 June 2003. 103 See e.g. Human Rights Watch, Treating “Illegals” Legally: Commentary regarding the European Commission Green Paper on a Community Return Policy on Illegal Residents, Briefing Paper (August 2002), 1, available from http://www.hrw.org/campaigns/ migrants/docs/ec-green-paper0802.pdf; Immigration and Law Practitioners’ Association, Response to the European Commission’s Green Paper on Community Return Policy on Illegal Residents (July 2002), available from http://www.ilpa.org.uk/

178

European Union Policy on Irregular Migration the EU Charter of Fundamental Rights,104 which contain a number of provisions relevant to the protection of irregular migrants in the return process. However, this list is selective105 and the Action Programme fails to engage with any specific standards,106 such as those concerned with the right to life, nondiscrimination, freedom from arrest and arbitrary detention and safeguards in the expulsion process, including the prohibition against collective expulsion.107 While the EU Charter is given some prominence, the fact that it has not yet achieved the status of a binding legal instrument is not mentioned. The Action Programme also conveys the impression that practices in Member States generally comply with human rights standards: “Member States’ return and removal procedures are already, and should of course continue to be, conducted in accordance with human rights standards and international obligations”.108 Such a statement ignores forced removal practices, which have resulted in migrant deaths,109 as well as recent ECHR case law finding violations by Member States of a number of human rights guarantees, including the prohibition on collective expulsion.110 It is rather disconcerting therefore that the Action Programme focuses on facilitating forced returns111 despite earlier assertions by the Com104 Return Action Programme, above n. 13, para 13. 105 In its commentary on the Commission’s earlier Green Paper, which contains a simi-

106 107 108 109 110

111

larly selective list, Human Rights Watch notes the absence of a strong human rights framework: “The Green Paper… either references many of these [human rights] standards incompletely or omits them altogether”. Treating “Illegals” Legally, above n. 103, at p. 1. Ibid. at pp. 2-7. See Art. 4 of Protocol No. 4 to the ECHR, above n. 94. See Return Action Programme, above n. 13, para. 41. Emphasis added. Treating “Illegals” Legally, above n. 103, at p. 3. See Cˇonka v. Belgium, Eur. Ct. H.R., judgment of 5 February 2002, (2002) 34 EHRR 1298, concerning the forced return of a group of Roma asylum-seekers by the Belgian authorities, where the Court found a violation of a number of ECHR provisions, including Article 4 of Protocol No. 4, above n. 94, prohibiting the collective expulsion of aliens. See also the friendly settlement in Sulejmanovic and Others v. Italy, Eur. Ct. H.R., 8 November 2002. The Cˇonka judgment and the friendly settlement in Sulejmanovic are also available from the web site of the European Court of Human Rights at http://hudoc.echr.coe.int/hudoc Return Action Programme, above n. 13, para. 12: “Notwithstanding the importance to be attached to voluntary return, there is an obvious need to carry out forced returns in order to safeguard the integrity of EU immigration and asylum policy and the immigration and asylum systems of the Member States. Thus the possibility of forced return is a prerequisite for ensuring that this policy is not undermined and for the enforcement of the rule of law, which itself is essential to the creation of an area of freedom, security and justice. Moreover, the major obstacles experienced by Member States in the field of return occur in relation to forced returns…”.

179

Ryszard Cholewinski mission that voluntary return should be given priority.112 Moreover, the view perpetuated in the Action Programme that Member States essentially comply with their human rights obligations is contradicted somewhat by the recognition that joint training is required for so-called “return practitioners” in a number of areas that clearly touch upon human rights concerns: “Return enforcement is a very difficult and demanding task, which calls for various skills for the responsible persons such as proper knowledge of the legal competencies, adequate treatment of returnees, the management of incidents, intercultural understanding and negotiation techniques”.113 In addition to the above concerns, the prospects of a EU common policy on the return of irregular migrants being premised on and informed by a strong human rights framework is effectively scuttled in the Action Programme, which underlines the need to give “highest priority” to practical and operational measures to enhance cooperation between “return practitioners” in preference to the adoption of a common legal framework of normative measures to inform practice.114 The adoption of such a framework is only considered to be a medium and long-term objective. Moreover, the eventual establishment of this framework is envisaged as a response to an evaluation of the experiences gained from operational cooperation115 and not on the basis of independent human rights norms. The Action Programme observes that “experience from an improved operational co-operation should be used to assess whether removal, as the closing act of enforcing return… should be subject to further common minimum standards, safeguarding both the rights and the health of the person concerned as well as the effectiveness of the removal”.116 The rights and health of the migrant to be returned cannot be dependent on an evaluation of operational cooperation or compromised in any way with efficiency. It is difficult to see how return practices at the national level can conform adequately to important human rights guarantees without the adoption of a common framework of standards affording a high and consistent level of human rights protection. The developing EU return policy also strongly supports the extension of the principle of mutual recognition to a broader range of national return deci-

112 Green Paper on a Community Return Policy on Illegal Residents, above n. 13, at p. 8,

113 114 115 116

para. 2.2. In contrast, the EU Plan for Return to Afghanistan, above n. 14, para. 11, focuses on voluntary return, although Member States are given the option to resort to forced removals of those Afghan nationals without any protection needs or compelling humanitarian needs and “who continue to refuse to avail themselves of a voluntary return programme”. Return Action Programme, above n. 13, para. 30. Return Action Programme, ibid., paras. 4, 15 and 19. Ibid., paras. 15, 19 and 40. Ibid., para. 42.

180

European Union Policy on Irregular Migration sions,117 an approach recently confirmed by the Commission in its June 2003 paper.118 Given that there is currently no agreement among Member States on the uniform criteria that should give rise to the expulsion of lawfully resident third-country nationals, let alone irregular migrants, the extension of the mutual recognition approach to more return decisions will only increase the likelihood of discriminatory treatment across the EU. Finally, the Return Action Programme continues with the “stick approach” in ambiguously agreeing to consider all possible avenues in the context of EU external relations policy to ensure that third countries comply with their readmission obligations, which it views as “non-negotiable”.119 In its recent Conclusions responding to the Commission’s review of the developing EU common policy on irregular migration, the Thessaloniki European Council refers to the importance of developing “an evaluation mechanism to monitor relations with third countries which do not cooperate with the EU in combating illegal immigration” and identifies a number of topics as being of primary importance, including participation in relevant international instruments, such as “Conventions on human rights” and the Geneva Convention and Protocol.120 While the reference to participation in human rights conventions is welcome, no specific instruments are specified, although this is probably quite convenient given that a number of Member States have failed to ratify some relevant human rights instruments. In particular, the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force on 1 July 2003, has not been signed or ratified by a single EU Member State. However, the 117 Ibid., paras. 49-50, 52-53. 118 See Development of a Common Policy on Illegal Immigration, above n. 19, at p. 9,

where the Commission reiterates its intention to prepare a proposal for a Council Directive on minimum standards for return procedures and mutual recognition of return decisions. 119 Return Action Programme, above n. 13, para. 64: “[I]t is … important for the European Union to consider the use of all appropriate instruments available in the context of the Union’s external relations to further negotiations with third countries without jeopardizing the fundamental legal position, that the readmission of own nationals is a non-negotiable obligation incumbent on any state”. 120 Thessaloniki Conclusions, above n. 20, Conclusion 19. Other topics of primary importance identified concern the “cooperation of third countries in readmission/ return of their nationals and of third-country nationals, efforts in border control and interception of illegal immigrants, combating of trafficking in human beings, including taking legislative and other measures, cooperation on visa policy and possible adaptation of their visa systems, creation of asylum systems, with specific reference to access to effective protection, and efforts in redocumentation of their nationals”. Ibid. See also Council Conclusions of 16 June 2003 on the development of a common policy on illegal immigration, external borders, the return of illegal migrants and cooperation with third countries, Doc. 10621/03 (17 June 2003), para. 4.

181

Ryszard Cholewinski Convention, which explicitly protects the rights of irregular migrants, has been ratified by Bosnia and Herzegovina and Morocco, and signed by Turkey. Somewhat ironically, these three countries in the immediate neighbourhood of the EU are perceived as significant source and transit countries for irregular migration and have all been the subject of close EU scrutiny from this perspective.

5.

CONCLUSION: THE MISSING ELEMENTS OF A “COMPREHENSIVE” COMMON POLICY ON IRREGULAR MIGRATION

The developing “comprehensive” common EU policy on irregular migration has lost its human rights component. A “security” approach, which externalises the problem of irregular migration, is highly problematic given that many irregular migrants are already present within Member State communities, often undertaking valuable economic tasks. There is a deep sense that talking about the exploitation of irregular migrants and the protection of their rights has become politically obsolete in the current economic climate, which is clearly reflected in the visible shift in EU policy since the early attempts to legislate on this question. The absence of a human rights agenda as part of this policy is merely one of the missing elements. There are a number of other “positive” elements, which this policy has also neglected.121 The possible regularisation of irregular migrants is not contemplated in any adopted document even though individual Member States have periodically embarked on regularisation programmes in the past.122 While it is difficult to propose regularisation as a solution on its own because of its potentially self-perpetuating character, it has been viewed as a valid humanitarian response particularly in respect of those migrants who have developed strong social and economic ties to the country of residence or who cannot be returned for practical reasons to their countries of origin or third countries.123 Moreover, there are significant labour shortages in a number 121 See also Cholewinski (2004), above n. 21. 122 See P. de Bruycker, (ed.), Regularisations of Illegal Immigrants in the European Union

(Bruylant: Brussels, 2000). 123 With regard to this first reason, see the Opinion of the Economic and Social Commit-

tee on the ‘Communication from the Commission to the Council and the European Parliament on a common policy on illegal immigration’, OJ 2002 C 159/79, 82, para. 3.5.2: “Within the framework of policy coordination, the Commission should urge the Member States to prepare regularisation measures, averting the risk of irregular migration being considered as a ‘back door’ to legal immigration. In regularising the situation of those involved, consideration should be given to the degree to which they have settled in social and employment terms”. The Commission has also recently afforded some tentative support for regularisation measures as an important component of integration policies. See European Commission, Communication on immi-

182

European Union Policy on Irregular Migration of Member States, which are not limited to highly skilled positions and which could be easily filled by irregular migrants, many of whom are entering Member States to meet demands in employment sectors that remain unattractive to the national workforce.124 It is also very difficult to speak of the development of a common policy on irregular migration when very little hard data is available or where there remains reluctance among some Member States to share or disclose such data. While in May 2001 the Council urged more cooperation and the better collection of statistics in the asylum and migration field,125 the Commission recently announced that as regards illegal entry and enforcement measures only annual statistics would be disclosed because of concerns expressed by a number of Member States that this information could be misused (presumably by those who facilitate irregular migration).126 The “security” approach to irregular migration is unfortunately restated in the new draft EU Constitutional Treaty,127 adopted by the Convention on the Future of Europe, which contains the following provision on immigration in Chapter IV (Area of Freedom, Security and Justice) of draft Title III (Internal Policies and Action): The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of thirdcountry nationals residing legally in Member States, and the prevention of,

124

125

126

127

gration, integration and employment, COM (2003) 366 final of 3 June 2003: “While policies to combat illegal immigration must remain vigorous, integration policies cannot be fully successful unless the issues arising from the presence of this group of people are adequately and reasonably addressed. Some Member States have implemented regularisation measures for illegal residents. Such procedures may be seen as a factor which enables the integration process to develop but also as an encouragement to further illegal immigration. This must however be balanced against the problems arising when large numbers of illegal residents are present in Member States. It should be remembered that illegal immigrants are protected by universal human rights standards and should enjoy some basic rights e.g. emergency healthcare and primary school education for their children”. See R. Cholewinski, The Legal Status of Migrants Admitted for Employment: A Comparative Study of Law and Practice in Selected European States, Doc. MG-ST (2002) 2 (Strasbourg: Council of Europe, 17 October 2002). Council Conclusions of 28 May 2001 regarding common analysis and the improved exchange of statistics on asylum and migration, 28 May 2001, Doc. 7973/01 ASIM 10. See also Council Plan to Combat Illegal Immigration, above n. 10, paras. 42-43. European Commission, Communication to the Council and European Parliament to present an Action Plan for the collection and analysis of Community Statistics in the field of migration, COM (2003) 179 final of 15 April 2003. See also Doc. 12079/01 (20 September 2001). Draft Treaty Establishing a Constitution for Europe, OJ 2003 C 169/1.

183

Ryszard Cholewinski and enhanced measures to combat, illegal immigration and trafficking in human beings.128

The specific measures envisaged to realise the aspect of this policy concerned with the prevention of irregular migration focus on the removal and repatriation of persons residing without authorisation and the conclusion of readmission agreements with third countries.129 Nevertheless, human rights will have to form a far more integral component of the new EU architecture if the draft Constitutional Treaty is adopted in its proposed current form. The draft aims to give legally binding status to the Charter on Fundamental Rights and would also clear the way for EU accession to the ECHR.130 While the Charter applies to the EU institutions and to the Member States only when they are implementing EU law,131 this development is nonetheless important given the growing number of soft law and operational measures that have been adopted in the asylum and immigration field generally and with regard to the prevention of irregular migration in particular. Indeed, this operational cooperation is likely to be given a clearer structure in the Constitutional Treaty by the proposed creation of a standing committee within the Council with a mandate to promote and strengthen operational cooperation on internal security.132 But if the above positive human rights developments come to fruition, this does not necessarily mean of course that the developing common policy on irregular migration will automatically comply with fundamental human rights standards. Unfortunately, the poverty of the individual measures adopted to date in terms of human rights safeguards for the irregular migrant is likely to mean that a framework for the protection of these rights will have to be established incrementally by the courts, with all the expense and delays such litigation normally entails.

128 Ibid., Art. III-168(1). Emphasis added. 129 Ibid., Arts. III-168(2)(c) and (3). 130 Ibid., Arts. I-7(1) and (2). 131 Charter on Fundamental Rights, above n. 23, Art. 51(1). 132 Draft Constitutional Treaty, above n. 127, Art. III-157.

184

European Union Policy on Irregular Migration

ANNEX

Table 1: Measures on Irregular Migration (1990-1999)133 Subject matter Carrier Sanctions Facilitation of Irregular Migration (Human Smuggling) Trafficking in Persons

Marriages of Convenience Penalising Irregular Migrants for Unauthorised Crossing of External Borders

Measures Article 26 SIA [allocated to Article 63(3) TEC] Article 27(1) SIA [allocated to Article 63(3) TEC] EC Immigration Ministers Recommendation of 30 November 1992 regarding practices followed by Member States on expulsion, Doc. WGI 1266, Part V, para. 1 Article 27(1) SIA [allocated to Article 63(3) TEC] Council Joint Action of 10 March 1995 concerning the Europol Drugs Unit, OJ 1995 L 62/1 Council Joint Action of 16 December 1996 extending the mandate given to the Europol Drugs Unit, OJ 1996 L 342/4 Convention based on Article K.3 of the Treaty on European Union on the Establishment of a European Police Office (Europol Convention), OJ 1995 C 316/2, Article 2(2) and Annex Council Decision of 3 December 1998 supplementing the definition of the form of crime of “traffic in human beings” in the Annex to the Europol Convention, OJ 1999 C 26/1 Council Joint Action of 24 February 1997 concerning action to combat trafficking in human beings and sexual exploitation of children, OJ 1997 L 63/2 Council Resolution of 4 December 1997 on measures to be adopted on the combating of marriages of convenience, OJ 1997 C 382/1. Article 3(2) SIA [allocated to Article 62(2)(a) TEC]

133 Table 1 includes measures adopted by EC Immigration Ministers in the period of

intergovernmental cooperation preceding the entry into force of the Maastricht Treaty and relevant provisions of the 1990 Schengen Implementing Agreement (SIA), (but not the decisions of the Schengen Executive Committee adopted thereunder), which have been given a legal basis in either Title IV TEC or Title VI TEU. Table 1 does not include provisions relating to the prevention of irregular migration and readmission found in Association and Cooperation agreements between the EU and its Member States and third countries.

185

Ryszard Cholewinski Illegal Employment

Expulsion / Removal

Readmission

186

Article 27(1) SIA [allocated to Article 63(3) TEC] EC Immigration Ministers Recommendation of 30 November 1992 regarding practices followed by Member States on expulsion, Doc. WGI 1266, Part V, para. 1 EC Immigration Ministers Recommendation of 25 May 1993 concerning checks on and expulsion of third-country nationals residing or working without authorization, Doc. WGI 1516 Council Recommendation of 22 December 1995 on harmonising means of combating illegal immigration and illegal employment and improving the relevant means of control, OJ 1996 C 5/1 Council Recommendation of 27 September 1996 on combating the illegal employment of third-country nationals, OJ 1996 C 304/1 Article 23 SIA [allocated to Articles 62(3) and 63(3)(b) TEC] (specifically Articles 23(3) and (4) SIA) EC Immigration Ministers Recommendation of 30 November 1992 regarding practices followed by Member States on expulsion, Doc. WGI 1266 EC Ministers Recommendation of 30 November 1992 concerning transit for the purposes of expulsion, OJ 1996 C 5/5 EC Immigration Ministers Recommendation of 25 May 1993 concerning checks on and expulsion of third-country nationals residing or working without authorization, Doc. WGI 1516 Council Recommendation of 30 November 1994 concerning the adoption of a standard travel document for the expulsion of thirdcountry nationals, OJ 1996 C 274/18 Council Recommendation of 22 December 1995 on concerted action and cooperation in carrying out expulsion measures, OJ 1996 C 5/3 Article 23 SIA [allocated to Articles 62(3) and 63(3)(b) TEC] (specifically Article 23(2) SIA) Council Recommendation of 30 November 1994 concerning a specimen bilateral agreement between a Member State and a third country, OJ 1996 C 274/20 Council Recommendation of 24 July 1995 on the guiding principles to be followed in drawing up protocols on the implementation of readmission agreements, OJ 1996 C 274/25 Council Decision of 2 December 1999 on the consequences of the Treaty of Amsterdam on readmission clauses in Community agreements and in agreements between the European Community, its Member States and third countries, Doc. 13409/99 (in French)

European Union Policy on Irregular Migration Exchange of Information / Statistics

Cooperation with Third Countries

EC Immigration Ministers Decision of 30 November 1992 setting up a Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration (CIREFI), Doc. WGI 1277 Council Conclusions of 30 November 1994 on the organization and development of CIREFI, OJ 1996 C 274/50 Council Decision 96/749/JHA of 16 December 1996 on monitoring the implementation of instruments adopted by the Council concerning illegal immigration, readmission, the unlawful employment of third country nationals and cooperation in the implementation of expulsion orders, OJ 1996 L 342/5 Council Decision of 26 May 1997 on the exchange of information concerning assistance for the voluntary repatriation of third-country nationals, OJ 1997 L 147/3 Council Resolution of 27 May 1999 on the creation of an early warning system for the transmission of information on illegal immigration and facilitator networks, Doc. 7965/99 Terms of Reference of the High Level Working Group on Asylum and Migration; preparation of action plans for the most important countries of origin and transit of asylum-seekers and migrants, 25 January 1999, Doc. C4-0133/99

Table 2: Measures on Irregular Migration (1999- )134 Subject Matter General

Legally Binding Measures

Soft Law / Operational Measures Comprehensive Plan to Combat Illegal Immigration and Trafficking of Human Brings in the European Union (28 February 2002), OJ 2002 C 142/23 Council Conclusions of 16 June 2003 on the development of a common policy on illegal immigration, external borders, the return of illegal migrants and cooperation with third countries, Doc. 10621/03

134 Table 2 includes measures proposed by the Commission or individual Member

States.

187

Ryszard Cholewinski External Borders

Council Regulation 2424/2001/EC of 6 December 2001 on the development of the second generation Schengen Information System (SIS II), OJ 2001 L 328/4 Council Decision 2001/886/JHA of 6 December 2001 on the development of the second generation Schengen Information System (SIS II), OJ 2001 L 328/1

Carrier Sanctions

Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention Implementing the Schengen Agreement of 14 June 1985, OJ 2001 L 187/45 Initiative of Spain with a view to adopting a Council Directive on the obligation of carriers to communicate passenger data, OJ 2003 C 82/23 Council Regulation 453/2003/EC of 6 March 2003 amending Regulation 539/2001/EC listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2003 L69/10. (addition of Ecuador to the “negative” EU visa list in response to reports by Member States of increased illegal immigration from that country)

Visa Policy

188

EU Schengen Catalogue, External Border Control, Removals and Readmission: Recommendations and Best Practices (28 February 2002) Plan for the Management of External Borders of the Member States of the European Union, Doc. 10019/02 (14 June 2002). Council Conclusions of 19 December 2002 on external border checks and combating illegal immigration, Doc. 14277/ 1/02 REV 1

Council Conclusions of 5 June 2003 on the development of the Visa Information System (VIS), Doc. 9916/1/03 REV 1 Council Recommendation of 29 April 1999 on the provision for the detection of false or falsified documents in the visa departments of representations abroad and in the offices of domestic authorities dealing with the issue or extension of visas, OJ 1999 C 140/1

European Union Policy on Irregular Migration Facilitation of Council Directive 2002/90/EC of 28 Irregular Migration November 2002 defining the facilita(Human Smuggling) tion of unauthorised entry, transit and residence, OJ 2002 L 328/17 Council Framework Decision 2002/ 946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, OJ 2002 L 328/1

Trafficking in Persons

Council Conclusions of 13 June 2002 on measures to be applied to prevent and combat illegal immigration and smuggling and trafficking in human beings by sea and in particular on measures against third countries which refuse to cooperate with the European Union in preventing and combating these phenomena, Doc. 10017/02 Council Conclusions of 25-26 April 2002 on illegal immigration and trafficking in human beings by sea, Doc. 8475/02 Council Framework Decision 2002/ Council Conclusions of 629/JHA of 19 July 2002 on combating 13 June 2002 on measures trafficking in human beings, OJ 2002 L to be applied to prevent 203/1 and combat illegal immigration and smuggling Commission Proposal for a Council and trafficking in human Directive on the short-term residence beings by sea and in permit issued to victims of action to facilitate illegal immigration or traffick- particular on measures ing in human beings who cooperate with against third countries the competent authorities, COM (2002) which refuse to cooperate with the European Union 71 final of 11 February 2002 in preventing and combating these phenomena, Doc. 10017/02 Council Conclusions of 25-26 April 2002 on illegal immigration and trafficking in human beings by sea, Doc. 8475/02

Illegal Employment

189

Ryszard Cholewinski Expulsion / Removal

190

Council Regulation 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ 2000 L 316/1 Council Regulation 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No 2725/ 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, OJ 2002 L 62/1 Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion of third country nationals, OJ 2001 L 149/34 Commission Proposal for a Council Decision setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Council Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third country nationals, COM (2003) 49 final of 3 March 2003 Council Directive 2003/110/EC on assistance in cases of transit for the purposes of removal by air, OJ 2003 L 321/26 Initiative of the Italian Republic with a view to adopting a Council Decision on the organisation of joint flights for removals of third-country nationals illegally present in the territory of two or more Member States, OJ 2003 C 223/3 Initiative of the Italian Republic with a view to adopting a Council Directive on assistance in cases of transit through the territory of one or more Member States in the context of removal orders taken by Member States against third-country nationals, OJ 2003 C 223/5

Council Return Action Programme (28-29 November 2002), Doc. 14673/02 EU Return Programme for Afghanistan (28-29 November 2002), Doc. 15215/02 EU Schengen Catalogue, External Border Control, Removals and Readmission: Recommendations and Best Practices (28 February 2002) Council Conclusions of 28 February 2002 on obtaining travel documents for the return of people who do not or no longer fulfil the conditions for entry and residence, Doc. 6071/02

European Union Policy on Irregular Migration Readmission

Readmission agreements signed / initialled with: Hong Kong, Macao, Sri Lanka Agreement reached under negotiation with Albania Agreements under negotiation with: Morocco, Russia, and the Ukraine Negotiations to open for readmission agreements with Algeria, China, Pakistan and Turkey Exchange of Infor- Council Decision 2002/463/EC of 13 mation / June 2002 adopting an action proStatistics / Adminis- gramme for administrative cooperation trative Cooperation in the fields of external borders, visas, asylum and immigration (ARGO programme), OJ 2002 L 161/11 Commission Communication to the Council and European Parliament to present an Action Plan for the collection and analysis of Community Statistics in the field of migration, COM (2003) 179 final of 15 April 2003 Immigration Liaison Officers

Initiative of the Hellenic Republic with a view to adopting a Council Regulation on the creation of an immigration liaison officers network, OJ 2003 C 140/12 adopted by the JHA Council on 19 February 2004

Council Conclusions of 25-26 April 2002 on criteria for the identification of third countries with which new readmission agreements need to be negotiated, Doc. 7990/02

Council Conclusions of 28-29 May 2001 regarding common analysis and the improved exchange of statistics on asylum and migration, Doc. 7973/01 ASIM 10 Intensifying cooperation between CIREFI and Europol in the field of illegal immigration and related issues (16 November 2001), Doc. 13084/01 Council Conclusions of 28-29 May 2001 concerning the creation of a network of national immigration liaison officers to help control illegal migration flows through the Western Balkan region, Doc. 8684/01 Council Conclusions of 28-29 November 2002 on the improvement of the immigration liaison officers (ILO) network, Doc. 14464/02

191

Ryszard Cholewinski Cooperation with Third Countries

192

Council Conclusions of 18-19 November 2002 on the systematic assessment of relations selected third countries with a view to intensifying cooperation on the management of migration flows, Doc. 13467/02 Council Conclusions of 19-20 May 2003 on integrating migration issues in the European Union’s relations with third countries: migration and development, Doc. 8927/03

Steve Peers

IRREGULAR IMMIGRATION AND EU EXTERNAL RELATIONS

1.

INTRODUCTION

If States wish to control and regulate the movement of foreigners effectively, they need the cooperation of other States. There is clearly no point issuing orders expelling people from one State’s territory unless the intended State of destination is willing to accept those persons. If no foreign State is willing to accept an expellee on its territory, there is simply no legal means of removing the expellee from the expelling State’s territory. Expulsion might still be possible in practice, by smuggling an expellee out of the expelling State or flying over the territory of a foreign country and forcing expellees to jump – with or without a parachute. But such escapades are rare due to their high diplomatic and financial cost; this is one area of international relations where the sovereignty of other nations is widely respected in practice. The same considerations apply to the European Community. In the Community’s case, the chief means of ensuring that non-EU States take individuals that the EU’s Member States wish to expel is to insist that such non-EU States sign readmission agreements with the EC, its Member States or both. As analysed below, the policy toward readmission agreements has evolved over time as the EC has gained new internal powers (and thus external powers) over migration law and as it has decided to place greater priority on securing readmission commitments from non-EU States, in the form of both specific stand-alone agreements and as part of association or cooperation agreements with the Community. Next, the paper analyses how readmission forms part of a broader policy integrating migration into the EU’s overall external relations objectives, a policy also developing over time and recently significantly clarified and strengthened at the behest of the Seville European Council in June 2002. But the result of the relatively quick evolution of the external relations aspects of the EU’s policy on Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 193-219 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Steve Peers irregular immigration is that this policy is relatively fragmented. Moreover, the EU’s unwillingness to address this issue fully in the context of either its migration or external relations policies means that it has failed to develop a coherent, balanced or realistic approach to this issue. This paper therefore suggests the basic elements of an alternative approach. 1

2.

READMISSION AGREEMENTS

Before the Treaty of Amsterdam, the EC lacked competence to agree readmission treaties. But already the Member States’ traditional reticence about enlarging the impact of EC external competence did not apply to readmission, and they were willing to link the issue of readmission to the conclusion of more general agreements between third countries and the Community. So in 1995 the Council agreed a standard clause to be considered for inclusion into ‘mixed’ agreements (treaties which have to be ratified by the EC and the Member States).2 In order to ensure that readmission agreements signed by non-EU States with different Member States would be comparable, the Council had already agreed a Recommendation on a standard readmission agreement between a Member State and a third country in 1994,3 along with a Recommendation in 1995 on a standard Protocol on means of proof to be attached to such agreements.4 It had also agreed in 1994 on a Recommendation on a standard travel document to be used for expulsion proceedings.5 Subsequently, in 1998 and 1999, 1

2

3

4 5

For a more detailed analysis of the EC’s readmission treaties and related issues (such as competence to sign such treaties and their compatibility with human rights obligations), see Ch. 30 of Rogers and Peers, (eds.), EU Immigration and Asylum Law: Text and Commentary (The Hague: Kluwer, 2003). The current essay focusses instead in more detail on the specific issue of the external relations context of the EU’s policies on illegal migration. Council Doc. 12509/95. See Press Releases of JHA Council, 23 Nov. 1995 (agreement on the text) and Environment Council, 4 Apr. 1996 (formal adoption of the text). The text is reproduced in the Annex to this paper. OJ 1996 C 274/21. For analysis of this Recommendation, see E. Guild and J. Niessen, The Developing Immigration and Asylum Policies of the European Union: Adopted Conventions, Resolutions, Recommendations, Decisions and Conclusions (The Hague: Kluwer, 1996), 405. OJ 1996 C 274/25. OJ 1996 C 274/20. For analysis of this Recommendation, see Guild and Niessen (n. 3 above), 385-391. On use of the standard readmission agreement, standard protocols and standard travel document, see Council Doc. 7668/1/99, 14 June 1999 and earlier Council Doc. 10340/2/95, 30 Oct. 1995, discussed in Rogers and Peers (n. 1 above). On encouragement for third countries to accept the EU travel document or issue their own travel documents, see: the EU’s letter to third countries (Council Doc. 7665/99, 26 Apr. 1999, approved by the General Affairs Council on 31 May 1999); the proce-

194

Irregular Immigration and EU External Relations the Council discussed a draft standard multilateral agreement which could be concluded between all the Member States and a given third country, although it did not agree on a text.6 2.1

EC Readmission Agreements

The Treaty of Amsterdam created internal powers for the EC to adopt immigration and asylum law, but no express external powers. However, since the the Court of Justice has long held that the Community can enjoy implied external relations power in the absence of express powers in the Treaty,7 it has been assumed in practice that such powers exist.8 Not long after the entry into force of the Treaty of Amsterdam, the Tampere European Council endorsed the Community’s involvement in readmission from two perspectives, asserting that: [t]he Amsterdam Treaty conferred powers on the Community in the field of readmission’ and inviting the Council ‘to conclude readmission agreements or to include standard clauses in other agreements between the European Community and relevant third countries or groups of countries.

To implement the first part of the Conclusions, the Council had to decide which states should be targeted for agreements with the Community and what negotiating position the Community wished to take.9 To this end,10 the Council dure to gather information on and apply pressure to third States which do not issue travel documents (Council Doc. 13995/00, 29 Nov. 2000, approved by the General Affairs Council on 4 Dec. 2000); and the annual questionnaire to Member States to collect information regarding any difficulties in expelling persons outside the EU, covering measures taken or to be taken including possible ‘suspension of financial and technical aid’ (Council Doc. 6071/02, 7 Feb. 2002). For more on these measures, see Rogers and Peers (idem). 6 See Drafts in Council Docs. 10338/98, 13 July 1998; 10338/1/98, 21 Dec. 1998; and 10338/2/98, 22 Apr. 1999. See also Council docs. 7669/99, 26 Apr. 1999 and 8124/99, 10 May 1999. After the Treaty of Amsterdam entered into force, the Council instead turned its attention to the issue of readmission agreements to be concluded by the Community (see s. 2.2 below). 7 Case 22/70 Commission v. Council (ERTA) [1971] ECR 263. 8 On the nature of EC competence over readmission agreements, see Council Presidency Conclusions in the Press Release of the JHA Council, 27/28 May 1999. 9 See outcomes of proceedings of the migration working party on 12 Jan. 1999, 15 Sep. 1999, 27 Jan. 2000 and 29 Feb. 2000/1 Mar. 2000 (Council Docs. 5677/99, 4 Feb. 1999; 11042/99, 23 Sep. 1999; 5773/00, 31 Jan. 2000; and 7505/00, 10 Apr. 2000). 10 On the discussions on this issue, see the outcome of proceedings of the SCIFA meeting on 16 Nov. 1999 (Council Doc. 13888/99, 7 Dec. 1999) and outcomes of proceedings of the migration working party on 15 Sep. 1999, 27 Jan. 2000 and 29 Feb. 2000/1

195

Steve Peers approved in September 2000 a mandate for the Commission to negotiate readmission treaties with Russia, Pakistan, Sri Lanka and Morocco. Subsequently, in conjunction with the decision to drop visa requirements for persons with legal status granted by Hong Kong or Macao, the Council decided that these entities should in return agree readmission agreements with the Community “as soon as possible”.11 Negotiating mandates for these two treaties were formally granted to the Commission by the JHA Council on 28 May 2001. Subsequently the Commission sought a mandate to negotiate with Ukraine, which the JHA Council granted on 13 June 2002. A later request for mandates to negotiate with Algeria, Albania, China and Turkey was granted by the November 2002 JHA Council. 12 As an implicit trade-off for the abolition of the visa requirement for their nationals to enter the EU, Romania and Bulgaria were expected to make a number of changes to national immigration law going byond readmission obligations, but this did not take the form of a formal treaty with the Community.13 Following the eleven mandates to negotiate, three Treaties had been agreed by May 2003. First, a Treaty with Hong Kong was initialled on 22 November 2001 and this is likely to become the first EC readmission agreement to enter into force, as the Council agreed a Decision to sign the treaty in September 2002. A signing ceremony was held in November 2002 and the European Parliament (EP) issued its consultative vote in favour of the agreement in December 2002.14 The Commission also initialled the text of an agreement with Sri Lanka in May 2002 and with Macao in October 2002, and proposed in March 2003 that the Council sign and conclude these agreements.15 The Council and EP had not yet reacted as of 1 September 2003. Of the other eight States, a Commission report indicated that Morocco, Pakistan, Ukraine and Russia had not even agreed to begin negotiations by October 2002.16 Later, after an agreement between the EU and Russia on the Mar. 2000 (respectively Council Docs. 11042/99, 23 Sep. 1999; 5773/00, 31 Jan. 2000; and 7505/00, 10 Apr. 2000)). See earlier Council Doc. 10795/99, 9 Sep. 1999. 11 See JHA Council Conclusions, 30 Nov/1 Dec 2000. 12 On the context of the most recent mandates, see s. 3 below. 13 See COM (2001) 61, 2 Feb. 2002 and COM (2001) 361, 29 Jun. 2001, discussed in E.

Guild, ‘The Border Abroad: Visas and Border Controls’ in K. Groenendijk, E. Guild and P. Minderhoud, (eds.), In Search of Europe’s Borders (The Hague: Kluwer, 2003) 87. 14 See Commission proposal to Council for Decisions on signature and conclusion of

the agreement (SEC (2002) 412, 18 Apr. 2002; Council Doc. 8518/02, 2 May 2002). 15 See respectively COM (2003) 151, 31 Mar. 2003 and SEC (2003) 255, 21 Mar. 2003

(online in Council register as Council doc. 7831/1/03, 9 Apr. 2003). The agreement with Sri Lanka is also available at: http://www.statewatch.org/news/2003/feb/ 08srilanka.htm. 16 Council Doc. 12625/02, 10 Oct. 2002.

196

Irregular Immigration and EU External Relations status of Kaliningrad after Lithuania’s accession to the EU, Russia agreed to start negotiations and as a result Ukraine agreed to negotiate also.17 Among the four most recent ‘targets’, Albania quickly agreed to negotiate an agreement. This issue is implicitly affected by the recent EC association agreement concluded with Algeria and the ongoing negotiations for such an agreement with Albania.18 Although there are minor differences between the three agreements negotiated to date, all three are essentially identical.19 The contracting parties have reciprocal obligations to take back their own nationals (or, in the case of Hong Kong and Macao, permanent residents) who have entered or stayed illegally in the other party. They must also readmit nationals of non-contracting parties or stateless persons who have illegally entered or stayed on their territory, subject to certain conditions. They must also permit transit of persons back to a noncontracting party if necessary. There are detailed rules on the procedure for handing back persons, including the types of documents which constitute proof or prima facie evidence that a person is a national or was on the territory. The agreements also require use of the EC’s standard travel document if the non-EC party will not extend or grant a fresh travel document. There are detailed provisions on data protection, although these omit to require the non-EC parties to apply basic principles concerning the effective collective or individual enforcement of data protection rules. Article 16 of each agreement provides that the agreement is ‘without prejudice to the rights, obligations and responsibilities’ of the parties arising from ‘International Law’, but there is no specific reference to human rights or refugee law. A readmission committee is established by each agreement to perform specified technical tasks, which includes (for the Sri Lanka agreement only) deciding on implementing arrangements concerning ‘an orderly management of return flows’. Finally, each agreement provides that Member States can draw up special implementing protocols with the non-EC party, but conversely that the agreement takes precedence over any incompatible 17 Further discussion of the EU’s relations with the Ukraine and Russia on matters

relating to border control and readmission agreements can be found in the essay by Cygan in this volume. 18 See s. 2.3 below. 19 Also, the approved mandates for readmission treaties with Algeria, Turkey, China and Albania are essentially identical to the basic provisions of these three treaties, except that they contain a more detailed provision on respect for international treaties, referring inter alia to certain important human rights and refugee treaties (see Council Doc. 14101/02, 25 Nov. 2002). It can reasonably be presumed that the mandates for treaties with Russia, Morocco, Pakistan and Ukraine are essentially identical to the three agreed treaties also, as it would be unrealistic for the EC to ask other third States to agree to greater obligations than found in the three treaties agreed to date, and equally it is implausible to think that the EC would ask for any less.

197

Steve Peers bilateral agreement between a Member State and the other contracting party. All three treaties provide for denunciation, but there is no provision for settling disputes that might arise between the parties. 2.2

Readmission Obligations and Other EC Agreements

It will be recalled that the second part of the Tampere conclusions concerned the insertion of readmission clauses into broader EC external agreements. This continued the pre-Amsterdam policy discussed above, although now with the imprimatur of the backing of the European Council. However, the Council decided it should adapt the standard clauses for such agreements, because of the the EC’s competence over readmission treaties following the Treaty of Amsterdam. It quickly adopted a Decision adapting the standard clause in December 1999,20 apparently hurrying to ensure that the negotiating mandate for the ‘Cotonou agreement’ with African, Caribbean and Pacific (ACP) States could be amended in time before those negotiations concluded. Moreover, the new position of the Council was that such clauses should always be included in EC agreements, not just considered for inclusion on a case-by-case basis, because the EC had enjoyed only mixed success encouraging countries to sign up to the ‘first generation’ readmission clause of 1995. After eight years’ use of a standard readmission clause, during which time the EC concluded association or cooperation agreements with a large number of countries, the EC has had somewhat patchy success getting the readmission clause accepted. The negotiation of such agreements largely concerns trade and aid, so the EC is faced with a trade-off between different external objectives. Metaphorically, if the EU wants fewer Tunisians, it will have to accept more tuna from that country. While home affairs ministries will of course be happy to accept this, agricultural ministries (or trade, development or foreign affairs ministries, if another provision is ‘traded off’ instead) will not, and this led to frequent compromises regarding the 1995 standard clause, when the EU was not yet insisting on inclusion of the standard clause in every agreement. Moreover, once the EU had compromised on inclusion of the clause in one case, other States negotiating treaties with the EU, particularly nearby States negotiating the same type of treaty, could be expected to insist also on the same compromise text, or alternatively to raise the ‘price’ the EC would be expected to ‘pay’ in other areas in order for them to accept greater readmission obligations than their neighbours. The simplest way to assess the success of the EU’s policy is to examine the text of each association or cooperation treaty agreed since 1995, by region. 20 Press Release of JHA Council, 2 Dec. 1999. The text is reproduced in the Annex to

this paper. For detailed background, see Council Docs. 6098/99, 17 Feb. 1999; 7292/ 99, 11 May 1999; 11052/99, 23 Sep. 1999; 12134/99, 21 Oct. 1999; and 13409/99, 25 Nov. 1999.

198

Irregular Immigration and EU External Relations 2.3

The Euro-Med Agreements

With Mediterrean states, the EC has been negotiating a second wave of association agreements (the ‘Euro-Med’ agreements) since the early 1990s. The ECMorocco agreement contained only a commitment to ‘dialogue’ on, inter alia, ‘illegal immigration and the conditions governing the return of individuals who are in breach of the legislation dealing with the right to stay and the right of establishment in their host countries’,21 along with a Joint Declaration relating to readmission, in which the parties agreed ‘to adopt bilaterally the appropriate provisions and measures to cover readmission of their nationals in cases in which the latter have left their countries. For those purposes, in the case of the Member States of the European Union, “nationals” shall be taken to mean Member State nationals as defined for Community purposes.’ The EC-Tunisia agreement included the same weak commitment to enter into dialogue but no joint declaration on the subject.22 The treaty with Israel merely specifies that the parties will cooperate on migration with a view to ‘defining areas of mutual interest concerning policies on immigration’ and ‘increasing the effectiveness of measures aimed at preventing or curbing illegal migratory flows’.23 A slightly later treaty with Jordan commits the parties to dialogue on, inter alia, illegal immigration and the conditions attaching to the repatriation of illegal immigrants under the legislation on residence and establishment in the host country’,24 and a Joint Declaration contains the text of the 1995 standard clause, with clarification of the definition of EU nationals and a unique provision specifying that ‘[n]othing in the implementation of this Joint Declaration shall be construed to contravene or diminish the respective obligations of each Party under applicable standards on human rights.’ The Treaty with the PLO on behalf of the Palestinian Authority made no mention of readmission issues but perhaps this was due to the unusual legal position of the other contracting party.25 Among later treaties, the treaty with Egypt signed in 2001 includes a modified version of the 1995 standard clause, which requires readmission only where persons have been ‘positively identified’ as nationals of the relevant party, specifies in more detail who shall be considered nationals, leaves open whether future agreements should be concluded with Member States or the EC, modifies the wording slightly as regards the content of those future agreements and states that ‘adequate financial and technical assistance to implement these agreements 21 Art. 69(1)(c) of EC-Morocco agreement (OJ 2000 L 70), agreed in 1995. 22 Art. 69(1)(c) of EC-Tunisia agreement (OJ 1998 L 97), agreed in 1995. 23 Art. 57 of EC-Israel Treaty (OJ 2000 L 147), agreed in 1995. 24 Art. 80(1)(c) of the Treaty (OJ 2002 L 129), agreed in 1997. 25 OJ 1997 L 187. There was no delay in entry into force, as this was not a mixed agree-

ment.

199

Steve Peers will be provided to Egypt’. The Association Council will also deal with ‘other consular issues’.26 In 2002, Lebanon agreed to essentially identical obligations, except that assistance ‘may’ be provided to assist with future agreements and there is no reference to cooperation on consular issues.27 Algeria also agreed to the standard 1995 clause with modifications, but here the modifications were slightly different.28 The relevant provision contains the core obligations but referred also to cooperation in relation to the exchange of information on illegal immigration flows and readmission after completion of the necessary identification formalities. The obligation to negotiate further treaties applies between ‘the Parties’ (as with Egypt and Lebanon), but such agreements are subject to the explanation that the parties are ‘[d]esirous of facilitating the movement and residence of their nationals whose status is regular’. The further agreements are to cover third-country nationals ‘arriving in [one party’s] territory direct from the territory of the other’; a declaration makes clear that this concept will be explained in the relevant agreement. Also, the further activity of the Association Council regarding the prevention and control of illegal immigration is to include ‘ways of detecting forged documents’. 2.4

The EU’s Immediate Borders

Following the collapse of the Soviet Union, the mandates for the first six Partnership and Cooperation Agreements (PCAs) with ex-Soviet states were apparently agreed before the 1995 agreement which insisted upon a standard readmission clause for the Community’s mixed agreements. As a result, the PCAs with Kyrgyzstan, Moldova, Belarus and Ukraine simply state that the Cooperation Council set up by each PCA ‘shall examine which joint efforts can be made to control illegal immigration, taking into account the principle and practice of readmission’.29 On the other hand, the PCA with Russia includes a Title on cooperation on prevention of illegal activities, which states that the parties shall establish cooperation on issues such as ‘illegal immigration and illegal presence of physical persons of their nationality on their respective territories, taking into 26 See Arts. 68-70 of agreement (COM (2002) 170). It is not yet in force pending ratifica-

tion. 27 See Arts. 68-70 of agreement (COM (2002) 170). It is not yet in force pending ratifica-

tion. 28 Art. 84 of EC-Algeria agreement (COM (2002) 157), not yet in force pending rati-

fication. A Joint declaration on this Article states that the concept of direct arrival will be defined in the relevant agreements, and the EC made a unilateral declaration conerning the definition of nationals of Member States. 29 Art. 20, EC-Kyrgyz PCA (OJ 1996 L 196/48); Art. 26 of EC-Moldova PCA (OJ 1998 L 181/3); Art. 19 of EC-Belarus PCA (COM (95) 44, 22 Feb. 1995; not yet in force because ratification has been frozen); and Art. 27 of EC-Ukraine PCA (OJ 1998 L 49).

200

Irregular Immigration and EU External Relations account the principle and practice of readmission’.30 For its part, Kazakhstan agreed to both the more specific clause accepted by Russia and the vaguer clause accepted by other ex-Soviet states.31 The EC had more success negotiating a later generation of agreements with the three Caucasian republics of Georgia, Azerbaijan and Armenia, and the Central Asian republic of Uzbekistan, each of which agreed to the standard ‘first generation’ clause without amendment.32 Within Europe, the mandates for the first six Europe Agreements, concluded in the early 1990s, did not include provisions on readmission or irregular immigration.33 But the later Europe Agreements did, and so the agreement with Slovenia contains a similar obligation to that in the PCA with Russia, requiring the parties to establish a framework to prevent illegal activities such as ‘clandestine immigration and the illegal presence of either party’s nationals on the other’s territory, with due allowance for the principles and practices of readmission’.34 For their part, the three Baltic Republics agreed to the same obligation as Russia, and Estonia also agreed to tackle ‘trafficking of human beings and crime related to activity of illegal immigration networks’ in the same framework.35 Of the remaining European states, Norway and Iceland have agreed to the rules on ‘internal’ readmission pursuant to their association with the Schengen rules,36 and Switzerland is negotiating the same position. The EU has a policy of agreeing ‘Stabilisation and Association Agreements’ with the Western Balkan States. Such treaties have been agreed with Croatia and the Former Yugoslav Republic of Macedonia,37 while another is under negotiation with Albania and two more will likely be agreed in the foreseeable future with Serbia/Montenegro and Bosnia/Herzegovina. The agreements with Croatia and FYROM contain an obligation to co-operate on issues of ‘visa, border control, asylum and migration’ and to set up a framework for cooperation (including at a regional level) on these issues. There are specific asylum and migration law principles (based on 30 Art. 84 of EC-Russia PCA (OJ 1997 L 327). 31 Arts. 20 and 70 of EC-Kazakhstan PCA (OJ 1999 L 196/3). 32 See Art. 75 of EC-Azerbaijan Partnership and Cooperation Agreement (PCA), OJ

33

34 35 36 37

1999 L 246; Art. 75 of EC-Georgia PCA; Art. 72 of EC-Armenia PCA (OJ 1999 L 239); and Art. 72 of EC-Uzbekistan PCA (OJ 1999 L 229). See EAs with Poland (OJ 1993 L 348); Hungary (OJ 1993 L 347); Romania (OJ 1994 L 357); Bulgaria (OJ 1994 L 358); the Slovak Republic (OJ 1994 L 359); and the Czech Republic (OJ 1994 L 360). Art. 98(1), EA with Slovenia (OJ 1999 L 51). Art. 101(1), EC-Latvia EA (OJ 1998 L 26); Art. 100(1), EC-Estonia EA (OJ 1998 L 68); Art. 102(1), EC-Lithuania EA (OJ 1998 L 51). See agreement associating Norway and Iceland to Schengen rules (OJ 1999 L 176/ 35). See COM (2001) 371 and COM (2001) 90 respectively. The two treaties are not yet in force pending ratification.

201

Steve Peers the EU’s Tampere conclusions). In addition, both countries have agreed to the Council’s standard readmission clause of 1999.38 2.5

The Cotonou Convention

The EC’s relations with sub-Saharan Africa, the Caribbean and Pacific are governed by the Cotonou Convention, which entered into force on 1 April 2003.39 An important provision of the agreement concerns migration,40 which shall be ‘the subject of in-depth dialogue’; the parties ‘reaffirm[ed] their existing obligations and commitments in international law to ensure respect for human rights and to eliminate all forms of discrimination based particularly on origin, sex, race, language and religion’. The partnership between the two sides ‘implies, with relation to migration, fair treatment of third country nationals who reside legally on their territories, integration policy aiming at granting them rights and obligations comparable to those of their citizens, enhancing non-discrimination in economic, social and cultural life and developing measures against racism and xenophobia’, including an obligation of non-discrimination regarding working conditions, remuneration and dismissal. Development policy should ‘contribute in the long term to normalising migratory flows’ and the EU has also accepted the principle of assisting training. As for irregular immigration, the topic will form part of political dialogue and the parties agreed to ‘ensure that the rights and dignity of individuals are respected in any procedure initiated to return illegal immigrants to their countries of origin.’ Finally, the parties agreed on a revised text of the 1995 standard clause, with the addition only of a definition of nationals and specification that the obligation to negotiate further agreements is to aim to conclude such agreements ‘in good faith and with due regard for the relevant rules of international law’. However, there is an obligation (as in the treaties with Lebanon and Algeria, where negotiations concluded later) to grant ‘adequate assistance to implement these agreements’ to the African, Caribbean and Pacific States. It is also specified expressly that the ‘parties’ that can request the negotiation of such agreements could be either the EC or any of its Member States, and a Declaration by the EC Commission and Council states that this provision is ‘without prejudice to the internal division of powers between the Community and its Member States for the conclusion of readmission agreements’. This provision also applies to South Africa, which is only partly covered by the Cotonou Convention.41 38 Arts. 76 and 77. Croatia agreement; Arts. 75 and 76, FYROM agreement (both

ibid.). 39 OJ 2000 L 317. 40 Art. 13 of ibid. 41 See Art. 1 and particularly Art. 2(1) of Protocol 3 to the Cotonou Convention, which

202

Irregular Immigration and EU External Relations 2.6

Asia and Latin America

The position for Asian and Latin American countries again depends on when the relevant agreement was signed. The EU’s relations with many countries (for example, China and the original members of the Association of South East Asian Nations) are still governed by treaties agreed before the EC gained formal powers over development policy with the entry into force of the original TEU in 1993.42 Agreements signed shortly after that date contain no reference to readmission, because the EC had yet to adopt the 1995 policy.43 Subsequently, treaties agreed with Yemen, Laos, Cambodia, Vietnam and Pakistan have contained declarations concerning readmission,44 although somehow Bangladesh managed to avoid such a commitment.45 The five treaties in question contain a standard declaration, asserting that ‘[t]he European Community recalls the importance attached by its Member States to the effective co-operation with third countries to facilitate the readmission of nationals of the latter who are present illegally in the territory of a Member State. The [other party] undertakes to conclude readmission agreements with the Member States of the European Union which so request.’ There are variations on the model clause. The treaty with Yemen refers instead to persons ‘in an irregular situation’ and the agreement with Laos states expressly that Laos only undertakes to readmit its own citizens, although all the

42 43

44

45

specifies that ‘[t]he general, institutional and final provisions of this Agreement shall apply to South Africa.’ Art. 13 is in the Part I of the agreement, entitled ‘general provisions’. The EC’s agreement with South Africa (OJ 1999 L 311) contains only a Joint Declaration on illegal immigration, in which the parties ‘declare their readiness to pursue these issues in exchanges within the framework of the Cooperation Council with a view to seeking solutions to problems which might arise in this sector.’ For specific examples, see the later pre-TEU treaties with Macao (OJ 1992 L 404/27) and Mongolia (OJ 1993 L 41/46). See Treaties with India (OJ 1994 L 223/24); Sri Lanka (OJ 1995 L 85/33); Nepal (OJ 1996 L 137/15); Central American states (OJ 1999 L 63/39); and Andean states (OJ 1998 L 127/11). Although the treaties with the Andean and Central American States entered into force as late as 1998 and 1999, they had been signed in the early 1990s. See also the ‘mixed agreements’ with Korea (OJ 2001 L 90/46), agreed in 1996; with Mexico (OJ 2000 L 276/45), agreed in 1997; and with Chile and Mercosur/Mercosul States (respectively OJ 1996 L 209 and OJ 1996 L 69). These also lack readmission clauses. See OJ 1998 L 72/18 (Yemen); OJ 1997 L 334/15 (Laos); OJ 1999 L 269/18 (Cambodia); OJ 1996 L 136/29 (Vietnam); and COM (1998) 357; OJ 1999 C 17 (Pakistan). The latter is not yet in force. First of all, its ratification was frozen due to a military coup in Pakistan shortly after it was initialled. Later, the ratification process was revived in late 2001 in connection with events in Afghanistan, but the treaty has still not been ratified. OJ 2001 L 118/48.

203

Steve Peers declarations attached to these agreements implicitly apply to the contracting State’s own citizens only (‘...the readmission of its nationals’ or ‘…of nationals of the latter’.). In the case of Vietnam and Pakistan, where readmission obligations would have more practical impact, the other party has made its own statement. Pakistan asserts that: In agreeing to the undertaking ‘to conclude readmission agreements with the Member States of the European Union which so request’, the Islamic Republic of Pakistan desires to make it clear that the undertaking exclusively represents Pakistan’s readiness to enter into negotiations with the objective of concluding mutually acceptable readmission agreements with the Member States of the European Union which so request. At present Pakistan does not have such readmission agreements with any Member State of the European Union. However, on the request of EU Member States, Pakistan is willing to start negotiations or intensify where such negotiations are already underway. Pakistan considers these negotiations as independent of any other bilateral or multi-lateral agreements that we have concluded or are in the process of negotiating with EU Member States or the European Commission. Also, Pakistan does not accept any nonnegotiable text for such bilateral readmission agreements.

This hardly suggests that Pakistan will be an easy negotiating partner. As for Vietnam, there is no joint declaration on the issue at all attached to the Treaty. Instead, a declaration by the EC alone ‘recalls the importance that it and its Member States attach to the principle of readmission of nationals to their countries of origin’ and ‘points out that the provisions of [the treaty with Vietnam] in no way affect the obligations in the matter deriving from bilateral agreements concluded between the Socialist Republic of Vietnam and its Member States’. A separate declaration by Vietnam states that ‘the repatriation of its citizens will be carried out on the basis of mutual agreement between Vietnam and the country concerned in order to ensure the principles of orderly repatriation in conditions of safety and dignity, in accordance with international acceptable practices and the Comprehensive Plan of Action (CPA) 1989, with financial assistance from the international community.’ With regard to mixed agreements mixed agreements with developing countries, a new association agreement with Chile contains the Council’s standard 1999 clause,46 and the EC may well be pressing for the inclusion of such clauses in an association agreement under negotiation for some time with the Mercosul/ Mercosur States and in negotiations for new association agreements with the 46 See Art. 46 of the Agreement (OJ 2002 L 352). This provision was not one of the

Articles declared provisionally in force by the Council (see Art. 2 of Decision in OJ 2002 L 352/1), so it will not take effect until after ratification of this treaty by the Member States.

204

Irregular Immigration and EU External Relations Central American and Andean States approved by the Council in spring 2003. The EC is also presently negotiating an association agreement with Syria, a trade and cooperation agreement with Iran and a free trade agreement with the Persian Gulf States. It is not known whether the latter two agreements will be mixed or not, but in any event in accordance with the 1999 standard clause, the EC may well seek to ensure the inclusion of readmission provisions in these treaties or in a joint declaration. The different levels of commitment regarding readmission (taking only those treaties making some reference to the issue) can be summarised as follows: a) Level 1: unilateral statement by EC – Vietnam b) Level 2: entry into dialogue or cooperation only – Tunisia, Israel, Russia, Ukraine, Moldova, Kazakhstan, Kyrgystan, Belarus, Slovenia, three Baltic republics c) Level 3: Declaration on readmission of own nationals – Morocco (also with binding obligation to enter into dialogue), Yemen, Laos, Cambodia, Pakistan d) Level 4: Declaration on readmission of own nationals and negotiation of further treaties concerning third-country nationals – Jordan (also with binding obligation to enter into dialogue) e) Level 5: Treaty obligation to readmit own nationals and negotiate further Treaties concerning third-country nationals (1995 and 1999 standard EU clauses) – Egypt, Lebanon, Algeria, three Caucasus republics, Uzbekistan, Croatia, FYROM, ACP states (including South Africa), Chile f) Level 6: application of internal EC rules – Norway, Iceland; planned with Switzerland, Liechtenstein

3. IRREGULAR MIGRATION AND EXTERNAL RELATIONS POLICY The issue of readmission has always been one facet of a broader external EU policy concerning migration. An early Commission communication on immigration, prepared in the run up to the Maastricht Treaty pointed to incorporation of migration within the EU’s external policy, arguing for the inclusion of provisions in future agreements dealing with treatment of migrants in the EU, migrants’ contribution to the country of origin and keeping potential migrants in their countries of origin.47 This was the start of a period where the EU developed a policy, but did not really develop it in detail, except as regards readmission. The December 1992 Edinburgh European Council agreed a Declaration of principles governing

47 SEC (91) 1855, 23 Oct. 1991, points 48 and 49.

205

Steve Peers external aspects of migration policy, apparently in response both to the actual influx of large numbers fleeing the conflict in the former Yugoslavia and the potential (ultimately mythical) influx of large numbers from the former Soviet Union. This Declaration recognised in detail the factors that would reduce migration: ‘preservation of peace and the termination of armed conflicts; full respect for human rights; the creation of democratic societies and adequate social conditions; [and] a liberal trade policy, which should improve economic conditions in the countries of emigration.’ In that light, it noted that ‘co-ordination of action in the fields of foreign policy, economic co-operation and immigration and asylum policy by the Community and its Member States could also contribute substantially to addressing the question of migratory movements.’ The upcoming second and third pillars of the EU Treaty would ‘provide an adequate framework for this co-ordinated action.’ The summit also noted that effective use of development aid could reduce ‘longer term migratory pressures through the encouragement of sustainable social and economic development.’ To this end, it agreed that the EC and Member States’ policies would be based on ‘preservation and restoration of peace, the full respect for human rights and the rule of law’, to reduce ‘migratory pressures that result from war and oppressive and discriminatory government’. But displaced people should stay within the region of origin, and aid should be directed to this end. They would also ‘further encourage liberal trade and economic co-operation with countries of emigration, thereby promoting economic development and increasing prosperity in those countries, and so reducing economic motives for migration’. They would also ensure that ‘appropriate’ amounts of aid would be used to create jobs and reduce poverty, to contribute to long-term ‘reduction of migration pressure’. Readmission was referred to obliquely; the EC and Member States would ‘work for bilateral or multilateral agreements with countries of origin or transit to ensure that illegal immigrants can be returned to their home countries’ and ‘in their relations with third countries, they will take into account those countries’ practice in readmitting their own nationals when expelled from the territories of the Member States’. With the entry into force of the TEU, the Commission’s early Communication on applying the Union’s newly formalised JHA powers made extensive reference to the external element of migration policy.48 This Communication included more detailed references to the root causes of migration and noted that any move toward greater use of readmission agreements (already foreseen by an immigration Ministers’ Resolution of 1992) would likely entail assistance from the EC, given the costs for the State or origin.49 However, the early policy regard48 COM (94) 23, 23 Feb. 1994. 49 See respectively points 46-57 and 114-117 of the Communication (ibid.). The 1992

Resolution is published in Guild and Niessen (n. 3 above), 219; Section IV of the Resolution addresses readmission.

206

Irregular Immigration and EU External Relations ing the importance of integrating migration into the EC’s broader external policies was for some time only implemented in a piecemeal fashion. An attempt by the Austrian Council Presidency in 1998 to reshape EU immigration and asylum policy by scrapping the basic principles of asylum law and establishing a series of ‘concentric circles’ in which States outside the EU played an ever-increasing role in assisting the application of the EU’s policy in return for trade and aid concessions and punishment was deflected by the creation in late 1998 of the ‘High-Level Working Group’ on asylum and immigration, in which home affairs officials had to work with officials from trade, development and foreign affairs ministries in order to develop an external immigration policy.50 The Group was tasked with identifying a list of third States which should be subject to unilateral high-profile ‘Action Plans’ relating to migration policy, and then elaborating the detail of each plan. Each plan would include an analysis of ‘the cause of the influx’, based on the ‘political and human rights situation’ in the relevant country; possible ‘strengthening economic cooperation’ between the EU and the relevant country; ‘identification of the needs for humanitarian aid’ and concrete proposals for sending such aid; proposed further ‘political/diplomatic consultations’ with the relevant State or nearby States; an assessment of the possibility or state of play regarding a readmission agreement or readmission clauses in a mixed agreement; the possibility of temporary reception of persons in the region; and the likelihood of safe return or internal flight alternatives within a country of origin. These plans were drawn up in 1999, but in the absence of agreement with the relevant States they had little apparent impact. Even the Tampere European Council laid little stress on the broader external migration agenda apart from readmission agreements, calling only for ‘assistance to countries of origin and transit’ to promote voluntary return and to help those countries to combat trafficking in human beings effectively and to cope with their readmission obligations towards the EU and its Member States. When implementing the Tampere Conclusions, the Commission’s initial Communication on irregular migration took a relatively tentative approach toward readmission agreements.51 It asserted that the political and human rights situation of a country must be taken into account before deciding to conclude a readmission agreement with that State, and took the view that the EC should evaluate the effects of readmission agreements in practice. Targeted funding and technical assistance could be offered by the EC ‘if appropriate’, and the Commission argued that the Union ‘should also use its political weight to encour-

50 See Peers, EU Justice and Home Affairs Law (Harlow: Pearson, 2000), 102-103. The

mandate of the group can be found in the press release of the General Affairs Council, 5/6 Dec. 1998. 51 COM (2001) 672, 15 Nov. 2001.

207

Steve Peers age third countries, which show a certain reluctance to fulfill their readmission obligations’. In the absence of any EC readmission agreements at the time, this is presumably a reference to the purported ‘obligation’ of all States to readmit their own nationals, which the EU has frequently asserted.52 This was the start of a period (2001-2002) when the EU’s policy on irregular migration and external relations (apart from readmission) became more operational. Shortly after the Commission’s communication, the Laeken European Council in December 2001 called for the Council to adopt an action plan on illegal migration, including the identification of more countries to be targeted for readmission agreements. The summit also emphasised the external relations aspects of migration policy, again rather vaguely. The Action Plan on illegal migration was soon adopted by the Council in February 2002,53 but it dropped the idea of a prior human rights and political evaluation before agreeing new ‘target’ third States for readmission agreements. The Council instead stated that it would be possible to identify new ‘targets’ immediately, and restated the Commission’s observation about using the Union’s political weight. On that basis, it soon agreed criteria for negotiation of readmission agreements and applied them to select the four new States with which the Commission received a mandate to negotiate in autumn 2002.54 The criteria are migration pressure upon the EU; States which have signed an association or cooperation agreement (excepting States negotiating accession); adjacent States; States where a readmission agreement would ‘add value’ to Member States’ bilateral agreements; and ‘geographical balance’. There is no explanation of how the criteria were applied to the individual cases; in fact, none of the four States which were ‘targeted’ meet the second criterion.55 At the same time, the mandate of the High-Level Working Group was expanded beyond the development and implementation of Action Plans, to examine the links between migration and other EU external policies, conduct dialogue on migration issues in certain cases with third states, intergovernmental organisations and non-governmental organisations. Its mandate no longer referred expressly to facilitating trade with the relevant countries and the Action

52 See, for instance, the Conclusions of the Tampere European Council. None of the

pronouncements on this issue by the EU institutions have ever referred to the source of the purported ‘obligation’; presumably the EU believes that it stems from international law on state responsibility. The question of whether public international law indeed entails such an obligation is beyond the scope of this paper. 53 OJ 2002 C 142/23. 54 Council Doc. 7990/02, 15 Apr. 2002, approved by the JHA Council, 25/26 Apr. 2002. 55 The Treaty with Algeria containing a readmission clause was about to be signed by the Council in April 2002, but had not yet been concluded.

208

Irregular Immigration and EU External Relations Plans were now to cover such new issues as joint measures on migration control policy and examination of voluntary repatriation.56 Simultaneously, it was decided that the upcoming Seville European Council of June 2002 would focus on immigration and asylum issues following a perceived increase in public concern about the subject, and vague generalities about the external relations aspects of migration law would no longer suffice. This was the point at which the EU developed a formal process and criteria regarding the external aspects of irregular migration. The Council Presidency submitted draft conclusions to the European Council, reaffirming the ‘root causes’ approach but seeking to add a ‘complementary’ approach to gain the assistance of non-EU States. This approach resembled the ideas of the Austrian Presidency in its Strategy Paper that had been implicitly rejected in 1998 and 1999. These States would be asked to: ratify the UN Convention on organised crime and relevant Protocols; impose criminal penalties for smuggling and trafficking of persons and falsified travel documents; run awareness campaigns; and step up border controls and police operations against smugglers and traffickers. The EU would provide support, including financial support if need be. Cooperation would also entail an obligation to readmit a State’s own nationals as well as third-country nationals who have transited through that State. The Council could invite certain countries to ‘cooperate’ in this new sense, based on ‘several criteria’, including migration flows from that country or the failure to negotiate or implement a readmission obligation or readmission provisions in an association or cooperation agreement. If there is a perception of a failure to cooperate, the Council will decide if this is the case, then take specified foreign policy measures (for example, refusing visas for senior officials) and the Commission will be invited to reduce aid to that country. Clauses on migration management as defined in this fashion must be included in all future cooperation and association agreements, with provision to suspend those agreements if there is a failure to cooperate on migration policy.57 This proposal proved controversial, and the Seville European Council had to discuss this issue in detail following the failure of foreign ministers to agree at the General Affairs Council.58 In its Conclusions on this issue,59 the summit 56 Council Doc. 9433/02, 30 May 2002. See earlier drafts in Council docs. 8249/02, 23

Apr. 2002; 8249/1/02, 25 Apr. 2002; and 9137/02, 23 May 2002. The idea that the Group would be involved in examining the link between migration policy and EU social policy was dropped after the first two drafts, perhaps because employment and social affairs ministries wished to protect their ‘turf’. 57 Council Doc. 9723/02, 7 June 2002. 58 See subsequent versions of the draft conclusions (Council Docs. 9917/2/02, 14 June 2002 and 9917/3/02, 18 June 2002) which were more nuanced but which essentially suggested the same policy. 59 For comments on all aspects of the Seville conclusions on immigration and asylum, see Peers, “EU Immigration and Asylum Law after Seville” (2002) 16 Immigration

209

Steve Peers first of all decided that each future EU association or cooperation agreement should include a clause on ‘joint management of migration flows and compulsory readmission in the event of illegal immigration’, having observed that trade expansion, economic cooperation, conflict prevention and development assistance could all reduce the root causes of migration flows. Secondly, the EU declared its willingness to offer financial assistance to third States to assist with readmission of their own and other countries’ nationals and broader joint migration management. Third, inadequate cooperation by a third State could hamper further development of relations with the EU, following a systematic assessment of relations with that country. Finally, if a non-EU state has demonstrated ‘an unjustified lack of cooperation in joint management of migration flows’, according to the Council following a unanimous vote, then the Council, after ‘full use of existing Community mechanisms’, could take ‘measures or positions’ as part of the EU’s foreign policy or other policies, ‘while honouring the Union’s contractual commitments and not jeopardising development cooperation objectives’. This is an apparent threat to reduce the existing level of EU relations with a third state, but since the European Council did not endorse the detailed proposals in the paper submitted by the Council Presidency, even in part, there is great political and legal ambiguity in the conclusions as regards what measures might be taken, the ‘legal base’ for deciding on whether a State has failed to cooperate and the substantive grounds for concluding that there has been such a failure. In this area, the process and the criteria were still unclear. Despite this threat, already it was becoming apparent that the EC was having difficulty concluding readmission agreements with the countries it had already selected. In its Green Paper on EU return policy,60 the Commission frankly admitted that since readmission agreements were ‘solely in the interest of the Community, their successful conclusion depends very much on the “leverage” at the Community’s disposal’. Within the JHA area, ‘there is very little that can be offered in return’, since lifting visas (as in the case of Macao and Hong Kong) was rarely going to be an option. The Commission instead invited the Council to reflect on ‘the possibility of increasing compatibility with other Community policies’ in order to secure successful negotiations. Before long, in a follow-up communication on the same subject, the Commission repeated and fleshed out these views, giving the example of trade, aid and technical and financial assistance.61 While the Seville Summit Conclusions had held out the prospect of technical and financial assistance, the Commission pointed out that the conclusions had not fully considered how to motivate a third State that still did not wish to negotiate a readmission agreement after such an offer. It suggested Asylum and Nationality Law Journal 176. 60 COM (2002) 175, 10 Apr. 2002. 61 COM (2002) 564, 14 Oct. 2002.

210

Irregular Immigration and EU External Relations that political and diplomatic support and measures by Member States might be necessary to secure agreements. In its final Action Plan on return policy, agreed in November 2002, the Council eschewed explicit discussion of such difficulties, referring instead to a forthcoming Commission paper on financing of immigration projects in third countries and the vague prospect of using all appropriate external relations instruments, without prejudicing the EU’s position that readmission of a State’s own nationals is non-negotiable.62 By this point, the General Affairs Council on 18 November 2002 had agreed to implement the Seville external relations conclusions in more detail, agreeing criteria for the application of the ‘sanctions’ policy and applying them.63 The criteria for deciding which States to target were the extent of migration flows towards the EU, geography, the need to build capacity, the framework for cooperation and the attitude of that State regarding cooperation on migration issues. On this basis, the Council decided that the EU should intensify relations with Albania, China, Yugoslavia, Morocco, Russia, Tunisia, Ukraine and Turkey, and to start cooperation with Libya as regards cooperation on migration issues, although the exact form such cooperation should take was not specified in detail. Also, the Council spelled out in detail the text of the future ‘migration cooperation’ clause to be included in all cooperation and association agreements with the Community. This clause will entail a dialogue on migration, a commitment to examine root causes, a joint examination of illegal immigration issues, the standard readmission clause (already, of course, part of EU policy before Seville) and ‘cooperation regarding migratory flows to promote a fair treatment’ of legal residents ‘through an integration policy favouring non-discrimination and the fight against racism and xenophobia’.64 In summer 2003, the Commission reported that this policy had been implemented in detail, comprising meetings with all the ‘target’ states except the former Yugoslavia.65 As a result, Morocco agreed to negotiate the proposed readmission agreement, Turkey was aligning itself more fully with EC legislation and there was progress in readmission talks with Ukraine. The next development was a Commission Paper published in December 2002 covering two issues: the link between migration and development and the EC financial resources available for implementing internal and external migration 62 Council Doc. 14673/02, 25 Nov. 2002, parts VII and VIII. 63 Council Doc. 13894/02, 13 Nov. 2002. See earlier drafts in Council Docs. 12122/02,

18 Sep. 2002; 12123/02, 18 Sep. 2002; 12123/1/02, 24 Sep. 2002; 13754/02, 5 Nov. 2002; and 13754/1/02, 8 Nov. 2002. During negotiations, Tunisia, Turkey and Ukraine were added to the ‘target list’, and the criteria for selection were made less specific, inter alia deleting ‘the number of asylum seekers’ from the ‘migration flows’ criterion. 64 These criteria took account of the criteria agreed by the JHA Council in April 2002 to decide which countries to negotiate Community readmission agreements with: see discussion above. 65 SEC (2003) 815, 9 July 2003.

211

Steve Peers policies.66 Amazingly, despite a decade of increasing EU interest in the external relations aspect of migration policy, this was the first detailed examination of the topic as regards developing countries – or indeed any other countries. The Commission set out the push and pull factors leading to migration from developing States and surveyed some recent literature. It concluded that poverty reduction should stay the main focus of EC development policy, and surveyed other policies that might reduce migration demand: liberalised trade and market access, more liberal rules on short-term movement of people (for the first time), conflict prevention, good governance and rural development. But as for implementing these policies, it held out little hope for quick results, again pointing to the limited leverage of the Community and now also to the limits imposed by the WTO on trade preferences for only selected developing countries, as well as the limits upon the Community budget. However, in the second part of the communication, the Commission stated an intention to expand the funds available for migration projects in non-EU countries dramatically. The Council adopted Conclusions on the Commission’s Paper in May 2003, stating that it does not intend to reduce current levels of funding for poverty eradication.67 There is some detail on the dialogue to be conducted with developing countries, although this is far less specific than the earlier drafts of the Conclusions had suggested.68 The EU will consider further proposals for policies on work permits, virtual returns, voluntary return programmes, management of remittances, integration of third-country nationals in the EU, problems that may arise from recruitment of highly-skilled labour from developing states, and a review of the policy of placing EU expatriates in jobs that could go to skilled local staff. Compared to prior drafts, the reference to financial incentives was deleted, the detail of further proposals was watered down (particularly the prospect of a ‘code of conduct’ prohibiting recruitment of medical staff from developing countries with a shortage of such staff),69 and the request to the Commission to study the ‘political and legal implications’ of non-cooperation on migration issues, following the precedent of the EU human rights clause, was dropped. The latter point clearly hinted at the prospect of suspending or terminating treaties with ‘migration cooperation’ clauses if the EC deemed that such cooperation was not forthcoming. Finally, the policy in this area was further developed in June 2003, when the Commission proposed a Regulation to govern migration and asylum assistance

66 COM (2002) 703, 3 Dec. 2002. 67 Council Doc. 8927/03, 5 May 2003. 68 Council Docs. 6175/03, 7 Feb. 2003, 6175/1/03, 25 Feb. 2003 and 6175/2/03, 11 Mar.

2003. 69 It is widely recognised that the UK’s National Health Service in particular depends

on large numbers of staff from developing countries.

212

Irregular Immigration and EU External Relations to third countries,70 and the Thessaloniki European Council further developed a process for implementing the policy. It agreed to establish an ‘evaluation mechanism’, taking account of the following criteria: participation in the international instruments relevant to this matter (e.g.: Conventions on Human Rights, the Geneva Convention of 28 July 1951 relating to the status of refugees as amended by the New York Protocol of 31 January 1967, etc.); cooperation of third countries in readmission/return of their nationals and of third-country nationals; efforts in border control and interception of illegal immigrants; combating of trafficking in human beings, including taking legislative and other measures; cooperation on visa policy and possible adaptation of visa systems; creation of asylum systems, with specific reference to access to effective protection, and efforts in redocumentation of nationals. The policy will be assessed by an annual report from the Commission, which could make recommendations.71

4.

ANALYSIS

On the surface, the development of the external aspects of EU migration policy has led to the development of new trends within EC external relations law. For once, in order to secure their internal objectives, the Member States have been very willing for the EU to exercise its non-exclusive external powers. We can even see the development of what might be called a ‘network effect’ in EC external relations law, with each new external relations power boosting the effectiveness of the powers already being exercised. In return, the new external power appears far more attractive to the Member States precisely because of the existing external powers of the Union to which it can be linked. On the other hand, despite this important development in the process of forming EU external policies, this particular policy remains fragmented. This results from the frequent changes in EU policy on readmission agreements and general external migration policy over the last decade, because inevitably only new treaties with third countries can fully take account of each policy change. As a result, non-EU States have contracted several generations of commitments to the EU on this issue, and another generation will soon be forthcoming following the Seville conclusions. If the EU now develops, as urged by the UK, a policy of forced removal of asylum-seekers outside the EU for reprocessing,72 or even a coordinated policy on processing of asylum-seekers already outside the EU, the policy will potentially become even more complex and fragmented. But the outcome of EU policy is not merely fragmented when comparing different third States; it is also increasingly incoherent, unbalanced and unrealis70 COM (2003) 355, 11 June 2003. 71 Paras. 19-21, Thessaloniki European Council Conclusions. 72 See the Conclusions of the June 2003 European Council, paras. 24-27.

213

Steve Peers tic as regards both external relations and migration objectives. First of all, there is a grave risk that the EU’s external human rights policy will be damaged by these policies, not just indirectly because of the prospect that the EU will have to reduce its human rights ‘demands’ in order to secure its demands for migration cooperation as part of the relevant negotiations, but also directly because the EU is encouraging third States to violate human rights law.73 Secondly, there is a risk that the previous balanced and realistic ‘root causes’ approach to the external aspects of migration law will now be overlooked. While this approach has not been formally discarded, it is obvious that the EU’s efforts and energy are now devoted to the complementary policy of inducing third States to cooperate with EU migration controls, rather than examining why migration takes place at all. It is striking, for instance, that the Commission’s December 2002 paper contemplates major increases in funding for external EU migration cooperation, but no increase in funding for poverty relief, conflict prevention, et al. While the ‘development’ part of that Communication still lays stress on the ‘root causes’ approach, the subsequent Council Conclusions place less stress on this issue. While the final Council Conclusions are still relatively balanced, we know from experience with the EU’s internal immigration and asylum policy that even where the EU adopts a nominally balanced policy statements, the practical implementation of that policy can still be restrictive. Thirdly, it is arguable that the problem with the ‘root causes’ approach to migration as applied since 1998 is that it did not go far enough. In particular, while the Commission is surely right to emphasise the importance of rural development in developing countries in its most recent paper, one can observe the devastating effect of the EU’s Common Agricultural Policy on such rural development. It is striking that the CAP is not directly addressed anywhere in the voluminous EU documentation on this issue, even though the CAP is the only root direct cause of irregular migration that is directly controlled by the EU. With the EU giving more funding to each European cow than the average income of each human in some developing countries, how much irregular migration has resulted from this policy? Fourthly, the very insularity and high-handedness of the EU’s approach risks damaging its external relations with other countries. This is apparently the only area of EC external relations where the Commission proposes (and the Council approves) negotiating mandates without first ensuring through informal contacts by the Commission and Council Presidency that the other party wishes to negotiate an agreement on the subject. It even appears that in several

73 A human rights analysis of the external aspects of the EU’s illegal migration policy is

beyond the scope of this paper. See further the references on readmission agreements in Rogers and Peers (n. 1 above) and the EU’s demands on Romania and Bulgaria in return for visa abolition (n. 13 above).

214

Irregular Immigration and EU External Relations cases the EU was well aware when drawing up these mandates that the other side has no interest in negotiations at all. This can hardly improve the overall relationship between the EU and the relevant countries. In fact, such unilateralism is exactly the type of approach to external relations that European critics of the Bush administration like to condemn. Finally, the internal logic of the ‘punishment’ policy is clearly contradictory. Let us take the example of the Former Yugoslav Republic of Macedonia. Although it is not currently on the EU’s list of States which should provide greater cooperation, it is on the major transit route into the EU and so could be on that list in future. Imagine the scenario of the FYROM government being deemed non-cooperative on migration issues. Following the suggestion of the Spanish Presidency before Seville, the EU reduces aid, ceases its extensive conflict prevention efforts in FYROM, terminates any further moves toward EU membership and suspends ratification of its association agreement, thereby abolishing trade preferences and investment guarantees. As a result, the FYROM government would have fewer resources to control its borders and no incentive to do so (as far as transit migration to the EU is concerned). In fact, the likelihood of a civil war breaking out in FYROM itself would be considerably higher; if this happens, FYROM would become a more significant country of origin for migration to the EU and there could be a knock-on effect on neighbouring countries. Abolishing the trade preferences and investment guarantees would also affect EU companies exporting to and investing in FYROM. Even if we do not care about the welfare of inhabitants of FYROM and neighbouring countries, the interests of EU business or the EU’s foreign policy goals, the fact remains that migration from FYROM would likely increase. So even approaching the issue from the hermetically sealed world of interior ministries, the policy would fail in its own terms to reach its fundamental objectives, quite apart from damaging a number of separate EU policy objectives. It might be argued that a country not far from civil war is not typical enough to use as a fair example (although unfortunately quite a few countries are near to a civil war or already experiencing one). But even if we concede this point, if we take a more stable state as an alternative example, the same criticism holds true, but simply to a lesser degree. So if the EU terminated its cooperation with Albania, that country would still have fewer resources to control its borders and less incentive to do so. The situation would not be further aggravated by an accelerated slide towards civil war, but the result would still be contradictory to the intended aims of the EU. Is there an alternative? As argued above, the central failings of the EU approach are unilateralism, the focus on only one aspect of migration policy and the departure from the ‘root causes’ approach to migration. At the same time, one striking feature of international migration law compared to other subjects of great interest to the international community is the lack of a widelysupported framework treaty or international organisation addressing the issue 215

Steve Peers of migration (apart from aspects of refugee law) holistically.74 Of course, certain aspects of migration law are covered by the International Labour Organisation and (through the General Agreement on Trade in Services) the World Trade Organisation, but this leaves many important elements out. We have the UN Convention on the Rights of Migrant Workers, now in force from 1 July 2003, but it has only been ratified by source countries of migration and does not address all aspects of migration policy either. The EU, if it chose, could play a significant role in building the institutional multilateral framework for addressing issues relating to international migration, incorporating a positive approach to the UN Migrant Workers’ Convention. This would obviously be a long-term project, but in the meantime the EU could integrate aspects of this approach into its bilateral relationships. True, some of the EC’s recent treaties (such as the Cotonou Convention and the treaties with the Western Balkan States) incorporate positive aspects of migration law into the dialogue with the EU’s partners alongside readmission commitments, and include a directly effective right to equal treatment in working conditions. Earlier treaties with the EC (such as the Association Agreement with Turkey and the Europe Agreements) go even further. But very few of the EC’s treaties provide for regulation of primary or secondary migration to the EU, and since 1991 the EC has eschewed inclusion of the right to equal treatment in social security in any of its association agreements (leaving aside the full free movement treaties with Norway, Iceland, Liechtenstein and Switzerland). In order to develop a balanced policy on migration, the EU has to accept that the external aspect of its immigration policy must also address admission of migrants and more extensive equal treatment within EU territory along with the EU’s migration control objectives. One example of how this approach might work is the proposed ‘wider neighbours’ policy, where the Commission clearly foresees greater liberalisation of movement of persons to balance enhanced controls.75

5.

CONCLUSIONS

Policies on migration control and external relations can equally suffer from a lack of realism on the part of policy initiators. Where both policies overlap, and suffer from a lack of realism simultaneously, the result could be counter-productive policies that fail to achieve their own aims and damage other migration and external relations objectives. Unfortunately, recent developments in EU external migration policy suffer from such flaws, simultaneously combining

74 See the essay by Piotrowicz in this volume for further discussion of the international

dimension. 75 COM (2003) 104.

216

Irregular Immigration and EU External Relations the self-absorption of a small child with the arrogance of an (economic) superpower. Only a significant shift in EU policy toward multilateralism, establishing a framework for admission and equal treatment of migrants and back toward examining root causes of migration offers the hope of a balanced or coherent external migration policy.

217

Steve Peers

ANNEX

CLAUSES TO BE INSERTED IN FUTURE MIXED AGREEMENTS – COUNCIL CONCLUSIONS (1995 TEXT) “THE COUNCIL AND THE REPRESENTATIVES OF THE MEMBER STATES, MEETING WITHIN THE COUNCIL, AGREE that with regard to future mixed agreements the insertion of the following clauses shall be considered on a case-by-case basis when adopting the guidelines for their negotiation: (a) Recital in the Preamble Recognizing that cooperation for the prevention and control of illegal immigration constitutes one of the primary objectives of this Agreement. (b) Articles of the Agreement The relevant articles may be, where appropriate, preceded by a Title “N” called “Readmission. Cooperation for the prevention and control of illegal immigration”. ARTICLE X The Member States of the European Union and State X agree to cooperate in order to prevent and control illegal immigration. To this end: – State X agrees to readmit any of its nationals illegally present on the territory of a Member State, upon request by the latter and without further formalities; – and each Member State agrees to readmit any of its nationals, as defined for Community purposes, illegally present on the territory of State X, upon request by the latter and without further formalities. The Member States and State X will also provide their nationals with appropriate identity documents for such purposes. ARTICLE Y State X agrees to conclude bilateral agreements with Member States which so request, regulating specific obligations for readmission including an obligation for the readmission of nationals of other countries and stateless persons who have arrived on the territory of any such Member State from State X or who have arrived on the territory of State X from any such Member State. ARTICLE Z The Cooperation Council shall examine what other joint efforts can be made to prevent and control illegal immigration.” 218

Irregular Immigration and EU External Relations

COUNCIL DECISION (1999 TEXT) Readmission clauses in Community agreements or mixed agreements “The Council of the European Union has decided that the standard clauses set out below should be included in all future Community agreements and in agreements between the Community, its Member States, and third countries ARTICLE A The European Community and State X agree to cooperate in order to prevent and control illegal immigration. To this end: – State X agrees to readmit any of its nationals illegally present on the territory of a Member State of the European Union, upon request by the latter and without further formalities; – and each Member State of the European Union agrees to readmit any of its nationals, as defined for Community purposes, illegally present on the territory of State X, upon request by the latter and without further formalities. .

The Member States of the European Union and State X will also provide their nationals with appropriate identity documents for such purposes. ARTICLE B The Parties agree to conclude upon request an agreement between State X and the European Community regulating the specific obligations for State X and the Member States of the European Community for readmission, including an obligation for the readmission of nationals of other countries and stateless persons. ARTICLE C Pending the conclusion of the agreement referred to in Article B, State X agrees to conclude, upon request of a Member State, bilateral agreements with individual Member States of the European Community regulating the specific obligations for readmission between State X and the Member State concerned, including an obligation for the readmission of nationals of other countries and stateless persons. ARTICLE D The Cooperation Council shall examine what other joint efforts can be made to prevent and control illegal immigration.”

219

This page intentionally left blank

Barbara Bogusz

MODES OF GOVERNANCE FOR AN EU IMMIGRATION POLICY – WHAT ROLE FOR THE OPEN METHOD OF CO-ORDINATION?

1.

INTRODUCTION

The Open Method of Coordination (OMC) was endorsed at the Lisbon European Council in 2000 as an alternative form of decision-making that would compliment the traditional Community method. The OMC principles of promoting best practice, wide consultation with non-governmental actors and exchange of information between Member States were considered as an ideal vehicle to achieve the Union’s new strategic goal: to become the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth with more and better jobs and greater social cohesion.1

The OMC is different to the Community Method in as far as the outcome of the co-operation does not lead to ‘hard law’ in the form of Regulations or Directives, the application of which is monitored by the Commission. The exchange of information at the centre of OMC encourages Member States to find joint solutions to common problems and does not require all Member States to participate to similar levels. The sanction, as it is, is based on peer pressure and a ‘name and shame policy’ through the use of benchmarks and scoreboards. To date the OMC has been utilised to assist in the development of the EU’s

1

Lisbon European Council Presidency Conclusions, 23-24 March 2000, para. 5.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 221-237 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Barbara Bogusz employment strategy as provided for by Article 128 EC, which currently remains the only Treaty base that explicitly provides a role for the OMC in Community decision-making. The co-ordination of policies by Member States involves the following: – Fixing guidelines for the Union combined with specific timetables for achieving the goals which they set in the short, medium and long terms; – Establishing, where appropriate, quantitative and qualitative indicators and benchmarks against the best in the world and tailored to the needs of different Member States and sectors as a means of comparing best practice; – Translating these European guidelines into national and regional policies by setting specific targets and adopting measures, taking into account national and regional differences; – Periodic monitoring, evaluation and peer review organised as mutual learning processes.2 A number of additional areas have been identified as being suitable for the OMC: inter alia, social protection, social inclusion, information society and immigration. The extension of this open method of governance and its application in other policy areas has been endorsed in both academic and political discourse.3 This apparent acceptance and quasi-legitimacy may be questioned on the grounds that that there is no Treaty base for the OMC. Yet the OMC has increasingly been introduced into the decision-making process, not only in the European Employment Strategy (EES) but also into other policy areas. This extension of the OMC does raise the question of ‘creeping competences’, which ought to be addressed by the Member States if the OMC is to be granted a more formal status within the Treaty.4 The enveloping of immigration policy within the procedures of the OMC can be questioned both for its lack of Treaty base, and substantially for its suitability in the policy area. Although the OMC may provide some solutions to a problem which is diverse and far reaching, it remains questionable whether the overall EU objective of a common asylum and immigration policy may be achieved without a high level of legal harmonisation. At the centre of this scepticism lies the question of whether enhanced coordination of immigration polices through the exchange of information under the OMC, can significantly contribute to the greater convergence of national policies? One initial conclusion, which may be drawn, is that the slow pace of progress towards a common immigration policy is a direct consequence of the lack of 2 3

4

Ibid. D. Hodson and I. Maher, ‘The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Coordination’ (2001) 39 Journal of Common Market Studies 719. Hodson and Maher, ibid.

222

Modes of Governance for an EU Immigration Policy hard law rather than any limitations with the OMC. It could be argued that the function of the OMC is to fill the gaps once a common immigration policy has been enshrined into definitive legislative proposals. For example, the OMC could prove to be a useful procedure to develop principles of best practice in relation to the collection of immigration statistics.5 In this sense the OMC should not be viewed as an alternative to the traditional Community method in seeking to develop an EU immigration policy, rather it should be considered as complementary to hard law. The rise in prominence of the OMC in recent years can be attributed, in part, to the EU’s objective of becoming more closely in tune with the views of its citizens. The OMC, based upon inclusive principles of consultation, which seek to promote greater discourse in immigration, and other policy areas through the participation of civil society, addresses the issue of citizen disconnection highlighted in the Commission’s White Paper on Governance.6 The purpose of this essay is to consider the OMC and whether its principles, used effectively in the EES, are applicable in the creation of an EU common immigration policy. In this context the essay will consider not only the substantive question of the application of the OMC principles to immigration policy, but also consider whether the sanctions available provide the necessary impetus and encouragement for Member States to work more closely in a policy area that remains politically sensitive.

2.

A COMMON IMMIGRATION POLICY?

The creation of an ‘area of freedom, security and justice’ under the Amsterdam Treaty endorsed and developed further the objective set by the EU of eliminating the perceived threats to internal security. This threat perception initially found itself addressed by the Justice and Home Affairs Pillar of the Maastricht Treaty. In this Treaty, both asylum and immigration were grouped together with various forms of organised crime, which in turn led to the transfer of illegitimacy of such criminal activity to immigration. The ‘criminalizing’ of immigration lead to the creation of what is called the ‘security continuum’,7 an approach that was 5

6 7

See the essay by Mitsilegis in this volume, which examines the difficulties caused through the divergence of methods used by Member States in the collection of statistical data relating to illegal immigration. COM(2001) 428. See D. Bigo, ‘The European internal security field: stakes and rivalries in a newly developing area of police intervention’ in D. Anderson, M. den Boer, M. Cullen, P. Gilmore, W. Raab, and N. Walker (eds), Policing the European Union (Oxford: Clarendon Press, 1995). For a discussion on the securitisation of immigration see V. Mitsilegas, ‘The implementation of the EU acquis on illegal immigration by the candidate countries of Central and Eastern Europe: challenges and contradictions’ (2002) 28 Journal of Ethnic and Migration Studies 665.

223

Barbara Bogusz endorsed by the Vienna Council conclusions of December 1998 and also by the Tampere Council conclusions October 1999. In the latter, there was a distinct call for the development of a common EU policy in asylum and immigration which focused on the need to strengthen the EU’s external borders to stop irregular immigration and organised crime.8 The development and objective of EU immigration policy to date can therefore be described as exclusionary in its attitude towards immigration and asylum.9 Though this stance continues to prevail, it has recently been tempered somewhat by formal recognition that labour shortages exist within the EU, which could be ‘plugged’ through encouraging regularised migration for economic reasons.10 Such a shift in policy can be attributed to the objectives set out at the Lisbon Council in 2000. If the EU is to have the world’s most competitive and dynamic economy, it will require a suitably qualified, trained and motivated workforce. The Commission’s Communication on A Community Immigration Policy focuses on addressing the issue of labour market shortages through effective management of migration, though the document also recognises that there are legal, social and cultural dimensions to managed immigration. Consequently the creation of channels for legal immigration not only benefits the EU, but also seeks to address many of the problems that exist with irregular immigration and human trafficking, that have arisen as a consequence of Member States’ exclusionary immigration policy.11 The Commission’s Communication on Immigration puts forward the position that a converged EU immigration policy is not attainable by simply using the traditional Community method. There are several reasons for this view. First, and perhaps most importantly, there has been a shift in competences from the third pillar to the Community pillar with the result that immigration issues are no longer considered apart from the EC’s free movement rules. The economic and employment dimension of managed immigration for the purpose of solving labour shortages clearly brings in to discussion the EC provisions relating to the free movements of person and services, as witnessed in the relationship between the EU and the Accession States. Judgments of the Court in cases such as Gloszczuk,12 or Barkoci and Malik 13 or Kondova 14 while ruling on the legal 8 9 10 11 12 13 14

Tampere European Council Presidency Conclusions 15-16 October 1999. An issue examined in more detail in the essay by Cygan in this volume. Communication from the Commission to the Council and the European Parliament on a Community Immigration Policy COM (2000) 757. The separate question of human trafficking is examined by Piotrowicz in this volume. Case C-63/99 R v. Secretary of State for the Home Department, ex parte Wiesław Gloszczuk and Elz˙ b ieta Gloszczuk [2001] ECR I-6369. Case 257/99 R v. Secretary of State for the Home Department, ex parte Julius Barkoci and Marcel Malik [2001] ECR I-6557. Case C-235/99 R v. Secretary of State for the Home Department, ex parte Eleonora Ivanova Kondova [2001] ECR I-6427.

224

Modes of Governance for an EU Immigration Policy status of the Association Agreements, also placed parameters with regard to managed immigration of third country nationals by stating the Association Agreements contained no equivalent provision to Article 39 EC.15 The Court’s strict interpretation of the legal status of the Association Agreements does not detract from the fact that legal immigration was permitted under the Association Agreements for economic purposes. In future occasions of such legal immigration there is scope for the OMC to be used by Member States to exchange information relating to the employment market and what skills gaps need to be filled. Though immigration into the EU undoubtedly remains a legal issue, the movement of migrants within the EU could be co-ordinated through less formal methods, such as the OMC. By using the OMC in this context, it would be possible to allow for flexibility and ease of movement between Member States to where particular skills may be in short supply, and to also monitor migrants, movements when on their territory, thus acknowledging the EU’s object of maintaining security. Second, immigration should be viewed as a concept in its entirety which encompasses many diverse features, economic social and cultural, rather than considering these as being mutually exclusive. Third, labour market shortages feature prominently in the Commission’s communication highlighting the need to define a role for the EU in addressing immigration. This must entail a move away from the ‘zero immigration policies’ which have dominated the thinking of Member States over the past 30 years and which are no longer deemed appropriate.16 Consequently the Commission has set about to find new solutions to problems which hitherto have been dominated by national self-interest. In the light of these developments the Commission suggests a ‘new approach’ be adopted towards immigration which reflects the changing economic and demographic pressures facing the EU. This ‘new approach’ would be more flexible and proactive based on a tacit recognition that immigration brings positive benefits. More significantly, amongst the benefits envisaged is that Member States would be better equipped to deal with irregular migration. According to the Commission this would be possible whereby the approach towards immigration set out in the Commission’s six guidelines seek to adopt a positive, open and transparent methodology in developing a common immigration policy.17 The Communication on immigration sets out to provide the impetus to stimulate discourse in this area to strive towards obtaining a balanced and coordinated approach towards immigration. Even though the Communication

15 See B. Bogusz, ‘Regulating the right of establishment for Accession State nationals:

reinforcing the “buffer zone” or improving labour market flexibility?’ (2002) 27 European Law Review 472. 16 COM (2000) 757, 5-6. 17 COM (2001) 387, 6-12.

225

Barbara Bogusz predominantly looks at economic aspects, for example, in dealing with labour market shortages it does endeavour to create a more holistic and inclusive policy taking into consideration the wider context incorporating legal, cultural and social issues. The Tampere Council Conclusions 1999 have provided the policy framework for creating and developing common stances on asylum and immigration. The foci of the policy rests on four elements: first, partnership with countries of origin; second, a common European asylum system; third, a policy aimed at fair treatment of third country nationals granting them rights and obligations comparable to those of EU citizens; and fourth, management of migration flows through close co-operation with countries of origin and transit. This latter point will require information campaigns on the actual possibilities for legal immigration, and for the prevention of all forms of trafficking in human beings.18 The Commission has focused on elements one, three and four with regard to the immigration policy, due to asylum undergoing a separate review in an attempt to create a common asylum policy.19 The policy guidelines laid down at the Tampere Council were subsequently endorsed and added to by the European Council in Seville in June 2002. The Seville Presidency conclusions stated the overriding principles upon which EU action on immigration and asylum issues would be based in the future. At the core of these principles was the requirement of legal managed immigration into the EU but also a clear objective of securitisation. The Presidency concluded that: – The legitimate aspiration to a better life has to be reconcilable with the reception capacity of the Union and its Member States and immigration must pass through the legal channels provided for it; the integration of immigrants lawfully present in the Union entails both rights and obligations in relation to the fundamental rights recognised within the Union; combating racism and xenophobia is of essential importance here; – In accordance with the 1951 Geneva Convention, it is important to afford refugees swift, effective protection, while making arrangements to prevent abuse of the system and ensuring that those whose asylum applications have been rejected are returned to their countries of origin more quickly. 20 Although it has been mentioned that the prevalent exclusionary stance has been tempered due to the focus on employment and the labour market,21 it is clear

18 Tampere European Council Presidency Conclusions, 15-16 October 1999. These

were endorsed at the Laeken European Council December 2001. 19 COM(2001) 387. 20 Seville European Council Presidency Conclusions, 21-22 June 2002. 21 See also Communication from the Commission on immigration, integration and

employment COM(2003) 336.

226

Modes of Governance for an EU Immigration Policy that underlying these policies regularisation of migration is paramount and measures dealing with perceived threats are also a dominant feature. In a policy area whose development is intrinsically linked to changes in economic and political circumstances, and where hysterical media attention towards irregular migration has merely accentuated the threat posed, it is undoubtedly clear that a workable EU solution is essential to address effectively the problems associated with all types of immigration both legal and irregular. The question though remains of whether hard law is the sole answer to addressing immigration and related issues or whether, as already alluded in this essay and by the Commission’s Communication, there is an additional ‘soft’ technique that can be used to create a workable immigration policy?

3. APPLYING THE OPEN METHOD OF COORDINATION TO IMMIGRATION The general format of the OMC would be similar in manner to that found under the employment strategy and social policy though tailored specifically to the problems encountered within immigration policy. The creation of the common policy objectives broadly follows de la Porte’s indicators taxonomy which enables comparisons to be made between Member States spatially and temporally.22 To obtain the primary indicator the Commission has initiated this process by drawing upon the policy framework set out in the Tampere Conclusions and also, the proposals suggested in the Commission’s Communication on Immigration to create the European Guidelines for immigration.23 These six guidelines focus on key areas of common interest within the European arena and there is enough variable geometry to satisfy all Member States. The Council, as in other areas where the OMC is used, would have a significant role as it drives the agenda by giving its approval of the European guidelines on immigration. These guidelines would be accompanied by timelines indicating the completion of specific targets, and this, above all else, is why there is some requirement of central control through the Commission of policy decisions that are taken through the open method of coordination. The overriding feature of the OMC is that the process will only work if those Member States which are participating are ‘singing from the same hymn sheet’. To this end, these guidelines would then need to be transformed into National Action Plans (NAPs) by setting of specific targets, which take into account national and regional differences. Member States would, as with the EES, be required to prepare multi-annual National Action Plans implementing the guidelines, which will be subsequently reviewed and changed where appropriate on an annual basis. Specific guidance 22 C. de la Porte, ‘Is the Open Method of Coordination Appropriate for Organising

Activities at European Level in Sensitive Policy Areas?’ (2002) 8 European Law Journal 38, 41. 23 COM (2001) 387, 6-12.

227

Barbara Bogusz is provided relating to the content of the NAPs, for example relating to the statistics that are proposed, or the action to be taken whether at a national, regional or local level. These NAPs would then provide the basis for benchmarking indicating results achieved, and suggestions for modifications in the European guidelines reflecting changing needs. It is the creation of National Action Plans designed to address national concerns but within a European context where scope for policy co-ordination is at its greatest. The Commission would collate the information from the NAP’s, identify common problem areas and highlight those issues where European solutions can be found. The Commission Communication suggests a six-year period for the implementation of these common policy objectives and this will correspond with the implementation of the Directive on conditions of entry and residence of third country nationals for the purpose of paid employment and self-employed activities. After this initial period the Commission will evaluate the outcome of this implementation and, if necessary introduce legislative measures to complement the common policy.24 The Commission sees its role as facilitator in the implementation of the OMC as pivotal to the success of the entire process. Not only will it play an active role in supporting and developing the common migration policy, but also the Commission will take a central role in monitoring how effective the policies arising from OMC actually are. Most notably, the Commission stated in the Communication that it would ‘regularly review’ the progress towards a common immigration policy. This suggests that the Commission holds some reservations as to the ability of the OMC to provide immediate or even enduring solutions to immigration issues. Though soft law may be quicker and easier to agree, it may not necessarily be the most appropriate vehicle to achieve a specific objective and so requiring formal legislative measures to be used. To this end, the Commission’s monitoring role is crucial to ensure that not only are Member States adhering to the policy, but that the policy itself is actually working. In effect the Commission admits that while OMC may provide part of the strategy, hard law will, perhaps more often than not, still be needed to ensure its completion. Apart from preparing proposals for European guidelines, the Commission sees its role as central to ensuring co-ordination of national policies, exchange of information, best practice, benchmarking and peer review, and evaluating the impact of Community policy. It will in effect coordinate open dialogue between Member States and stakeholders rather than embroil itself in Member States’ domestic issues. Consultation with those who have an interest in immigration issues appears to be wide and inclusive, whereby the Commission states that it will draw upon expertise in the area including experts from Member States, ‘representatives of social partners and of local and regional authorities, experts on

24 COM (2001) 387, 5.

228

Modes of Governance for an EU Immigration Policy particular topics under review and with other representatives of civil society’.25 The Commission will facilitate the process of promoting dialogue with civil society at the European level, which goes someway in fulfilling its objectives of reaching out to civil society as expounded in the White Paper on Governance, but it is the Member States that are given the responsibility to seek out the relevant parties who would be involved in this dialogue. The Accession States are also included to enable them to familiarise themselves with the policy and methods employed. The regional dimension of this is quite significant as the open method could provide scope for individual regions, facing similar local immigration or border problems, to come together and work out particular solutions for their individual problems. Yet is this open method more democratic and likely to lead to better results? The consultation is both diverse and inclusive but it remains difficult to see where and how the accountability of the process will be achieved. Civil society, particularly in the immigration context, may be criticised for representing sectoral interests which are unrepresentative of the predominantly exclusive policies adopted by the Member States, and arguably favoured by national electorates. The risk with the OMC in immigration policy is that it may give a disproportionate voice to well organised interest groups outside of government who operate towards a narrow agenda. The difference with the EES is that in its case, the objective of increased employment and social cohesion are shared by an overwhelming majority of citizens. The purpose of the EES is viewed as being beneficial and on the whole positive with and its effects tangible for most citizens. It is less clear whether a similar view can be held of immigration policy. At present, EU policy and practice in the area of immigration remains focussed on the issue of threat, and despite some latitude in managed immigration, for economic reasons, remains essentially exclusionary in nature. It is therefore questionable as to whether the OMC will work in a policy area whose objectives are predominantly negative. Furthermore in the employment context the OMC was introduced after the EU had developed an employment policy and the OMC could be considered as adding another dimension to an already functioning policy. In the immigration context, there is by comparison limited evidence that the EU immigration policy has caught up with the pace of development in the employment field and thus utilising OMC before there is further development in hard law may be putting the cart before the horse. It is clear that the Commission intends to play a full part in the implementation of policies developed under the OMC. In this context, as in the case of hard law, the Commission views its position as being not only a pivotal one to co-ordinate EU wide action, but from an operational perspective, the Commission does have a degree of suspicion of Member States acting too independently

25 COM (2001) 387, at p.13.

229

Barbara Bogusz while formulating EU policy and legislation. This provides evidence, if it was needed, that the Commission remains suspicious of alternative decision-making procedures to the Community method. In the White Paper26 the Commission made a robust defence of the Community method and its position as sole initiator, arguing that this maintains the cohesiveness of EU action. Consequently, if the OMC, with its scope for regional cooperation on issues such as immigration, were to prove successful the Commission’s arguments would be undermined. The Commission will in this context continue to develop the legislative programme agreed in Tampere by ensuring that all the relevant proposals are presented by 2004 according to the timetable set out in the Scoreboard. At the same time, as a complement to the establishment of the legislative framework, the Commission will support the implementation of the open method of co-ordination by presenting proposals for European guidelines, ensuring co-ordination of national policies, the exchange of best practice and evaluation of the impact of the Community policy, as well as through regular consultations with third countries concerned. The Amsterdam Treaty set a timescale for the establishment of the ‘area of freedom, security and justice’ which is to be completed by May 2004.27 The Commission has sought to bring the OMC into the area of immigration in order to try and meet this deadline. The first step taken by the Commission was to set up the Scoreboard to monitor progress in this area, including monitoring the implementation of measures that will support the common immigration policy in the four areas identified in Tampere. The Scoreboard is updated every six months and provides a useful guide to activities in this area where measures are to be implemented under Article 63 EC. Though the Scoreboard is a tool utilised in the OMC to monitor Member States’ progress, this development per se does not signal the presence of a coherent application of the OMC in the area of EU immigration policy.

4. THE OMC IN OPERATION – BENCHMARKING AND BEST PRACTICE Benchmarking and best practice are central to the OMC process. Benchmarking facilitates the comparative evaluation of common problems, whereas best practice would be identified through the benchmarking process to determine the ‘best’ solution to a common problem. Benchmarking of immigration policy could be developed either by a top-down approach which would suggest 26 COM (2001) 478. 27 See Article 63 EC. The Council must adopt measures relating to asylum and immi-

gration within five years of the entry into force of the Treaty of Amsterdam. The measures with regard to immigration relate only to: conditions of entry and residence, procedures relating to long term visas and residence permits, illegal immigration, defining rights and conditions of legally resident third country nationals.

230

Modes of Governance for an EU Immigration Policy that there would be a large degree of policy harmonisation, or a bottom-up approach which would suggest alignment with the minimum standards of a Member State and allowing Member States scope to develop their own policy requirements within an overall framework of the policy objective. In simple terms this could be described as Germany having different specific operational policy requirements to Ireland, while both Member States agree on the global objective to reduce illegal immigration and improve internal EU Security. Discourse in the area leans towards benchmarking being used through bottom-up policy making,28 though there is clearly still a need for top-down policy making if the ultimate objective is to be a common immigration policy. Bottom-up policy-making will be most useful where there is a lack of clear common policy objectives and Member States require a degree of flexibility to develop workable immigration policies that suit their individual security requirements. In such instances, Member States would benchmark against each other, with their yardstick for comparative purposes being their perception of the success, or otherwise, of their own policies.29 In the area of immigration such benchmarking could prove to be controversial as Member States may be reticent to admit that their policy is less successful than their neighbours. The benchmarks tend to be decided by national experts in a Committee which has the remit to consider a particular area. These benchmarks then form the formal yardstick which will be used during the course of the evaluative process.30 The annual reports to be produced by the Commission will consolidate the developments made in this field and make suggestions for change where applicable. So far, policy objectives have been identified in the Communication on Immigration and proposed guidelines in this area ought to provide Member States with a focal point from which the benchmarking process can begin. Porte recognises that the benching process can be both quantitative and qualitative. The quantitative benchmarks are set from top-down, whereas the qualitative aspect of the benchmarking process evolves from the exchange of information between Member States, obtaining responses to national and regional issues in relation to the policy objectives which lead to policy development. The end product that the EU is striving for, that is a common immigration policy, will be the result of using a combination of top-down and bottom-up policy making. Part of the remit under the OMC is to strive towards models of best practice which should emanate from the benchmarking process. In this sense best practice would be based upon Member States practical experiences in dealing with particular issues and compared to other Member States which would lead to the 28 C. de la Porte, P. Pochet, and G. Room, ‘Social benchmarking, policy making and

new governance in the EU’ (2001) 11 Journal of European Social Policy 291. 29 C. de la Porte ibid., at p. 299. 30 Above n. 22 at p. 42.

231

Barbara Bogusz ‘best’ solution. Best practice would address the top-down pressure to formulate a common immigration policy and placate the Member States in deriving policy solutions through the bottom-up approach. In this regard ‘everyone is a winner’ as the policy process does not become over prescriptive. This still leaves several questions outstanding, such as, how is best practice identified? Which model should be regarded as the exemplary? Are the best practice models transferable? These questions underscore the difficulty that may arise in determining ‘what is best practice?’ These questions are equally applicable to benchmarking. Further, underlying these questions are issues of whether all the Member States share common immigration problems taking into account that the EU will be enlarged in May 2004. Determining what is ‘best’ is not without problems. All the permutations and combinations of the issue under consideration would have to be considered to determine whether that model would prove to be exemplary. Further, in highlighting the ‘best’ practice the issue of transferability comes to the fore. There are significantly different regional dimensions and diversity in the systems in operation which could perhaps hinder the application and appropriateness of the exemplary model. The ultimate decision would no doubt rest with the Commission and Council who will have the task of reviewing the NAPs, provide comments and recommendations, and where applicable new benchmarks would be created. Though there is in no doubt that political consensus amongst the Member States would need to be established in the qualitative evaluation of the benchmarking process, this may prove to be less than straightforward. The process of engaging with the benchmarking process and seeking to find an exemplary model is largely dependent upon the cooperation between and amongst Member States. The OMC does not provide for prescribed sanctions for those Member States who do not adhere to the process. This experiential learning process is only effective if all Member States are actively participating and cooperating with the process. The only means of ensuring the Member States continue to engage in the peer learning process is to engage in ‘soft’ sanctions such as ‘naming and shaming’ and draw attention to the policy shaping dimension of the exercise.31 Member States need to be convinced that not only will the OMC process work, but that it will actually produce tangible results.

5.

DATA COLLECTION AND STATISTICAL INFORMATION

As a part of the process in facilitating the exchange of information, best practice and the evaluation of the migration movement it is evident that statistics should be available for comparative analysis. Currently, Member States collate 31 J. Mosher, and D. Trubek, ‘Alternative Approaches to Governance in the EU: EU

Social Policy and the European Employment Strategy’ (2003) 41 Journal of Common Market Studies 63, 70.

232

Modes of Governance for an EU Immigration Policy statistics according to different definitions, terminology and coverage. The Commission in its ‘Action Plan for the collection and analysis of Community statistics’ recognises the void in this area and is somewhat scathing of the current approach noting that Community statistical collections and outputs are based on ‘gentleman’s agreements’.32 This is clearly not a sufficient basis for providing information at the Community level.33 It is therefore important that if the open method techniques of monitoring, such as benchmarking or scoreboards are to be useful, there is a clear imperative that joint statistical procedures and systems be worked out to facilitate assessment. Otherwise it is very difficult to make effective comparisons. With this regard the Commission recognises the importance attached to improving the quality of statistical information as paramount but also has due regard to the objectives set out in the Council Conclusions adopted 28-29th May 2001. The Council Conclusions May 2001 identify three key principles for improving Community statistics namely: transparency, confidentiality and sensitivity. Specific guidelines are provided to ensure the individuals are not identifiable from the data and due regard is given to the sensitivity of the data. With these overriding principles the Council Conclusions provide for five objectives to for the improved exchange of information on asylum and immigration. First, to promote greater and wider discourse in this area the Council suggests an annual public report on the issues relating to asylum and immigration. These would include data on: illegal immigration; asylum; migration data including data from Accession States and statistical trends and indicators. Second, rules and methods relating to confidentiality of data will be modified to prevent individuals from being identified from the statistics. Third, statistics would be available on a monthly basis using electronic dissemination to provide a quick exchange of information between authorities providing the statistics and the Commission. Fourth, regular consultations and exchange of information between the providers of the statistical information and the Commission through secure internet websites will endeavour to promote discussion and provide information. This will no doubt facilitate improved knowledge sharing and enhance the quality of the statistical output. Fifth, efficiency and the comparability of data are important and provision must be made to enhance coordination and cooperation between the statistical providers and the Commission, and other relevant actors. The scope of the data collection with regard to existing asylum and illegal entry, according to the Commission, will not be altered at present but delayed until after the implementation of the Community legislation as required by the Treaty. Though with legal migration, the Commission has actively taken steps 32 COM (2003) 179, 2. 33 See Mitsilegas in this volume.

233

Barbara Bogusz to deal with the disparities evident in definitions and data collection by commissioning a study on the availability of data on legal entry and third country nationals in Member States. Further, the Commission in its Action Plan includes proposals for the content of data collection in this area. It is apparent from the Commission’s Action Plan that considerable work needs to be done in the area of monitoring. In a form of decision-making where there is a lack of any effective judicial sanction then the other means available, such as monitoring, must be both effective and efficient. Central to this is the uniformity of definitions and data collation at the Community level which must be devised to ensure comparability and that action can be taken quickly against Member States that fail to act. Much work remains to be done on this and this lack of effective evaluation remain a weakness of the OMC in the area of immigration policy.

6. HOW WILL THE OMC CONTRIBUTE IN DEVELOPING AN EU IMMIGRATION POLICY? The OMC is being used to achieve convergence in policy areas where political consensus may not be so easily obtained, for example, social policy. The Commission has put forward proposals to extend the principles of the OMC to immigration with the intention that informal cooperation between Member States may initially lead to some degree of convergence in policy and practice before a common immigration policy can be agreed. The push towards convergence of national immigration policies is perhaps more evident today than when ‘soft’ techniques were initially considered in the mid 1990’s in developing employment policies. At that stage it was more an instrument to manage social policy pluralism rather than promoting convergence.34 The purpose of the OMC in other areas has predominantly been on peer learning rather than the creation of a common policy. The Commission believes that the OMC ‘will support and complement the Community legislation called for in the Treaty and will provide a framework for reviewing with the Member States the implementation of these legal instruments’.35 In this regard the role of the OMC in immigration is a complementary form of governance and it is somewhat different from the classic model found in employment, social policy, pensions and education. This is an important point to note about the open method, it is not perceived as a method of regulation which will replace hard law which many Member States feel is an 34 E. Szyszczak, “The Evolving European Employment Strategy” in J. Shaw (ed.),

Social Law and Policy in an Evolving European Union, London (Oxford: Hart, 2000) 213. Szyszczak highlights the significant inroads the open method of coordination has had in the area of social policy, see also E. Szyszczak, ‘The new paradigm for social policy: a virtuous circle?’ (2001) 38 Common Market Law Review 1125. 35 COM (2001) 387, 6.

234

Modes of Governance for an EU Immigration Policy integral part in the fight against organised crime that is associated with immigration. The open method is part of a process in developing the Community immigration policy. It will complement hard law and facilitate the refinement of Community outcomes in addressing the policy objectives. In this sense the OMC provides sufficient scope for taking into account the divergent arrangements that currently exist in this policy area amongst Member States, while seeking to find a common solution. As a complementary form of regulation, the open method diverts political pressures on policy formation through the Community method to more focused compartmentalised and de-sensitised areas. This form of complementary governance and regulation furthers the integration process through by-passing the existing institutional structures.36 The experiential learning continuum evident from the OMC process begs the question of whether this is a panacea for speeding up the decision-making process in this sensitive area. In this respect it is perceived as an alternative mode for decision-making and governance.37 The Commission suggests that the coordinated immigration policy is attainable through cooperation coordinated by the Commission, exchange of information with civil society and those involved in the integration of migrants, and by the periodic reporting of outcomes relating to the policy determined by the Council.38 The reason for adopting such an approach could be a consequence of the relative success the OMC has had in other policy areas such as monetary union and employment. This ‘soft’ form of governance was chosen as a means of achieving common objectives under the EES through discourse thus being able to take into account different legal and institutional structures.39 It is clear that the Commission views the OMC as the most appropriate means of obtaining the Community strategy of a common EU immigration policy, and is endorsed by the Communication on the ‘Open method of coordination for the Community Immigration Policy’.40 However the OMC remains without a formal legal base in the area of asylum and immigration. Hodson and Maher’s argument of creeping competences has been noted above and this reinforces the notion that presently the OMC lacks democratic legitimacy in the immigration policy area.41 This must be addressed, ideally through the inclusion of a formal Treaty base, 36 Hodson and Maher, above n.3, at p. 722. 37 de la Porte, above n. 22, at p. 39. See also the Commission’s Report on Governance,

COM (2002) 705. 38 COM (2000) 757, 21. 39 D. Trubek and J. Mosher, ‘Alternative Approaches to Governance in the EU: EU

Social Policy and the European Employment Strategy’ (2001) Journal of Common Market Studies 63. 40 COM (2001) 387. 41 Hodson and Maher, above n. 3.

235

Barbara Bogusz otherwise the foundations for future development of the OMC in the area of asylum and immigration will be weak. The Commission acknowledges in its Communication on an Open Method of Coordination for the Community Immigration Policy that Member States continue to retain competence in a number of areas such as admission of economic migrants, the development and implementation of an integration policy. Furthermore, as these issues are sensitive and extensive in their nature, they also affect civil society discourse, which the Commission sees as being crucial if the OMC is to be successful, not just in immigration but also generally in other policy areas.42 This Communication also encompasses the wider objective the Commission set itself in its White Paper on Governance of promoting greater involvement with civil society as a means of addressing the perceived feeling of isolation felt by many citizens in the EU.43 The inclusion of civil society allows for a wide range of actors to have a voice in the networking process. In the context of a developing EU immigration policy, increasing the dialogue with civil society brings to the fore the issue of the need for adequate human rights protection of all migrants. Civil society organisations have the unique potential to provide a distinct human rights dimension to the discourse and represent the interest of those persons who do not have a direct voice in to the making of decisions which will ultimately affect their human rights.44 It is clear from the Commission’s Communication that fostering partnership on a horizontal level is paramount in addressing the objectives set out. There is still the outstanding question of whether citizens will feel less isolated if the civil society with which the Commission engages does not necessarily represent their views on immigration matters? The economic dimension and the need to fill labour market shortages and skills gaps are also prevalent in the Communications produced by the Commission. The opportunity that the open method presents will facilitate, according to the Commission, the creation of horizontal assessment programmes. This will enable Member States to engage with the social partners and civil society on economic and labour market issues under Title VIII Employment. The open method is therefore envisaged, in part at least, as a mechanism through which labour market flexibility may be achieved by permitting legal economic migration in those Member States where there is a skills gap or shortages in the workforce. The experiences of the Member States in admitting economic migrants, 42 COM(2000) 757, 5. See also Commission’s Report on Governance, ibid. 43 For a critique of the Commission’s paper on Governance see, A. Cygan, ‘The White

Paper on European Governance: Have Glasnost and Perestroika Finally Arrived to the EU?’ (2002) 65 Modern Law Review 299. On the concept of European civil society see K. Armstrong, ‘Rediscovering Civil Society: The European Union and the White Paper on Governance’ (2002) 8 European Law Journal 102. 44 See Tonelli and Redpath in this collection.

236

Modes of Governance for an EU Immigration Policy housing them and their abilities to meet the employment requirements of the Member States will be important information which will prove useful to other Member States who wish to so open their borders.

7.

CONCLUSIONS

The open method has provided an additional mechanism to the development of an effective EU immigration policy. Significantly, the use of the open method in employment policy and strategy has provided a convenient connection with one of the major issues in immigration discourse, that of addressing the issues of labour market shortages in many EU Member States. There is undoubtedly scope that through the open method, Member States or even regions, may be able to address simultaneously both employment shortages and economic migration. The open method is available to Member States who need economic migrants in order to fulfil the objectives of the Lisbon strategy. The Lisbon strategy requires that Member States pool resources and share experiences and knowledge. It is a tacit admission that hard law does not always work.

237

This page intentionally left blank

Adam Cygan

EUROPEAN UNION IMMIGRATION POLICY AFTER ENLARGEMENT – BUILDING THE NEW EUROPE OR THE NEW IRON CURTAIN?

Our attitude to enlargement is the mirror we must hold up to ourselves. Can we rest content with having achieved peace, stability and prosperity only for ourselves, the 15 Member States? I think not. The question therefore is: do we have the courage, the vision and the ambition to offer a genuine prospect of peace, stability and prosperity to an enlarged Union and, beyond, to the wider Europe?1

1.

INTRODUCTION

The above statement of Romano Prodi creates the impression that the objectives of enlargement to the East are to create an inclusive, prosperous and democratic EU and continent of Europe. The goal of the politicians is for the post enlargement Europe to become one geopolitical entity. The issue which this essay seeks to address is whether enlargement will create a unified Europe or a division between those states which are members of the EU and those European countries which sit on the borders of the expanded Union, for example the Ukraine. The central question which eastward enlargement raises is how the free movement of persons will be regulated vis-à-vis the Accession States. In this context there appears to be a twofold problem. Firstly, with regard to internal EU borders, the Accession States will not immediately come within the Schengen regime. Fears by several of the Member States of the EU 15 that illegal immigrants, already within the Accession States, would seek to move across the newly opened internal borders, is the primary reason for the postponement of the extension of the Schengen acquis. As the removal of internal border controls 1

Extract from the investiture speech of Romano Prodi before the European Parliament, Strasbourg, 14 September 1999.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 239-256 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Adam Cygan does not coincide with the date of enlargement2 but will occur on a yet to be agreed date through unanimity in the Council, there is undoubtedly a high risk that following enlargement, the EU will be partitioned in to two distinct sectors – one with free movement of persons and the other without. This problem of excluding the Accession States from Schengen for the medium to long term is further compounded by the effect that this will inevitably have on the relationship of the Accession States with their eastern neighbours. During this initial transitional period, the new member states must demonstrate that they are fully capable of handling the requirements of Schengen. For a country such as Poland this will essentially mean the sealing of its eastern border and the regularising of hitherto informal economic3 and social relations which exist between these two historically close countries. This is problematic because on both sides of the borderland areas there has, since the late 1980’s, grown up an informal (albeit often criminally based) economy which has flourished in recent years.4 Taken together with movement for the purposes of family contact,5 the Polish/Ukraine border demonstrates the benefits of free movement brought by European re-unification in the post communist era. The fundamental question which relates to eastward expansion of the EU is where, politically and geographically does inclusion end and exclusion begin? It would be an irony if EU membership were to signal a return to the restriction on movement which was a hall mark of the communist era. One effect of eastward enlargement is to link the geography of the EU’s new external borders with the prevailing question of managing immigration flows. Here lies the challenge for the EU. While imposing the Schengen requirements on the new Member States, it is important that disruption of cross border movement and interaction between peoples on both sides of the border is kept to a minimum. The spill over effects which enlargement will have on countries across the EU’s new eastern border cannot be understated. Countries such as Belorus and the Ukraine have questionable human rights records and poor economic growth. By sealing the border the EU will alienate such countries from the benefits and rights which EU membership is likely to bring to the new members. 2 3

4

5

1 May 2004. The value of small-scale cross-border trade was estimated at 700 million euro in 2002. See J. Batt, “ Managing the EU’s New External Border” in A. Arnull and D. Wincott, (eds), Accountability and Legitimacy in the EU (Oxford: OUP, 2002). See the report in the Financial Times, ‘Nations feel pinch as Poland tightens borders’ 30 September 2003, 10. This provides further anecdotal evidence of the effect that border closure will have on border activity. One issue raised by this is whether there is a human right of free movement in situations such as family reunification? If such a human right were to exist, the question this raise is whether it should be considered as supreme over EU free movement provisions? This is an issue which is explored further by Kostakopolou in this Volume.

240

European Union Immigration Policy after Enlargement Closed borders make it difficult for the EU to export its principles and objectives to neighbouring countries where the EU needs both political and economic stability and undermines the EU’s ‘neighbourhood’ policy. Post accession it is likely that borderlands, such as that between Poland/ Ukraine, will become magnets for illegal immigrants seeking to enter the EU. Consequently this is likely to lead to tougher EU policies which are more exclusionary. To combat illegal immigration, effective and co-ordinated policies are required on both sides of the border, including the exchange of information and co-operation on issues such as repatriation of illegal immigrants. It is questionable whether this can be achieved in circumstances where those countries on the borders of the EU are being asked to adopt EU standards with regard to border management and formalise movement which hitherto was largely unregulated, but yet have a limited role in the formulation of such policies. This appears to be the price which the EU will pay within the context of pursuing an efficient immigration policy founded on the Schengen acquis.

2. THE EU’S EASTERN BOUNDARY AFTER ENLARGEMENT – A BORDER OR A FRONTIER? From May 1st 2004, Poland’s boundary with the Ukraine will become the EU’s eastern external border. This movement will pose new challenges for the long term. Very soon after the collapse of the Berlin Wall the discourse within the EU began to focus on enlargement to the East with Poland being an obvious candidate for first wave accession. In this context, economic and immigration policies were more favourable, for example with the removal of visas for Polish nationals to enter the majority of EU states. With regard to the Ukraine, there is no equivalent enthusiasm for expansion further east creating the situation that this eastern boundary will undoubtedly be subject to far tighter control than, for example, the pre-accession German/Polish or German/Czech borders. What nomenclature should be attributed to this new EU Eastern boundary? The EU’s developing immigration policy has until now been centred on the prevention, restriction and management of migration and refugee flows. Instruments such as external border controls, visa obligations and bilateral readmission agreements play a key role. Recent discussions on the need for change disappoint by their slowness and conservatism. Member States who are required to police these external borders often spend disproportionate amounts of resources patrolling borders which despite their best efforts remain porous. Poland is highly likely to find itself in this very position even after it fully implements the Schengen acquis. Furthermore, in the Polish case there is the added issue of maintaining good relations with its eastern neighbours, such as the Ukraine, while ensuring that the Schengen requirements are met. The solution Poland and the EU reached in the course of the accession negotiations was arguably one which merely allowed the formal conclusion of the negotiations 241

Adam Cygan within the deadline. The result has proved to be far from satisfactory from a Polish perspective. The solution arrived at may, very soon after accession, reach its limits and generate deleterious effects before a sound and more pragmatic approach is found. The Polish-Ukrainian situation is a clear example suggesting the need for a more far-sighted vision that ventures beyond the EU’s eastern external boundary. The alignment of Poland’s visa policy with that of the EU will require the introduction of visas by Poland with respect to the nationals of 15 countries who up until May 1st 2004 would not require a visa to enter Poland.6 This number includes the Ukraine. The Polish political class, which has placed its credibility on the line with regard to meeting the accession deadline, has accepted the visa regime with Ukraine with reluctance, fearing that it will strongly affect good neighbourhood relations, hamper cross border co-operation and isolate the sizable Polish minority in Ukraine (circa 300-400,000 people). Similarly, in a recent survey, Polish public opinion (59% of those asked) believed that the introduction of visas would have negative effects for Eastern neighbours.7 After the introduction of visas by Poland for all 15 countries, it has been estimated that the number of visas issued will grow from the present level of 230,000 annually to 3.5 million.8 Yet so far appropriate decisions and a comprehensive information campaign on a visa policy are lacking. In particular, a substantial development of Polish consular services will be needed. Due to financial constraints, only three new offices in Ukraine are planned, which would bring the total to six consulates. In the light of these administrative deficiencies, the Polish authorities themselves expect up to 40% decrease to the 10 million people that annually cross the border between Poland and Ukraine.9 With the emphasis that the enlargement process has placed on border security and control of illegal immigration it is difficult not to conclude that ‘fortress Europe’ is alive and well. In the case of Poland, the post accession eastern boundary, which was previously a frontier, through which free movement was presumed, will become a closed border signalling a new era of restricted access to not only Poland but also the EU. This response raises the question: is this an over reaction? Is the fundamental right of free movement beanbag sacrificed to pursue a policy of security? The failure by the EU to accept the arguments

6 7 8

9

This includes Ukraine, Moldova, Russia. Statistics produced by the Polish Ministry for Justice and the Interior. Available at: http://www.mswia.gov.pl/index1_s.html. See K. Kolczuk, and I. Piorko, Beyond the External Border: JHA in the Context of Relations Between Poland, Ukraine and the EU, Challenge Europe, 5 October 2001. Available at: http://www.theepc.net/challenge/topdetail.asp?SEC=documents&SUB SEC=issue&REFID=561. Ibid.

242

European Union Immigration Policy after Enlargement of Poland and other Accession States suggest that the answer to this question is ‘yes’. Yet the policy does not guarantee success. A closed border will only be effectively sealed if there is cooperation from both sides which will require a partnership and shared objectives on a multiple of levels including, police, border guards and judiciary.10 In the light of such challenges it is questionable whether a closed border policy is actually a workable reality for the EU. Tackling the problems of organised crime and people trafficking require a partnership with neighbouring countries, which offers incentives to cooperate11 rather than a policy based upon closed borders, restriction and sanction. This issue is examined further detail in this volume by Bonner.

3. THE IMPACT OF THE SCHENGEN REGIME ON CENTRAL AND EASTERN EUROPE – CAUGHT BETWEEN A ROCK AND A HARD PLACE? To date, the development of the EU and Schengen border regime which seeks to manage the EU’s external borders has been directed by two specific imperatives. Firstly, the completion of the Internal Market programme was dependent upon the removal of internal borders to facilitate free movement.12 Secondly, in reacting to the developments of the early 1990’s and the break up of the Soviet Union, Member States were increasingly alarmed at what they perceived to be the prospect of an un-abating tide of economic migrants, asylum seekers and trans-national crime which was crossing the newly opened borders. Therefore at this stage of EU development, border and immigration policy was based on the notion that a specific threat existed from the eastern neighbours to the efficient functioning of the Internal Market, thus leading to the concept of the ‘Fortress Europe’. Through utilising the Schengen provisions, and the genesis of a development of a hitherto lacking co-ordinated EU policy on immigration and border management, the EU responded to this perceived threat. The emphasis was securitisation through reinforcing external borders, visual deterrence and strict visa entry regimes. While the EU viewed the political developments in Central and Eastern Europe positively, economic policies remained introspective, focussing on the completion of the Internal Market programme and reacting to the perceived threat of economic migrants coming from the EU’s eastern neighbours. To counter this threat the EU utilised immigration policy and border management, where relevant, as a tool to restrict and ultimately deter a flood of cheap labour, which was viewed as destabilising the efficiency of the 10 One example where such cooperation is undoubtedly required will be to address

problems of organised crime and in particular, the trafficking of people. See the discussion by Piotrowicz in this volume. 11 For example through financial assistance or the waiver of visa requirements for travel for short periods. 12 This was completed within the EU on 31 December 1992.

243

Adam Cygan Internal Market.13 Since the early 1990’s EU immigration policy has developed significantly as evidenced by the changes introduced by the Amsterdam Treaty. This has been mirrored by changes within Central and Eastern Europe. Developing economic prosperity in Poland, the Czech Republic and Hungary in the mid to late 1990’s together with the increased pace towards enlargement were undoubtedly factors which meant that the feared mass economic migration did not occur. It is also fair to conclude that the securitisation of EU immigration policy had an impact upon movement and that ‘Fortress Europe’ had some success. Within the context of enlargement, such a policy was not sustainable, and for first wave applicants a more appropriate, if not relaxed, policy needed to be adopted, while simultaneously introducing these States to the formal requirements of border management which Schengen demands.14 This latter point would lead to change in the status of the relationship which Accession States had with their eastern neighbours who were outside the enlargement process. One specific impact upon all Accession States is that, unlike the existing EU 15 who have adopted an a la carte approach to Schengen,15 they will be required to adopt all the Schengen commitments ‘in full’ whatever the nature of their prior border arrangements with neighbouring countries. This suggests that the threat perception, though perhaps having changed, or now just being understood differently, is still a basis for EU border policy ten years on. The impermeable border is the objective for the EU, and when Accession States cease to provide a ‘buffer’ to the east against illegal immigration, which is evident through border policies and readmission agreements for illegal migrants,16 they will be required to provide security for the EU.17 What is the ultimate effect of the EU insisting on such a restrictive border policy? Does it create a new Iron Curtain from the Baltic to the Adriatic?18 The 13 The context of this policy in the early 1990’s was one of post German re-unification,

high unemployment and low economic growth. 14 To achieve this objective the EU developed financial, technical and expertise assis-

tance strategies such as the Phare and Twinning Programmes. 15 For example, the United Kingdom and Ireland have secured ‘opt outs’ to participa-

tion in Schengen through the inclusion of a Protocol in the Amsterdam Treaty. 16 The Tampere Council concluded that readmission arrangements would be a central

part of EU immigration policy and that the EU would encourage and work with transit countries on its borders to ensure that they would put in to place similar readmission arrangements. See Tampere conclusions at points 26 and 27, available at http: //www.europarl.eu.int/summits/tam_en.htm#a. 17 See D. Bigo, Border Regimes and Security in an Enlarged European Community – Police co-operation with CEEC’s: Between Trust and Obligation, Working Paper Series 2000/65, EUI Robert Schuman Centre, Florence. 18 Winston Churchill stated in 1946 in reaction to the Soviet Union’s domination of

244

European Union Immigration Policy after Enlargement replacement of what have hitherto been open frontiers through which economic, social and cultural activities took place, with a secure border has the potential to result in the creation of new dividing lines that could marginalise countries such as the Ukraine.19 If post accession, the threat of migration from the east is viewed by the EU as continuing, or even increasing, then the removal of controls on individuals within an enlarged Schengen area could be held up. The EU 15 made it clear in the accession negotiations that the new Member States would only be incorporated fully in to Schengen once they can demonstrate that they have secured totally what will then become the EU’s eastern border. The effect of this delay is that it will undoubtedly undermine the cohesion20 and free movement21 principles of the EU. The result of this is the likely creation of a two tier operation for the free movement of persons, with those citizens who are from the current EU 15 having greater rights of movement that those from the Accession States. The incorporation of Schengen by the Accession States will take place in two phases.22 In the first instance countries such as Poland will be required to secure their external frontiers and to implement fully all aspects of Schengen which are not directly linked to the removal of internal border controls.23 This is a non-negotiable pre-requisite of accession. The implementation of the remain-

19

20 21 22

23

Central and Eastern Europe that ‘From Stettin in the Baltic to Trieste in the Adriatic, an iron curtain has descended across the Continent. Behind that line lie all the capitals of the ancient states of Central and Eastern Europe. Warsaw, Berlin, Prague, Vienna, Budapest, Belgrade, Bucharest and Sofia, all these famous cities and the populations around them lie in what I must call the Soviet sphere, and all are subject in one form or another, not only to Soviet influence but to a very high and, in many cases, increasing measure of control from Moscow.’ A further dimension of this new physical border to the East and the South is the cultural border which it will create, reinforcing the notion that those cultures outside of western Europe are in some way considered a threat to prosperity and stability in the EU. For further discussion of this cultural dimension see G. Voruba, ‘The Enlargement Crisis of the European Union: Limits to the Dialectics of Integration and Expansion’ (2003) 13 Journal of European Social Policy 35, 52. Article 2 EC. Articles 3 and 39 EC. This was agreed by all parties at the conclusion of the negotiations. See the Report on the results of the negotiations on the accession of Cyprus, Malta, Hungary, Poland, the Slovak Republic, Latvia, Estonia, Lithuania, the Czech Republic and Slovenia to the European Union, 50. Available at http://www.europa.eu.int/comm/enlargement/ negotiations/pdf/negotiations_report_to_ep.pdf. Poland formally implemented visa requirements for visitors from the Ukraine, Belorus and Russia on the October 1st 2003. While visas for Ukrainians and Russians living in the Kalingrad enclave are free of charge, citizens from Belorus will pay a 10 USD charge. See also n. 37 below.

245

Adam Cygan ing requirements of Schengen, which includes the provisions on the crossing of the EU internal borders and the issuing of Schengen visas, constitutes the requirements of the second phase.24 This second phase will only be concluded following a separate unanimous decision of the Council, which will only occur if the Council is completely satisfied that all the new Member States have fulfilled the necessary conditions. Politically this could prove to be controversial with the requirement of unanimity creating the potential for any Member State to delay the enlargement of the Schengen area.25 In the intervening period between accession and the Council voting to remove internal border controls, the uncertainty of how government’s will vote, the unpopularity of the continuing controls26 and the securitisation of the EU’s eastern border could affect adversely public opinion with regard to the EU in the Accession States. Their perception will, with some justification, be one that they are second class EU citizens with restricted rights of free movement both to the west and to the east. The lifting of border controls between the EU 15 and the Accession States, as well as between the Accession States themselves, will therefore not coincide with the candidates’ accession to the EU. EU membership is a precondition for starting the Schengen evaluation process, but this in itself if likely to be a lengthy exercise and will require several years of monitoring. Furthermore, technical obstacles exist are likely to exacerbate the implementation and monitoring process. One specific case in point will be the adaptation and renewal of the Schengen Information System (SIS), which prior to accession only has places for seventeen countries.27 The Commission expects a revised and expanded SIS to be operational by January 2006,28 meaning that subject to any further delays, 24 The full list of third countries which require visas for entry in to the EU can be found

25

26 27 28

in Council Regulation 539/2001 EC of 15 March 2001 listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, OJ 2001 L81/1. It is possible to tentatively suggest that both Germany and Austria may have misgivings about this given their stance in extending the provisions of Article 39 EC to Accession State nationals from the date of enlargement. For example on the Polish/German border. Fifteen of which are currently in use and the two remaining places are reserved for the UK and Ireland. Commissioner Vitorino who is responsible for JHA stated in February 2003 that: “Full implementation of the Schengen provisions immediately upon accession is not possible for technical and operational reasons”. A functioning Schengen Information System is a key precondition, and the new version to technically link the new member states will not be operational until, the end of 2005. So “it is not possible to take any decision concerning the lifting of internal border controls before that time”. “In addition”, said the Commissioner, “the Schengen evaluation process itself will take some time”. The statement is available at: http://europa.eu.int/comm/enlargement/ docs/newsletter/weekly040203.htm#D.

246

European Union Immigration Policy after Enlargement the full free movement provisions will become operative within a year, a full two years after accession. As already suggested, in addition to the problems relating to removal of internal borders, the new Member States will be faced with the problems which come with policing the EU’s external borders. The Schengen countries delegate their competence to control their own internal borders to those member states which share a border with a third country. This requires that all Schengen countries adopt uniform principles,29 and in the case of a country such as Poland, it will be required to adopt these principles even before it is fully admitted to Schengen.30 This is because first, it must demonstrate a capacity to fulfil the requirements which Schengen imposes on member states that are situated on the EU’s external borders. For Poland, coming to terms with these new requirements will be both physically and politically difficult. As with all candidate countries it will bare a significant part of the financial responsibility to improve security, but will also have to address the internal political and social problems which arise with this new securitisation. In Poland, the government will not, initially at least, be able to even hold up the carrot, that despite the cost of hardening its eastern border, it citizens have gained freer access to the rest of the EU. Conversely, for the EU 15 and particularly for countries such as Germany and Austria, enlargement will not dispense with the perceived ‘buffer zone’ which applicants States have become known as, nor will enlargement lead to immediate removal of internal frontiers for the applicants States. For Germany and Austria, from a security perspective at least, these Member States are in a win/win situation. In the light of this it is possible to tentatively conclude that the implementation of the Schengen requirements is likely to lead to the creation of a two-tier EU,31 one in which free movement is guaranteed for the existing EU 15 and one in which the new Member States have limited rights of free movement because of the EU’s emphasis upon security. Furthermore, within the context of the EU’s immediate eastern neighbours, the prospect of increased border control creates images of not only a fortress EU but also a divided continent that reinforces a sense of exclusion, and which Romano Prodi, as evidenced through the quote at the start of this essay, clearly wanted to avoid.32 29 E. Morawska, Transnational Migrations in the Enlarged European Union: a perspec-

tive from East Central Europe, Working Papers Series 2000/19 EUI Robert Schuman Centre, Florence. 30 The Polish government has spent about 85 million euro in EU aid since 1997 on improving the country’s border security. 31 At least for the first two years post accession. 32 This was an observation made by the Ukrainian Foreign Minister, Kostyantyn Gryschenko. He stated that enlargement and the EU’s polices associated with it, an in particular with regard to immigration and border control, will lead to the creation

247

Adam Cygan

4.

REGULATING THE NEW EASTERN BORDER

The new eastern border undoubtedly poses many challenges for the EU. From a security perspective physical and geographical characteristics, together with limited financial and human resources, will hamper the policing of the border. If the EU policy is to be successful it is crucial that there is formal cooperation and partnership with the neighbouring states. The creation of a hard Schengen border arguably undermines cooperation with the neighbouring states, not least in terms of decreased economic cooperation and a perceived sense of isolation that will be felt by minorities on either side of the border which are separated from their ethnic communities.33 Notwithstanding that, though the countries of Central and Eastern Europe have long been enthusiastic about EU membership, they still wish to retain good relations with their neighbours. Both Poland and Hungary have decided to postpone the implementation of the part of the Schengen acquis that relates to the crossing of external frontiers and visa requirements until May 1 2004. Given their geographic situation and their large ethnic minorities living in the neighbouring states,34 it is somewhat surprising that neither Applicant State formally contested these requirements in the course of the negotiation process. If the objectives of Schengen are considered more closely, it is immediately apparent why this was the case. Taken as a package Schengen ultimately proposes the free movement of persons within an enlarged EU, but removes the possibility of, under any circumstances, granting regional or local exceptions to the common entry requirements. Ultimately for the Accession States, the Schengen acquis was offered on the same ‘take it or leave it’ terms as the remainder of the EU acquis. There were to be no ‘opt outs’ or ‘opt ins’ and no room for flexibility. Furthermore in the course of the negotiations the Commission rejected a more flexible approach to visas for ethnic minorities on the grounds that this undermined the principle of non-discrimination. Despite this, it is arguable that in the short term at least, more flexible and special visa arrangements are needed to offset the most negative consequences. In particular, both Poland and Ukraine have spoken in favour of arrangements to facilitate small trans-border movements, modelled on the existing Polish-German example. Such a flexible regime would also have the important advantage of having a placating effect on Western Ukraine, which is not only economically dependent on uninterrupted ties with Poland, but is also likely to be most aggravated in political terms by being cut off from ‘Europe’. of a Fortress Europe which will inhibit human rights and economic reform in the Ukraine. See the Financial Times, 2 October 2003, 7. 33 Contrast this with the EU’s family reunification policy. 34 Poland has a large Polish speaking minority in both the Ukraine and Belorus and Hungary has a large ethnic population in Serbia and Montenegro.

248

European Union Immigration Policy after Enlargement EU enlargement presents the Ukraine with vexed choices. On the one hand, the fact that its border with Russia is open and unguarded eliminates any prospects for taking the Ukraine off the EU ‘black list’ and the liberalisation of the future Ukraine-EU border regime. On the other hand, tightening the border between the Ukraine and Russia would have implications for economic relations as well as the close cultural and family ties between the two countries. This would clarify Ukraine’s geopolitical orientation, as at present the desire to keep two borders open is representation of Ukraine’s ‘multi-vectored’ foreign policy strategy: ‘pro-European’ but without jeopardising special relations with the Russian Federation. The tightening of the Ukrainian-Russian border appears the only viable strategy for the Ukraine in the long term, however politically sensitive this may be, if the Ukraine wishes to have closer relations with the EU. The delineation of the Ukrainian-Russian border was broadly completed by the end of 2001. The border remains ‘porous’ even though Ukraine in May 2001 tightened its border-crossing regime. Since then all the citizens of any CIS state need valid foreign passports to enter Ukraine,35 excluding Russia and Belarus. Admittedly, Ukraine has drastically reduced the number of visas issued to citizens of the countries regarded as potential sources of illegal migrants. Yet, despite these measures, thousands of illegal migrants who enter Ukraine from Russia remain on its territory. This is because there are no re-admission agreements between Ukraine and Russia nor between Ukraine and the countries of origin or transit of migrants, such as Afghanistan, Sri Lanka and Bangladesh. In this context, as far as the EU s concerned, Ukraine has become both a magnet for migrants and a transit country for illegal immigrants wishing to enter the EU. It has been common practice to lift visa requirements in exchange for the signing of a re-admission agreement.36 Poland has followed a similar line in relations with its Eastern neighbours. Due to Moscow’s refusal to accept such an agreement, since the end of 1997, Russian citizens have been subjected to much more stringent entry criteria than Ukrainians, for example those entering from the Kalingrad enclave.37 On the basis of the re-admission agreement between 35 Up to this date any ID documentation was sufficient leaving greater scope for organ-

ised crime and illegal immigration to move across the border. 36 The Commission produced a Green Paper on a Community Return Policy for Illegal

Residents. The objective is to have a uniform policy to ensure consistency of approach to dealing with the problem that some Member States are seen as a first choice for illegal immigrants because of the lack of any re-admission arrangements. Such a policy is essential for the Schengen regime to operate effectively. See COM(2002) 175 final. 37 The resolution of the Kalingrad problem remains on the agenda for the EU and Russia. At the EU – Russia summit in October 2001 a joint statement was issue in which both parties pledged to develop a border strategy and to fight illegal immigra-

249

Adam Cygan Poland and Ukraine, in 2002, 3,600 people, including many African and Asian migrants, were sent back to Ukraine (compared to 2300 foreigners returned to Poland from Germany).38 Even though the streamlining of border traffic through the current visa-free regime between Poland and Ukraine has led to a substantial (51%) decrease in re-admissions from Germany to Poland, it is not considered an alternative to the visa regime. Thus, when Poland imposes the visa obligation from May 2004, Ukraine may be tempted to renounce the re-admission agreement. It is no longer in its interest to abide by it. A precedent for such a move has already occurred in the Slovak-Ukrainian relations. In preparation for EU membership, Slovakia re-introduced the visa requirement for Ukrainian citizens in June 2000, something which prompted the Ukraine government to consider renouncing the re-admission agreement. Ukraine gave up the idea only after the initially strict visa regime had been softened by Slovakia in April 2001. The EU needs to find a balance between the need to ensure effective border and internal security with the external relations dimension of enlargement. It is questionable whether the EU has, in the rush to conclude the accession negotiations to schedule, not considered fully the consequences of enforcing a restrictive border and visa regime on its neighbours and therefore ignored the objectives which Roman Prodi spelt out above. It is arguable that the eastern border will be over regulated, much of the movement that has taken place before enlargement has involved, family visits, short-term tourist workers and income seeking migrants who can be described as ‘circular’, suggesting they return to their country of origin once their period of employment is concluded. There is little evidence this will change dramatically after enlargement leading to the inevitable questioning of whether EU policy, which places exclusion and before partnership and cooperation, is an overreaction?

5.

CREATING A “EUROPEAN NEIGHBOURHOOD”

Rather belatedly there has been some acknowledgement within the EU that enlargement will disturb the equilibrium and relative stability that Europe has had over the last ten years. The EU has recognised that enlargement will create some new dimensions to existing regional and political problems as well as providing some solutions to pre accession issues – immigration is undoubtedly a tion. The full text of the communiqué is available at http://www.europa.eu.int/comm/ external_relations/russia/summit_10_01/dc_en.htm. See also Council Doc. 12625/02, 10 Oct. 2002. For its part Poland will seek to maintain good relations with Russia by issuing three-month entry visas free of charge to citizens living in the Kalingrad enclave after 1 October 2003, while other Russian citizens will be liable for the 10USD charge for a three-month entry visa. 38 Warsaw Voice, 17 February 2002. Available at http://www.warsawvoice.pl/old/v695/ News07.html.

250

European Union Immigration Policy after Enlargement case in point. The Commission published in 2003 a Communication examining the impact that enlargement would have on the EU’s immediate neighbours.39 This ‘Neighbourhood’ document is a recognition that enlargement shifts both the geographic and political centre of gravity on the European continent. The Communication argues that enhanced interdependence – both political and economic – can itself be a means to promote stability, security and sustainable development both within and outside the EU. The Communication proposes that the EU should aim to develop a zone of prosperity and a friendly neighbourhood – a ‘ring of friends’ – with whom the EU enjoys close, peaceful and co-operative relations. The Communication states: The EU has a duty, not only towards its citizens and those of the new member states, but also towards its present and future neighbours to ensure continuing social cohesion and economic dynamism. The EU must act to promote the regional and sub-regional cooperation and integration that are preconditions for political stability, economic development and the reduction of poverty and social divisions in our shared environment.40

This statement recognises the ‘spill over effects’ in terms of improved human rights, security and economic development which the EU can have upon its neighbours. The December 2002 Copenhagen European Council concluded that the EU should take the opportunity offered by enlargement to enhance relations with its neighbours on the basis of shared values.41 It repeated the Union’s determination to avoid drawing new dividing lines in Europe and to promote stability and prosperity within and beyond the new borders of the Union. It reaffirmed that enlargement will serve to strengthen relations with Russia, and called for enhanced relations with Ukraine, Moldova, Belarus and the Southern Mediterranean countries to be based on a long term approach which promotes reform, sustainable development and trade, and cooperation on dealing with criminal practices such as trafficking of human/drugs and organised crime etc. As already suggested above, it is questionable whether such an objective is achievable within a framework which places exclusion and restrictions on movement at the centre of its policy thereby only leaving limited scope for partnership and cooperation.42 39 COM (2003) 104 final, Communication from the Commission to the Council and

the European Parliament – Wider Europe – Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours. 40 Ibid. at p. 3. 41 See Presidency Conclusions, Copenhagen European Council, 12 and 13 December 2002, 6-7. Available at http://ue.eu.int/pressData/en/ec/73842.pdf. 42 In July 2003 the Commission announced that it was committing 955 m Euro to various Neighbourhood programmes between 2004 and 2006, with a commitment to

251

Adam Cygan Securing the external border is a central part of the neighbourhood policy though the Communication plays down the securitisation dimension and attempts to promote the benefits that secure borders will have on both sides of the EU’s border. The Communication states that an efficient and user-friendly system for small border traffic is an essential part of any regional development policy. This seeks to address the problem of ethnic and family separation which sealing the eastern border will have. Furthermore despite having concluded the accession negotiations, the EU is currently looking at ways of facilitating the crossing of external borders for bona fide third-country nationals living in the border areas that have legitimate and valid grounds for regularly crossing the border and do not pose any security threat. The Communication suggests that the EU could also consider the possibilities for facilitating the movement of citizens of neighbouring countries participating in EU programmes and activities. Beyond this, and provided that the necessary conditions are in place, the EU should be open to examine wider application of visa free regimes, something which both Poland and Hungary remain enthusiastic about. Additionally the EU should develop a common approach to ensure the integration of third country nationals, with special emphasis on citizens of the neighbouring countries lawfully resident in the Union. The EU should also provide additional assistance in reinforcing the neighbouring countries’ efforts to combat illegal migration and to establish efficient mechanisms for returns, especially when illegal transit migration is involved. Concluding readmission agreement with all the neighbours, starting with, Russia, Ukraine, Belorus and Moldova,43 will be an essential element in joint efforts to curb illegal migration.44 The issue though is whether these countries have any political incentive to fight illegal immigration in the way which the EU would like them to? At present, EU Member States deal with their increasing migration problem through operating security and exclusionary policies which restrict movement over the EU’s external borders. Accession States have taken on this agenda and the conclusion of readmission agreements is undoubtedly part of this strategy. Because Poland is obliged to adopt the JHA acquis and Ukraine is not, Schengen does not inspire co-operation between the EU and Ukraine, and instead fosters a sense of exclusion and marginalisation for Ukrainians, despite the EU’s best attempts to create a neighbourhood policy. Yet the precondition for cooperation in JHA is a sense of commonality of interests. If we take the example of Ukrainian-EU relations it is evident that such sense of common continue funding after 2007. Further information regarding how this money will be spent can be found at http://europa.eu.int/comm/external_relations/we/doc/com03_ 393_en.pdf. 43 The Communication also identifies the need for similar arrangements with southern Mediterranean neighbours such as Algeria and Morocco. 44 For more detail on readmission agreements see the essay by Peers in this volume.

252

European Union Immigration Policy after Enlargement purpose is lacking. Ukraine resents being seen solely as the ‘buffer zone’ and as a ‘Direct Neighbourhood’ on par with Russia and Belarus, despite having voiced more ambitious aspirations vis-à-vis the EU. A whole range of reactions to the erection of the Schengen border have been discussed in Ukraine, from the unilateral introduction of visa free regime for EU citizens to the above-mentioned renouncing of the re-admission practice. For many, the latter would be a logical negotiation strategy. Politically and practically this would be popular because Ukraine cannot afford to have large numbers of migrants massing on its side of the border waiting for an opportunity to cross in to Poland. Ukraine does not want a repeat of the French experience with the Sangatte camp on its territory, with migrants creating unrest with the local border population, in what is already an economically underdeveloped area. Yet to deal with the issues that Schengen is designed to address requires close interactions between law enforcement and intelligence agencies on both sides of the border. It is in the EU’s interest to co-operate with Ukraine, for example with Ukrainian efforts to tackle the problem of it being a transit country. This must in the medium term post enlargement be underpinned with both financial and political assistance. In 2002 the EU allocated of 3.9 million Euro under the Tacis Regional Justice and Home Affairs programme for improving border management in Ukraine (and Moldova). This is a positive, if modest, first step to creating a coordinated joint policy to tackling illegal immigration. Another, more long term solution would be assistance with creating a specialised agency to deal with border management issues in Ukraine and developing the infrastructure to deal with the increased number of migrants. Any confrontational approach between the EU and Ukraine would damage existing forms of Polish-Ukrainian border co-operation. Poland is only too aware that it is the most open ‘Western’ country for its Eastern neighbour. Ukraine’s visa-free access to Poland has an important psychological effect on Ukrainian visitors for whom it exemplifies the tangible ‘success story’ of postcommunist transformations. While delaying the introduction of visas until May 2004, Poland is making a political gesture to Ukraine under the banner of a ‘strategic partnership’, to foster closer cooperation, including in the area of border management.45 The prevention and restriction-based formula of current migration will arguably in the post accession EU be inadequate. The ‘price’ for concluding re-admission agreements is rising and removes incentive for cooperation. Even if the Ukrainian case were to be ‘resolved’ (involving huge investments at the Ukrainian-Russian border), the potential for a ‘domino effect’ would still exist.

45 For example, in June 2001 an agreement on joint border controls between Poland

and Ukraine was signed in order to enable Ukraine to concentrate resources on the strengthening the Ukrainian-Russian border. See also n. 30 above.

253

Adam Cygan Moreover, profound inconsistencies within the present system do not inspire confidence. For example the clear differences in views between Polish Border Guards and their German counterparts concerning the period after which control at the German-Polish border could be abolished demonstrates that the EU still has significant work to do internally before it can be confident of resolving the external problems. There is a need for a clarification of the EU’s attitude and strategy on JHA not only with the Accession States, like Poland, but also with the countries of the ‘Direct Neighbourhood’. There is no unified, homogenous ‘direct neighbourhood’, with much of the immigration problem being faced by Ukraine being as a result of migrants from Asia seeking to move further West into Poland and the EU. The EU should recognise and take advantage of this fact to influence the policies of Ukraine and other neighbourhood countries. For reasons of the effectiveness of its external and JHA policies, it is in EU’s interest to move to the position of being actually concerned with addressing the problems that enlargement threatens for the movement of persons across its new eastern borders. But effective strategies can only be devised by reaching beyond the future eastern border. This way not only will the greater harmonisation of JHA with external policy be achieved but migration policies will be more effective.

6.

CONCLUDING REMARKS

Border security is a legitimate concern for the EU and Schengen undoubtedly has role to play in providing such security. Is the ‘stick’ approach of a ‘Fortress Europe’ policy the answer? Is this not a one-dimensional policy which leaves little scope for developing the ‘carrot’ of partnership and close cooperation with the EU’s neighbours? If the objective of ‘Fortress Europe’ is to protect the integrity of the Internal Market against an influx of cheap labour or from becoming a draw for organised crime, illegal immigration and people trafficking then it is questionable whether it will be successful. Since 1992, when Maastricht first brought the area of JHA within EU competence it can be said that results are at best mixed. The EU remains a draw for migrants and accession countries such as Poland have provided a convenient transit point into the EU despite the best efforts of Polish and German border guards. On accession, and with Ukraine taking over the role of transit country into the enlarged EU, it is fair to assume that given the limited expertise and resources of Polish and Ukrainian border guards to police the border in the manner required by Schengen, illegal immigration will continue to be a problem. The only difference is that the responsibility for the immediate combating of the problem will have moved further east. The Schengen regime will not act as a deterrent to those who are determined to enter the EU – it has not done so to date. If this proves to be the case, then the EU will have to rapidly rethink its whole strategy with regard to illegal immigration. This will in the first instance 254

European Union Immigration Policy after Enlargement require the conclusion of acceptable readmission agreements,46 the adoption of a flexible approach towards short term border movement for family visits which countries like Poland operated until accession, and an equal partnership of securitisation in which the EU’s neighbours see the Schengen regime as beneficial to their policy of border control. The EU must also be very careful not to cut off its neighbours from the spill over benefits of improved human rights and economic prosperity which bordering the EU undoubtedly has. From an internal EU perspective Schengen will prove to be unpopular in the Accession States, which will, with some justification, view themselves as second-class citizens. The 5-7 years transition, which Austria and Germany have secured for the free movement of workers for citizens from Central and Eastern Europe, is unjustifiable. It undermines cohesion of the Internal Market and is both disproportionate and discriminatory. The irony is that while using a harsh border regime to protect the Internal Market from external threats, the EU has accepted an internal border practice which will prevent the full integration of the Accession States in to the EU. In this context is there any advantage to being a Polish worker over a Ukrainian one after May 2004? While some Member States will not adopt this 5-7 year transition47 period, Germany and Austria the countries on the doorstep of the Accession States will. This has clear potential to undermine economic development within this part of the EU, where in the light of economic difficulties being experienced, there is a strong argument for a skilled flexible workforce. Curbing the free movement of labour, even to a limited extent will prevent the regularisation of labour movements which will occur after accession and leave Germany and Austria in the pre-accession position where resources will be spent preventing Poles and others taking up irregular employment. The EU will grant the people of the Accession States the right to move freely within the EU and reside anywhere on its territory, they will even be afforded the citizenship rights48 contained within the Treaty but in some Member States they will not have the right to work. This is an absurd position and one which will be extremely difficult to enforce. Thus the two-stage implementation of Schengen must be concluded as quickly as possible to limit the negative effects of the policy. If taken with the inflexible approach to the policing of the EU’s eastern border, the conclusion which can be drawn is that an effective border and immigration policy with regard to both internal and external arrangements was 46 The Commission stated in a press release on 3 December 2002 that the conclusion

of readmission agreements with Russia and the Ukraine was a priority. The Council adopted decisions authorising the Commission to negotiate such agreements. See Peers in this Volume. 47 For example the United Kingdom and Ireland are two countries who immediately stated they would lift restrictions. 48 Articles 17 and 18 EC. See Szyszczak in this volume.

255

Adam Cygan sacrificed to meet the deadline for the completion of the accession negotiations. Only time will tell if the overall policy will be successful but the lack of consistency, strategy and partnership leaves perhaps too many questions remaining unanswered on the eve of accession.

256

PART IV

INTERNATIONAL AND NON-GOVERNMENTAL RESPONSES TO IRREGULAR MIGRATION

This page intentionally left blank

Patrick A. Taran

GLOBALIZATION/MIGRATION: IMPERATIVES FOR CIVIL SOCIETY AND INTERNATIONAL ORGANIZATIONS

1.

INTRODUCTION

This essay begins with snapshots of civil society and international organization activities organized around migrants’ rights and irregular migration. To provide a contextual perspective, it includes a review of conditions driving irregular migration and substandard treatment of irregular migrants. With this context, the paper sums up challenges and constraints facing International Governmental Organizations (IGOs) and Civil Society Organizations (CSOs) in addressing irregular migration. Part 1 profiles examples and characteristics of CSO and IGO activity on migration, emphasizing activity related to protection of rights and irregular migration. Much of the concrete attention given to migrants, notably regarding protection of their rights and dignity, has long been given by the day-to-day work of local, national and regional civil society organizations. Part 2 offers a contextual review of the impact of contemporary globalization, under which international labour mobility has increased while levels of labour exploitation and deregulation have accelerated. Current practices regarding labour migration represent fundamental policy dilemmas for States, social partners, and civil society. Many States have placed increasingly strict barriers on legal entry of labour migrants, yet tolerate the presence of irregular migrants, especially those working in low-paid sectors, lacking offer of national workers. Sectors employing migrant workers are usually those where little or no regulatory activity upholds minimum safety, health and working conditions that should ensure “decent work.” Part 3 describes convergent perspectives among civil society organizing and international organizations on a rights based perspective. It suggests that a key Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 259-290 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Patrick A. Taran premise for response is strengthening the rule of law, and that IGO and CSO experience lead to conclusions that measures to strengthen regulation of migration and of the labour market are key to enhancing protection of migrants and reducing pressures and problems of irregular migration. Five key pillars for viable and comprehensive standards-based policy and practice are proposed as a global framework, and as a measure for identifying and discussing tasks and challenges facing IGOs and NGOs in concretely addressing irregular migration. Part 4 provides an outline of political trends that pose particular challenges and constraints to IGOs and NGOs. Part 5 suggests strategic lines towards effectively advancing protection of basic rights and dignity of irregular migrants in national and global contexts.

2. INTERNATIONAL ORGANISATIONS AND CIVIL SOCIETY ORGANISATIONS’ ACTIVITY: SOME ASPECTS Civil Society Much of the concrete attention given to migrants, in particular to irregular migrants, is provided by local, national and regional non-governmental civil society organizations (CSOs). This review cannot aspire to capture the long and rich history of organized church and civil society activity related to migration and protection of migrants, now spanning well over a century. A few snapshots follow, with emphasis on regional and international dimensions, in some cases specifically focused on irregular migrants. Prior to the 1990s, few civil society organizations focused on migration issues in national contexts. Notable exceptions were church-related migrant service programs, associations of migrants of particular nationalities, and farm-worker unions in Western countries, particularly in the USA. Internationally, there were at best only a half dozen international civil society organizations that included attention to protection of migrants in their agendas. The Roman Catholic Scalabrini order was established over a century ago to accompany Italian emigrants migrating across the world; it evolved into well-organized centres on most continents with research, social policy advocacy, pastoral care and other activities on migration concerns.1 The World Council of Churches established a migration program in the mid-1960s that retained an active profile emphasizing protection and rights concerns until 1998. Civil society activity and organizing around a rights based approach to migration has grown exponentially over the last decade. Available information

1

See in particular the website of the Scalabrini International Migration Institute www.simi2000.org.

260

Globalization/Migration and this authors’ own 30 years’ experience in and with civil society organizations suggests that most ‘NGOs’ providing services to migrants avoid distinguishing between regular and irregular categories, except where they offer legal assistance and other support specifically in response to needs of irregular migrants denied recognition and services from government or government-funded services. As noted below, many CSOs involved in advocacy explicitly include emphasis on protection and assistance for irregular migrants. The only global survey of civil society activity in migration to date was conducted under the auspices of the UN Commission on Population and Development in 1997; this survey sought to identify the roles and activities of NGOs in implementing the recommendations on international migration adopted as Chapter X of the Program of Action of the International Conference on Population and Development held in Cairo in 1994.2 More than 100 organizations reflecting activity in all regions of the world responded to an extensive questionnaire. The results demonstrated that there are NGO/CSOs in most countries of the world that provide direct services to migrants, some complementing their service activities with public education activities and policy advocacy with local and national government. The survey summary noted that CSOs working in the field of international migration provide a place for information, dialogue and cooperation between migrants (documented, undocumented and refugees), citizens, employers and government agencies in countries of origin and destination. The survey demonstrated that CSOs were involved in, among other activities: information services and orientation seminars to migrants in countries of origin; assistance in return and reintegration; in destination countries, assistance in housing, employment, healthcare, education, legal services, skills retraining, recognition of qualifications, etc; social, vocational and psychological counselling; addressing specific problems related to trafficking and sexual exploitation of migrants; facilitating dialogue, mediation and good relations between migrants and host country nationals; challenging racism and xenophobia; research and documentation on root causes of migration; training and public education activities, promotion of international standards and improved national legislation and policy; and cooperation with international agencies.

3.

EXAMPLES OF ACTIVITIES

Asia today has the most advanced regional organizing and networking on migrants, comprising a regional migrant centre, several regional networks and organizations addressing migration and migrants rights, and a well established, 2

UN Commission on Population and Development, Activities of intergovernmental and non-governmental organizations in the area of international migration; Report of the Secretary General (New York: 1997, UN document E/CN.9/1997/5).

261

Patrick A. Taran functioning regional network of organizations of migrants and migrant workers. These organizations have succeeded in making issues of migration central not only to the agendas of non-governmental conferences in the region, but also in developing strong lobby efforts promoting migrants’ rights at regional intergovernmental conferences such as meetings of the Asia Pacific Economic Council-APEC. The Asia Migrant Center together with the Migrant Forum in Asia produced in recent years a comprehensive Asia Migrant Yearbook with extensive attention to migrants’ rights issues as well as data on general migration conditions and CSO activity throughout the region.3 In the mid-1990s, the Scalabrini Migration Center in the Philippines produced a directory of migrant concerned NGOs across the region. As an example of the increasingly sophisticated efforts at the regional level, the CARAM Asia (Coordination of Action Research on Aids and Mobility)4 network of legal and service CSOs in 11 Asian countries organized a major regional symposium in August 2002 to focus attention on migrant domestic workers. The conference garnered support from international organizations and participation by government officials as well as CSO delegates; it boosted international attention to the protection needs of women migrant domestic workers in Asia and the Middle East, many in irregular situations and most without recourse to legal or other support. Europe has two distinct networks that focus on issues of irregular migration. One is the Platform for International Cooperation on Undocumented Migration (PICUM),5 a focal point for information sharing and advocacy, with member labour, church, human rights, migrant and other organizations now in most Western European countries. In May 2003 it held an important conference at the European Parliament to shed light on the dilemmas of irregular migration. “United Against Racism and Fascism” is a broader network across hundreds of organizations throughout Europe on issues of combating discrimination and xenophobia.6 “United” produces a regularly updated directory of concerned CSOs and regular lists of national and regional activities; many such activities feature issues of irregular migration. Civil society attention to migration and migrants’ rights concerns in Africa has a long history, although much less visible internationally than that of other regions. Extensive labour migration throughout Southern Africa has made concern with conditions of migrant workers a long-standing agenda of worker

3 4 5 6

2001 edition of Yearbook available at: http://www.asian-migrants.org/resources/ 103302503263131.php. Website and conference report at: www.caramasia.org. See website: www.picum.org. Website: www.unitedagainstracism.org.

262

Globalization/Migration organizations, and churches, in South Africa, Lesotho, Botswana, Mozambique and others among the 14 countries of SADC (Southern Africa Development Community). The South African Council of Churches and the Confederation of South African Trade Unions (COSATU) have repeatedly elaborated policy positions and issued statements calling for protection of irregular migrants. The Southern Africa Migration Project (SAMP) a research and advocacy network comprising partner institutions and academics in a number countries, has given specific attention to questions and responses to irregular migration and to xenophobia in its work over nearly a decade now.7 Of note as an inter-organizational effort involving both NGOs and IOM and UNHCR is the ongoing Roll Back Xenophobia campaign launched in 1999 in South Africa. Farm worker organizing, particularly in the USA, has necessarily increasingly addressed irregular migrants over the last 50 years; the question of whether to organize irregular Mexican farm-workers was a major debate in the development of the United Farm-Workers (UFW) organization in the mid 1970s; the Arizona Farm Workers’ and the Mid-West farm-worker organizations were established with explicit agendas of including undocumented workers in their ranks. Similarly, organizing and supporting Haitian workers in the Dominican Republic and elsewhere has long been the concern of church and activist groups. In Central America, ARMIF, the Regional NGO Association on Forced Migration emerged in the early 1980s as both national and regional humanitarian, church, labour and other organizations responded to the mass displacement resulting from civil conflict and outside military intervention. The regional network built on active national coalitions, each with an array of humanitarian, labour, church, migrant, human rights, etc CSOs, in Central America and Mexico. Since the late 1990s its successor network has catalyzed civil society engagement with the regional inter-governmental Puebla Process. In the Latin American and Caribbean region, church-related organizations have had a long history of giving attention – if sporadic and relatively modest– to issues of migration, particularly through pastoral care in countries of large scale immigration: Argentina, Brazil, Canada, the USA. A notable feature was emergence in the late 1980s of what later became a regional South American Ecumenical Network on Uprooted People. It comprises national church-related projects in most countries, and early began promoting constituent advocacy for ratification of the 1990 International Convention on migrants’ rights, and for protection of irregular migrants. While much less developed, it should be noted that several CSOs in East Europe and successor States to the Soviet Union are beginning to take up advocacy and provision of services to irregular migrants. Most notable are efforts by 7

See the SAMP website for publications, news articles and other documentation: www.queensu.ca/samp/.

263

Patrick A. Taran National Red Cross societies in the Russian Federation, Central Asian countries and the Caucasus states, several of which explicitly provide services for irregular migrants and advocate for humane treatment by government. An emerging dimension is wider establishment of migrant-based organizations and networks and transition of migrant organization activity towards explicit organizing around protection of rights, advocacy for adoption of legal standards and for regularization of migrants. An example is the region-wide Joint Campaign for Migrants’ Rights in Asia implemented by the Migrant Forum in Asia.8 Other efforts have emerged in the context of migrant nationality networks, notably Filipino regional networks such as the Commission of Filipino Migrants in Europe which now has national affiliates in some 40 countries of the entire region. International CSOs Globally, there are only two organizations specifically dedicated to promotion of migrants’ human rights: Migrants Rights International, with only one regular staff-person, and the December 18 “on-line network” with a portal website9 run by volunteers. Six international non-governmental organizations give significant attention, in some cases since many years, to promoting migrants’ human rights issues among their constituencies. These are the International Confederation of Free Trade Unions, the International Catholic Migration Commission, the International Movement Against Discrimination and Racism, Public Services International, the Women’s International League for Peace and Freedom, and the World Council of Churches. All have taken stands that explicitly promote respect for rights of all migrants. In the last five years, several major international human rights organizations have begun to expand previous concern with refugees and asylum seekers to address migrants’ human rights. Human Rights Watch conducted research and published a study on treatment of refugees and migrants in South Africa in 1997,10 and since 2000 has been conducting a series of national studies of migrants human rights in Western European countries, with particular emphasis on treatment of irregular migrants.11 Amnesty International and Amnesty

A general description can be found at: www.asian-migrants.org/news/97072973070 107.php. 9 See: www.december18.net. 10 Human Rights Watch, Prohibited Persons: Refugees, Asylum Seekers and Migrants in South Africa (New York, 1997). 11 See the dedicated webpages on the Human Rights Watch website: www.hrw.org/ campaigns/migrants/ for texts of these reports, as well as relevant statements, letters and other documentation. 8

264

Globalization/Migration USA have produced reports respectively documenting executions of migrants in the Middle East and abusive treatment of migrants in immigration detention. The Canadian Human Rights Foundation has organized several training seminars in Asia both for NGOs and government officials specifically on application of migrants’ human rights. It recently co-produced with the Asia Migrant Centre, Ateneo Human Rights Centre and Asia Pacific Forum on Law and Development, a comprehensive UN Road Map to serve as a training manual and “guide for Asian NGOs to the international human rights system and other mechanisms.”12 The protection of migrants is now beginning to emerge as an issue of priority on agendas of major humanitarian organizations and networks. In particular, the recent regional conferences of member national societies in Asia-Pacific and Europe of the Red Cross/Red Crescent movement focused on the humanitarian challenges associated with irregular migration; the outcome conclusions of both events set migration issues as a priority for Red Cross/Red Crescent societies and for the Geneva headquartered International Federation of Red Cross and Red Crescent Societies (IFRC). Recommendations from both conferences explicitly recognized the convergence of international humanitarian and human rights principles and law, and included calls for ratification of the 1990 International Convention on protection of migrants’ rights.13 Worker Organizations Trade union organizations in a growing number of countries have been making an enormous transition in the last several years. The dominant profile has evolved from ignoring migration – and even expressing hostility towards irregular migrants-– to taking stands of solidarity with migrant workers regardless of status. Major policy shifts followed by extensive organizing drives among migrant workers have taken place in recent years by mainstream trade unions and national confederations across Europe, as well as in the Americas and Asia. Major national labour confederations in Argentina, Belgium, Canada, France, Germany, Ireland, Italy, Korea, Mauritius, Mexico, the Netherlands, Portugal, Spain, Sweden, South Africa, the UK and the USA – among others – have full-time national staff for migrant worker organizing and anti-discrimination issues; all are active in policy advocacy for improved protection of rights and decent work conditions for migrants. In Ireland and Italy, the national trade

12 Asia Migrant Centre et a., Promoting and Protecting the Rights of Migrant Workers;

A UN Road Map. Montreal. 2000. Available at www.chrf.ca (click on publications). 13 See the IFRC “Berlin Charter” at: www.ifrc.org/cgi/pdf_berlin.pl?charter.pdf, the

“Plan of Action-Migration” at www.ifrc.org/cgi/pdf_berlin.pl?migration.pdf, and the “Manila Action Plan” at www.aprc.net/map2002.htm.

265

Patrick A. Taran union confederations are at the core of new national campaigns for ratification of the ILO and UN Conventions on migrant workers.14 Among the most striking turnarounds has been the major shift by the main USA labour confederation AFL-CIO, which in 2001-2002 virtually reversed earlier positions to advocate for generalized regularization of migrant workers, to oppose ‘employer sanctions’ against those who hired unauthorized foreign workers – sanctions found to have resulted in widespread discrimination in hiring – and to call for national organizing drives by affiliate unions among migrant workers whether authorized or not. In a novel approach, the Korean Congress of Trade Unions (KCTU) cosponsors with church and other organizations the Joint Committee for Migrants in Korea. To better assist, support and combat discrimination against migrant workers of diverse nationalities in Korea – many of whom are in irregular situations, KCTU organized a division of work among its constituent trade unions where each one assists in translating materials and providing services for a specific language/nationality of migrants. While recent changes are perhaps most dramatic in Western industrialized countries, national and regional trade union bodies in other regions are also shifting attitudes. At recent tri-partite consultations on labour migration in Asia, Central Africa and Southern Africa, delegates of national trade union federations agreed on conclusions and recommendations that emphasize need for adoption of national legislation and policies across those regions that ensure protection of migrant workers, particularly irregular migrants. Reflecting increasing concern from national affiliates, sectoral global union federations are now giving specific attention to issues of migrant workers, in particular those in irregular situations who experience more abuse and little protection. Already in the 1990s Public Services International convened specialist consultations and prepared a handbook on dealing with migrant workers. In June of 2003, representatives of agricultural trade unions from Egypt, France, Germany, Moldova, the Netherlands South Africa, Spain, Sweden, Ukraine and the UK took part in a conference organized by the International Union of Food and Agricultural Workers (IUF) together with German affiliate IG Bau to draw up a charter of rights for migrant workers in agriculture for unions to campaign around. Central to the draft charter is the statement that “No worker is an illegal worker” and that all migrant workers “have the right to decent work and equal treatment”. The International Federation of Building and Wood Workers is finalizing in 2003 a global study on migrant and cross border workers. Among recommenda-

14 For a most recent global overview of evolving trade union views and activities, see

ILO, “Migrant Workers” Labour Education 2002/4, No. 129. Available in English, French and Spanish at: www.ilo.org/actrav/.

266

Globalization/Migration tions drawn from studies in the Asia-Pacific region are to “alert trade unions to the pool of potential member represented by irregular migrant workers in the construction industry” and “develop working relationships with international and national agencies working to combat the exploitation and abuse of migrant workers who are forced to move via illegal channels”. Both the International Confederation of Free Trade Unions (ICFTU)15 and the World Congress of Labour have now made migrant workers a major priority of policy and practical activity. ICFTU drew up a plan of action in 2001 which includes explicit calls for unions worldwide to: – “urge governments to legalize undocumented workers; – lobby for legislation to protect those working in the underground economy; – undertake special campaigns to organize migrant workers, including those who are undocumented; – be actively involved in shaping immigration and migration policies… – from sending and receiving countries, work jointly to protect and defend rights of migrant workers”.

4.

INTERNATIONAL ORGANIZATIONS (IGOS) International Labour Organisation (ILO)

The ILO is a specialized agency of the United Nations system; it is unique in having civil society participation in its governance through its tri-partite structure in which representatives of national employer and worker organizations participate alongside representatives of government. Activity of the International Labour Office (ILO) on migration includes provision of assistance and technical cooperation to governments in elaboration of legislation, policy and administration, promotion and monitoring of its Convention standards, and programs to extend protection of rights and dignity to especially vulnerable groups of migrants such as domestic workers and victims of trafficking. Two ILO Conventions set specific norms for treatment of migrant workers. The Migration for Employment Convention, 1949 (No. 97) provides the foundations for equal treatment between nationals and regular migrants in areas such as recruitment, living and working conditions, access to justice, and against unjustified termination of employment or expulsion. The Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) expands norms to regulate migration flows, eliminate clandestine migration and combat trafficking and smuggling activities; and to facilitate integration of migrants in host societies. Its Article 1 establishes the obligation of ratifying States to “respect 15 See website at: www.icftu.org. Some 200 articles and items posted related to trade

unions and migrant workers; search by key word migrants.

267

Patrick A. Taran the basic human rights of all migrant workers,” independent of their migratory status or legal situation in the host State. In recent years, ILO work on migration issues retained a low profile and little attention was directed at the situation of irregular migrant workers. Increased labour migration and constituent concerns are compelling increased activity. The Office recently began to give attention to promoting wider ratification of its Conventions on migrant workers. The main topic of General Discussion at the International Labour Conference in June 2004 will be migrant workers/labour migration. The outcome of this ministerial level meeting among tri-partite delegations from all 176 member countries is likely to be expansion of institutional attention to migration. Alternatives and remedies to irregular migration is expected to be one of the main subjects of debate during the conference. Meanwhile, programmatic activity is focused on expanding options for regulated international labour migration as key to reducing need for irregular migration. Efforts have been underway since the early 1990s to facilitate integration and reduce discrimination against migrants in host countries, such as by identifying “good practices” by governments, employers, worker organizations and others. International Organisation for Migration (IOM) The IOM is an inter-governmental body now counting 112 Member States. The IOM’s formal role in protection is constrained in that it is not a normative-based institution, it operates outside the UN system, and its primary point of engagement with governments is often interior ministries. The IOM has recently given attention in public pronouncements and some activities to protection of dignity of all migrants.16 In a reflection of increased international concern for human rights of migrants, the IOM Director General and other officials have expressed explicit support for the role of international instruments to provide legal protection. The organization notes that the main thrust of many of its activities is towards establishing orderly international migration, which in itself should reduce irregular migration and resulting abuse. IOM legal staff and field officers make available to governments information on applicable international norms, policies and measures that contribute to protecting basic rights and dignity of migrants. IOM has integrated concerns for protection of migrants in efforts to combat trafficking and in conducting information campaigns directed at potential migrants to raise awareness of risks. It also administers programmes providing assistance to migrant victims of trafficking and human rights abuse.

16 See website: www.iom.int. Several relevant documents can be found with the search

word migrants’ rights.

268

Globalization/Migration OHCHR The United Nations’ Special Rapporteur on Human Rights of Migrants The symbolism of naming a UN Special Rapporteur on Human Rights of Migrants in 1999 was critical: establishing this special rapporteur acknowledged that protection of migrants is as serious and as mainline a human rights concern as torture, violence against women, racism and internally displaced persons, areas where other Special Rapporteurs had long focused attention. The mandate and activities to date of the Special Rapporteur, Gabriela Rodriguez of Costa Rica, remains extensive, taking into account functions of receiving information from all relevant sources, including migrants themselves, formulating recommendations to prevent and remedy violations of migrants’ rights, promoting effective application of relevant international instruments, recommending actions and measures applicable at the national, regional and international levels, and taking into account a gender perspective. She has given particular attention in missions and her reports to topics where irregular migrants are concentrated and especially vulnerable. A main report to the UN Commission on Human Rights this year addressed often abusive detention of migrants; her focus over the course of 2003 is on documenting the situation of migrant domestic workers, almost all of whom are women and many in irregular situations, and identifying mechanisms to improve protection of their human rights. The challenges of fulfilling her mandate are all the more daunting given the minimal resources allocated to the work of such UN special mechanisms. UNESCO The United Nations Economic, Social and Cultural Organization recently reestablished a section on International Migration and Multicultural Policies, to provide scientific analysis, empirical evidence and policy recommendations to national and international policy-makers and other stakeholders in society.17 Research and policy development is initially focused on the perspectives for ratification and implementation of the 1990 International Convention on the protection of rights of migrants, implicitly incorporated concern for protection of all migrants, regular and irregular. UNESCO intends to promote stronger inter-agency co-ordination of scientific research among UN agencies and other international bodies on migration. WHO The World Health Organization (WHO) has begun to address the health dimension of migration, including particular risks faced by irregular migrants. It 17

See website at: www.unesco.org/most/migration/.

269

Patrick A. Taran brought together representatives of several concerned international organizations during 2001-2003 to explore the issues and challenges of addressing health and migration from a human rights perspective. It is publishing in late 2003 a substantial report, International Migration, Health and Human Rights, as an initial contribution to a long-term debate. The report outlines the applicable legal framework regarding rights to health and access to health care applying to nonnationals and it describes the complex health issues and public policy challenges deriving from those rights. It includes considerable focus on the particular risks and public health dilemmas arising from irregular migration. IMP The integration of a human rights dimension into several emerging international governmental training initiatives is a recent and positive development. A salient example is the UN inter-agency International Migration Policy Programme (IMP) cosponsored by the UN Institute for Training and Research (UNITAR), the United Nations Population Fund (UNFPA), the International Organization for Migration (IOM) and the International Labour Office (ILO). It provides training, capacity building and networking for senior government migration managers in various regions of the world. Since its inception, the IMP programme has included the attention to human rights of migrants, including irregular migrants, and refugee protection as explicit components in its programme to provide a comprehensive understanding of migration for government policymakers. Presentations and discussions on the applicability and implementation of human rights instruments and measures have featured in all of its regional migration policy conferences held to date in the Asia-Pacific region, for Central Asia, the Caucuses and Neighboring States, for Eastern and Central Europe, in East Africa, West Africa and Southern Africa, and the Caribbean region.18 Regional IGOs Regional intergovernmental organizations including the African Union, the Council of Europe and the Organization of American States are currently giving specific attention to issues of protection of human rights of irregular migrants. The concern figures prominently in a draft “Strategic Framework for a Policy of Migration in Africa” being elaborated for eventual adoption by the AU as guidance for all African governments. The Council of Europe, the pan-European inter-governmental organization whose membership now counts 44 States from Iceland to the Caucasas countries, has given considerable attention to dilemmas of treatment of irregular migration. Working group meetings and a regional conference organized by 18 See IMP Website: www.unimp.org.

270

Globalization/Migration the Council’s Committee on migration “CDMG” grappled with the contention between restrictive migration enforcement agendas and the recognition of, or protection of, human rights of all migrants both implicit and explicit in international instruments widely ratified by European States. The Organization of American States established a Special Rapporteur on Human Rights of Migrants in the Americas, Mr. Juan Mendez; his work and reports have consistently given particular attention to the need for States throughout the Americas to provide legal protections for the basic rights of all migrants in and from countries in the region.

5.

GLOBAL INITIATIVES

At the international level, a recent and significant feature has been the emergence of cooperation and alliances between civil society organizations and international bodies in defense of migrants’ rights. Several international/global initiatives established over the last five years reflect this trend; all of these have given special attention to advocating for protection of irregular migrants. Global Campaign for Migrants Rights Recognizing that progress on human rights will only be achieved by broad cooperation among different sectors and different regions, an alliance of major intergovernmental and international non-governmental organizations came together in 1998 to launch the Global Campaign for entry into force of the 1990 International Convention on migrants’ rights.19 The Campaign Steering Committee now includes 14 international bodies in human rights, labour, migration and humanitarian fields, including ILO and IOM, the Office of the UN High Commissioner for Human Rights and UNESCO as well as the International Confederation of Free Trade Unions, Human Rights Watch, Migrants Forum of Asia, the International Catholic Migration Commission and MRI. The campaign contributed to putting the migrants’ rights Convention back on the agenda of a number of States as well as NGOs and IGOs. Given the explicit delineation in the Convention of basic rights of all migrants regardless of status, the campaign effort highlighted particular protection needs of irregular migrants and posed the convention as a basic foundation for national law and policy to ensure such protection. The initial campaign focus recognized that countries of origin of migrants have more immediate interest in ratification; the numbers of ratifications and signatures tripled since the campaign was initiated,

19 See Global Campaign website at: www.migrantsrights.org.

271

Patrick A. Taran resulting in Entry into Force of this Convention – considered one of the seven fundamental UN human rights treaties – on July 1 2003. International Migrant’s Day On December 4 of 2000, the UN General Assembly officially proclaimed December 18 as International Migrant’s Day (IMD). The initiative for this designation emerged years earlier among Filipino and Asian migrant organizations, including the Asia-Pacific International Migration network (APIMN). The December18 network advocated with the Mexican and other governments for official UN designation, assisted by Migrants Rights International and the Steering Committee for the Global Campaign on the 1990 convention. The UN designation emphasizes the contributions migrants make to economies, cultures and well being of host and home countries worldwide. Many local events held in countries around the world on IMD have since focused particular concern on presence and protection needs of irregular migrants.20 World Conference against Racism and Discrimination The 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance provided a unique opportunity to address discrimination, hostility and violence directed at migrants, refugees and other non-nationals worldwide, particularly those in irregular situations. Indeed, one of the most salient successes of the Durban conference was elaboration of some 40 paragraphs of text that together comprise a comprehensive and viable strategic plan of action to combat xenophobia and discrimination against migrants and other non-nationals. Specific recognition is given to need to protect rights and dignity of irregular migrants. International organization, trade unions and NGO delegates from all regions contributed much to this achievement, through concerted efforts both at preparatory meetings and the conference itself. Broad inter-organizational working groups were established among these groupings. An NGO migrant and refugee caucus developed during the preparatory conferences held in Geneva and actively lobbied delegates in Durban; many of the concerns and formulations pushed by this NGO grouping were retained in the final WCAR outcome.21 Led by the ICFTU, trade unions developed common positions in regional and global consultations, lobbied national governments, and conducted an intense

20 For calendars of IMD events, press coverage, etc. see: www.december18.net/

IMD.htm. 21 See “Elements for a Program of Action Against Xenophobia” at www.migrant-

watch.org/WCAR.

272

Globalization/Migration advocacy effort throughout the duration of the Durban conference22 with delegates representing more than 100 national and international sectoral unions and confederations. ILO, IOM, OHCHR and UNHCR established an informal working group which developed common positions, advocated with delegates, and produced a working paper distributed to all Conference delegates, entitled Racism, Discrimination and Xenophobia and International Migration, summarizing relevant IGO experience and policy recommendations.

6.

GLOBALIZATION, DISPLACEMENT AND IRREGULAR MIGRATION

The roles, responses and advocacy of civil society organizations and international institutions regarding irregular migration must necessarily derive from an accurate assessment of conditions and determination of responses based on generally agreed standards or principles. As self-evident as this statement may be, it is less evident that the aggregate activity by CSOs and NGOs reflects accurate assessments and effective responses. This section offers a brief global assessment of relevant features of the impact of globalization in irregular migration. A recent ILO study determined that: The evidence points to a likely worsening of migration pressures in many parts of the world…. Processes integral to globalization have intensified the disruptive effects of modernization and capitalist development.23

Many developing countries face serious social and economic dislocation associated with persistent poverty, growing unemployment, loss of traditional trading patterns, and what has been termed a “growing crisis of economic security”. The ILO calculates the current global total number of migrant workers and family members to be about 120 million. Global estimates for international migration figures more than doubled between 1975 and 2000, from 75 million people living outside their homelands to 175 million (including labour migrants, dependants, refugees, permanent immigrants). It is likely these numbers will double again in the next 25 years. In a number of countries, accelerated trade is replacing or undercutting domestic industrial and agricultural production with cheap imports, but at the expense of many jobs in those sectors. Structural Adjustment Programs (SAPs) imposed reductions in government spending, state budgets and state subsidies. Reductions also meant significant reductions in government employment

22 See the ICFTU Report on WCAR. 23 P. Stalker, Workers Without Frontiers – the impact of globalisation on international

migration (Geneva: ILO, 2000).

273

Patrick A. Taran including professionals as well as skilled and unskilled workers. Job creation by private sector in many countries affected by SAPs has apparently not kept up with the numbers rendered unemployed by downsizing governments. In some countries, it has lagged behind. In many countries, structural adjustment conditions included termination of government subsidies or food price supports that also indirectly supported employment in agriculture, food processing and distribution. Population increases have further added to the ranks of job seekers, increasing the gaps in many countries between needs and opportunities for decent work and survival. The Growing Demand for Migrant Labour Meanwhile, changing economic and demographic trends are combining to increase the effective demand for foreign labour in many industrialized countries. On the one hand, demographic trends are translating into aging populations, older median age work forces and fewer entries into labour markets. On the other hand, the persistence of dual labour markets under globalization is expanding the number of precarious jobs which national workers are reluctant to take. As a result, the demand for foreign labour reflects the long term trend of informalization of low skilled and poorly paid jobs, where irregular migrants are preferred as they are willing to work for inferior salaries, for short periods in production peaks, or to take physically demanding and dirty jobs.24 Small and medium size companies and labour–intensive economic sectors do not have the option of relocating operations abroad. Responses include downgrading of manufacturing processes, deregulation, and flexibilization of employment, with increased emphasis on cost-cutting measures and subcontracting.25 In a number of countries, these measures are expanding the number of jobs at the bottom of the employment scale. Such employment needs are met only partially or not at all by available or unemployed national workers, for reasons of minimal pay, degrading and dangerous conditions, and/or low status in those jobs and sectors. As well, the unemployed in some countries have access to social welfare and unemployment insurance. The resulting demand for migrant workers provides a significant impetus to labour flows and facilitates the incorporation of undocumented migrants.26 24 Stalker ibid. 25 L. Lean Lim, “Growing Economic Interdependence and its Implications for Inter-

national Migration” in United Nations: Population Distribution and Migration, (New York: United Nations 1999) 277. 26 A. Escobar Latapí, “Emigration Dynamics in Mexico, Central America and the Caribbean”, 12th IOM Seminar on Migration, Managing International Migration in Developing Countries, Geneva, April 1997, 4.

274

Globalization/Migration Despite relatively high unemployment in a number of developed countries, foreign workers – including unauthorized migrants – are able to find jobs easily.27 For example, a Mexican undocumented migrant worker to the USA will usually find a job two weeks after his/her arrival. Similar evidence in Europe indicates that undocumented migrants are rarely “unemployed”.28 Research in Southern European countries demonstrates the extent to which “the migrants take jobs that the locals refuse. It’s simply a matter of substitution.”29 A recent study prepared for ILO noted, “We can conclude that migrants are in competition only with marginal sections of the national labour force …when they are not sufficiently sustained by welfare provisions, in specific sectors, and/or in the less-developed areas inside these countries.”30 The insertion of irregular migrants in the lowest skilled occupations responds to a structural need in developed societies. For the least qualified jobs, employers demand workers who will not exercise pressures on the salary structures. Given that, at least initially, immigrant workers won’t challenge the relation between salary and the social status attached to specific occupations, contracting migrant workers avoids the economic risks – particularly structural inflation – that national workers induce when they demand salary increases. The exploitability of migrant labour, particularly when it is legally unprotected, renders it an attractive instrument for maintaining competitiveness. This is, however, at the expense of formal protections of workplace safety, health, minimum wage and other standards. As the International Confederation of Free Trade Unions (ICFTU) highlights, organizing migrants and immigrants into unions or organizations to defend their interests and rights is often extremely difficult. When it is not considered illegal under national laws, organizing – especially of those without legal authorization for employment – is easily intimidated and disrupted by the threat or actual practice of deportation.31 Fundamental Policy Dilemmas In a number of countries, migration is being simultaneously encouraged and combated. Distance between policy pronouncements and de facto arrangements reflects a major contemporary contradiction in States’ practice. Despite all the

27 Lean Lim, above n. 23. 28 OSCE Office for Democratic Institutions and Human Rights Conference Report:

Europe Against Trafficking in Persons’, Berlin, 15-16 October 2001, 72. 29 E. Reynieri, “Migrants in Irregular Employment in the Mediterranean Countries of the European Union”, International Migration Paper No. 41 (ILO, Geneva, 2001). 30 Ibid. 31 See for example, A. Linard, Migration and Globalisation – the New Slaves, ICFTU, Brussels, July 1998.

275

Patrick A. Taran political rhetoric about illegal migration, numerous governments informally tolerate irregular migration while they officially reinforce controls against “illegal” migrant workers. The effects are, on the one hand, a continued supply of cheap labour, while on the other hand, “illegal” migrants unable to organize in the workplace to defend their dignity and decent work conditions, stigmatized and isolated as well from allies and support. The practices of tolerating migrant workers in irregular status to meet labour needs in certain sectors of the market constitutes a de facto employment policy in which part of the work force becomes a variable which can be reduced or even eliminated (in theory) in periods of economic downturn, through exercise by States of their prerogative to expel foreigners from their territory. By the same manner that migration policy can be utilized to satisfy labour market needs with foreign labour, deportation can be utilized to reduce ‘excess supply’ by returning this temporary labour to countries of origin. Many restrictive measures have been established with little or no consideration of labour domestic labour demand and supply. In some regions, imposition of tighter border controls and restrictions on movement cut across traditional routes and patterns of labour and trade migration. Basic labour economics theory suggests that placing restrictive barriers between high demand and large supply creates a potentially lucrative market for services of getting the supply to where the demand is. With few options available for legal migration in the face of strong pull-push pressures, irregular migration channels become the only alternative, and one which presents lucrative “business” opportunities for helping people arrange travel, obtain documents, cross borders and find jobs in destination countries. The flow of low-skilled migrants to more developed regions is channelled by clandestine means precisely because of the non-existence of legal migration categories that would allow for their legal entry in destination countries. Once they are in host countries, they remain confined to jobs in unstructured or informal sectors, in irregular work and under exploitative conditions of employment.32 A recent ILO Global Report on Forced Labour highlighted that: The recent rise in labour trafficking may basically be attributed to imbalances between labour supply and the availability of legal work in a place where the jobseeker is legally entitled to reside.33

Tolerance of restrictions on freedom of movement, long working hours, poor or non-existent health and safety protections, non-payment of wages, substandard

32 M.I. Abella, ‘Mondialisation, marchés du travail et mobilité’ in Migrations et avenir,

CIEMI, Paris, Vol. 14, No. 79, January-February 2002. 33 ILO, Stopping Forced Labour Global Report, Report I (B), Geneva, 2001, 53.

276

Globalization/Migration housing, etc. all contribute to expanding a market for trafficked migrants who have no choice but to labour in conditions simply intolerable and unacceptable for legal employment. The absence of worksite monitoring, particularly in sectors such as agriculture, construction, domestic service, sex-work and others where migrants are concentrated further expands the space and opportunities in which forced or compulsory labour can thrive. Ultimately, labour trafficking would have far less reason to take place if jobseekers had more freedom of geographical movement and freedom of access to employment. Smuggling occurs because borders have become barriers between jobseekers and job offers. Trafficking occurs not only when borders are barriers to labour supplies meeting demands, but when no knowledge is available about proper migration channels, when employment is itself illegal and/or underground, and where conditions of work much worse than legal minimums are tolerated or ignored.34 The policy dilemmas in the economic realm are echoed in the political discourse and ideological frameworks advanced in host States regarding irregular migrants. The utility of their presence –in irregular and exploited situations – represents a challenge to normative and ideological values of most industrialized countries inasmuch as these persons are denied legal and social protection. A predominant response in the face of these contradictions is banal association of irregular migration with crime, arms, drug trafficking and terrorism, and discussion of draconian measures to “combat illegal migration”. Social stigmatisation and outright violence is encouraged by the language of illegality and by use of military terms – as if ‘illegal migrants’ were an enemy in warlike confrontation. The Gender Dimension A word on the gender dimensions of irregular migration is warranted. Differential opportunities for legitimate employment affect men and women differently. Demand for migrant workers in receiving countries is defined by the labour market segmentation in these countries, i.e., opportunities are available for precisely these low-skilled jobs considered suitable for women. The feminisation of international labour migration, together with the fact that most job opportunities for women migrants are in unregulated sectors (agriculture, domestic work, sex industry) and the existence of sex-disaggregated labour markets contribute to the increase of discriminative labour markets in countries of destination. In addition, women have less access to information on migration/job opportunities, recruitment channels, and often have less preparation than men to cope with the working and living conditions in countries of destination.

34 ILO, Stopping Forced Labour, ibid.

277

Patrick A. Taran Further to this, restrictions on admission and work affect men and women migrants differently. For instance most legal channels of migration offer opportunities in typically male-dominated sectors. Gender-selective migration policies and regulations for admission and entry often reproduce and intensify existing social, economic and cultural inequalities between male and female migrants; e.g. the right to entry does not necessarily mean the right to work for women in certain Western European countries. Female migrants are thus marginalized even further, they are more often left with no option but irregular migration, and exposed to worst forms of abuse. This assessment leads to concluding that addressing irregular migration requires a comprehensive and multi-dimensional response by civil society and international institutions. These responses necessarily comprise complementary measures in legal, political. social and ideological arenas. Given the existing international legal and institutional framework, responses to irregular migration should build on an extensive foundation of internationally agreed values and legal standards.

7.

COMPREHENSIVE POLICY RESPONSES REQUIRED

The underlying premise of this essay is that recognized universal principles of human rights codified and implemented in the rule of law provide the foundational values for governance – governance of nations, of community relations, and of international relations. This premise further presumes that social cohesion and social peace in multi-cultural societies can only be sustained under conditions of democratic rule, which in turn requires the accountability, the credibility and the enforceability provided under rule of law. The central notion of human rights is the implicit assertion that certain principles are true and valid for all peoples, in all societies, under all conditions of economic, political, ethnic and cultural life. Human rights are universal – they apply everywhere; indivisible – political and civil rights cannot be separated from social and cultural rights; and, inalienable – they cannot be denied to any human being. The Legal Foundation The Universal Declaration of Human Rights summed up a history of elaborating fundamental values stretching back over, literally, thousands of years. It codified into a single instrument norms common to major religious and historical traditions worldwide. While not a binding Convention as such, it has been adopted by virtually all modern nation-States, and is considered an instrument of customary international law. Deriving from this Declaration, two major covenants covering the broad definitions of political and civil rights, and economic,

278

Globalization/Migration social and cultural rights were adopted in the mid-1960s35. These, together with the Universal Declaration of Human Rights, are often referred to as the “International Bill of Human Rights”, universally applicable to all human beings. These and other international norms generally serve as the basis for elaborating national law. The UDHR establishes in Article Six that every person has the right to recognition before the law, and in Article 7, that every person has the right to due process. While the norms codified in the two Covenants were presumed to be universally applicable, practice showed that these rights needed to be explicitly extended to ensure application and protection for particular vulnerable groups. A long and difficult process has been required to gradually extend recognition though codification in international norms of human rights of groups at risk including ‘racial’ and ethnic minorities, prisoners, women, and children, and finally non-citizens. A Set of International Standards Today, three complementary legal norms explicitly, and in detail, lay out the human and labour rights applicable to migrants, including those applying to irregular migrants. As noted earlier, the ILO elaborated two Conventions providing legal norms for national legislation on migrant workers, Convention 97, which sets terms for equal treatment between nationals and regular migrants, and Convention 143, which established norms to better regulate migration flows and to facilitate integration of migrants in host societies. The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force July 1 2003, extends considerably the legal framework for migration, treatment of migrants, and prevention of exploitation and irregular migration. The chronology of these three instruments reflects the continuing evolution of international law. The 1990 Convention built on concepts and language drawn from the two ILO Conventions and explicitly identified those ‘universal’ human rights applied to all migrants regardless of status, as well as further social and civil rights applying to regular migrants. These three Conventions together provide a comprehensive “values-based” definition and legal basis for national policy and practice regarding non-national migrant workers and their family members. They serve as tools to encourage States to establish or improve national legislation in harmony with international standards. They are not simply human rights instruments. Numerous provisions in each add up to a comprehensive agenda for national policy and for consul-

35 International Covenant on Civil and Political Rights and International Covenant on

Economic, Social and Cultural Rights 1966.

279

Patrick A. Taran tation and cooperation among States on labour migration policy formulation, exchange of information, providing information to migrants, orderly return and reintegration, etc. A total of 63 different States have ratified one or more of these three complementary standards;36 10 Member States of the European Union have ratified one or both ILO conventions.37 Fundamental Rights at Work The elaboration of International Labour Standards has been an important component of building the rule of law and extending protection to groups at risk of exploitation and abuse, including specifically migrant workers. In fact, the first international instruments addressing protection of foreign workers were elaborated under ILO auspices in the 1920s. The bulk of international labour standards that address conditions of work apply to migrant workers, in many cases irrespective of immigration status. For over 80 years, International Labour Standards elaborated under ILO auspices have served to uphold and improve conditions of migrant workers in literally hundreds of cases. In a further extension of the notion of universal application of certain basic legal norms, the International Labour Conference adopted in 1998 the ILO Declaration on Fundamental Principles and Rights at Work. This Declaration, approved by tripartite delegations from all 176 member countries, established that all Member States, even if they have not ratified the fundamental Conventions, have an obligation arising from the very factor of membership in the Organization to respect, to promote and to realize the principles concerning the fundamental rights which are the subject of those Conventions, namely: – freedom of association and the effective recognition of the right to collective bargaining; – elimination of all forms of forced or compulsory labour; – effective abolition of child labour; and – elimination of discrimination in respect of employment and occupation. These principles are incorporated in eight fundamental Conventions of the ILO,38 they are applicable to all workers, without distinction of nationality, and 36 The ILO Migration for Employment Convention No. 97 of 1949, ratified by 42

countries. The ILO Migrant Workers (Supplementary Provisions) Convention No. 143 of 1975, ratified by 18 countries; and the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ratified by 22 countries and signed by 11 others. Texts and related information available respectively at www.ilo.org/ilolex , and www.unhchr.ch. 37 Belgium, France, Germany, Italy, Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, and the United Kingdom. 38 Conventions on Freedom of Association and Protection of the Right to Organise,

280

Globalization/Migration in many cases regardless of migration status; the preamble to the Declaration makes specific reference to applicability of the principles and conventions to all migrant workers. The latter was recently reinforced by decision of the ILO supervisory Committee on Freedom of Association of the ILO, which held39 that Convention No. 87 recognizes the right of workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Resolving exploitation abuse and exclusion of irregular workers necessarily requires promotion and implementation of a broader comprehensive set of legal, policy and practical measures. Solid frameworks for viable, comprehensive and sustainable national migration policy have already been elaborated. Drawing from international norms, policy recommendations agreed at major international conferences, and ILO, social partner and CSO experience, five elements can be named as a core agenda: 1) Establishing a standards-based approach to migration, protecting basic rights of all migrants and combating exploitation and trafficking. The point of establishing legal rights and policy standards is to ensure social legitimacy and accountability, which can only be ensured by a foundation in the rule of law. Social legitimacy of and public cooperation with governance comes of its association with justice, human dignity and democratic values. 2) Putting in place an informed and transparent labour migration admissions system designed to respond to measured, legitimate labour needs. Such a system must be based in labour ministries and rely on regular labour market assessments conducted in consultation with social partners to identify current and emerging needs for workers, high and low skilled. ILO research underlines this as a fundamental starting point: legal labour migration channels contribute to reducing exploitation, trafficking and smuggling of migrants.40 Admissions policies must also take into account family reunion and humanitarian concerns. 3) Enforcement of minimum national employment conditions standards in all sectors of activity, to criminalize abuse of workers and reduce incentives 1948 (No. 87) and on the Right to Organise and Collective Bargaining, 1949 (No. 98); on Forced Labour, 1930 (No. 29) and on Abolition of Forced Labour, 1957 (No. 105); on Minimum Age, 1973 (No. 138) and on the Worst Forms of Child Labour, 1999 (No. 182), and on Equal Remuneration, 1951 (No. 100) and Discrimination (Employment and Occupation), 1958 (No. 111). 39 Case No. 2121, Complaint presented by the General Union of Workers of Spain (UGT) against the Government of Spain for denial of the right to organize and strike, freedom of assembly and association, the right to demonstrate and collective bargaining rights to “irregular” foreign workers. 40 ILO, Mekong Sub-Regional Project to Combat Trafficking in Children and Women, Legal Labour Migration and Labour Markets: Alternatives to Substitute for Trafficking in Children and Women, at p. 1.

281

Patrick A. Taran for recruitment of irregular migrants. ILO Conventions on occupational safety and health, against forced labour, and on discrimination provide minimum international norms for national legislation. A necessary complement is monitoring and inspection including in agriculture, domestic work, sex industry and other sectors subject to ‘irregular’ employment, to detect and stop exploitation and forced labour as well as to uphold minimal decent work conditions. 4) Institutional mechanisms for administration of migration, in consultation and coordination with social partners in policy elaboration and practical implementation. Migration policy must be elaborated and implemented by the main government institutions concerned with labour and employment, and in full consultation with the social partners, namely the workers organizations and employer associations concerned. Policy will only be viable, credible and sustainable if it takes into account the concerns and interests of stakeholders. 5) A Plan of Action against discrimination and xenophobia. Main elements were identified in the Declaration and Program of Action adopted at the World Conference Against Racism and Xenophobia (WCAR) in Durban in 2001, which included 40 paragraphs on treatment of migrant workers, refugees and other non- nationals. This agenda for action on non-nationals reinforces points above, including: – Adoption in national law of relevant standards to protect rights of nonnationals. – Make xenophobic discrimination, behaviour and action unacceptable and illegal. – Elaborate administrative measures to implement laws and ensure accountability. – Establish independent national monitoring bodies, and – Mobilize civil society cooperation. These five pillars are essential; they require mutual reinforcement to address the factors that today drive irregular migration and its attendant abuse. Other measures are also required, including – Changing terms of international aid, trade and relations to facilitate development which addresses human needs and sustains social justice in countries of origin of migrants. – Elaboration of gender sensitive policies and implementation focusing on ensuring both equal treatment and equal outcomes. – Concerted international migration dialogue and cooperation.

282

Globalization/Migration

8.

CHALLENGES AND CONSTRAINTS FOR IGO/NGO ACTION

Following from and reflecting the fundamental dilemmas for States posed above, a number of contemporary political phenomena constrain activity by CSOs and IGOs in the realm of addressing irregular migration. Widespread reductions in allocations of resources to meet human needs and to uphold human rights in countries worldwide are associated with arguments that relativize such rights, particularly economic, social and cultural rights. In 1993, the positions taken by a number of governments at the World Conference on Human Rights signalled a strong and explicit challenge to the universality and inalienability of human rights. At that time, the most prominent basis cited for these challenges was cultural, historical and regional relativity of human rights; those critiques asserted that human rights notions apply differently and to different degrees in different cultural and regional contexts; they are not fully ‘global’. Contemporary arguments are being put forth that human rights are not indivisible, rather that civil and political rights should be differentiated from economic, social and cultural rights. This discourse asserts that the latter, in contrast to the former, can only be considered as ideals because they are both too costly and impractical to implement throughout the world. Furthermore, measures to extend and assure such rights require costly and extensive systems, such as welfare, food subsidies, extensive health, education and social service systems, jobs programs, effective judicial systems, etc. Due to society-wide and large-scale needs, these systems generally require large tax revenues and management by the State. However, taxation today is often stridently characterized as an impediment to private investment, development and economic growth, both in industrialized and developing countries. Newly articulated ideological and political arguments specifically challenge the applicability of human rights law and principles to migrants and other nonnationals. On the one hand, post-September 11 doctrines advance the notion that the extent and nature of threats to national and State security posed by ‘international terrorism’ justify – even require – restrictions on human, civil and judicial rights of migrants in Western democracies as well as elsewhere. On the other hand, economic consequentialist views urge an explicit trade-off of lowered application of rights and unequal treatment for non-national workers in exchange for increased opportunities for employment in potential host countries.41 These arguments coincide with continuing calls and initiatives to determine “minimum” or “core” rights applying to migrants. Such initiatives have been 41 An elaboration of this approach appears in a forthcoming issue of International

Organization 58:1 (February 2004), M. Ruhs and H-J. Chang, “The Ethics of Labour Immigration Policy”.

283

Patrick A. Taran articulated in recent years in a draft resolution circulated (but not adopted) at the UN Commission on Human Rights in 1997, in proposals emanating from senior officials of IOM, from EU and Council of Europe forums, in academic circles and in proposals to revise ILO Conventions. Proposals for delineation of “minimum rights” appear to have intensified with the increased ratifications and entry into force of the 1990 International Convention on protection of migrants’ rights. A clear risk in such an approach would be establishment of a set of guidelines or principles that are far more general, vague and unenforceable in contrast to the explicit standards and supervisory mechanisms of both the ILO and 1990 Conventions on migrant workers. In the meantime, Western States raised arguments in the 2003 session of the UN Commission on Human Rights against allocating any funding for the treaty monitoring body on the basis that few States have ratified. Meanwhile, a new international legal framework addressing migration in the context of crime suppression, prevention and punishment has been established with the adoption and growing number of ratifications of the International Convention Against Transnational Organized Crime and its two Protocols, one on Combating Trafficking in Persons, the other to suppress smuggling of migrants. Both these protocols focus on suppression and prevention measures to confront irregular migration; human rights protections are subordinate aspects of these instruments, and essential only provide certain protection for victims of trafficking. Sixthly, inter-governmental organizing on migration ‘management’ has developed rapidly over the last decade. There are now functioning regional inter-governmental consultative processes incorporating States in most world regions, known by names as Puebla, Bangkok, Dakar, Cairo, MIDSA (Migration International Dialogue for Southern Africa), Central Asia and Caucuses, Mediterranean, and Lima dialogues. Several have permanent secretariats, such as the Intergovernmental Consultations for Europe, North America and Australia (IGC), the Budapest Process for Eastern and Central Europe, and the Asia Pacific Consultations. IOM provides secretariat services to several of these mechanisms; funding for consultations and conferences is provided by Western States as well as participating governments. Irregular migration is a regular agenda topic in these regional consultations, often explicitly in terms of “combating” irregular migration. CSOs have no consistent access to presenting views or participating in these international policy formulation and cooperation processes. The Puebla Process for Central and North America is the notable exception, where a history of regional NGO coordination, advocacy and dialogue with governments has resulted in regular CSO participation in Puebla Process seminars and conferences. Specific intergovernmental accords and agreements have been increasingly established by EU Member States with other governments: many are bilateral, some make mandatory return of migrants to a country previously transited, 284

Globalization/Migration some now have been established on common visa spaces, the latter often modelled on the Schengen Accord adopted by a number of European States. In a considerable number of countries, migration management responsibilities have been shifted from labour ministries to interior or home affairs ministries, thus transforming contexts for policy elaboration and implementation from that of labour market regulation to that of policing and national security. To the vast extent that migration is about work, ministries of labour/employment must retain a central role in administration of migrant worker policies, because labour migration inevitably has direct implications on labour market regulation, conditions of work and other fundamental areas of their competence. Reference to social dialogue – consultation with social partners – is absent in many national and international migration policy initiatives. “Management” of an increasingly large and important sector of the working class outside normative protections, outside social dialogue and outside labour market institutions contributes to accelerated deregulation of labour markets as well as to deterioration of labour-employer-State relations overall. At the level of domestic politics and national government administration, promoting an agenda of migration control has become a viable vehicle to capture political attention and budgetary resources. Pursued to the detriment of other considerations, that focus has subordinated fundamental humanitarian and human rights considerations as well as economic and developmental factors to secondary roles. Minimized Responses Despite a presumable imperative deriving from human rights norms and organizational commitments, work on migrants human rights –particularly related to irregular migration – has generally been subordinated, suppressed, discouraged, and unsupported in major IGOs. ILO has not engaged in promotion of ratification of its own migrant worker Conventions since the 1970s, and remained ambivalent about both the future of these instruments and the 1990 International Convention until this year. Its distinct migration branch progressively lost staff and resources over the last three decades; it was in fact discontinued altogether in 1997. The branch was restored with minimal staff and resources as of 2000. Until the appointment of the UN Special Rapporteur on migrants, the OHCHR had no staff-person with an explicit mandate to address migrants’ rights issues or to promote the 1990 Convention. Indeed, the UN did not even publish the text of the 1990 Convention until 1996! The UN Special Rapporteur on Human Rights of Migrants has only part- time staff assistance, minimal travel allocations and gets no compensation other than coverage of travel expenses and per-diem while on official mission. That this is also the situation faced by other Special Rapporteurs on thematic human rights issues is simply reflective of the wider problem. 285

Patrick A. Taran The IOM had no mandate or activity on the subject until the late 1990s. When staff first proposed including such concern when program priorities were updated and reformulated in 1997-98, delegates of a number of countries expressly discouraged any reference to terminology of IOM activity on migrants’ rights; on reference to promotion of ‘dignity of migrants’ was retained. Lest full responsibility for this lacunae be ascribed to these institutions and their leadership, indications urging inaction have not been lacking from powerful member governments, as noted above regarding initiatives in IOM and explicit statements in the human rights commission against allocation of resources for the treaty supervisory body being established under the 1990 Convention. The record of CSOs is not a lot better. Most concerned CSOs are nationally based and focused; in a few cases regional networks or formations have recently emerged, mainly in Asia and Europe as noted in Part I of this article. At the global level, no international organization – neither UN nor NGO – has fulltime staff and corresponding resources allocated to monitoring and promoting protection of human rights of migrants in general. Inter-regional dialogue and cooperation remains minimal, except around very specific, usually time-bound initiatives, such as joint caucusing and advocacy around international conferences. A strong organizational ethos remains common to many national and local CSOs, privileging localism and expressing hostility and distrust of international initiatives. In a sad parallel to the resource starvation by governments for migrants human rights work by IGOs, little funding has been made available from any public or private source for international NGO initiatives to promote standards, provide staff, fund publications and communications, networking and advocacy activities specifically addressing human rights of migrants. Since the mid-1990s, the few organizations which sought funding from their donor bases or from foundations in Western countries were consistently informed that human rights of migrants is not a priority and no funds can be made available. In 1998, the two main Scandanavian church agency funders for migration-related activities of the World Council of Churches discontinued support for this area of activity; a step not unrelated to the disappearance of the WCC migration secretariat at the end of that year. Between 1997 and 2000, some twenty North American foundations and European funding agencies that prominently support refugee, humanitarian and general human rights initiatives turned down requests from the one international NGO specifically focused on promotion of migrants human rights; those few that replied to request stating that funding this concern was not a priority. Reasons for this appear to be complex, and not solely based on the political sensitivities raised by the topic of migrants’ rights. An explicit tendency manifested in recent years by a large number of private foundation and other nonState donor agencies in industrialized countries is to increasingly concentrate funding on regional and local based initiatives, often within a select number 286

Globalization/Migration of specific countries. This has resulted in less attention being given, both in internal agency structure and in grants, to supporting global or inter-regional initiatives. Recent indications suggest that some donor institutions are finally awakening to the importance of supporting activity on migrants’ human rights –including specifically on irregular migration. Human Rights Watch obtained resources in 1999 to initiate an major ongoing research project documenting widespread violations of migrants rights and proposing remedies in a number of Western European countries. The Ford Foundation provided substantial support to the CSO networking on migrants’ rights issues leading to and following the Durban World Conference. The Dutch foundation NOVIB initiated this year a consultative process with OXFAM and other European humanitarian funding agencies towards identifying key issues and supporting partners in addressing human rights and migration. The notable exception to this resource starvation is in the field of trafficking. Governments and international organizations are giving major attention to addressing trafficking: IOM, ILO and the OHCHR each have full time staff, have organized major conferences, and IOM, ILO and UNDP each administer multi-million dollar programs in Africa, Asia, Europe and Latin America on trafficking. Governments and private donors have provided considerable funding to NGO initiatives addressing trafficking and provision of protection and services to victims of trafficking, especially in Asia and Europe, more recently also in the Americas. While this attention and support concretely contributes to extending awareness of human rights protection issues and needs, it is nonetheless a context where crime control, prevention and policing have generally taken precedence over a ‘standards’ approach that would more appropriately define trafficking and law enforcement in a human rights context.

9.

CONCLUSIONS AND RECOMMENDATIONS

As noted above, while inter-governmental dialogue appears focused on devising national security-based responses to migration, elaboration of alternative, rights-based approaches to governance of migration is desperately lacking. In the experience of this author, unless options and political support for alternative approaches can be generated from civil society and elaborated by international organizations, it seems unlikely that current trends will be effectively slowed and ultimately reversed. This author believes that CSOs in concert with IGOs have fundamental roles to play in providing moral (ideological if you prefer), political, and practical leadership in assuring a rights-based approach to international migration. This role is necessarily expressed through a profile of solidarity and advocacy built on work with migrants and their concerns in explicit association with promotion of international standards and the values they derive from. And this role obliges 287

Patrick A. Taran elaboration of and advocacy for practical mechanisms and solutions to put in practice a viable and sustainable rights-based approach that ultimately enhances social cohesion. Neither CSOs nor IGOs as distinct sectors have the independent capacity, credibility or social base necessary to achieve implementation of a rights-based international migration ‘regime.’ They must work in tandem in order to orient, convince and pressure States to do ‘the right thing’ for all migrants. In reality today, efforts and organizations defending human rights of migrants and combating xenophobia remain scattered, fragmented and relatively limited in impact. With the notable exception of the concerted effort around the Durban WCAR and the campaign for the 1990 Convention, the center of gravity of international CSO discourse and advocacy remains centred on denunciation of conditions and government action or inaction that constitutes lack of protection of human rights of migrants. The significant increase in activity has not yet translated into international coherency in civil society efforts; the defense of human rights of migrants remains far from what could be described as a movement. IGO activity remains minimal and ambivalent in articulating a concerted application to migrants of the very standards and principles these organizations were established to elaborate and uphold. Cooperation between and among CSOs and IGOs in this arena remains embryonic. Operational ethos in large international institutions including IOM and ILO resist actively engaging CSOs in other than either contractual service project implementation or general dialogue. Work in local communities is undeniably the necessary operational focus for constituent-based organizations. However, the lack of coordination and ‘concertation’ denies these efforts the visibility and effectiveness required to wrest the political and organizational initiative from State and other interests for whom social protection of migrants represents unacceptable economic costs and political constraints. As noted above, these interests are increasingly successful in accommodating differences to coordinate their views and activities at the global level. Much more than sparse campaigns are needed to defend and advance migrants rights and dignity in the context of today’s globalizing world, with its polarized accumulation of wealth and power and increasing exclusions. To build any kind of coherent movement, common approaches, strategies, coordination, and the ability to mobilize human resources are needed. All this is required to generate alternative solutions, influence the course of events, contribute to the elaboration of national policies, and so on. And it ain’t gonna happen spontaneously. National committees or coalitions – where they don’t already exist – are essential mechanisms to take up these campaigns and to collectively work to roll back xenophobia. As experience elsewhere shows, it is essential to define an active, assertive and broad civil society stance – nationally, regionally and 288

Globalization/Migration globally – on promoting migrants rights and dignity as well as combating xenophobic hostility. International institutions can do more to support, facilitate and resource coherent migration policy by emphasizing a standards-based approach, by expanding inter-agency coordination, and by ensuring consultation and cooperation with social partners and civil society.This framework requires of Social Partners and civil society actors: 1) Advocacy for national adherence to basic international human rights standards, for elaboration of anti-discrimination legislation and for appropriate practices. New emphasis is needed on promoting together the complementary ILO Conventions and the 1990 International Convention on migrant workers rights. 2) Establishment of national committees or coalitions – where they don’t already exist – are essential mechanisms to take up promoting these conventions as well as efforts to “roll back xenophobia.” Trade union, migrant, religious and human rights organizations must be included in such alliances; no one or two sectors alone will be enough. 3) Particular attention to building bridges and alliances between worker/trade union organizations and other sectors of civil society, including particularly migrant-based organizations. 4) Concerted action to get business, trade union, religious and community leaders and organizations as well as politicians and political parties, parliamentarians, and other personalities to speak out publicly, take leadership and promote initiatives to: promote respect for diversity, condemn xenophobic attitudes and actions, discourage discrimination and support the basic rights of all persons, including irregular migrants. 5) Elaboration of national employer, trade union, CSO strategies and programs to explicitly sanction xenophobia, monitor conditions, and encourage government and non-government measures and remedies at all levels. 6) Provision of direct services, attention to and support for migrants by employers, trade unions, and CSOs remains an essential manifestation and component of solidarity. 7) Development of professional capacities and institutions to effectively and credibly carry out these responsibilities. 8) Engagement in the international initiatives that build common perspective, analysis and action, including the Global Campaign on the conventions, cooperation with the UN Special Rapporteur and ILO initiatives, and celebration of International Migrants Day. International institutions must seriously take up action on migration from a rights based approach in a number of areas, inter alia: 1) A standards-based approach to migration activity needs to be explicitly and adequately incorporated in policies and programmes of international agen-

289

Patrick A. Taran cies, particularly in the assistance and cooperation they provide to governments. 2) Allocation of resources and staff to this arena must be placed more prominent on the agendas and budgets of all concerned international institutions, particularly ILO, OHCHR, IOM and others. Without providing the attention that has been given to promotion of other international norms, there is no basis to expect wider State adherence to norms and policies protecting the rights and dignity of migrants, including irregular migrants. 3) Dialogue and coordination among international agencies on migration, including specifically related to protection of migrants, is essential. Creation of fora for regular consultation is imperative; an initiative focused on protection, similar to the IGO working group on trafficking and smuggling, could be a useful forum to advance consultation and coordination. 4) Consultation and cooperation between international institutions and NGOs is especially imperative in this arena, linking the wealth of experience and ability of CSOs to reach and mobilize constituencies with the resources and mechanisms of international institutions is the only way the standards and values both sectors espouse will be effectively implemented in the practice of States and civil societies. Advancing elaboration of an international framework that assures protection of migrants’ human rights in the practice of States and societies requires adherence to basic international human rights standards, addressing labour market needs and composition, elaboration of anti-discrimination legislation and implementation of appropriate practices. Promotion of human rights law, humanitarian principles and respect for diversity as guarantors of democracy and social peace in increasingly diverse societies are shared responsibilities among government, social partners, civil society and migrants themselves. Civil society organizations and international organizations, in concert with migrant associations, have key moral and political leadership roles to play in generating common approaches, strategies, coordination, and in mobilizing societies to ensure implementation of such a framework. Recent progress is encouraging: the challenge is huge.

290

Jillyanne Redpath 1

THE INTERNATIONAL ORGANIZATION FOR MIGRATION (IOM) 2 AND THE HUMAN RIGHTS OF MIGRANTS IN AN IRREGULAR SITUATION

1.

INTRODUCTION

IOM studies estimate that there are between 15-30 million migrants in an irregular situation throughout the world. The daily work of many IOM staff across the globe involves assisting migrants in an irregular situation. Too frequently, IOM sees the exploitation, discrimination and abuse of these migrants. Whilst they may have started their journey with the hope of a new and more prosperous life, for many their story very quickly becomes one of despair and untold human suffering. IOM is committed to the principle that humane and orderly migration benefits migrants and society. It acts to assist in meeting the operational challenges of migration, to advance understanding of migration issues, to encourage social and economic development through migration and to uphold the human dignity and well-being of migrants. Underlying IOM’s work since its inception has clearly been the recognition that, in the final analysis, all that it does is on behalf of individual human beings in need of international migration assistance, and towards whom the international 1

2

This essay is drawn largely from IOM policy documents produced by IOM Migration Management Services and IOM Legal Services, which can be found at www.iom.int. The author would like to thank Irena Omelaniuk and Richard Perruchoud for their comments. The IOM is an intergovernmental organization made up of 101 Member States and over 30 Observer States. It has its Headquarters in Geneva and approximately 160 field offices located in all regions of the world.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 291-299 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Jillyanne Redpath community recognizes a responsibility. The disturbing rise in xenophobia and the tendency to target the foreigner as the scapegoat for any number of societal ills is in fundamental contradiction with the aims of such an organization. Increasingly, then, IOM sees the need to use means and occasions available to stimulate awareness of the contributions migrants can and do make, the difficulties they often face, and the rights to which they are entitled as human beings. IOM also sees the need to help clarify with migrants their lawful obligations to the States offering them admission.3

This quote reflects the reasoning behind IOM’s objective “to work towards the effective respect for migrants’ rights”, acknowledged by the IOM Council in Resolution No. 923 (LXXI) of 29 November 1995. IOM work concerning the rights of migrants in an irregular situation is aimed at all phases of the migration process, in countries of origin, transit and destination. IOM activities promoting effective respect for the human rights of migrants in an irregular situation include direct assistance to the migrant, workshops, conferences and seminars, information dissemination campaigns, and technical cooperation with governments and non-governmental organisations (NGOs). This essay focuses on three areas of IOM work: – Assisted Voluntary Returns – Trafficking in Human Beings – Migration and Health

2.

ASSISTED VOLUNTRAY RETURNS (AVR)

In the past 10 years, IOM has assisted more than 1.6 million people to return to over 160 countries of origin. The IOM currently implements approximately 100 AVR projects worldwide.4 While a significant number of beneficiaries of these activities have been migrants in an irregular situation, the assisted migrants have also included stranded students, qualified nationals and other groups wishing to return to their country of origin. Key tenets of IOM voluntary returns are to ensure return in an orderly and dignified manner and to assist the returnees in their first steps towards their reintegration in the country of origin. When establishing and implementing voluntary return programmes, key policy considerations include: – Respect for international principles and standards for migrants in an irregular situation – Addressing the root causes of irregular migration, thereby ensuring sustain-

3 4

292

IOM Strategic Planning: Toward the Twenty-first Century, MC/1842, 9 May 1995, para. 27 (emphasis added). IOM and Assisted Voluntary Returns, An Overview (August 2002) 1.

The International Organization for Migration (IOM) ability of the return for the migrant, governments and affected communities, through reintegration measures that support the socio-economic reabsorption of returning persons.5 The IOM is convinced that assisted voluntary return, where feasible, is the most desirable form of return because it takes account of a person’s decision, allows the returnee to prepare for the return and, in the specific case of irregular migrants and rejected asylum seekers, avoids the stigma of deportation and its negative repercussions for successful reintegration.6 The Organization seeks to balance effective respect for human rights whilst ensuring the integrity of regular migration programmes. In each phase of the return process, the Organisation is also able to conduct supporting activities to the return process such as research on relevant experience and motivations etc, information gathering and dissemination to potential beneficiaries, vocational training and post-return reintegration to ensure sustainable return, all of which impact positively on the human rights of migrants in an irregular situation. Reintegration assistance is critical to facilitating sustainable returns. Unless the push factors that initially drove migrants to move are addressed, a substantial number of returnees will not remain in the country of return, but will continue pursuing migration options in the face of unsustainable living conditions.7 Thus, an objective of many of these projects is to make people feel more secure in their own societies, mitigating the power of the “push” factors that drive them to irregular migration. The IOM Voluntary Assisted Return and Reintegration Programme (VARRP) in the United Kingdom provides an interesting example of the Organization’s return activities. The programme targets individuals who may be rejected asylum seekers, who have asylum applications pending, or who have exceptional leave to remain in the UK. IOM activities include organising voluntary return to countries of origin, and assisting returnees in their reintegration on arrival. A Reintegration Fund, managed by IOM London, is utilised towards the reintegration process in the country of origin. Reintegration assistance varies accord5 6

7

Ibid. Under the IOM Constitution, one of the functions of the Organization is to provide services for “voluntary return migration”. Thus, a key component of IOM assisted voluntary returns is the voluntary nature of the process. IOM considers that voluntariness exists when a migrant’s “…free will is expressed, at least through the absence of refusal or not otherwise manifesting disagreement; and where there is no indication of coercion, either by means of physical force or circumstances amounting to a threat thereof ”: IOM Assisted Voluntary Returns Handbook (2003) 10. In no circumstances will IOM be involved in effecting a migrant return, where physical force is involved. IOM and Assisted Voluntary Returns, above n. 4, at p. 5.

293

Jillyanne Redpath ing to the needs of the returnees, and the resources and local circumstances in the country of origin. IOM London works alongside its offices worldwide and in cooperation with NGOs and the UK Government in the implementation of the return and reintegration activities. One example concerns returnees under the programme to Albania. Through cooperation with a local NGO, IOM returnees are provided job counselling and job placement/training with local employers. A monthly salary supplement is provided to the employer, and the NGO monitors his or her progress. The returnee is also included in social and cultural activities organised by the local NGO. These activities are funded from the Reintegration Fund.

3. THE IOM AND THE HUMAN RIGHTS OF VICTIMS OF TRAFFICKING The IOM’s objective in its counter trafficking activities is “to curtail migrant trafficking and to protect the rights of migrants caught up in the practice”. There are currently approximately 75 active IOM counter-trafficking projects in Africa, Asia, Central, Eastern and Western Europe and Latin America, as well as one global assistance project targeting all developing countries in Africa, Asia and Latin America.8 IOM activities focus primarily on the prevention of trafficking, the assistance and protection of its victims, capacity building and technical cooperation. Promoting the human rights of the victim, or potential victim, is the central priority of all these activities. Prevention Activities In the prevention field, IOM organizes seminars and fora to raise community awareness about trafficking and share experiences among affected people. In many countries, IOM conducts nation-wide information campaigns to inform potential victims of the dangers of trafficking and irregular migration.9 CamIn 2002, under its Global Fund for the return and reintegration of victims of trafficking, IOM set up a global referral, assessment and rapid assistance mechanism for individual migrant women and children who were victims of trafficking in Africa, Asia and Latin America and the Caribbean and not eligible for assistance under current AVR programmes. Stranded individuals in need of protection and return assistance apply for the required support either directly at an IOM Office or through referral by a governmental or non-governmental organization: Report of the Director General on the Work of the Organization for the Year 2001, MC/2080, 101. 9 The main purpose of IOM information campaigns is to address false perceptions in relation to irregular migration. IOM seeks to balance this by highlighting the possibilities for regular migration, such as exchange programs, au pair work and other employment opportunities, where available. The key focus, however, is to inform “potential” irregular migrants of the possible dangers of such migration, thereby seeking to prevent the gross human rights abuses which too frequently occur. 8

294

The International Organization for Migration (IOM) paigns target not only potential victims, but also government officials/border guards and potential clients of trafficked victims.10 Capacity Building and Technical Cooperation Activities In the capacity building field, many IOM activities focus on empowering local partners and building their capacity through training activities both in countries of origin and destination. IOM also carries out training of government and other officials and provides technical assistance in the drafting of new legislation.11 IOM provides training to judiciary personnel in the application of relevant legislation. IOM also organizes training for border guards and police forces to increase their knowledge in distinguishing traffickers and smugglers, identifying victims and being able to treat the latter according to their rights and their needs.12 An example of an IOM technical cooperation project in this area is the project Law Enforcement against Sexual Exploitation, Abuse and Trafficking of Children, in Cambodia. In coordination with the Ministry of Interior, IOM, together with World Vision, the United Nations Children’s Fund (UNICEF), Save the Children-Norway and the United Nations High Commissioner for Human Rights (UNHCHR), has developed the project to address the problem of child exploitation and trafficking in Cambodia. The overall goal of the project is to improve the capacity of police, investigating judges and prosecutors to protect child victims of sexual exploitation and trafficking. The project consists of three strategic components: sensitzation of police on the issue; development of police procedures and training of police officials on how to use them and other related laws; and investigation of cases of sexual exploitation and trafficking of children, as well as initiation of court proceedings. Activities under the project have included establishing an office within the Ministry of Interior, training personnel, developing manuals, and training videos, and establishing a hotline for people to report on trafficking and related issues. Protection and Assistance Activities The IOM provides protection and assistance activities in countries of transit and destination, and increasingly upon return, in the form of shelters, medical, psychological and social assistance to victims. Should a victim decide voluntarily to return to his or her country of origin, IOM organises assisted return, reception in the country of origin and a tailored reintegration process. Reintegration 10 IOM Counter Trafficking Activities, IOM Counter Trafficking Service 2003, 3. 11 IOM Counter Trafficking Service 2002, at p. 2. 12 Ibid.

295

Jillyanne Redpath assistance can range from financial help and vocational training, to referral and counselling in specialized shelters, or the creation of micro-enterprises.13 The IOM experience suggests that successful reintegration requires at least one year of assistance, with six months intensive assistance and six months follow-up.14 The most urgent needs include medical care, educational/vocational training, employment, social security, medical and social insurance, lodging, unemployment or social benefits. The full integration of a former victim of trafficking and the sustainability of the reintegration process are achievable only through empowerment of the former victim, allowing the person to begin a new life.15 A good example of IOM work in this field is the Reintegration Centre for Albanian Victims of Trafficking in Albania. The Shelter started receiving victims of trafficking in February 2002, and can accommodate up to 28 people at one time. Local police, NGOs and the IOM Rome and Pristina Offices, have made referrals to the Shelter. Stay at the Shelter is based on the free will of the person referred or, in the case of a minor, on the request and approval of the parent or at the request of the police. The Assistance offered includes: a) Medical assistance: A doctor and a nurse are on 24-hour call. A clinic has been identified to make all routine examinations and provide treatment for the women in the programme. b) Information: The women are given detailed information on their rights and on the support provided at the Shelter and from other resources of the helping network. c) Legal Assistance: A Women’s Advocacy Centre meets the legal needs of the women and social workers working with the women have been trained on legal issues relevant to the victims. d) Psychological assistance: Ten social workers are available to make assessments of the women and provide counselling. e) Job training and employment: Assessment of education and vocational skills and needs is being completed. Agreements have been reached with several potential employers and social business alternatives have been identified. A number of women have started working or are attending vocational training.16 In several regions of the world, IOM has developed projects exclusively targeting child victims of trafficking. This caseload has specific needs relating to, inter 13 Ibid. 14 Ibid. 15 Ibid. 16 Migrant Rights, IOM Policy and Activities, MC/INF/259, 13 November 2002, 2

(Annex).

296

The International Organization for Migration (IOM) alia, legal status, return and reintegration, family reunification possibilities and protection procedures. The IOM project in Costa Rica, Return and Social Reinsertion of Street Children and Children at Risk Affected by Migrant Trafficking, provides an illustration of one such project. The general objective of the project is to contribute to protecting children’s rights through voluntary return and social reinsertion of street children affected by or vulnerable to migrant trafficking. This is achieved through four main project components: (1) Return; (2) Family reintegration; (3) Prevention in communities and schools; and (4) Research. The two-year project is co-executed by IOM in Costa Rica and Casa Alianza, an international NGO with extensive experience working with street children in Latin America.

4. MIGRANTS IN AN IRREGULAR SITUATION AND THE RIGHT TO HEALTH Over the years, IOM has undertaken a considerable amount of work in the area of migration and health. In this context, this part of the chapter focuses on migrants in irregular situation and HIV/AIDS. The link between mobility and HIV/AIDS is related to the conditions and structure of the migration process, poverty, exploitation, separation from families and partners and separation from the socio-cultural norms that guide behaviours in stable communities.17 IOM has been working closely with The Joint United Nations Programme on HIV/AIDS (UNAIDS) since 1997, developing a number of HIV/AIDS related projects in the field, seeking to address individual risk, vulnerability and training of professionals who deal with HIV/AIDS issues among mobile populations. Activities include advocacy and policy development, capacity building and programmatic support and best practice and information dissemination. IOM and UNAIDS jointly fund a small number of HIV/AIDS coordinators based at IOM Headquarters and regional offices.18 Although IOM has a number of projects specifically targeting migrants in an irregular situation, the majority of its HIV/AIDS projects target “mobile populations” in general, that is migrants in a regular or irregular situation alike. An interesting example of an innovative project aimed at preventing, and increasing awareness, of HIV/AIDS is the project Migrants from Africa Playing Soccer Against AIDS, in South Africa. The project aimed to increase awareness of HIV/AIDS among African migrants residing in Gauteng Province by combining HIV/AIDS information campaigns with soccer tournaments. During four tournaments, a locally contracted NGO dealing with HIV/AIDS, distributed basic HIV/AIDS information to both participants and spectators, by means of pamphlets, speeches addressing HIV/AIDS during match breaks, 17 IOM and HIV AIDS (IOM Migration Health Services, 2003), 2. 18 Ibid.

297

Jillyanne Redpath and the distribution of condoms. Additionally, there were information kiosks, where interested persons could obtain more detailed information on the virus in addition to detailed information on voluntary counselling and testing services, including the addresses of such services. During each tournament, different migrant teams competed against each other. These teams had been involved in numerous discussion sessions before each tournament, aiming to assess the dominant cultural perceptions surrounding HIV/AIDS and issues relevant to HIV/AIDS prevention. Ten migrant peer educators were trained by the NGO in prevention, care and counselling issues. It is estimated that approximately 1200 spectators and players were reached in these tournaments through the efforts of the peer educators alone, and 35,000 condoms were distributed.

5.

IOM PARTNERSHIPS

The IOM implements its activities individually, or in cooperation with local or international NGOs, as well as other intergovernmental organizations, in order to maximise their effect. Given the global dimension of the problem of lack of respect for migrants’ rights, cooperation is crucial to effectively and comprehensively promote observance of rights.19 An interesting example of partnerships with other organisations seeking to promote the rights of migrants is the International Steering Committee of the Global Campaign for the Ratification of the 1990 United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,20 of which IOM is an active member. The Committee is comprised of IGOs, NGO’s and other members of civil society and has the purpose of promoting the ratification and entry into force of the Convention. The Committee has made a valuable contribution to raising awareness of the Convention, highlighting the need for its ratification, and encouraging and facilitating co-operation between IGOs, civil society and other actors in seeking to promote the Convention and its objectives.

6.

CONCLUSION

The topics discussed and examples of activities given are a small part of the activities that IOM undertakes in promoting the rights of migrants in an irregular situation throughout the world. Traditionally providing migration assistance, IOM is now involved in various programmes actively focused on the effective respect for migrants’ rights, including the rights of migrants in an irregular situation. As has been seen, the Organization undertakes such activities individually,

19 Migrant Rights, IOM Policy and Activities, MC/INF/259, 13 November 2002, 3. 20 More information on the International Steering Committee’s activities can be found

on the Campaign’s website. See http://www.migrantsrights.org/

298

The International Organization for Migration (IOM) or in cooperation with local or international NGOs, as well as other intergovernmental organizations, in order to maximise the effect of its activities. IOM is committed to continuing and developing its programmes in this field in order to promote the human dignity and well being of the migrant, an objective central to the work of the Organization.

299

This page intentionally left blank

Simon Tonelli

IRREGULAR MIGRATION AND HUMAN RIGHTS: A COUNCIL OF EUROPE PERSPECTIVE 1.

THE POSITION OF

THE

COUNCIL OF EUROPE ON IRREGULAR MIGRATION

The issue of irregular migration is not without difficulty for an Organisation committed to democracy, human rights and the rule of law; particularly as it is essentially an intergovernmental institution. The Council of Europe does not have a declared policy on irregular migration, but its position can be drawn from various conventions, documents and policy statements. Its perspective on irregular migration may be summarised in the following manner: – irregular migration should not be dissociated from other migration issues, and successful management of it can only be achieved through a comprehensive migration management strategy of which the management of irregular migration is an integral element; – respect for the individual’s human rights is paramount over all other considerations; migrants should not be criminalised and hence the preference to employ the term “irregular” (and undocumented); in terms of migration management, the objectives are to prevent irregular migration and promote the development of legal channels, particularly in the context of labour migration; – Council of Europe convention guarantees covering socio-economic rights and other aspects of integration are generally restricted to lawfully resident migrants, and in some cases additionally restricted to nationals of other contracting parties to the convention; – asylum protection systems should be maintained separate from issues of migration management; – the contribution of the Council of Europe is to promote dialogue, exchange of information and co-operation through a political platform that brings together Member and non-Member States and a proposed Migration Agency.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 301-309 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Simon Tonelli

2.

THE COUNCIL OF EUROPE AND ITS PRINCIPLES

The Council of Europe was established to promote democracy, the rule of law and human rights as well as co-operation among its Member States. It now has 45 Member States, the most recent being Serbia and Montenegro, which joined in April 2003.1 Only Belarus of the former Soviet bloc remains outside the Organisation. The importance of migration as a cornerstone of democratic States has been forcibly underlined by the geo-political transition in Europe since the fall of the Berlin Wall. For many persons, locked in by the systems of population control in Central and Eastern Europe, the right to migrate (emigrate) was synonymous with democracy. Migration, much of it irregular, exploded during the 1990s. Taking advantage of the possibilities for informal work, people moved from East to West and increasingly within Eastern Europe. Visa policies in newly created States made the workers migrating within the Commonwealth of Independent States (CIS) region irregular overnight. Extensive land frontiers, weak or non-existent administrative structures, compounded by violent conflicts in the region, facilitated or encouraged this movement. In this political context, the right to migrate occupies a special place in the democratic aspirations of the populations in Central and Eastern Europe, which the Council of Europe must respect. Council of Europe Conventions The thrust of Council of Europe instruments in the migration field has been: firstly the protection of the rights of migrants; secondly the promotion of their access to foreign labour markets; and thirdly their integration. The overall aim has been the promotion of legal migration, although this is not always expressly stated. Protocol No. 4 of the European Convention on Human Rights (ECHR),2 Article 1 guarantees the right to emigrate – although not of course to immigrate. All new Member States have ratified this Protocol. The fact that Protocol No. 4 preserves the integrity of nation States and their right to control who enters their territory (by omission) arguably reinforces the objective of the text in promoting

1

2

See Statute of the Council of Europe, London, 5 May 1949, European Treaty Series No. 1. A chart of signatures and ratifications is available from the Council of Europe’s Treaty Office at http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, Strasbourg, 16 September 1963, European Treaty Series No. 46.

302

Irregular Migration and Human Rights only legal migration, that is duly authorised by the country of immigration. 3 Protection of Rights The European Social Charter (1961 and 1996)4 and the European Convention on the Legal Status of Migrant Workers (1977)5 provide complementary guarantees aimed at protecting migrants and their families, particularly equal treatment provisions in the social and economic field, including family reunion. They are however limited to migrants who are lawfully resident, and only those of Contracting States. Article 1 of the European Convention on the Legal Status of Migrant Workers, which defines the personal scope of the Convention, makes very clear the importance attached to regularity and legality: “the term “migrant worker” shall mean a national of a Contracting Party who has been authorised by another Contracting Party to reside in its territory in order to take up paid employment”. Recommendation R (2000) 3 of the Committee of Ministers to Member States on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship6 provides an exception. This text, which recommends Member States to recognise an individual, universal and enforceable right to a minimum of food, clothing, shelter and basic medical care, also recommends that this right should be open to foreigners irrespective of their legal status (and of course not limited to nationals of Council of Europe Member States). Access to Foreign Labour Markets Member States are encouraged to open up their labour markets to nationals of Contracting States.7 With the forthcoming enlargement of the European Union, this of course only has relevance for non-EU Member States (Romania,

3 4

5 6

7

The application of the European Convention of Human Rights is discussed in more detail in the essay by Nicholas Blake, QC. European Social Charter, Turin, 18 October 1961, European Treaty Series No. 35; European Social Charter (revised), Strasbourg, 3 May 1996, European Treaty Series No. 163. European Convention on the Legal Status of Migrant Workers, Strasbourg, 24 November 1977, European Treaty Series No. 93. Recommendation No. R (2000) 3 of the Committee of Ministers to Member States of 19 January 2000 on the Right to the Satisfaction of Basic Material needs of Persons in Situations of Extreme Hardship. Available from the Committee of Ministers web site at http://cm.coe.int/ta/rec/2000/2000r3.htm See Article 18 of the European Social Charter and the European Convention on the Legal Status of Migrant Workers.

303

Simon Tonelli Bulgaria, Croatia, Turkey). Again, the premise is legal migration – States are requested to issue the necessary formalities. Article 18 of the European Social Charter is concerned with the right to engage in a gainful occupation in the territory of other Contracting Parties. With a view to ensuring the effective exercise of this right, Contracting States undertake, notably, to apply existing regulations in a spirit of liberality and liberalise individually or collectively regulations governing the employment of foreigners. The control bodies have noted limited action taken by States in this field. Integration The Appendix to the European Social Charter opens up the other provisions of the Charter to foreigners who are nationals of Contracting Parties and lawfully resident or working regularly. So this covers an extensive range of social and economic rights: working conditions, freedom of association and collective bargaining, education and training and – in the case of the Revised European Social Charter – housing and protection against poverty and social exclusion. Again, irregular migrants who are on the territory of the Contracting Party, even if they are nationals of another Contracting Party to the Charter, are excluded. The Convention on the Participation of Foreigners in Public Life at Local Level (1992)8 was conceived with the aim of improving the integration of foreigners into the local community through participation in local public affairs (involvement in public inquiries, planning procedures, participation in local consultative bodies, right to vote in local authority elections). Again, the text is limited to non-nationals who are lawfully resident on its territory, although it is not limited to nationals of Contracting Parties. Arrest, Detention and Expulsion Legal migrants benefit from protection under the standard instruments. Protocol No. 4, Article 4 of the ECHR also prohibits collective deportations, which is relevant in the case of readmission agreements and group returns. Article 5(1)(f) of the ECHR permits States to use detention in order to prevent the illegal entry of any person on their territory, and also for the purpose of ensuring his or her departure. However, detention in international zones of persons without visas and identity documents has given rise to concern regarding such matters as the physical condition of detention, access to family, friends, lawyers and treatment by security guards.

8

304

Convention on the Participation of Foreigners in Public Life at Local Level, Strasbourg, 5 February 1992, European Treaty Series No. 144.

Irregular Migration and Human Rights The first Recommendation of the Human Rights Commissioner covers arrest, detention and expulsion of aliens, that is those who are either without documents, no longer with valid documentation or whose documentation is considered bogus.9 The Recommendation takes a universal approach and refers to the rights of every person. It was inspired by the conditions of persons awaiting admission, and being held in detention areas, and by definition irregular migrants without valid documentation, including asylum-seekers. Its provisions include: – (on arrival) the right to be treated with respect for human dignity and not to be automatically considered as a criminal or guilty of fraud; detention is not to be used systematically, and only as long as strictly necessary (as a rule there should no restrictions on freedom of movement); – Member States should avoid holding certain persons in waiting areas (unaccompanied minors, pregnant women, mothers with young children, elderly, people with disabilities); – families should not be separated; – detainees must have the right to emergency medical care; – detainees must have the right to contact anyone of their choice in order to inform that person of their situation; – forced expulsions should only be undertaken when unavoidable; there should be complete transparency in order to ensure that fundamental human rights have been respected at all stages; – the emphasis is on ensuring voluntary returns; – there should be proper training for expulsion officials to minimise risk of violence; – prohibition on the use of handcuffs during take-off and landing of aircraft. Policy Statements The Council of Europe’s intergovernmental committee on migration (CDMG) has for some years being working on the components of a migration management strategy,10 and within the context of this work mention can be made of a Conference on Irregular Migration and Dignity of Migrants: Co-operation in the Mediterranean Region in Athens (October 2001); the 7th Conference of Ministers responsible for migration affairs (Helsinki 2002) that discussed the issue Recommendation of the Commissioner for Human Rights concerning the rights of aliens wishing to enter a Council of Europe Member State and the enforcement of expulsion orders, CommDH/Rec(2001)1, Strasbourg, 19 September 2001. 10 Council of Europe, European Committee on Migration, Towards a Migration Management Strategy (Strasbourg, November 2002). This document is available from the website of the Council of Europe’s Directorate General of Social Cohesion at http: //www.coe.int/T/E/Social_Cohesion/Migration/. 9

305

Simon Tonelli of irregular migration and included references to it in the Final Declaration of the Conference; a report on Preventing Illegal Immigration: Juggling Economic Imperatives, Political Risks and Individual Rights that is soon to be published;11 and a review to be undertaken on the effective access to minimum rights for irregular and undocumented migrants. Furthermore, the topic is likely to be part of the dialogue with third countries as part of the newly established political platform on migration of Member and non-Member States of the Council of Europe. Towards a Migration Management Strategy The migration management strategy adopts a holistic approach. It proposes (i) measures to manage migration in an orderly manner, (ii) an appropriate capability for the protection and return of migrants and for dealing with disorderly or sudden population movements, (iii) an environment conducive to integration, and (iv) dialogue and co-operation between countries of origin, transit and destination. The measures to manage migration in an orderly manner encompass improved information, mobility as a human right, labour migration policy, family re-unification and prevention of irregular immigration. The elements of the migration management strategy relating to the prevention of irregular migration repeat the need for a holistic approach within the overall framework of the management of migration flows. Attention is drawn to the fact that the prevention of irregular migration is not just a matter of developing policies aimed at those in an irregular situation as these irregular situations are often the result of the application of other migration policies. Irregularity is a problem of migration stocks and flows and the development of the concept of circular migration is proposed as a means of countering the build up of stocks. Other proposals include information exchange, technical and financial assistance to governments of Central and Eastern Europe and the harmonisation of legislation to combat trafficking. Conference on Irregular Migration and Dignity of Migrants: Co-operation in the Mediterranean Region (Athens) At this conference the Secretary General of the Council of Europe emphasised that the policy aim of the Organisation is to prevent irregular migration (ie departures); an orderly migration management strategy respectful of the individual’s human rights (Protocol No. 4 of the ECHR) being the starting point, followed by political acceptance that Europe is a region of immigration. In fact

11 C-L. Marie, Preventing Illegal Immigration: Juggling Economic Imperatives, Political

Risks and Individual Rights, CDMG (2003) 13.

306

Irregular Migration and Human Rights the movements are more complex with strong intra-regional flows, substantial regional as well as extra-regional East-West transit migration. In the words of the Secretary General: … I would like to reiterate that the large long-term presence on our countries’ territories of clandestine migrants deprived of human rights and of a legal status is detrimental not only to the victims but also to society at large. In order to preserve social cohesion, we have to refrain from creating scapegoats as targets of public frustration.12

The Helsinki Declaration – Undertakings of Ministers Responsible for Migration Affairs At their 7th Conference, the Ministers of the Council of Europe Member States responsible for migration affairs adopted a Final Declaration, part of which is relevant to the question of irregular migration and its better management. The approach of this Declaration is to privilege the prevention of irregular migration and the development of channels of legal migration (particularly labour). There is still a legal/illegal divide. For example, references to recognising the positive contribution of migrants to society and the value of ethnic and cultural diversity fall within a section dedicated to the promotion of an open and welcoming society and the encouragement of the participation of lawfully resident migrants. Specifically on irregular migration, the Declaration includes undertakings on the following issues: measures to combat smuggling and trafficking of human beings and migrant exploitation; improving the exchange of information to combat irregular migration, clandestine channels and trafficking in human beings; prevention of irregular migration by enhancing legal provisions (penal, fiscal and civil); combating efficiently traffickers and criminal gangs through cooperation with countries of origin and transit; and, dealing with irregular migrants in co-operation with other countries with a view to finding appropriate solutions with due respect to human rights. The Parliamentary Assembly The Parliamentary Assembly of the Council of Europe has adopted a number of recommendations relating to the issue. Two recent recommendations deal with “clandestine” migration and transit migration. 12 Proceedings of the Conference on Irregular Migration and Dignity of Migrants: Co-

operation in the Mediterranean Region, Athens, 3 and 4 October 2001, MG-FL (2002) 7 (Council of Europe, June 2002), 15.

307

Simon Tonelli In its Recommendation 1449 (2000) on clandestine migration from the south of the Mediterranean into Europe,13 the Parliamentary Assembly considered that the complex problems caused by irregular migration into and within the Council of Europe Member States required urgent attention and solutions, to which the Organisation should contribute actively. The proposals to the Committee of Ministers included the need to research and analyse the intrinsic dynamics of irregular migration; establish dialogue with the competent authorities of the non-Member States with a view to implementing on-going co-operation on the economic, political and sociological causes of the problem; and support corresponding policies of decentralised co-operation between local authorities of countries of origin, transit and destination. Recommendation 1489 (2001) on transit migration in central and eastern Europe14 took note of the impact of large scale movements of people travelling westwards across the continent, particularly in the light of two major characteristics, namely their illicit nature and the implication of an elaborate criminal organisation. The Parliamentary Assembly stressed once again that in its opinion the most effective way to prevent irregular migration was to deal with the root causes in the countries of origin, and if necessary increase overseas development aid. However, the Assembly also expressed its concern that the access of asylum-seekers to asylum status determination procedures should not be interfered with and called for Member States to maintain a clear distinction between asylum-seekers and other transit migrants, to re-examine their readmission agreements and to review their immigration and asylum policies.

3.

CONCLUSION

In many respects, the tremendous geopolitical changes of the last 15 years or so have changed the rules of the game. On the one hand, the political transition of Central and Eastern Europe has opened up the continent to major population movements and pressures, provoked by evident social and economic disturbances and imbalances in the region and the break down of administrative structures capable of managing the pressures of immigration, transit and emigration. On the other hand, the right to migrate represents a strong element of the democratic changes and aspirations of the populations of the countries of this region that European governments cannot deny. Moreover, all Member States of the Council of Europe are concerned to a greater or lesser extent as countries of origin, transit and destination. Dialogue and co-operation between

13 Parliamentary Assembly Recommendation 1449 (2000) of 28 January 2000 on clan-

destine migration from the south of the Mediterranean into Europe. 14 Parliamentary Assembly Recommendation 1489 (2001) of 22 January 2001 on transit

migration in central and eastern Europe.

308

Irregular Migration and Human Rights these countries and respect for the human rights of all migrants must represent, therefore, the key elements for future migration policy in Europe.

309

This page intentionally left blank

Linda S. Bosniak

HUMAN RIGHTS, STATE SOVEREIGNTY AND THE PROTECTION OF UNDOCUMENTED MIGRANTS UNDER THE INTERNATIONAL MIGRANT WORKERS’ CONVENTION*

[W]hile the international legal protection afforded to aliens is on [the] one hand an inchoate expression of human similarities which cannot be denied, it is simultaneously an expression of national differences which are equally beyond question.1

1.

INTRODUCTION

Irregular migration has become the subject of urgent policy debate both within many states and at the international level during the past three decades. While international organizations, state governments and analysts have focused much of their concern on the effect of clandestine migration on receiving states, they have also devoted increasing attention to the precarious social condition of the migrants themselves.

*

1

Author’s note: A substantially similar version of this article was first published as “Human Rights, State Sovereignty, and the Protection of Undocumented Migrants under the International Convention for the Protection of Migrant Workers and Members of Their Families” (1991) 25 International Migration Review 737-770. I have slightly revised it for this volume to reflect the Convention’s adoption and ratification and some ancillary developments. The analysis and most of the supporting research remain as first published in the original. E. Morgan, “Aliens and Process Rights: The Open and Shut Case of Legal Sovereignty” (1988) 7 Wisconsin International Law Journal 107, 142.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 311-341 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Linda S. Bosniak The plight of irregular migrant workers was explicitly highlighted in the international arena in 1975, when the International Labor Organization (ILO) adopted a Convention concerning Migrations in Abusive Conditions (No. 143).2 The Convention emphasized the damaging social consequences of irregular migration, and explicitly included undocumented migrant workers within the scope of certain protective provisions. That same year, the United Nations SubCommission on Prevention of Discrimination and Protection of Minorities published a report entitled Exploitation of Labour Through Illicit and Clandestine Trafficking, which detailed, among other things, the human rights problems faced by undocumented migrant workers and their family members. The report concluded that the preparation of “one or more new instruments to render explicit certain relevant human rights which are only implicitly recognized in the existing provisions” was desirable.3 Spurred by these developments, and the growing international perception that a human rights instrument of general applicability was required in the labor migration context, the General Assembly of the United Nations issued a call in 1979 for the drafting of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.4 A special working group of state representatives was established to draft the instrument, and after a series of meetings which spanned the course of a decade, the final draft was completed and adopted by the United Nations General Assembly in 1990. After a concerted campaign by a range of NGOs,5 the Convention received the necessary number of country accessions to become binding on its parties. Significantly, most of the ratifying states are, predominantly, states of emigration rather than immigration.6 Indeed, as the Inter-American Commission observed

2

3

4

5

6

Convention No. 143 (Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers) Geneva, 24 June, 1974, Cmnd. 6624. H. Warzazi, Exploitation of Labour through Illicit and Clandestine Trafficking (republication of the report of the United Nations Economic and Social Council, SubCommission on Prevention of Discrimination and Protection of Minorities, UN doc. E/CN.4/Sub.2/L.640, 20 November 1975 (New York: United Nations, 1986) 192. GA Res. 34/172, UN doc. A/34/46 (1979). M. Haseneau, “Setting Norms in the United Nations System: The Draft Convention on the Protection of the Rights of All Migrant Workers and Their Families in Relation to ILO in Standards on Migrant Workers” (1990) 27 International Migration 133, 138; G. Bertinetto, “International Regulation of Illegal Migration” (1983) 21 International Migration 189, 199. The Steering Committee for the Global Campaign for the Ratification of the UN Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families played a particularly central role. See: http://www.migrantsrights.org As of June 2003 the following countries have ratified the Convention: Azerbaijan, Belize, Bolivia, Bosnia-Herzegovina, Cape Verde, Columbia, Ecuador, Egypt, El

312

Human Rights, State Sovereignty and the Protection of Undocumented Migrants in 2000, “no developed country has signed it, not even the most progressive countries in the area of international human rights legislation.”7 The agreement nevertheless entered into force in July 2003. Among its provisions,8 the Convention includes a broad range of explicit human rights protections for undocumented migrant workers and the members of their families.9 These protections significantly surpass any afforded to them previously. Prior to the Convention, undocumented migrants had been explicitly excluded from coverage, or had been ignored as a distinct class, under the provisions of virtually all existing human rights instruments, both international and regional.10 The sole exception was ILO Convention no. 143 (1975), which

7 8

9

10

Salvador, Ghana, Guatemala, Guinea, Mali, Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Tajikistan, Uganda, Uruguay. Several others have signed but not yet ratified. See http://www.cidh.oas.org/annualrep/2000eng/chap.66.htm (Para. 69). For a comprehensive analysis of the Convention, see Special Issue: U.N. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1991) 25 International Migration Review. Under Article 5 of the Convention, migrant workers and members of their families: “a) Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a Party; b) Are considered as non-documented or in an irregular situation if they do not employ with the conditions provided for in subparagraph (a) of this article”. Under Article 4 of the Convention, the term “members of the family” includes spouses of migrant workers, common-law spouses, if recognized by the law of the state of employment, their dependent children, and “other dependent persons who are recognized as members of the family by applicable legislation or applicable bilateral or multilateral agreements between the States concerned.” The only (indirect) references to irregular immigrants in the major United Nations human rights instruments preclude them from protections afforded to regular migrants. Articles 12(1) and 13 of the International Covenant on Civil and Political Rights, respectively, limit the right of liberty of movement to “[e]veryone lawfully within the territory of a State,” and provide procedural rights in the context of expulsion from a state to “alien[s] lawfully in the territory of a State Party.” In theory, at least, the treatment of irregular immigrants should be otherwise indistinguishable from all other aliens and non-nationals (the extent of protection of aliens as a group varies among the instruments and their provisions). See R. Lillich, The Human Rights of Aliens in Contemporary International Law (Manchester: Manchester University Press, 1984) 41. Regional human rights instruments follow much the same pattern. The European Convention on Human Rights and Fundamental Freedoms, for example, limits coverage of the article on freedom of movement to persons lawfully within the territory of the State party, (Article 2 of the Fourth Protocol) and allows curtailment of the right to liberty and security of the person where an individual is seeking to make an unauthorized entry into the territory of the state party or “against whom

313

Linda S. Bosniak guarantees “equality of treatment for [the undocumented migrant worker] and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits” (Article 9(1)), and also requires the protection of the basic human rights of “all migrant workers” (Article 1). Nevertheless, the ILO Convention does not protect the family members of migrant workers, and the “basic human rights” it guarantees are generally viewed as limited in scope.11 Moreover, because the employment-related rights the ILO Convention provides to undocumented migrants cover only “past employment,” they remain extremely restrictive. Notably, undocumented migrants were ultimately not excluded from the class protected under the U.N. General Assembly’s 1985 Declaration on the Human Rights of Individuals who are not Citizens of the Countries In Which They Live,12 although factious debates about their inclusion tied up the drafting committee for years. In its final form, the Declaration extends certain human rights protections to “any individual who is not a national of the State in which he or she is present” (Article 1). However, the Declaration is of limited value to most undocumented immigrants since it is a non-binding instrument, the rights it sets forth are far from comprehensive, and the particular condition and specific needs of undocumented immigrants are not addressed. The United Nations Convention for the Protection of The Rights of All Migrant Workers and Members of Their Families is, therefore, the most ambitious statement to date of international concern for, the problematic condition of undocumented migrants. The Migrant Workers Convention (as it is commonly designated) recognizes that “workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers,” and that “the human problems involved in migration are even more serious in the case of irregular migration.” (Preamble). Under its provisions, irregular migrant workers and the members of their families – two categories which effectively include most migrants in an irregular situation around the world13 – are persons affirmatively entitled to substantial legal protection within the international human rights regime. an action is being taken with a view to deportation.” (Article 5). Otherwise, in theory, the rights of irregular aliens should not be distinguishable from those of other aliens. See also African Charter on Human and Peoples’ Rights (1981), (Article 12(4)); American Convention on Human Rights (1969), (Article 22(1) and (6)). 11 The Convention fails to specify those rights which are considered “basic”, which would make it difficult to apply in specific cases; moreover, it is “out of the question that Article 1 implies an open-ended reference to the entire body of human rights that have been gradually codified in the U.N.” Bertinetto, above n. 5 at p. 194. 12 G.A. Resolution 40/144 (December 13, 1985). 13 Despite the nominal limitation of the Convention to “migrant workers and the

members of their families,” the Convention would actually protect the vast majority

314

Human Rights, State Sovereignty and the Protection of Undocumented Migrants The Convention extends a broad range of civil rights and employmentrelated protections to “all migrant workers and members of their families”. Under the Convention, States parties are to afford to undocumented as well as documented migrants a range of civil, social and labor rights as against the state of employment, employers, and other individuals within the state. These include, but are not limited to, rights to due process of law in criminal proceedings, free expression and religious observance, domestic privacy, equality with nationals before the courts, emergency medical care, education for children, respect for cultural identity, and process rights in the detention and deportation context. They also include the rights to enforce employment contracts against employers, to participate in trade unions, and to enjoy the protection of wage, hour and health regulations in the workplace.14 Yet despite its laudable protective provisions, the Convention’s treatment of undocumented immigrants is deeply ambivalent. In the first place, the Convention is as striking for its exclusion of undocumented immigrants from the scope of certain important rights and protections as it is for its explicit coverage of them by others. While contracting states must meet the minimum standard of treatment of irregular migrants prescribed in Part III of the Convention, the rights provided these migrants need not be as extensive as those which must be afforded to migrant workers and members of their families who are in a “regular situation” in the state of employment. States parties are entitled to discriminate against undocumented migrants with respect to rights to family unity, liberty of movement, participation in the public affairs of the state of employment, equalof migrants in an irregular status in the territory of Contracting States. First, the Convention defines the term “migrant worker” as a “person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” (Article 2(1)). This definition encompasses not only people who migrated for the purpose of employment, but also those people who entered for reasons entirely unrelated to employment who have worked at any point. Consequently, hundreds of thousands of “de facto refugees” who have entered states without authorization and have subsequently become employed would be covered, as would certain former students, tourists, and others. (Note, however, that Article 3(d) expressly excludes refugees and stateless persons from coverage.) Second, the Convention covers not only irregular migrants who are or have themselves been employed but also most persons who are closely related to them. (See above n. 10). While there are certain to be exceptions (including people who have overstayed their visas but are not employed, and undocumented relatives of irregular migrant workers who do not meet the state’s definition of “family member”), most undocumented immigrants fall into one or the other category. 14 Part III of the Convention (Articles 8-35). As provided in most other human rights instruments, States parties may derogate from many of these rights when necessary to maintain ordre public, and in other exceptional circumstances. See various provisions of Part III.

315

Linda S. Bosniak ity of treatment with nationals as regards the receipt of various social services, equality of treatment for family members, freedom from double taxation, and further employment protections and trade union rights, among others.15 Moreover, and more significantly, the Convention’s terms repeatedly stress in a variety of direct and implicit ways that the rights provided in the Convention are not to be construed as an infringement on state power to govern the admission and exclusion of aliens from their territory and on all concomitant state prerogatives. The Convention permits states parties to pursue the immigration control policies that they see fit (Article 79), and requires them to undertake control measures to end the process of clandestine migration and the presence and employment of irregular migrants including, “whenever appropriate,” employer sanctions. (Articles 68 and 69). Contracting States are explicitly not obliged to regularize the status of irregular migrant workers (Article 35), and undocumented immigrants are pointedly not exempted from “the obligation to comply with the laws and regulations of any State of transit and the State of employment,” (Article 34), including, by implication, states’ laws against unauthorized entry, employment or residence. In this essay, I will argue that the process of irregular migration poses a set of exceptionally complex dilemmas for the theory and practice of international human rights. The debate which accompanied the Convention’s drafting revealed a continual tension between the rights of undocumented migrants, as individuals, to treatment in accordance with international human rights standards, and the rights of states to unimpeded exercise of their sovereign power to exclude foreigners from their territory and to shape the composition of national membership. The ultimate result is a hybrid instrument, at once a ringing declaration of individual rights, and a staunch manifesto in support of state territorial sovereignty. The Migrant Workers’ Convention represents an important advance for the rights of undocumented migrants, notwithstanding its two-tiered structure of protections. If broadly accepted and fully enforced, the Convention’s terms would constrain the abusive exercise of state power against undocumented immigrants under certain circumstances, and would guarantee them a degree of social protection, particularly in the employment context. However, the Convention’s net value for these migrants is threatened by its overriding commitment to the principle of national sovereignty. Specifically, the Convention’s assiduous reservation of powers to the states in the interests of territorial sovereignty will ultimately circumscribe the reach and effect of many of the protections for undocumented migrants that the Convention seeks to assure.

15 Parts IV and V of Draft Convention (Articles 36-56 and 57-63), and Article 70.

316

Human Rights, State Sovereignty and the Protection of Undocumented Migrants

2.

STATE SOVEREIGNTY AND IRREGULAR MIGRATION

The meaning of “irregularity” of status for migrants is variously defined under different states’ legal systems. As a rule, irregular migrants or immigrants are people who have arrived in the state of employment or residence without authorization, who are employed there without permission, or who entered with permission and have remained after the expiration of their visas. The term frequently includes de facto refugees (persons who are not recognized as legal refugees but who are unable or unwilling to return to their countries for political, racial, religious or violence-related reasons), as well as those who have migrated specifically for purposes of employment or family reunification. Irregular immigrants experience a range of treatment, both legal and social, within different receiving States. Despite these variations, the status of all undocumented immigrants shares one decisive element. By definition, their designation as “irregular” migrants or immigrants presupposes either the breach or the failure of national territorial borders. The concept “irregular migration,” in other words, is intelligible only by reference to both the rule of state territorial sovereignty and the limitations of sovereignty in fact. The rule of territorial sovereignty is a fundamental governing principle of the international legal and political systems. The term refers to a State’s power to exercise exclusive control over its physical domain, subject to limitations imposed by international law.16 It is usually understood to entail a State’s “competence to prescribe and apply law to persons, things and events within its territorial domain to the exclusion of other states.”17 States’ power to refuse entry and to expel aliens, and their discretion to confer nationality has been treated as an integral part of this territorial sovereign power since the late nineteenth century. As one analyst expressed it, “if a state is not free to decide who will enter its territory according to its own criteria and to regulate the conditions of such ingress, it is severely impeded in its function as the governing authority of the territory in question.”18 Such powers are by no means treated as absolute under current international law; in fact, international law imposes important limitations on their exercise. For example, major human rights instruments place procedural restrictions on the power of states to expel lawfully present aliens.19 Many States have entered 16 See e.g. P. Sieghart, The Lawful Rights of Mankind (Oxford: Oxford University Press,

1985), 32; J. Mayall, Nationalism and International Society (Cambridge: Cambridge University Press, 1990) 19. 17 L. Chen, An Introduction to Contemporary International Law (New Haven: Yale University Press, 1989) 117. 18 G. Fourlanos, Sovereignty and the Ingress of Aliens (Stockholm: Almqvist & Wiskell International, 1986) 57. 19 See e.g., International Covenant on Civil and Political Rights (Article 13); American

317

Linda S. Bosniak into bilateral, regional and specialized accords regarding migration for employment and other forms of international movement through which they effectively relinquish their discretion to control the entry and expulsion of foreigners. Under the 1951 Refugee Convention, States may not expel or return aliens who qualify as refugees to the frontiers of States of persecution (this is the principle of non-refoulement),20 and this principle is now generally regarded as supported by customary international law.21 Despite these and other limitations,22 conventional international law provides that the ingress of aliens is a field “essentially falling within [the] domestic jurisdiction” of States.23 The prevailing view is that States may draw limits, and that they may condition the entry of foreigners into their territory upon their consent.24 While some disagreement remains as to the absoluteness of those limits,25 there is little question that, at the very least, states may seek to prevent

20

21

22 23 24

25

Convention on Human Rights (Articles 22(6) and (9)); African Charter on Human Rights (Articles 12(4) and (5)); and the European Convention on Human Rights (Article 4 of the Fourth Protocol). Under the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137, Article 1(2), and the 1967 Protocol Relating to the Status of Refugees, 31 January 1967, 19 U.S.T. 6223, Article 1, a refugee is defined as any person who possesses a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, who is outside his or her country of nationality and is unwilling to avail him or herself of the protections of that country due to such fear. Article 33 of the 1951 Convention sets forth the right of non-refoulement. R. Plender, International Migration Law (Dordrecht: Martinus Nijhoff, 1988), 425431; G.S. Goodwin-Gill, “Nonrefoulement and the New Asylum Seekers” in D.A. Martin, (ed.), The New Asylum Seekers: Refugee Policy in the 1980’s (Dordrecht: Martinus Nijhoff, 1988) 103, 104; but see K. Hailbronner, “Nonrefoulement and ‘Humanitarian’ Refugees: Customary International Law or Wishful Legal Thinking?” in The New Asylum Seekers: Refugee Policy in the 1980’s, ibid. at pp 123, 128-132. See generally Plender (1988), above n. 22, at pp. 159-191; Fourlanos, above n. 19. Fourlanos, ibid. at p. 50; see also I. Brownlie, Principles of Public International Law (New York: Oxford University Press, 1990), 519. For example, Plender (1988), above n. 22, at p. 460; D. A. Martin, “Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy” (1989) 23 International Migration Review 547, 572. Such consensus in international law corresponds with the view in political thought that States may exercise an “admissions policy” with respect to foreigners for the purpose of protecting the national community. M. Walzer, Spheres of Justice (New York: Basic Books, 1983), 31. See also A. Zolberg, “The Next Waves: Migration Theory for a Changing World” (1989) 23 International Migration Review 403, 411-412. The disagreement is evidenced, for example, by the ongoing debate regarding States’ powers to expel asylum seekers who fail to qualify for refugee status, even if they have

318

Human Rights, State Sovereignty and the Protection of Undocumented Migrants the entry, and may subsequently exclude, migrants who attempt to enter or do enter state territory without formal state authorization for purposes of employment, family reunification or for other “voluntary” purposes. Despite international recognition of States’ powers to control the ingress of foreigners, not all unauthorized cross-border movements are perceived or treated as “irregular” migrations in practice. The legal power that States possess to protect their borders against outsiders is not always exercised, and, perhaps more significantly, unauthorized cross-border population flows have often not been treated, either rhetorically or in fact, as a process which poses a threat to State sovereignty. In France, for instance, undocumented immigration, which constituted up to 80% of all immigration until the early 1970’s, was described as “spontaneous migration,” and was tolerated as such; only later was it described as “illegal,” and made the object of concerted legal control.26 Likewise, until relatively recently, the entry and the employment of undocumented immigrants in many developing countries “were not in fact viewed as illegal acts although they were at variance with existing legislation. Irregular migration was tolerated as a normal occurrence and regarded as inconsequential.”27 In the past three decades, however, the rate of unauthorized cross-border movements has increased while the international economy has deteriorated. States have come more frequently to characterize irregular migration as a legal problem of significant proportions, and often describe such migration as a threat to national sovereignty (e.g., United States policy-makers repeatedly warned in the 1980’s and 1990’s that the country had “lost control of its borders”). Many States have enacted restrictive immigration legislation in the past decade in an effort to reassert control.28 As a general matter, national borders still function as boundaries which channel and constrain the movement of human beings; states control their borders entered such States without authorization. See debate in The New Asylum Seekers: Refugee Policy in the 1980’s, above n. 22. See also Plender (1988), above n. 22, at pp. 426-427. 26 G. Verbunt, “France” in T. Hammar, (ed.), European Immigration Policy (Cambridge: Cambridge University Press, 1985), 136. 27 R. Lohrmann, “Irregular Migration: A Rising Issue in Developing Countries” (1987) 25 International Migration Review 253. 28 The United States, Canada, France, Australia, Japan, Germany Argentina and Italy among other countries, have all introduced laws in the last several years which are aimed, at least in part, at controlling the process of irregular immigration within each of those countries. For a summary of some such legislation, see R. Plender, “Recent Trends in National Immigration Control” (1986) 35 International and Comparative Law Quarterly 531. Increasing restrictionism on the part of States is both paralleled and partially spurred by the surge in nationalist and explicitly anti-immigrant political movements within the societies of many of these States.

319

Linda S. Bosniak by formally choosing who (if any) will enter (legal or “regular” migration) and by turning away the rest. Yet hundreds of thousands of people cross national borders each year without explicit authorization of the States of entry and millions more remain in those states without express permission. The majority of these migrants are ultimately employed in the receiving State. The incidence of irregular migration is unlikely to diminish anytime soon, despite renewed control efforts in many states of employment. Undocumented immigrant labor is relied upon increasingly in both advanced and developing states, including states, like Japan, which formerly experienced extremely low rates of immigration.29 Countries which formerly “exported” migrants, including Italy, Spain and Greece, are now net “importers,” and many of their new immigrants are undocumented.30 The number of asylum seekers is rising annually world-wide, and while States will continue to deny asylum to most applicants, large numbers will remain in those States without authorization as they do today.31 Economic and political conditions in many of the principal sending countries have further deteriorated in recent years with no sign of relief in sight, and new pools of migrants, including millions from Eastern Europe, have joined the flow. In light of these recent developments, the prevailing legal norm of territorial sovereignty appears increasingly at odds with the current dynamics of transnational migration. Like other transnational processes, the process of irregular migration reveals a “discrepancy between the terms of reference and explanatory reach of the theory [of the sovereign State] and the actual practices and structures of the state and economic system at the global level.”32 Evidently, States’ internationally recognized power to police their frontiers, and to control admission to and exclusion from their territory, does not necessarily guarantee State insularity. In short, while States possess the legal authority to keep these migrants out, they often fail to do so in fact.33 29 M. Selby, “Human Rights and Undocumented Immigrant Workers in Japan” (1989)

26 Stanford Journal of International Law 325, 327-330. 30 J. Murray, “Migration and European Society: A View from the Council of Europe” in

N. Mercuro et al., (eds), International Review of Comparative Public Policy (Immigration in Western Democracies: The United States and Western Europe), Vol. 1 (1989) 179, 180; J. Widgren, “Europe and International Migration in the Future: The Necessity for Merging Migration, Refugee and Development Policies” in G. Loescher and L. Monahan, (eds), Refugees and International Relations (Oxford: Oxford University Press, 1989), 52. 31 E.g. P.L. Martin and E. Honekopp, “Europe 1992: Effects on Labor Migration” (1990) 24 International Migration Review 591, 601; Lohrmann, above n. 28, at pp. 255-256. 32 D. Held, Political Theory and the Modern State (Stanford: Stanford University Press, 1989), 229. 33 As Duchacek has observed in a different context, “[t]he concept of territorial imper-

320

Human Rights, State Sovereignty and the Protection of Undocumented Migrants This failure of sovereignty-in-fact gives rise to various knotty questions for the international legal system. While States possess acknowledged authority to prevent the entry of these migrants in the first instance and to deport them from their territory, what international legal norms govern States’ relationship with undocumented migrants once they are present within their territory? How can States’ interests in immigration control and undocumented migrants’ interests in fair treatment be accommodated? What is the actual relationship between States’ immigration-regulatory powers and their general human rights obligations to undocumented aliens, and what should it be? In short, how do we understand and work with the interplay between “questions of entry” and “questions of membership”34 in the treatment of irregular migrants under international law?

3. RIGHTS FOR UNDOCUMENTED MIGRANTS: COMPETING PERSPECTIVES The extension of substantial human rights protections to undocumented immigrants appears both particularly necessary and especially problematic under international law. As already noted, completion of the U.N. Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they Live was delayed for years due to heated conflict within the working group over whether undocumented immigrants would be included within the protected class of non-nationals. While inclusion of undocumented migrants within at least some of the protections of the International Migrant Workers Convention was contemplated by most States from the beginning, the scope and extent of such coverage were among the most fiercely contested issues that the working group faced. The full complexity of this debate was not developed during the Convention’s lengthy drafting process since working group participants were seeking compromise rather than a detailed exposition of differences. Nevertheless, conflicting views are discernable in the record of the group’s proceedings and are embodied in the final draft of the Convention itself.

meability has combined with the facts of permeability to produce what may be called international relations among perforated sovereignties.” I. Duchacek, The Territorial Dimension of Politics Within, Among and Across Nations (Boulder: Westview Press, 1986) at p. 208; cf. Held, above n. 33, at pp. 228-229. Analysts have debated the source and nature of State territorial permeability in the migration context. Many emphasize the incapacity or ineffectiveness of States in keeping the migrants out, while others stress the States’ toleration of the phenomenon in order to benefit from the labor the migrants provide. Evidently, the emphasis will change depending on the conditions involved in different countries at different historical moments. 34 W.R. Brubaker, “Introduction” in W.R. Brubaker, (ed.), Immigration and the Politics of Citizenship in Europe and North America (New York: University Press of America, 1989) 1, 14.

321

Linda S. Bosniak The debate between proponents and opponents of human rights protections for undocumented migrants is actually conducted at two different levels of argument and analysis (although they are never entirely separate), each of which is structured around the tension between the rights of the migrants as individuals and the interests or prerogatives of States. At the first level, the arguments concern the best or most appropriate course of conduct in the treatment of undocumented aliens as measured against both policy objectives and normative standards. At this level, the positions closely resemble those which have been elaborated (often more extensively) in policy debates about clandestine migration within States and in the general migration literature. At a second level, the debate involves structural questions about the manner in which two sometimes-conflicting principles of international law should be accommodated in the context of an international human rights instrument which protects undocumented aliens. The question here concerns the effect of States’ sovereign powers to exclude foreigners on the rights of undocumented migrants as individuals, and reciprocally, the effect of human rights protections for undocumented migrants on States’ sovereign exclusionary powers. The Policy Debate Contrasting models of fairness and divergent approaches to deterrence have shaped the debate at the level of policy. On one side, analysts, human rights advocates and some States contended that the legal and social status of irregular migrant workers and their families in the countries in which they live and work makes extension of substantial human rights protections to them especially urgent. By virtue of the illegality of their entry, presence and/or employment, the undocumented are particularly powerless within the receiving States.35 Their unauthorized status, however defined, makes them subject to removal and possible prosecution for immigration violations at all times. They usually lack access to many, if not most, civil and labor rights and social benefits, and they 35 Despite sometimes very significant variations, the social and economic condition of

irregular immigrants shares certain characteristics in different receiving States. The social problems often associated with the irregular legal status of undocumented immigrants within the receiving countries have been extensively documented for many of the major States of employment and residence. Studies include Selby, above n. 30 (Japan); C. Wihtol de Wenden, “The Absence of Rights: The Position of Illegal Immigrants” in Z. Layton-Henry, (ed.), The Political Rights of Migrant Workers in Western Europe (London: Sage Publications, 1990) (Western Europe); L.S. Bosniak, “Exclusion and Membership: The Dual Identity of Undocumented Workers under United States Law” (1988) 6 Wisconsin Law Review 955 (United States); F. Hawkins, Critical Years in Immigration: Canada and Australia Compared (Kingston: McGillQueen’s University Press, 1989),195 (Australia and Canada). See also Warzazi, above n. 4.

322

Human Rights, State Sovereignty and the Protection of Undocumented Migrants are afraid to avail themselves of the rights they may enjoy for fear of exposure to immigration authorities. As a consequence, undocumented migrants are often among the lowest paid and hardest-worked employees in the workforce; they are susceptible to avaricious practices on the part of landlords and merchants; and they fear state authority, including authority that might provide them with assistance.36 These effects of illegal status not only shape the migrants’ own experience, but also have disruptive social consequences for the societies in which they live and work. The particular need to protect the human rights of this group of migrants has been argued both as a matter of universal values and as an issue of instrumental expediency. Stressing the extreme condition of social vulnerability to which the undocumented are often subjected, advocates of the normative human rights position have invoked the universality of the human rights mandate,37 and have 36 Illegal status is not the only factor which shapes the experience of undocumented

immigrants in the receiving countries, and their experience does not always differ fundamentally from the experience of legally present migrants. Studies in the United States, for instance, have demonstrated that the undocumented are not always paid less than domestic workers, and that when they are, this may often be as much a function of their foreign status, length of residence and education level as their legal situation. See D. Massey, “Do Undocumented Migrants Earn Lower Wages than Legal Immigrants? New Evidence from Mexico” (1988) 21 International Migration Review 236. Furthermore, one cannot necessarily presume that employers (or landlords) specifically seek out undocumented migrant workers for their vulnerability, or even that they are always aware of the legal status of their employees (or tenants). E.g. T. Bailey, “The Influence of Legal Status on the Labor Market Impact of Immigration” (1985) 19 International Migration Review 220. The point is that the unauthorized legal status of these individuals provides a background set of rules which structure the relationships that they have inside the country of employment and delimit the scope of action that they are likely to take. For instance, an employer may not pay an undocumented worker less than the minimum wage or require him to work longer hours, but if he does – and this occurs with great frequency in many countries (see n. 29) – the worker 1) is unlikely to complain about it to the authorities for fear of exposure to punishment or expulsion, 2) is less likely to quit and risk unemployment since he or she is ineligible for State unemployment benefits, and 3) is less likely to participate in any labor organization process for fear of exposure to immigration authorities. See generally Bosniak (1988) above n. 36 at pp. 987-998; Wihtol de Wenden, above n. 36. 37 For example, during a meeting of the working group which was preparing the draft Convention, the representative of Denmark stressed that the Convention should protect “the rights of all migrant workers and their family members in any conceivable situation. The main principle behind the work should be the humanitarian aspect in any situation, and that aspect should be strengthened to the widest possible extent in the text of the Convention.” Report of the Open-Ended Working Group (hereinafter, “Report”), (June 1985): UN doc.A/C.3/40/1, para. 30. Similarly, the representative of

323

Linda S. Bosniak also emphasized the particular concern that the international community has shown for especially unprotected social groups.38 Instrumentalists, on the other hand, have argued that guaranteeing human rights for undocumented migrants serves the interests not only of the migrants but of the State and its citizens as well: to the extent the rights of irregular migrants are not protected, they are more desirable to certain employers who seek their vulnerability. Further rights for and empowerment of these workers vis-à-vis both State and employers will limit the demand for the particular character of labor which they provide; and thus, conditions for domestic workers will improve, and the interests of border control as well as the human rights of migrants will be served.39 In sharp contrast, many analysts, and certainly many governments, have viewed the prospect of extending substantial human rights to irregular migrants as extremely problematic. In their view, more rights would encourage and even reward further violations of State territorial borders.40 Furthermore, while Finland stated that the Convention’s “guiding principle should be the humanitarian interest of each individual rather than the interest of the State.” Ibid., para. 17. 38 The representative of Mexico emphasized that the Convention “was a further step in United Nations efforts to define the fundamental rights of certain especially vulnerable population groups.” Report, (June 1985), UN doc.A/C.3/40/1, para. 48. Additionally, as already noted, the Convention’s Preamble bases the need for further protections for undocumented immigrants on the fact that “the human problems involved in migration are even more serious in the case of irregular migration.”. 39 E.g. M. Peletier, “Rights and Obligations of Unauthorized Immigrants in the Receiving Countries. Protection of the Fundamental Rights of Unauthorized Immigrants” (1983) 21 International Migration 174, 182; W.R. Böhning and J. Werquin, The Future Status of Third-Country Nationals in the European Community (Brussels: Churches’ Committee for Migrants in Europe, Briefing Papers No. 2, 1980) at pp. 14-16. The representative of Norway, for example, “stressed the importance of ensuring basic rights to all migrant workers, irrespective of their being in a regular or irregular situation, which would discourage the use and exploitation of undocumented foreign workers.” Report (June 1985), para. 29. The representative of Sweden stated that “contrary to what has been advocated, the protection of the basic human rights of undocumented migrant workers would tend to discourage illicit or clandestine migration.” Ibid., para. 14. See also Preamble to Convention: “Considering also that recourse to the employment of migrant workers who are in an irregular situation will be discouraged if the fundamental human rights of all migrant workers are more widely recognized...”. 40 E.g. Bertinetto, above n. 5, at p. 199. See also e.g., Draft Report of the Open-Ended Working Group, U.N. Doc. A/36/378, Annex XIII (May 1981), para. 10 (“certain delegations felt the [draft] text would tend to encourage illegal trafficking in labor, or, at least, to make it very difficult for States to take effective measures against such trafficking”); Report of the Open-Ended Working Group (20 June 1985), U.N. Doc. A/C.3/40/1, para. 25 (the representative of Australia expressed concern that the protections for undocumented migrants included in the draft Convention might “affect Australia as regards illegal migration”).

324

Human Rights, State Sovereignty and the Protection of Undocumented Migrants recognizing that undocumented immigrants suffer human rights abuses, they have stressed that the only acceptable policy response is a renewed commitment to enforce State borders and to prosecute employers who hire undocumented immigrants and persons who traffic in clandestine migration. Some emphasize that more punitive immigration control measures will serve as a deterrent to further irregular migration, thereby eliminating the situation of exploitation altogether. Notably, support for enhanced restriction and enforcement has also been expressed by some proponents of rights for undocumented immigrants, who view stringent border control measures as an indispensable part of any human rights program. The theory is that to the extent undocumented migrants are prevented from illegal entry or employment, they are protected from the forms of exploitation which characterize their status.41 In addition to the legal and pragmatic arguments for and against rights for undocumented migrants, the Working Group’s record of proceedings contains a subtext of contrasting normative views on questions of national community, social obligation and policy toward immigrants.42 On one side, supporters of rights for the undocumented suggested that States and employers should not be permitted to benefit from the labor of irregular migrant workers without being required to accord them, or to comply with, fundamental rights and protections. Rather than treating irregular migrants as voluntary transgressors of State immigration laws, many analysts shifted at least part of the responsibility for irregular migration to the receiving States by emphasizing, among other things, States’ persistent demand for migrants’ labor, and their history of economic and political penetration into many of the societies from which the migrants originate.43 Rights supporters argued that irregular migrant workers are in certain respects de facto members of the national community by virtue of their economic and cultural contributions, and that the community should keep its end of the unwritten compact by extending the undocumented legal recognition 41 E.g., Böhning and Werquin, above n. 40 at pp. 14-16; Peletier, n. 40. The representa-

tive of Sweden, for example, asserted that a human rights policy for undocumented migrants “must be combined with legislative measures to make illegal and punishable the unauthorized employment of foreign workers in accordance with Part I of ILO Convention No. 143 on migrations in abusive conditions.” Report, (20 June 1985), para. 14. 42 Views of this nature have been more explicitly developed in the immigration debates within individual States and within the migration literature more generally. See Zolberg, above n. 25, at pp. 423-426 for a brief overview of competing ethical positions on State obligations in the immigration context. 43 E.g., A. Portes and R.G. Rumbaut, Immigrant America (Berkeley: University of California Press, 1990) at p. 233; S. Sassen, “America’s Immigration Problem” (1989) World Policy Journal 811, 828-829.

325

Linda S. Bosniak and certain basic rights.44 Opponents asserted, on the other side, that States should not be obliged to provide undocumented aliens anything more than basic human rights protections because they are not party to the social contract which binds the national community.45 In this view, the migrants entered the State’s territory without State consent and in direct violation of the State’s expressed intention to condition entry upon consent, and are therefore not entitled to the benefits of community membership, including most rights.46 No national community, moreover, can afford to continually remake its boundaries in response to the economic and political hardships which afflict other parts of the world.47 Finally, some opponents argued that national communities are constituted on the basis of shared histories, values, culture, and language, and that the social fabric will quickly unravel if an uncontrolled number of people, often from radically different backgrounds, are even partially incorporated into the membership community.48

44 “Membership is a social fact, not something that can simply be determined by

45

46

47 48

political authorities...[Aliens’] moral claims...derive from their social ties to these countries, from the fact that they live and work there.” J. Carens, “Membership and Morality: Admission to Citizenship in Liberal Democratic States” in W.R. Brubaker, (ed.), Immigration and the Politics of Citizenship in Europe and North America (New York: University Press of America, 1989) 31, 32-33, 43-44. See e.g. Selby, above n. 30, at pp. 356-358; GISTI (Groupe d’information et de soutien des travailleurs immigrés), “Travail Au Noir? Travail Clandestin? Travail Illegal?” (1990) 11 Plein Droit 4; Z. Layton-Henry, “Citizenship or Denizenship for Migrant Workers?” in Z. Layton-Henry, (ed.), The Political Rights of Migrant Workers in Western Europe (London: Sage Publications, 1990) 189; G. Lopez, “Undocumented Mexican Migration: In Search of a Just Immigration Law and Policy” (1981) 28 UCLA Law Review 615. See also Report, U.N. Doc. A/36/378 (May 1981), para. 42 (various delegations “stressed that undocumented migrant workers frequently paid taxes or contributions in the state where they were employed and that their corresponding entitlements must be guaranteed”); Report, UN doc.A/C.3/40/1 (June 1985), para. 47 (the delegation of Mexico stressed “the positive contribution of migrant workers to the economic development of the receiving States”). See e.g., L. Henkin, The Age of Rights (New York: Columbia University Press, 1990) at pp. 47-50; D.A. Martin, “Due Process and Membership in the National Community” (1983) 44 University of Pittsburgh Law Review 165, 231; P.H. Schuck and R.M. Smith, Citizenship Without Consent (New Haven: Yale University Press, 1985), 131140. For a critique of the use of national community membership theories “to defend immigration law exceptionalism,” see T.A. Aleinikoff, “Citizens, Aliens, Membership and the Constitution” (1990) 7 Constitutional Commentary 9, 27-34. See e.g., Freeman, 1986. Cf. Walzer, above n. 25.

326

Human Rights, State Sovereignty and the Protection of Undocumented Migrants All of these contrasting positions on rights for undocumented migrants reflect competing emphases on individual rights and community interests, on the centrality of the nation-State and the salience of transnational processes. Undocumented migrants themselves are alternately viewed as subjects of rights and objects of regulation, as in need of protection and as threats to the rights and fulfillment of others. The Convention responds by fashioning a series of compromises – rights and control, membership and exclusion, individual and State – and by characterising the whole as serving both the interests of State territorial integrity and the human rights of irregular migrants. The Structural Debate In addition to these policy-based and normative arguments, the international debate on the treatment of undocumented migrants has been embroiled in a boundary dispute between the concerns of international human rights, on the one hand, and State territorial sovereignty, on the other. Parties to the debate have contested the point at which States’ sovereign rights to exclude foreigners, and more generally, their authority over matters of national membership, gives way to international obligations to protect undocumented migrants as individuals, or, framed in the alternative, the point at which undocumented aliens’ rights as individuals properly yield to States’ sovereign exclusionary powers. Notably, debate at this level is not structured around mutually exclusive alternatives, but turns instead on questions of emphasis and degree. Almost without exception, proponents of rights for undocumented migrants in the Convention working group acknowledged that extending these migrants substantial human rights protections implicates States’ interests in territorial sovereignty, and recognized that States cannot be required to afford the same human rights guarantees to them as they do to their own citizens and perhaps to legally present aliens as well. Likewise, opponents of enhanced rights for the undocumented did not dispute that States are obliged to accord undocumented aliens the most basic human rights protections while they are in the State’s territory. The question, instead, was simply where to draw the line. Before examining the elements of the debate, it must be emphasized that the conflict between the international norms of human rights and State sovereignty is not unique to the migration context. International efforts to impose human rights obligations on States, entirely apart from the rights of aliens, have frequently met with resistance from States on grounds of State sovereignty. In fact, the international human rights regime as a whole is afflicted by a deep and persistent tension between the two principles.49 While the nature of this tension has 49 F. Caportorti, “Human Rights: The Hard Road Towards Universality.” in R.St.J.

Macdonald and D.M. Johnston, (eds), The Structure and Process of International Law (The Hague: Martinus Nijhoff, 1983); Henkin, above n. 46, at pp. 43-64; R.J.

327

Linda S. Bosniak changed over time,50 it is currently often expressed as a debate about jurisdiction, or the proper locus of authority: at issue is when human rights concerns are within the exclusive jurisdiction of States and when they are legitimately subject to international scrutiny. Conflict of this sort arises in the context of virtually all international human rights endeavours, and the International Migrant Workers’ Convention is no exception. State representatives to the U.N. working group, for example, argued on more than one occasion about whether the Migrant Workers’ Convention would represent a codification of customary international law or whether it would only bind the signing parties.51 These exchanges reflected – among other things – differing views on the relative supremacy of international and national law and on the need for State consent to international jurisdiction in matters of human rights.52 Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986) 129. 50 In the past, the human rights/sovereignty tension was articulated as one which counterposed the inherent sovereign power of States over their inhabitants, on one side, and individuals’ natural rights as human beings to a minimum standard of treatment by States, on the other. Since international law now unequivocally recognizes that individuals are bearers of rights independent of States, and that constraints may be placed on States’ relationships with their inhabitants (P. Sieghart, The International Law of Human Rights (Oxford: Oxford University Press, 1983) 15), the conflict currently tends to be expressed in less absolute terms, and instead concerns issues – in addition to the jurisdictional conflicts described in the text – such as the extent of protection States are required to afford, and the occasions on which restrictions on or derogations of rights are permissible. 51 See, e.g., Report of the Open-ended Working Group, A/C.3/42/1, (June 22, 1987), paras. 205, at pp. 326-331. The representative of the United States took the position that the Convention should not be construed as a codification of customary international law. The Chairman of the Committee agreed, as did the representative of the Federal Republic of Germany. The representatives of Senegal and Morocco expressed the view that those provisions of the Convention which concerned “fundamental human rights” would constitute a codification of customary international law. Representatives of the former Soviet Union, Algeria and India concurred. 52 Another example was the debate about the Convention’s enforcement procedure. Some delegations wanted to empower the Committee on the Protection of the Rights of All Migrant Worker and Members of their Families (established under Article 72) to receive any and all communications from States parties regarding alleged or possible violations of the Convention by any other State party. Others wanted a provision which would make States parties’ subjection to the jurisdiction of the Committee optional rather than compulsory. See debate in Report, UN doc A/C.3/44/1 (June 1989), paras. 81-109. Ultimately, the optional procedure prevailed. See Article 76. See generally J. Niessen and P. Taran, “Using the New Migrant Workers’ Convention” 25 (1991) International Migration Review 859, 862-864 for discussion of the Convention’s complaints procedures.

328

Human Rights, State Sovereignty and the Protection of Undocumented Migrants But while the entire human rights field suffers from a perennial tension between the principles of universal human rights and those of State sovereignty, the conflict assumes an additional and distinct dimension in the area of international migration. Here, human rights interests contend not merely with States’ relative jurisdictional independence from international authority, but also with a central substantive aspect of sovereignty – States’ plenary territorial powers, one attribute of which is their virtually uncontested authority to control the admission and exclusion of aliens and to confer nationality – to, in effect, prescribe the composition of the nation-State community. In the migration context, human rights and territorial sovereignty principles actually meet and compete in two different regulatory domains. The first of these governs matters concerning the admission and expulsion of aliens into and from a national territory – governing, in other words, questions of border or entry. In this domain, the tension that prevails between human rights principles and States’ immigration powers has largely been resolved in favor of the State. There is little question that, in the absence of some treaty obligation, States’ territorial powers prevail over aliens’ claims to entry or residence, or their claims against expulsion from States, even if such entry or such expulsion have obvious and compelling human rights ramifications. On the other hand, States do not enjoy unfettered discretion over aliens in the exercise of their sovereign exclusionary powers. As we have seen, international law requires that States provide aliens who are present in their territory with basic process rights in the immigration regulatory sphere.53 The Migrant Workers’ Convention codifies this accommodation of principles by requiring States to provide all migrant workers and their family members with a variety of procedural protections prior to expulsion (Articles 22 and 23), while at the same time emphasizing States’ undisturbed power to establish and enforce its substantive policies of admission and exclusion (Article 79). The second domain concerns States’ general, i.e., non-immigration-related, treatment of aliens who are present within their territory. Here the interplay between the principles of States’ territorial powers and their human rights obligations is more complex. The Migrant Workers’ Convention may be viewed, in large measure, as an effort to come to terms with this complexity.54 53 See above n. 12. 54 It should be recalled that prior to the era of modern human rights law, the matter of

State treatment of aliens was “subsumed” into the structure of State-State relations, so that “[i]f a State committed a wrong against an individual who was an alien, then that wrong, if unredressed, was translated into a wrong against the alien’s State of nationality. Once two States were involved, traditional international law handled the issue through its normal mechanisms...[T]he alien himself had no right which was cognisable by traditional international law against his host State.” Lillich, above n. 11, at p. 1. Within this context, customary international legal norms developed regard-

329

Linda S. Bosniak Generally speaking, in this second, internal domain, the interplay is structured as follows: As human beings, all aliens are viewed as theoretically entitled to internationally-guaranteed standards of treatment with respect to “fundamental rights.”55 Yet States are plainly not required to treat aliens, including legal resident aliens, identically with citizens. Restrictions for aliens, usually involving political and economic rights, are written into various human rights instruments.56 Moreover, even in the absence of such explicit restrictions, States ing minimum standards of treatment which States were required to accord to aliens. The development of these norms initially “produced the curious result that [States] were obliged, in international law, to respect at least some of what are today called human rights in the case of aliens, at a time when they were under no such obligation to respect any for their own citizens.” Sieghart, above n. 17, at p. 33. However, these norms later provided the foundation for the protection of individuals as subjects vis-à-vis their own governments under modern human rights law. Ironically, despite the fact that contemporary international human rights law has its origins in the traditional law governing the treatment of aliens, the application of modern international human rights norms to aliens as individual subjects in their own right is currently “one of the most heatedly controversial [topics] in all of contemporary international law.” Lillich, above n. 11, at p. 3. 55 According to Goodwin-Gill, “[t]he major human rights treaties acknowledge the inherent dignity and equal and inalienable rights of all, and in respect of fundamental rights, recognize no distinction between the national and the non-national.” G.S. Goodwin-Gill, “International Law and Human Rights: Trends Concerning International Migrants and Refugees,” (1990) 23 International Migration Review 526, 536-537. Indeed, some commentators view the major international human rights instruments as fully applicable to aliens as well as citizens, with the exception of a handful of provisions which specifically exclude aliens. The International Covenant on Civil and Political Rights, for example, requires State parties to protect persons “within [their] territory and subject to [their] jurisdiction,” and in general would appear to contain a general norm of non-discrimination against aliens. See generally Lillich, above n. 11, at pp. 44-47, 84-98, and M.S. McDougal, et al., “The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights” (1976) 70 American Journal of International Law 432, 456-464. 56 For example, Article 2(3) of the International Covenant on Economic, Social and Cultural Rights provides: “Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.” Similarly, Article 1(2) of the International Convention on the Elimination of Racial Discrimination provides that the Convention “shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.” Article 16 of the European Convention on Human Rights provides that Contracting States may impose restrictions on the political activity of aliens. Article 25 of the International Covenant on Civil and Political Rights guarantees a variety of political rights to “[e]very citizen,” although all other articles expressed in

330

Human Rights, State Sovereignty and the Protection of Undocumented Migrants regularly limit a variety of rights to nationals, and such action is generally treated as legitimate under international law.57 To the extent that such differential treatment, even of legal permanent residents, is permissible, its permissibility derives from States’ sovereign power to admit and exclude aliens and to confer nationality. Since States may decline to admit aliens altogether, they may provide them less than full admission to the privileges of national membership, or may grant them admission pursuant to a set of limiting conditions. In other words, States’ gate-keeping powers, which entail powers to determine the composition of the community to which State obligations are owed, are viewed as legitimately justifying a principle of discrimination,58 subject to some limitations, in the application of human rights protections to aliens. Just how much protection States must minimally provide to aliens is a matter of ongoing controversy, as evidenced by the debates in preparation for the International Migrant Workers’ Convention, as well as the U.N. Declaration on the Human Rights of Non-Citizens. The degree of protection States are required to provide, however, depends significantly on the class of aliens at issue. The discrimination permitted and practiced against undocumented aliens exceeds, by far, the discrimination permitted against most other classes of aliens. States view the very presence of irregular migrants both as a violation of their sovereign exclusionary powers and as a rupture of the social contract which binds the nation. In theory, receiving States never had the opportunity the affirmative provide rights to “everyone.” Finally, Article 21(2) of the Universal Declaration of Human Rights states that “[e]veryone has the right of equal access to public service in his country” (emphasis added). 57 Customary international law does appear to place limits on the type and degree of differential treatment permitted. While “[i]t is seldom seriously asserted that states cannot differentiate between nationals and aliens,” such differentiation must “bear a reasonable relation to the differences in their obligations and loyalties.” McDougal, et al., n. 56, at p. 444. See also Brownlie, above, n. 24, at p. 528 (unreasonable discrimination against aliens must be distinguished from “the different treatment of non-comparable situations”); G.S. Goodwin-Gill, International Law and the Movement of Persons between States (Oxford: Clarendon Press, 1978) 87 (proper inquiry is “whether alienage is, in the circumstances, a ‘relevant difference’ justifying differential treatment...objective justification and proportionality” must be demonstrated). 58 In international human rights parlance, the term “discrimination” is often used to denote the drawing of impermissible distinctions between members of a protected class, and is contrasted with permissible differentiation between protected and unprotected members. E.g. Brownlie, n. 24, at p. 528. Under this usage, aliens would often not be characterized as subject to discrimination but rather to differential treatment based on their lack of membership in the protected class. However, as used here (and as employed by some international legal scholars), the term “discrimination” is understood in its broader sense to include state decisions to exclude aliens from the ambit of the protections in the first instance.

331

Linda S. Bosniak to refuse them admission or to impose conditions on that admission. As a consequence, international law treats the power of States to discriminate as both greater and more vital with respect to irregular immigrants. The “character of the relationship” between undocumented aliens and the state in the immigration arena, which is by definition a “prohibited one,”59 is transposed to the domain of States’ internal human rights treatment of these aliens, and significantly affects the nature of this treatment. In other words, discrimination against the undocumented as to human rights is effectively treated as both an extension of State’s exclusionary powers and a substitute for actual exclusion at the border. Of course, some States and international advocates urge increased protections for undocumented migrants by stressing the rights of individuals as such and the human rights needs of especially vulnerable groups. Many acknowledge States’ enhanced powers to discriminate against undocumented immigrants, but question the extent of the permissible discrimination, and the degree to which the sovereignty principle may be treated as determinative in their treatment. The Convention accommodates these competing approaches by providing substantial human rights protections to the undocumented but by emphasizing that their unlawful status makes these migrants less entitled to international protection than other migrants. Although the principles of rights and sovereignty compete within the conceptually separate State domains of the border and interior, in reality the two domains are inextricably linked. As stated above, although aliens are entitled to important basic rights internal to the State, the State’s authority to regulate the border “spills over” into the interior, and both directly and indirectly limits the rights that aliens enjoy there. The spill-over effect works in the other direction as well: states’ human rights responsibilities to persons within their national communities sometimes work to constrain the most draconian exercise of their border powers.60 59 Plyler v. Doe, 457 U.S. 202, 246 (1982) (Burger, dissenting). According to the dissent,

“[t]his Court has recognized that in allocating governmental benefits to a given class of aliens, one ‘may take into account the character of the relationship between the alien and this country.’ Mathews v. Diaz, 426 U.S. 67, 80 (1976). When that ‘relationship’ is a federally-prohibited one, there can, of course, be no presumption that a State has a constitutional duty to include illegal aliens among the recipients of government benefits.” See also majority opinion in Plyler, in which the Court protects the rights of undocumented children to State-provided education but nevertheless advises, with regard to adult undocumented immigrants, that “those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation.” 457 U.S. 220 (emphasis added). 60 For a detailed examination of the relationship between border and interior in the regulation of alien status, with a focus on the United States context, see L. Bosniak, “Membership, Equality and the Difference That Alienage Makes” (1994) 69 New York University Law Review 1047.

332

Human Rights, State Sovereignty and the Protection of Undocumented Migrants The uncertainty and complexity of the relationship between States’ immigration policies at the border and their internal membership policies provoked extensive discussion within the Convention working group. In particular, several members expressed tremendous concern that the rights the Convention provides to undocumented migrants could somehow be read to undermine States’ formal legal authority to eliminate these same migrants from their territory or to exercise other immigration control functions. Debate in the working group about what is now Article 79 provides an example. That article states: Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.

Participants engaged in extensive discussion about the scope and meaning of the term “admission”. The representative of the United States “wished to make it absolutely clear that it was his delegation’s understanding that the article as adopted reaffirmed the well-recognized principle that all States have the sovereign right to adopt and enforce their own immigration policies. In this regard, his delegation understood the word ‘admission’ in this essay in its broadest concept, to encompass all terms and conditions pursuant to which migrant workers and members of their families may enter and remain in the United States, as well as those conditions which would result in their expulsion.” In contrast, the representative of Sweden opposed the inclusion of the provision altogether since it “could undermine the other provisions of the Convention and this gave particular concern as the Convention lays down fundamental human rights, which always have to be respected by all states.”61 In other words, the U.S. representative (supported by France and Canada) went on record to emphasize that the reserved domain of State power, expressed in Article 79 by the word “admission,” must not be treated as diminished in any way by the rights provided in the Convention. The representative of Sweden (joined by Cape Verde and Algeria) asserted that the very invocation of States’ reserved domain of territorial sovereignty, via reference to their powers relating to the admission of aliens, runs the risk of jeopardizing the full application of rights which the Convention seeks to ensure. Sweden’s concern (notwithstanding the second sentence of Article 79, which on its face would appear to protect against this eventuality) attests to the enormous, almost talismanic power that assertions of State sovereignty have often had in the area of human rights for aliens.

61 Report, A/C.3/43/1 (20 June 1988), paras. 11, 20.

333

Linda S. Bosniak The record of proceedings of the working group is replete with statements by delegations which seek to hold the line against the encroaching agenda of rights for aliens, sometimes to the point of paranoia. For instance, Article 18(1) states in part: “Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals”. Representatives of the United States and the Netherlands both expressed reservation about the formulation of this provision, “since, in their view, the text could imply a legal recognition or regularization of the status of migrant workers”.62 The representative of the Netherlands went on to emphasize that “no provision of [what is now Part III] of the Convention should seek to regularize the status of illegal migrant workers or of illegal members of their families.”63 This sentiment was ultimately codified in Article 35. As already indicated, the Convention accommodates the competing concerns about sovereignty and human rights by substantially incorporating them both. It counterposes rights narrowed by State immigration interests against State immigration interests curtailed – though only minimally – by rights. This scrupulous balancing is an effort to provide full assurance to States that their sovereign powers are not in jeopardy without frustrating the ultimate objective of the instrument, which is human rights for migrants. The full significance of some of the Convention’s provisions, such as Article 79, is left to future interpretation. However, the Convention’s probable effectiveness as a human rights instrument for undocumented migrants can already be assessed.

4. PROTECTION OF UNDOCUMENTED MIGRANTS UNDER THE CONVENTION The Convention’s provisions regarding the treatment of irregular migrants represent a political and jurisprudential achievement: the often-competing interests of the migrants and States, of human rights and immigration control, are all in evidence and are all apparently accommodated. Yet when evaluated from the perspective of the human rights of undocumented migrants, the accommodation is only a partial success. Under the strict terms of the document, the undocumented fare reasonably well. States are required to extend significant rights to undocumented migrant workers and family members, including due process, equal protection, access to the courts, protection from employers, rights to free expression, and so forth. If properly enforced, some of the substantial protections extended to

62 Note that the legal system of the United States itself has long recognized the right

of undocumented aliens to legal equality, meaning full legal personhood, before the courts, see generally Plyler v. Doe, 457 U.S. 202 (1982), without, however, treating such equality and legal personhood as entailing legalization of immigration status. 63 Report, A/C.3/36/10 (23 November 1981), para. 57.

334

Human Rights, State Sovereignty and the Protection of Undocumented Migrants undocumented migrants under Part III could improve their status and situation immeasurably. This is especially true in countries in which the most basic rights of these immigrants are ignored.64 The Convention does, on the other hand, permit States to afford lesser protections to irregular migrant workers than to documented migrants. Under the terms of the Convention, the undocumented do not have guaranteed rights to family unity, certain trade union freedoms, liberty of movement, participation in public affairs in the State of employment, equality of treatment with nationals with regard to certain government benefit programs including housing, educational and health-related services, and further employment protections, among other things.65 In other words, under the terms of the Convention, the undocumented continue to enjoy institutionally-sanctioned second-(or third-) class status. The extent of the discrimination considered acceptable for undocumented aliens is significantly curtailed under this Convention. This narrowing of the discrimination gap is largely the result of the Convention’s establishment of fairly rigorous standards of minimum treatment for irregular migrants. Thus, despite the discrimination, the terms of the terms of the Convention clearly represent an advance for undocumented migrant workers and members of their families.66 The real problem with the Convention, and one which will seriously limit its efficacy as a human rights instrument for undocumented migrants, is that its 64 See e.g., Selby, above n. 30 (describing the condition of undocumented immigrants in

Japan). 65 See generally, Convention, Part IV. 66 Nevertheless, the non-application of the right to family unity to undocumented

migrant workers deserves a few words. Lack of protection in this area is troubling from a human rights perspective precisely because the right to family unity is generally considered among those rights which are fundamental. Fourlanos, above n. 19, at pp. 87-118; Plender (1988), above n. 22, at pp. 365-392; United Nations, Economic and Social Council, Report of the Secretary-General, The Social Situation of Migrant Workers and Their Families, UN doc. E/CN.5/1985/8 (1984). Of course, to have included family unity in Part III of the Convention would have meant requiring States to permit the entry and residence of hundreds of thousands, if not millions, of persons in their territory, something that the principle of State sovereignty precludes. It is also very difficult to conceptualize exactly how family reunification would work in the absence of some legal status for the undocumented migrant workers (an issue which is addressed below). But in light of the seriousness with which this right is approached internationally, and the attention paid to the question of family unity in the various reports generated by the United Nations on labor migration, its omission is unfortunate. Note that during working group meetings, the government of Greece registered its support for the right of family reunification for all migrant workers, including those in an irregular status. Report (June 1985), para. 38.

335

Linda S. Bosniak provisions protecting States’ sovereign prerogatives to control immigration will often effectively undermine or defeat the rights it provides to those migrants. Efforts to exercise rights prescribed in the Convention may well expose the migrants to expulsion and punishment for immigration-related violations. At the very least, the continued vulnerability of these migrants to prosecution for immigration violations will limit their ability and willingness to exercise the rights guaranteed to them under Part III of the agreement. Such a result may be predicted not only as a matter of common sense, but also based on the experience of undocumented immigrants in States which formally extend a range of basic rights to the undocumented. In those countries, the aliens invariably fail to avail themselves of the full range of civil and social rights which are available to them for fear of prosecution and punishment, including expulsion, under the State’s immigration regulatory laws.67 Likewise, efforts by irregular migrant workers and members of their families to avail themselves of protections under the terms of the Convention could easily expose them to expulsion. Upon presenting themselves for emergency medical care or upon applying for social security benefits (Articles 28 and 29), for instance, they would almost certainly be required to display identification, or in some other way reveal the particulars of their status, which could lead to questions and to unwanted contact with immigration officials. There is nothing in the Convention that would preclude such a result: there is no provision that provides that undocumented migrants may not be prosecuted for immigration violations based on information obtained in the course of the migrant’s exercise of his or her rights under the Convention. On the contrary, there is Article 79 which, as we have seen, States that “[n]othing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families.68 In light of the broad interpretation which will undoubtedly be applied to this provision, States retain a broad reservoir of power which permits them to execute

67 For example, Wihtol de Wenden, above n. 36, at pp. 42-44; Bosniak (1988), above

n. 36, at pp. 986-987, 1003-1004. As an example of this dynamic, a recent study on undocumented immigrant women in the San Francisco Bay Area found that well over half the 400 women studied avoid using public services for which they are eligible such as State medical services and welfare (for citizen children), because they fear exposing themselves to potential deportation. The study also found that many fear leaving their homes to buy groceries for the same reason. C. Hogeland and K. Rosen, Dreams Lost, Dreams Found: Undocumented Women in the Land of Opportunity (San Francisco Coalition for Immigrant and Refugee Rights and Services, 1991). 68 Adding belts to the braces, Article 34 provides: “Nothing in this Part [Part III] of the Convention shall have the effect of relieving migrant workers and members of their families from...the obligation to comply with the laws and regulations of any State of transit and the State of employment. …”.

336

Human Rights, State Sovereignty and the Protection of Undocumented Migrants the country’s immigration regulations notwithstanding any (non-immigration related) human rights that the Convention provides.69 Moreover, even if this scenario were to occur infrequently, the threat that it might would operate as an enormous disincentive. In an effort to avoid the possibility of expulsion, the rights would often not be exercised – and would therefore not be effectively available. Despite the best efforts of the Convention’s drafters, the State’s exclusion powers might easily defeat the migrant’s human rights in the employment context as well. One of the most significant features of the Convention is its assurance that irregular migrants’ rights are enforceable against the employer. The Convention contains a provision, Article 25(3), which explicitly protects migrants’ legal and contractual rights with respect to employers notwithstanding their unauthorized status. In other words, employers are prohibited from evading their general obligations to migrant workers “by reason of any such irregularity.” Even if an employer has arguably violated this provision by contacting the State’s immigration officials in response, for instance, to his undocumented employees’ efforts to participate in a union, or to invoke some other employment-related protection provided under the Convention, a State is unlikely to forego prosecuting an immigrant for violations of its immigration laws simply because his or her employer will also be subject to prosecution. As provided in Article 34, “[n]othing in [Part III] of the present Convention shall have the effect of relieving migrant workers and the members of their families from... the obligation to comply with the laws and regulations of... the State of employment.” Moreover, a migrant worker who is in detention or has been expelled is not well-situated to vindicate his or her employment rights, other than those pertaining to remuneration for work already completed (if even those).70 Finally, and 69 In light of the persistent determination of working group participants to reserve to

States complete discretion in the immigration regulatory sphere, it was all but impossible that a provision could have been included that would have prohibited State parties from deporting or otherwise punishing undocumented migrants whose unauthorized status becomes apparent in the process of their efforts to exercise Convention rights. It should be noted, however, that language of this sort is not unprecedented in legislation providing protection or benefits to undocumented immigrants. As an example, the legalization provisions in the United States’ Immigration Reform and Control Act (IRCA) included a “confidentiality” section which provided, on pain of criminal penalty, that the information provided in the legalization application could not be used for any purpose other than to make a determination on that application. That prohibition precluded use of that information by immigration authorities for deportation or other law enforcement purposes. INA, Sec. 245A(c)(5). 70 Article 22(6) provides that “[i]n case of expulsion, the person concerned shall have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her and any pending liabilities.” Article 22(9) states

337

Linda S. Bosniak once again, the mere threat that an employer might notify immigration officials would often be enough to convince the migrant to relinquish the exercise of his or her rights.71 The Convention’s failure to require any regularization of, or amnesty for, irregular migrant workers and their family members simply underlines this dilemma.72 Of course, inclusion of provisions on amnesty would have constituted interference with States’ decisions regarding the composition of their own national membership – decisions which are considered part of the State’s domain of territorial sovereignty. Moreover, mandating extensive legalization might arguably have served to engender further irregular migration by providing migrants with the hope that they would be included the next time, thus undercutting one of the central objectives of the Convention.73

that “[e]xpulsion from the State of employment shall not in itself prejudice any rights of a migrant worker or a member of his or her family acquired in accordance of the law of that State, including the right to receive wages and other entitlements due to him or her. 71 In the event that the State has a policy of sanctioning employers who hire undocumented immigrants, the Convention provides that “[t]he rights of migrant workers vis-à-vis their employer arising from employment shall not be impaired by these measures” (Article 68(2)). Thus, an employer cannot cite the sanctions law to relieve him of any contractual obligation he may have with an undocumented employee. 72 Professor Haseneau states that Article 69 “encourages the regularisation of an irregular situation not only by expelling migrant workers and members of their families, but above all by legalizing their stay.” M. Haseneau, “Setting Norms in the United Nations System: The Draft Convention on the Protection of the Rights of All Migrant Workers and Their Families in Relation to ILO in Standards on Migrant Workers” (1990) 27 International Migration 133, 151. This interpretation may be subject to debate since several working group participants expressly opposed any requirement for legalization of undocumented migrants. See e.g., Report, A/C.3/36/ 10 (23 November 1981), para. 57; A/C.3/40/1 (20 June 1985), para. 29. 73 See e.g., Conclusions and Recommendations of the Intergovernmental Committee for Migration’s (ICM) 1983 seminar on “Undocumented Migrants or Migrants In An Irregular Situation” (while regularization of status could serve as a short term solution to the problem of undocumented migration in particular contexts, “constant repetition of this process will be self-defeating, in that it will encourage further illegal entry and stay in the country, in the expectation of further regularization.” (1983) 21 International Migration 103). But see also Wihtol de Wenden, above n. 36, at p. 45 (European countries should consider the principle of regularization for illegal workers and their families after a specific period of work and residence. This would recognize that they have contributed economically and culturally to society, that they have shown a positive commitment, despite the hardship and exploitation, and that, in spite of the fact that they have broken the immigration rules, they are not criminals deserving of the exemplary punishment that deportation often involves.”)

338

Human Rights, State Sovereignty and the Protection of Undocumented Migrants From a human rights standpoint, the Convention’s failure to require some sort of progressive legalization or eventual amnesty effectively threatens to take away with one hand what has been offered by the other. In the absence of protections against both prosecution and removal for illegal entry, residence or employment, the willingness and ability of undocumented immigrants to avail themselves of the rights which are provided will inevitably be constrained. The Convention’s protections for undocumented workers and their family members may be limited in another respect. Throughout the drafting process, some State representatives voiced general disagreement with the decision to protect the undocumented under the Convention.74 In an effort to ensure against ratifications with attached blanket reservations as to protections for undocumented migrants (which would mean that the ratifying State was not bound as to those protections), the working committee included Article 88, which provides that “[a] State ratifying or acceding to the present Convention may not exclude the application of any Part of it, or... exclude any particular category of migrant workers from its application.”75 Thus, no State may ratify while at the same time excluding Part III of the Convention or undocumented immigrants as a group. While Article 88 may have, and may still, result in a lesser number of ratifications, it goes a long way to protecting the purpose and integrity of the instrument. Article 88 does not preclude States from ratifying with reservations as to specific Articles. Based on the extensive objections and reservations expressed about particular protective provisions during the course of the debate, it is possible that many States will ratify, if at all, with a variety of reservations as to specific Articles which benefit undocumented migrant workers. Based on objections raised during the course of the debate, these reservations might well be attached to provisions granting rights to free expression to undocumented migrants, provi74 The representative of the Federal Republic of Germany expressed particularly strong

opposition to coverage of undocumented migrants by the Convention over the years. See e.g., Report of the Open-Ended Working Group (June 20, 1985); UN doc.A/C.3/ 40/1, paras. 20-22, 178; Report, UN doc.A/C.3/42/1 (June 1987), paras. 177, 196, 211. Germany, the United States and other countries repeatedly expressed the view that if the undocumented were to be protected under the Convention, the protections provided should be “considerably limited.” Report, (June 1985), para. 22, or confined to “basic rights.” Ibid., para. 61. 75 The representative from Germany opposed the inclusion of Article 88, stating that “the draft Convention went into too many details and, if his Government was considering whether to ratify the Convention, it would not wish to be bound to recognize all of the extensive rights covered therein in respect of the many categories of migrant workers it sought to cover...[I]t was regrettable that the proposal [for Article 88 included] a provision which would forbid States parties from excluding certain categories of migrant workers from the application of the Convention.” (Report, A/C.3/45/1 (21 June 1990), paras. 54, 68.

339

Linda S. Bosniak sions governing equality of treatment for undocumented migrants with nationals in the workplace, trade union freedoms, social security benefits and rights to contact consular authorities, among others. Assuming such reservations do not fall afoul of Article 91(2)’s admonition that “[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted,”76 they will serve to impair the reach and effects of the Convention for migrants in an irregular situation in many countries.

5.

CONCLUSION

As it is currently written, the Convention will have only limited effect in directly improving the social condition of undocumented migrants. But the Convention’s limitations do not result so much from a failure of design or concept as from a set of constraints in the international arena, both legal and social, which inevitably bind the hands of States and international organizations in their efforts to respond to the problem of irregular migration. In the first place, as argued above, the core idea of universal human rights which originally motivated the drafting of the Convention is constrained by the still vital doctrines and powers of national sovereignty. While States’ immigration powers and their general human rights policies are analytically distinct, they uniquely converge in the context of irregular migration. As it turns out, the relationship between undocumented immigrants and the State of residence established in the domain of immigration regulation profoundly affects, both formally and in practice, their general status within the national society as well. In the second place, the Convention is promulgated under the auspices of the United Nations, an institution which, while constituting the main forum for the development and administration of the international system of human rights, is also comprised of individual States which are committed to advancing the principles and structures of State sovereignty, including those of territorial integrity and noninterference.77 As Richard Falk observes, “the state system imposes drastic limits on what can be done at the international level to improve respect for human rights.”78 Not surprisingly, these limits are more drastic still when the human rights involved are meant for undocumented immigrants, whose very presence evokes the erosion of yet another facet of States’ sovereign powers. 76 Pursuant to Article 20(3) of the Vienna Convention of the Law of Treaties, Cmnd.

7964 (27 January 27 1980), determinations as to the incompatibility or compatibility of reservations would be made by the “competent organ” of the United Nations. 77 R. Falk, Human Rights and State Sovereignty (New York: Holmes & Meier Publishers, Inc., 1981) at pp. 43-47, 157; R.S. Jackson, “Quasi-States, Dual Regimes, and Neo-Classical Theory: International Jurisprudence and the Third World” (1987) 41 International Organization 519, 545-547; Vincent, above n. 50, at p. 100. 78 Falk, above n. 77, at p. 157.

340

Human Rights, State Sovereignty and the Protection of Undocumented Migrants Finally, irregular migration is a massive global process which, despite the best efforts of States, is certain to increase in the years ahead. Many immigrantreceiving States are already feeling besieged, and are hardly inclined, under the circumstances, to agree to enhance the rights and social power of these individuals. And indeed, as indicated earlier, the Convention has not, as of mid-2003, been ratified by any major migrant-receiving country. Yet notwithstanding its limitations, the Convention makes tremendous headway in advancing new normative standards of entitlement and protection for undocumented migrant workers and members of their families. Although the provisions of the Convention are unlikely to be treated as customary international law in the short-term, the Convention’s entry into force contributes to change in the “criteria of international legitimacy”79 associated with the treatment of these migrants. The inclusion of undocumented migrants within the protective framework of the international human rights regime is also significant for what it reveals about the development of human rights law more generally. In an international society in which State sovereignty remains the paramount organizing principle, undocumented migrants present human rights law with an especially hard case. By promulgating this Convention, and by including the breadth of protections for undocumented immigrants that it has, the United Nations has demonstrated a notable willingness to rise to the challenge of universality posed by the international law of human rights.

79 Vincent, above n. 50, at p. 131.

341

This page intentionally left blank

PART V

FOSTERING INTEGRATION

This page intentionally left blank

Mark Bell

INVISIBLE ACTORS? IRREGULAR MIGRANTS AND DISCRIMINATION

1.

INTRODUCTION

European Union anti-discrimination law has not found it necessary to address overtly its application to irregular migrants. Nonetheless, individuals without secure legal residence are unlikely to be able to rely on such laws in practice. A vicious cycle is sustained where irregular migrants are particularly vulnerable to discrimination, yet highly reluctant to commence legal proceedings for fear of the consequences on their residence status. This dilemma sits alongside the pressing relevance of anti-discrimination law to irregular migrants. It is evident that in several Member States of the European Union, most notably those in southern Europe, there will be a significant overlap between ethnic minority communities and experiences of irregular migration. If laws against racial discrimination, in particular, are to be applied effectively, it is essential to confront the enforcement of equal treatment for all persons, regardless of residential status. In examining this issue, it must be first acknowledged that irregular migration covers a wide range of diverse situations. In some cases, the lack of legal authorisation to reside in the territory will be unequivocal, for example, where an individual covertly enters the state and does not seek legal permission to remain. Yet, in many instances, the legality of residence is blurred.1 This arises where, for example, an individual has applied for a renewal of a residence permit, but receives no administrative reply before the expiry of the existing permit. In addition, individuals may move between periods of regular and irregular residence.

1

See Guild and Szyszczak in this collection.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 345-362 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Mark Bell Where the legality of residence depends on retaining a particular job, then the risk of being rendered “irregular” can also act as a deterrent to invoking anti-discrimination provisions. The need to include consideration of regular migrants is further reinforced by the overlap between certain forms of migration and participation in the informal economy. The same dynamic that prevents irregular migrants from enforcing anti-discrimination law applies to migrants enjoying more secure legal residence, but who work in undeclared employment. Challenging abusive and discriminatory working conditions will involve simultaneously exposing unlawful forms of employment. Again, anti-discrimination law normally remains silent on its application to irregular forms of employment, notwithstanding evidence that this is where explicit forms of discrimination persist.2 This chapter begins by examining the right to equal treatment within human rights instruments and its application to irregular migrants. Having considered the general norms in this area, attention shifts to the European Union and the extent to which non-discrimination guarantees within EU law protect irregular migrants. Following this analysis of the legal principles and provisions, this chapter examines the practical barriers that hinder enforcement of anti-discrimination law through individual litigation by irregular migrants. This leads to a wider consideration of possible strategies the Union could adopt to combat discrimination against irregular migrants.

2. THE PERSONAL SCOPE OF

THE

RIGHT TO EQUAL TREATMENT

The application of the equal treatment principle to irregular migrants is not without its complications. A common element of immigration policy discourse is the restriction of rights and benefits to regular migrants and the concomitant exclusion of irregular migrants.3 There is a clear political argument that those persons lacking legal authorisation to be present in the territory are not entitled to equal treatment with other residents; in fact, they are under a duty to leave.4 Nonetheless, international human rights instruments ensure that irregular migrants are entitled to respect for a minimum core of fundamental human rights.5 Both the International Covenant on Civil and Political Rights (ICCPR) of 1966 and the 2 3

4 5

Equality Authority, Annual Report 2002 (Dublin: Equality Authority, 2003) 18. For an example from the Netherlands, see P. Minderhoud, “The Dutch Linking Act and the violation of various international non-discrimination clauses” (2000) 2 European Journal of Migration and Law 185. Commission, Communication on a Community return policy on illegal residents COM (2002) 564, 8. D. Weissbrodt, “Prevention of discrimination – the rights of non-citizens”, Final report of the Special Rapporteur to the Commission on Human Rights, E/CN.4/ Sub.2/2003/23, 26 May 2003.

346

Invisible Actors? Irregular Migrants and Discrimination 1950 European Convention on Human Rights (ECHR) expressly apply to all persons within the territory and jurisdiction of the contracting states.6 Certain rights remain outside this inner circle; for example, the ICCPR limits the right to vote at periodic elections to “every citizen”.7 However, this does not apply to the right to equal treatment. Article 26 ICCPR provides that “the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground”. Similarly, Article 14 ECHR does not curtail its personal scope: “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground”. Notwithstanding these apparently unequivocal commitments to equal treatment for all persons, application of the right to non-discrimination to irregular migrants provokes further difficulties. The primary challenge relates to the nexus between discrimination and immigration control. Any legal system that restricts the possibility for non-citizens to enter, reside and work in the state depends upon differential treatment based on nationality. The legitimacy of certain distinctions on the ground of nationality is recognised in Article 1(2) of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination: “This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens”. Yet, there is a manifest tension between protection against racial discrimination for all persons and permitting different treatment of non-citizens.8 As the category of non-citizens frequently overlaps with ethnic minority communities, there is a danger that racial discrimination is repackaged as different treatment based on nationality. Application of the right to equal treatment is even more complex when considering the treatment of irregular migrants. Can persons without the right to work in the state simultaneously claim a right to equal working conditions in respect of employment that actually takes place, even without legal permission? The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families offers the most comprehensive attempt to provide a balanced response.9 It identifies a basic platform of human rights for all workers, regular or irregular. A further set of enhanced rights are specified, which states are only obliged to make available to regular migrants. Finally,

6 7 8

9

Article 2(1) ICCPR; Article 1 ECHR. Article 25(b) ICCPR. K. Boyle and A. Baldaccini, “A critical evaluation of international human rights approaches to racism” in S. Fredman (ed.), Discrimination and human rights – the case of racism (Oxford: Oxford University Press, 2001) 154. The Convention entered into force on 1 July 2003. Available at: http://www.unhchr.ch/ html/menu3/b/m_mwctoc.htm. See the essay by Bosniak.

347

Mark Bell the guarantee of rights for irregular migrants is balanced by measures to promote lawful migration and correspondingly to diminish irregular migration. As regards employment, the Convention provides that irregular migrants should have equal treatment with national workers in respect of: – remuneration; – conditions of work (working time, rest periods, paid holidays, health and safety, protection from termination); – terms of employment (minimum working age); – the right to join and participate in trade unions.10 In particular, States must ensure that “employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of any such irregularity”.11 As an illustration of the different levels of rights, regular migrant workers are additionally guaranteed the right to form trade unions and to receive equal treatment in access to vocational training.12 The Migrant Workers’ Convention demonstrates with more clarity how the universal right to equal treatment located in general human rights instruments can be applied to irregular migrants. It does not guarantee irregular migrants any rights to enter, reside or work in another state. Nor does it argue that restrictions on labour migration contravene the principle of equal treatment. However, it recognises that many migrants, despite their irregular status, are nonetheless present in the labour market. Issues between the migrant and the state surrounding residency rights do not suspend the duty of employers to treat all workers equally or to apply normal labour law standards. Indeed, this forms a logical component of the broader strategy to reduce irregular migration; if employers can evade labour standards, such as minimum wage requirements, then the incentive to recruit irregular workers is increased. Despite the constructive framework presented in the Convention, it has not been ratified by any EU State or EU applicant State.13

3. EU LAW AND THE PERSONAL SCOPE OF TREATMENT

THE

RIGHT TO EQUAL

EU law provides rights to equal treatment in a range of instruments. At the constitutional level, the EC Treaty and the Charter of Fundamental Rights 10 Articles 25 and 26. 11 Article 25(3). 12 Article 40 and 43. 13 Turkey has signed but not ratified the Convention. List available at: http://

www.unhchr.ch/html/menu3/b/migrants.htm

348

Invisible Actors? Irregular Migrants and Discrimination include relevant provisions. International agreements between the Union and third countries have also proven a vital source of protection against discrimination for non-EU migrant workers. Finally, secondary legislation extends further rights to equal treatment, most notably, in this context, the Racial Equality Directive.14 (a)

Constitutional Rights to Equal Treatment

The EC Treaty contains a tantalisingly broad commitment in Article 12 EC to equal treatment irrespective of nationality: “within the scope of this Treaty and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited”. This provision has been consistently interpreted as only applying to distinctions between EU nationals, in line with the exclusion of third country nationals from the right to free movement in Article 39 EC.15 Given the breadth of the right to free movement,16 EU citizens are substantially less likely to find themselves in an irregular migration situation. Nonetheless, EU citizens can only invoke Article 12 EC if they fall within the personal scope of the Treaty. In Sala, the Court clearly linked this requirement to evidence that the individual was “a national of a Member State lawfully residing in the territory of another Member State” (emphasis added).17 Although Article 12 EC is restricted to EU citizens, the Charter of Fundamental Rights echoes the universalistic approach of international human rights instruments. Most of its rights apply to “everyone” or “every worker”. From the perspective of irregular migrants, it is valuable that Article 20 declares that “everyone is equal before the law”, whilst Article 21(1) forbids “any discrimination based on any ground”. The impact of the latter is substantially impaired by Article 21(2), which restates the Article 12 EC formulation of the prohibition of nationality discrimination, thereby curtailing this to differences between EU nationals. Greater problems with the Charter arise in respect of equal treatment in the workplace. Articles 30 and 31 declare a series of rights for “every worker”. These include protection against unjustified dismissal, safe working conditions, maximum working hours, rest periods and paid holidays. Nevertheless, Article 15(3) states “nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those

14 Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin, [2000] OJ L180/22. 15 Case 238/83 Meade [1984] ECR 2631, para. 7. 16 Case C-413/99 Baumbast, R v. Secretary of State for Home Department [2002] ECR

I-7091, para. 84. See also Szyszczak in this volume. 17 Case C-85/96 Martínez Sala v. Freistaat Bayern [1998] ECR I-2691, para. 61.

349

Mark Bell of citizens of the Union”. The precise language used clearly excludes irregular migrants. It is difficult to reconcile this restrictive approach with Articles 30 and 31, which guarantee basic labour law standards to all workers, with no limitation based on the legality of residence. A possible interpretation is that those rights specified in Articles 30 and 31 must be extended on an equal basis to all workers, whereas other rights connected to employment may be restricted to third country nationals with valid work authorisations. This interpretation implies that remuneration (not mentioned in Articles 30 and 31) need only be equivalent for legal third country workers. This contrasts sharply and unfavourably with the Migrant Workers’ Convention, which identifies equal remuneration as a core right for all workers.18 (b)

Equal Treatment Rights in Third Country Agreements

Even if the Charter of Fundamental Rights offers some potential protection for irregular migrants, it remains neutered by its ambiguous legal status. Whilst the Charter may be a persuasive source of norms, it is not yet legally binding.19 A more concrete source of protection from discrimination for third country nationals has been international agreements between the Union and third countries. Many of these agreements contain clauses requiring equal treatment in working conditions for third country national workers.20 Furthermore, the Court of Justice has been willing to attribute direct effect to these clauses, thereby permitting individual workers to invoke their protection when confronted with unequal treatment in the workplace.21 Nevertheless, the Court has treated the legality of residence of the worker as a pre-condition for relying on the directly effective rights, including the right to equal treatment. With regard to the Association Agreement with Turkey, the Court has predicated the guarantee of individual rights “on the condition that the Turkish worker has complied with the legislation of the host Member State governing entry into its territory and pursuit of employment.”22 For example, in Savas 23

18 Article 25(1). 19 This will change if the draft Constitution for the European Union is adopted: see

Article I-7(1), OJ 2003 C 196/1. 20 S. Peers, “Towards equality: actual and potential rights of third country nationals in

the European Union” (1996) 33 Common Market Law Review 7. 21 For example, Case C-171/01 Wählergruppe “Gemeinsam Zajedno/Birlikte Alternative und Grüne GewerkschafterInnen/UG” and others, judgment of 8 May 2003. 22 Para. 41, Case 188/00 Kurz v Land Baden-Württemberg [2002] ECR I-10691. 23 Case C-37/98 R v. Secretary of State for the Home Department ex parte Savas [2000] ECR I-2927.

350

Invisible Actors? Irregular Migrants and Discrimination the applicant and his wife arrived in the UK in 1984 on a visa valid for one month. They overstayed and subsequently opened a number of businesses. In challenging a deportation order, Mr. Savas sought to invoke provisions from the Additional Protocol to the EEC-Turkey Association Agreement requiring the UK not to introduce further restrictions on the freedom of establishment for Turkish nationals. The Court agreed that this was a directly effective right,24 but it refused to allow Mr. Savas to benefit from the rights available under the Agreement. In supporting this conclusion, the Court applied principles from earlier case-law that “employment held by a Turkish national under a residence permit obtained in fraudulent circumstances of that kind could not possibly give rise to any rights in his favour”.25 A strict dichotomy results from this approach by the Court. On the one hand, there are third country nationals who have lawfully entered a Member State and engaged in legal employment, and on the other, third country nationals who find themselves in an irregular migration situation. The former may invoke equal treatment rights found within the various third country agreements, whereas the latter are excluded from judicial protection. Occasionally, the Court has been willing to suppress minor elements of irregularity. For example, the failure to acquire a valid residence permit document,26 or being “briefly without a valid residence or work permit”,27 have been held not to raise barriers to judicial protection. Nonetheless, generally the Court has eschewed opportunities to condone irregular residence and work, as further illustrated by the initial case-law concerning nationals of the EU candidate countries.28 In three concurrent cases, Gloszczuk,29 Kondova,30 and Barkoci and Malik,31 irregular migrants32 from Poland, Bulgaria and the Czech Republic respectively sought to rely on rights to establishment and equal treatment within the Europe Agreements between their country of nationality and the Union. Whilst the 24 Ibid. para. 47. 25 Ibid. para. 62. 26 Case C-329/97 Ergat v. Stadt Ulm [2000] ECR I-1487, para 61. 27 Case C-98/96 Ertanir [1997] ECR I-5179, para. 68. 28 For an overview, see B. Bogusz, “Regulating the right of establishment for accession

29 30 31 32

state nationals: reinforcing the ‘buffer zone’ or improving labour market flexibility?” (2002) 27 European Law Review 472; S. Peers, “The right of establishment for nationals of central and east European countries” (2002) 16 Immigration, Asylum and Nationality Law 19. Case C-63/99 [2001] ECR I-6369. Case C-235/99 [2001] ECR I-6427. Case C-257/99 [2001] ECR I-6557. Gloszczuk and Kondova had overstayed their visas; Barkoci and Malik were rejected asylum applicants.

351

Mark Bell Court acknowledged that the rights in question were capable of possessing direct effect, their irregular migration status prevented the applicants invoking the Agreements. In Barkoci and Malik, Advocate General Mischo proposed a number of underlying policy reasons that he viewed as supporting the denial of “any right whatsoever under Community law” for those whose presence is “tolerated”, but not legally authorised.33 In particular, he argued that states must be permitted to allow irregular migrants to engage in economic activity pending deportation, without the migrants thereby acquiring any rights. This would ensure irregular migrants do not become “a burden on the social welfare system”, without providing “a veritable bonus” that could encourage further irregular migration.34 Certainly, authorisation to work in the interim period offers benefits, not only to the state, but also to the migrant. For the latter, there is an opportunity to acquire greater autonomy than dependence on state social welfare provision. Organisations working on behalf of asylum applicants often have supported swift authorisation to enter the labour market.35 Yet, there are latent risks of exploitation where employment authorisation is granted without any concomitant judicial protection of the individual. In particular, the individual is rendered highly dependent on the employer and vulnerable to discriminatory working conditions. Whilst the interim periods of residence may be viewed legally as purely temporary, the lengthy process of adjudication of immigration claims can result in a precarious employment situation extending for several years. Indeed, Barkoci and Malik had been present in the UK for nearly four years by the date of the decision of the Court of Justice. (c)

The Racial Equality Directive

The final source of anti-discrimination law that could assist irregular migrants is located in the Union’s secondary legislation. A variety of Directives prohibit discrimination on a range of grounds, however, the most relevant is the Racial Equality Directive.36 This forbids discrimination on grounds of racial or ethnic origin in employment, vocational training, social protection, social advantages, education, access to goods and services, and housing. The personal scope of the Directive appears broad, but it contains ambiguity. Article 3(2) states that the Directive “does not cover difference of treatment based on nationality”. However, Recital 13 emphasises that: “this prohibition of discrimination should also apply to nationals of third countries”. This is consistent with the approach of 33 Opinion of 26 September 2000, para 107. 34 Ibid. paras. 108-109. 35 E.g. ECRE, “Position on the reception of asylum seekers”, available at: http://

www.ecre.org/positions/receptio.shtml 36 Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin, [2000] OJ L180/22.

352

Invisible Actors? Irregular Migrants and Discrimination the Court of Justice to other areas of EU social law, where legislation has been presumed to apply regardless of nationality.37 Whilst it seems evident that third country nationals may invoke the Racial Equality Directive, would this apply to such nationals if they were in an irregular residence situation? Again, Article 3(2) is relevant, specifying that the Directive is: without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third country nationals and stateless persons concerned.

This appears to forestall recourse to the non-discrimination principle as a means to challenging immigration decisions. In a variety of cases concerning third country agreements, it has been argued that clauses prohibiting nationality discrimination in working conditions oblige the Member State concerned to renew a work permit.38 This is based on the reality that (a) failure to renew the permit will result in termination of employment; and (b) this is a measure not applicable to a worker of EU nationality in a comparable situation. Although the Court has often rejected this line of reasoning,39 Article 3(2) manifestly seeks to shield immigration law decisions from the effects of the Racial Equality Directive.40 Consequently, the Directive will not provide an avenue through which irregular migrants may seek residence rights. Whilst this is not surprising, the additional exclusion of any difference of treatment arising from the “legal status” of the third country national is highly problematic. This raises the possibility that less favourable treatment of irregular migrants will not fall within the scope of the Directive. Tyson argues that the reference to treatment arising from the third country national’s “legal status” is intended to ensure that Member States can retain rules restricting access to employment for certain groups of third country nationals, rather than permitting differential treatment throughout the employment relationship.41 To this end, he highlights Recital 13, which states that the Directive is “without prejudice to provision governing the entry and residence of

37 Para. 23, Case C-230/97 Awoyemi [1998] ECR I-6781. 38 See para. 46, Case C-416/96 Nour Eddline El-Yassini v. Secretary of State for Home

Department [1999] ECR I-1209. See also Gloszczuk, Kondova and Barkoci and Malik, above nn. 29-31 where similar arguments were presented. 39 Ibid. 40 A. Tyson, “The negotiation of the European Community Directive on racial discrimination” (2001) 3 European Journal of Migration and Law 199, 209. 41 Ibid.

353

Mark Bell third country nationals and their access to employment and occupation”. Whilst this provides a helpful indication of the Council’s intention when inserting the Article 3(2) exception, it does not remove the fact that Article 3(2) is framed in broad terms, with no specific restriction to matters relating to access to the labour market. Overall, there is a clear gap between the approach found in the international human rights instruments and that apparent within EU law. Whereas the former apply the right to equal treatment to all persons, regardless of migration status, the latter often links the enjoyment of rights to the prior establishment of legal residence. The current treatment of irregular migrants in EU law seems flawed for several reasons explored further below. First, it does not reflect the reality that in some Member States it is very difficult to separate issues relating to legality of residence when considering the treatment of ethnic minority communities. Secondly, it fails to acknowledge the fluid boundaries that sometimes exist between regular and irregular residence. In particular, it does not confront the difficulties regular migrants will face in enforcing anti-discrimination law where there is a risk of subsequent loss of residence rights. Finally, the Racial Equality Directive does not provide a clear response to discriminatory treatment in irregular work.

4. THE SITUATION OF IRREGULAR MIGRANTS IN EU LABOUR MARKETS Given the clandestine nature of irregular migration, it is inherently difficult to compile reliable statistical information on the numbers of irregular migrants in an individual state, let alone the ethnic origin of these migrants.42 Nonetheless, it is evident that significant levels of irregular migration occur,43 in particular in the southern European Member States.44 The sizeable communities of irregular migrants that exist have been exposed through recurrent programmes of regularisation in various EU states.45 Corkill notes that the number of legally resident third country nationals in Spain more than doubled during the 1990s,46 whilst other studies have estimated that more than 60% of those regularised migrants subsequently returned to irregular residence status within two years.47 42 See further Mitsilegas in this volume. 43 Europol estimate irregular immigration to be around 500,000 persons annually in the

44 45 46 47

EU: Commission, Communication on a Community immigration policy, COM (2000) 757, p. 13. See, inter alia, D. Corkill, “Economic migrants and the labour market in Spain and Portugal” (2001) 24 Ethnic and Racial Studies 828, 831. See further Minderhoud in this collection. Corkill, above n. 44. C. Sole and S. Parella, “The labour market and racial discrimination in Spain” (2003) 29 Journal of Ethnic and Migration Studies 121, p. 128.

354

Invisible Actors? Irregular Migrants and Discrimination The persistent phenomenon of irregular migration can be partly connected to the buoyancy of the informal economy. On the one hand, the steady expansion of the service sector generates a constant demand for cheap, flexible and mobile labour.48 Key sectors of the labour market here include hotel and catering; entertainment (e.g. bars, restaurants); domestic assistance (cleaning, childcare).49 At the same time, labour shortages have emerged in various European economies for both skilled and unskilled occupations.50 Indeed, both the Commission51 and a UK House of Lords Select Committee52 have recently acknowledged that irregular migration can confer significant economic benefits. Caruso characterises a frequent policy response as the “dualistic model”.53 On one side, there is an attempt to create transparent, legal and regulated processes for labour migration. This is normally managed through work permit systems, which can be expanded and contracted in accordance with demand. On the other side, repressive policies are adopted in order to combat irregular migration and the informal labour market.54 Yet, a contradiction exists between attempts to channel migration into regulated pathways and the forms of labour often sought by the market. The Commission has observed that irregular migrants tend to occupy lower skilled positions for which it remains difficult to attract EU citizens.55 These occupations tend to be precarious and short-term in nature, often featuring undesirable working conditions. As such, they are less frequently included within work permit schemes.56 Indeed, the new legal avenues for migration have leaned towards the recruitment of high-skilled workers.57 If irregular migration is likely to remain a feature of some European labour markets, then a more sophisticated response to discrimination faced by irregular 48 Ibid, at p. 130. 49 See further, F. Quassoli, “Migrants in the Italian Underground Economy” (1999) 23

International Journal of Urban and Regional Research 212, 221. 50 Commission, above n. 43. 51 Commission, Communication on immigration, integration and employment COM

(2003) 336, p. 10. 52 House of Lords Select Committee on the European Union, A common policy on ille53

54 55 56 57

gal immigration, 37th report, Session 2001-2002, HL 187, para. 31. B. Caruso, “Immigration policies in southern Europe: more state, less market?” in J. Conaghan, R.M. Fischl and K. Klare (eds), Labour law in an era of globalisation – transformative practices and possibilities (Oxford: OUP, 2002) 315. Ibid, at p. 312. Commission, above n. 43, at p. 27. Caruso, above n. 53, at p. 307. See further, J. Apap, “Shaping Europe’s Migration Policy. New Regimes for the Employment of Third Country Nationals: A Comparison of Strategies in Germany, Sweden, the Netherlands and the UK” (2002) 4 European Journal of Migration and Law 309.

355

Mark Bell migrants needs to be developed. Crucially, it is essential to confront the conditions of those working in the informal economy. This is a matter of relevance to both irregular and regular migrants. Quassoli identifies a particular intersection between migrants and the informal labour market in Italy.58 Similarly, Corkill notes surveys in Spain that suggest around 30% of migrants work in the informal economy.59 At the same time, even migrants in regular employment experience comparable problems to those of irregular workers. A recent study in Ireland highlighted the obstacles legal migrants face in challenging discriminatory working conditions.60 Although in a regular situation, many recently arrived migrants depended on the continuation of their present employment in order to protect their right to remain. Indeed, some employers retained their passport and work permit. Before migrants could challenge working conditions, they had to consider seriously the consequences on both their current employment and future residence status. In fact, there was evidence of recurrent abuses of labour legislation, including excessive working hours and breaches of the minimum wage.61 The dilemma for migrant workers attempting to enforce anti-discrimination law is exemplified by the following case from the Irish labour court: A Company v A Worker.62 In this case, a Russian national paid a recruitment agency $1000 US dollars in return for which work was arranged for her at a nursing home in Ireland. On arrival, she was informed that this position was no longer available and she was instead given a position as an assembly worker in a factory. The employer gave her the impression that she was now working illegally and provided no written contract. When she subsequently complained about unwanted sexual advances from the owner and the factory manager, she was dismissed. The employer took the additional step of falsely informing the recruitment agency that she was being investigated by the Irish police for involvement in prostitution, a claim that was then relayed to many other employment agencies in Ireland. The Labour Court concluded that she had suffered unlawful discrimination on the ground of her nationality63 and she was awarded €15,000 compensation. Aside from the disturbing facts of this case, it illustrates the strength of the employer’s position and the vulnerability of the migrant worker. New migrants are frequently unfamiliar with the basic requirements of labour law or avenues 58 Quassoli, above n. 49, at p. 214. 59 Corkill, above n. 44, at p. 835. 60 P. Conroy and A. Brennan, Migrant workers and their experiences (Dublin: Equality

Authority, 2003). 61 Ibid, ch. 5. 62 ED/01/27, Determination No. 24. Available from: http://www.labourcourt.ie 63 Contrary to the Employment Equality Act 1998.

356

Invisible Actors? Irregular Migrants and Discrimination for recourse in the event of a dispute.64 The employer gambles on the reluctance of the workers concerned to jeopardise their right to remain in the territory and consequently can impose unfair and illegal working conditions. Nonetheless, A Company v A Worker indicates that anti-discrimination law is not entirely hostage to this dilemma for migrants. Interestingly, the Labour Court did not feel it necessary to explore whether her work in the factory actually vitiated the legality of her original work permit. A similar approach has emerged in English case-law, where illegality of the employment contract has not acted as a barrier to the application of anti-discrimination law. In Hall v. Woolston Hall Leisure,65 the applicant was dismissed after her employers learnt that she was pregnant. When she attempted to invoke the relevant provisions of the Sex Discrimination Act 1975, her employers argued that the contract of employment was tainted with illegality because, with the applicant’s knowledge, no tax and national insurance contributions had been paid on her salary. The Court of Appeal held that this was not a barrier to her claim for discriminatory dismissal. In particular, the Court observed that the 1975 Act implemented the UK’s obligations flowing from the 1976 Equal Treatment Directive,66 which forbids sex discrimination in employment. As there was no express public policy derogation in that Directive, the Court of Appeal held that it was sufficient for the individual to demonstrate the fact of employment and her dismissal from that employment for an unlawful reason.67 The decision is significant, because the Racial Equality Directive also lacks any general public policy derogation and therefore it should also be applicable to all forms of employment, regardless of the legality of the contract of employment. The above cases confirm that anti-discrimination law can be made relevant to both regular and irregular migrants, notwithstanding any participation in illegal work. Nevertheless, the underlying pressures suggest individual litigation remains a difficult avenue for enforcing equal treatment principles. An effective strategy to combat discriminatory working conditions for all migrants demands a broader range of policy responses. The following section considers a number of options available to the Union in pursuing this objective.

64 Conroy and Brennan, above n. 60, at p. 42. 65 [2001] 1 WLR 225. 66 Council Directive 76/207EEC on the implementation of the principle of equal treat-

ment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 1976 L39/40. 67 The Court speculated that a contract of employment for an illegal purpose (e.g. to commit a bank robbery) might be distinguished from contracts for legal activities, but operated in an illegal manner (Mance LJ, 244).

357

Mark Bell

5.

POLICY OPTIONS FOR COMBATING DISCRIMINATION AGAINST IRREGULAR MIGRANTS (a)

Expanded Legal Avenues for Migration

It is clear that irregular migrants, by virtue of their status, are particularly vulnerable to exploitation and unfair treatment, not least in the labour market. Therefore, strategies to prevent people falling into irregular migration offer the best long-term means of reducing this phenomenon. As discussed above, there continues to be a strong demand and supply for labour migration into the Union. In its most recent discussion of this topic, the Commission is frank, stating that: “unless a more open approach is taken to legal immigration, the EU may be faced with increasing pressures, running the risk of increased illegal immigration”.68 Moreover, the labour market data presented by the Commission illustrates that even with increased rates of participation in employment by the current EU labour force, the total number of employed persons is projected to decline following 2010.69 In the absence of further labour migration, the Commission observes that this will exercise a negative effect on EU economic growth. Taran and Chammartin have emphasised the need to provide diversified forms of legal migration, rather than concentrating on “typically male-dominated sectors (construction and agricultural work)”.70 Yet, it is not evident that the Member States are willing to embrace significantly broader legal migration. Already in 2001, the Commission proposed a Directive to regulate legal admission for employment and self-employment in the Union.71 The Council has made only minimal progress in discussing this initiative.72 (b)

In-country Avenues to Legalisation

Although a long-term objective should be to diminish irregular migration, policies are also needed to deal with the situation of irregular migrants already in the Union, as well as other migrants participating in irregular work. One of the principal barriers to the enforcement of anti-discrimination law by these individuals is the consequent risk of forced removal once they have exposed their 68 Commission, above n. 51, at p. 15. 69 Ibid., at p. 13. 70 P. Taran and G. Moreno-Fontes Chammartin, Getting at the roots: stopping exploita-

tion of migrant workers by organised crime, Perspectives on Labour Migration, Report 1E, (Geneva: ILO, 2002), 10. 71 COM (2001) 386. 72 A search of the Council register of documents on 19 August 2003 revealed that there was no record that the proposal had been examined since December 2002: http: //register.consilium.eu.int/utfregister/frames/introshfsEN.htm.

358

Invisible Actors? Irregular Migrants and Discrimination irregular status. Therefore, an important contribution to empowering irregular migrants would be to provide in-country pathways to legalisation. In contrast, current EU policy on irregular migration places a heavy accent on repressive responses. There are a number of key limbs to this strategy. First, there are a variety of “non-arrival” policies designed to prevent migrants reaching Union territory.73 These include enhanced visa requirements and an emphasis on secure border control as a means of preventing further irregular migration.74 Secondly, there is the penalisation of persons facilitating irregular migration,75 as well as employers of irregular migrants.76 Finally, irregular migrants are placed under a positive duty to leave the Union, which may be implemented through forced removal.77 Indeed, the Commission has suggested that employers of irregular migrants should be compelled to cover all costs relating to the return of those workers to their country of origin.78 The emphasis on forced removal of irregular migrants has been slightly tempered by the Commission’s proposal to make available short-term resident permits for those victims of either facilitated illegal immigration or human trafficking where the victim will cooperate with the prosecution of the offenders responsible.79 Nonetheless, there is very little priority given to the protection of the victim in this process. The short-term residence permit is awarded on the basis of whether the victim is “useful” to the prosecuting authorities.80 Therefore, a victim could take the personal risk of coming forward, but still be refused even short-term residence if their presence is not necessary for the prosecution. Moreover, the residence rights extended are explicitly temporary in nature and 73 R. Byrne, G. Noll and J. Vedsted-Hansen, “Western European asylum policies for

74 75 76 77 78 79

80

export: the transfer of protection and deflection formulas to central Europe and the Baltics” in R. Byrne, G. Noll and J. Vedsted-Hansen (eds), New asylum countries? Migration control and refugee protection in an enlarged European Union (The Hague: Kluwer Law International, 2002) 14. Commission, Towards integrated management of the external borders of the Member States of the European Union, COM (2002) 233. Council Framework Decision of 19 July 2002 on combating trafficking in human beings, [2002] OJ L203/1. Council Recommendation of 27 September 1996 on combating illegal employment of third country nationals, [1996] OJ C304/1. Commission, Communication on a Community return policy on illegal residents COM (2002) 564, 8. Commission, Communication on a common policy on illegal immigration COM (2001) 672, 11. Commission, Proposal for a Council Directive on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities, COM (2002) 71. Art 10(1)(a), ibid.

359

Mark Bell the individual could be left in an irregular situation once their role in the prosecution is completed. Despite these weaknesses, the underlying principle contains a more imaginative response to the dilemmas faced by irregular migrants. In an expanded format, residence permits could be granted to irregular workers, where they expose discriminatory treatment by employers. Once again, however, there is little evidence that the Member States are willing to explore these options. Indeed, the Commission’s proposal for short-term residence permits for victims of trafficking has not yet made any progress in the Council. (c)

Protecting the Human Rights of Irregular Migrants

As discussed at the outset of this essay, migrants, regardless of their migration status, are entitled to respect for fundamental human rights. Amongst these rights can be found the right to equal treatment. However, EU policy on irregular migration has been heavily focused on security, with minimal attention to protecting the rights of all migrants.81 Indeed, EU policy documents tend to overlook the rights of irregular migrants. The European Council’s Tampere Agenda recommended “fair treatment of third country nationals who reside legally on the territory of its Member States”.82 These individuals should benefit from a “vigorous integration policy” and “measures against racism and xenophobia”. At the same time, the Tampere Agenda called on the EU “to tackle at its source illegal immigration, especially by combating those who engage in trafficking in human beings and economic exploitation of migrants”.83 Indeed, the European Council called for “severe sanctions against this serious crime”.84 This two dimensional policy has been reaffirmed and given greater clarity at the Seville European Council, where it was described as striking a “fair balance” between integration policy and “resolute action to combat illegal immigration”.85 Yet, this dichotomy simplifies a complex and fuzzy picture where migrants shift between the categories of “legal” and “illegal” residence and participate in both regulated and undocumented forms of employment. Moreover, it suggests that “fair treatment” and protection against racism are privileges to which only regular migrants are entitled. The Migrant Workers’ Convention provides a different policy equilibrium. Whilst including measures to reduce further irregular migration, the Convention seeks to prevent employers profiting from irregular workers. For example, irregular migrants are to receive all wages owed to them, even where they are also 81 See Cholewinski in this volume. 82 Emphasis added. EU Bulletin, 10-1999. 83 Ibid. 84 Ibid. 85 EU Bulletin, 6-2002.

360

Invisible Actors? Irregular Migrants and Discrimination required to leave the state.86 The systematic recruitment of workers from other countries should be regulated by public employment agencies, or private bodies subject to state inspection.87 States are placed under a duty to supply information to migrant workers explaining “laws and regulations relating to migration and employment”.88 Moreover, there is recognition of the role that trade unions could play in assisting migrant workers and making them aware of their rights.89 Whilst short of the agenda outlined above, there are some indications that a more constructive approach to irregular migration is emerging under the aegis of European employment policies. The 2002/2003 review and restructuring of the European Employment Strategy highlighted the need for enhanced attention to undeclared work and irregular migration.90 Whilst the employment strategy does not question the need for repressive measures to combat illegal immigration, it places slightly more emphasis on combining this with positive incentives to reduce undeclared work. For example, the Commission stresses the need to restructure social security systems to remove disincentives (benefit traps) to entering declared employment.91 There is also increasing priority on removing barriers faced by legal migrants to participating in regular employment. The unemployment rate for third country nationals in the Union in 2001 was 15.7% compared to 7.6% for the total population.92 The Commission has proposed a Union target to reduce this differential by half by 2010.93 Whilst this remains focused on legal residents, clearly this target (if achieved) could assist in preventing migrants slipping into irregular employment and residence. It is the Commission’s recent “Communication on immigration, integration and employment” that best indicates the emergence of a more pragmatic approach.94 The Commission concludes that “for legal, humanitarian or practical reasons” it is not possible to return irregular migrants “in a considerable number of cases”.95 Moreover, “integration policies cannot be fully successful 86 Article 22(9). 87 Article 66. 88 Article 65(1)(c). 89 Article 26. 90 Commission, The future of the European Employment Strategy: A strategy for full 91 92

93 94 95

employment and better jobs for all COM (2003) 6, 12. Commission, above n. 90, 11. Commission, Impact evaluation of the EES: social inclusion”, June 2002, 19. Available at: http://europa.eu.int/comm/employment_social/employment_strategy/eval/ papers/inclusion_en.pdf. Commission, Proposal for a Council Decision on guidelines for the employment policies of the Member States COM (2003) 176. COM (2003) 336. Ibid. at p. 26.

361

Mark Bell unless the issues arising from the presence of this group of people are adequately and reasonably addressed”.96 Whilst the change in policy tone is welcome, it is unfortunate that no concrete proposals are subsequently advanced. A clear starting point would be an agreement that all Member States will ratify the Migrant Workers’ Convention.

5.

CONCLUSION

The current EU legal and policy framework fails to offer a satisfactory response to evidence of overt discrimination in the treatment of irregular migrants, most notably in the workplace. The Charter of Fundamental Rights provides a mixed message on the rights of irregular migrants to equal treatment. This ambiguity is also reflected in the opaque position found in the Racial Equality Directive. Moreover, legal employment has become a pre-requisite to the enforcement of equal treatment rights under third country agreements. These instruments reflect the broader policy of the Member States: a stated commitment to integrate legal migrants, whilst applying combative policies to irregular migration. Yet, a wholly repressive policy places irregular migrants already present in the Union at greater risk of discrimination. The blunt focus on returning irregular migrants creates a policy that is insensitive to the wide variety of situations that result in an irregular migration status. Moreover, there is no attempt to offer supportive escape routes for migrants facing discriminatory working conditions. Given the complexity of the issue, no simple or swift solution presents itself. It is evident, however, that individual litigation as the primary means of enforcing anti-discrimination legislation will not be sufficient to ensure the protection of irregular migrants. Complementary enforcement strategies must be explored, such as autonomous legal standing for associations representing irregular migrants. Alternatively, public actors, such as labour inspectorates and equality bodies, could make a valuable contribution to exposing discriminatory practices and promoting awareness amongst migrants of their rights and mechanisms for redress. More fundamentally, providing security of residence is an essential step to empowering migrants. If irregular migrants are to be supported in challenging discrimination and emerging from the informal economy, then pathways must exist for acquiring legal residence and work authorisation from within the Member States. Opening new avenues for regularisation overtly conflicts with current Union immigration policy, however, making the fight against discrimination more effective will demand rethinking of the status quo in European immigration policy priorities.

96 Ibid.

362

Sylvie Da Lomba

FUNDAMENTAL SOCIAL RIGHTS FOR IRREGULAR MIGRANTS: THE RIGHT TO HEALTH CARE IN FRANCE AND ENGLAND

1.

INTRODUCTION

Opponents [of rights for irregular migrants] assert … that states should not be obliged to provide undocumented aliens anything more than minimal human rights protections because they are not party to the social contract which binds the national community.1

Curtailments of social rights for irregular migrants in host countries have become essential components of restrictive immigration policies. By making life more difficult for those already present, these measures aim to deter potential candidates and prompting voluntary returns to countries of origin or third countries while protecting the public purse. The threat of destitution as a deterrent against irregular migration generates acute tensions within host states between immigration laws and policies and human rights protection. France and England were chosen for this case study because they have comparable socio-economic structures and face similar immigration related issues. Their respective stances on irregular migration converge and irregular migrants’ access to health care in both countries is problematic, but the legal responses of the two countries to the provision of health care for irregular migrants differs. Indeed, whilst French law explicitly provides for irregular migrants’ access to health care, English law remains silent on the matter and relies on general provi-

1

L. Bosniak, “Human rights, State sovereignty and the protection of undocumented migrants under the International Migrant Workers Convention” (1991) 25 International Migration Review 750.

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 363-386 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Sylvie Da Lomba sions. This may explain the fact that French literature is much more abundant than English on this issue.2 It could be argued that, whilst irregular migrants’ interests must be balanced against those of host countries, this must not be done at the expense of human rights protection. This position is congruent with provisions of international human rights law which support the existence of a right to health care for irregular migrants in host countries.

2. HUMAN RIGHTS FOR IRREGULAR MIGRANTS: THE SPECIFICITY OF SOCIO-ECONOMIC RIGHTS The realisation of social and economic human rights for non-nationals is mediated by significant political, economic and social factors. The implementation of many of these rights requires positive action on the part of the state and the mobilization of considerable state resources. Here an approach to welfare policies based on greater social and economic solidarity is needed if the benefits of social and economic rights are to be extended to non-nationals. In that respect, two contradictory trends tend to dominate legislative debates and interventions: the need to achieve greater equality between nationals and non-nationals and the need to respond to social tensions, especially in times of economic recession when foreign migrants are perceived as a threat to the domestic workforce. Whilst the first trend supports the adoption of non-discriminatory laws and policies, the second results in stringent measures that are likely to contribute to the impoverishment of migrants. Significant progress has been made to improve the conditions of non-nationals in most industrialised countries including France and England, but wide inequalities in rights between nationals and non-nationals persist and privileged and non-privileged categories of non-nationals have emerged.3 While the need for greater assimilation and equality between nationals and non-nationals legally residing in France and England has been accepted and endorsed by the

2

3

364

In the United Kingdom, this question has been examined in the context of studies on the health of ethnic minority communities settled there. Irregular migrants’ integration into these communities provides a support network which facilitates their access to health services in the United Kingdom through greater awareness of their rights. Conversely, isolation seriously impedes their access to health care. See, for instance, C. Fyvie, A. Ager, G. Curley and M. Korac, Integration: Mapping the Field Volume II – Distilling Policy Lessons from the “Mapping the Field” Exercise, Home Office Online Report 29/03, http://www.homeoffice.gov.uk/rds/pdfs2/rdsolr2903.pdf In that respect EU citizens may be regarded as the most ‘privileged’ non-nationals. Conversely, asylum seekers, because of their precarious status and limited rights, appear under privileged.

Fundamental Social Rights for Irregular Migrants law,4 at least in theory, these countries largely exclude irregular migrants from the ambit of their integration policies. With social tensions often heightened, the increasing politicisation of irregular migration and tighter spending policies, the temptation for governments to oppose socio-economic rights for irregular migrants is great. Xenophobic discourses have aggravated the debate by presenting unemployed, retired and sick migrants, whether regular or irregular, as undeserving and a costly burden for the State.5 Justifications put forward by governments to deny socio-economic rights for irregular migrants primarily lie with the illegality of their entry or/and sojourn. Curtailments of social benefits have developed as deterrents against irregular migration along side more traditional ‘defence’ mechanisms such as stricter visa requirements and reinforced border controls. Consequently, the threat of destitution in the host state has become a tool of immigration control. Policies of exclusion from basic social rights rest upon and convey the idea that irregular migrants themselves are primarily responsible for their precarious situation. Such policies tend to overlook national and international macro-economic factors that give rise to irregular migration such as demand for a cheap and flexible workforce within ‘black markets’ of host countries combined with extreme poverty in countries of origin. Moreover, it is worth noting that in some cases migrants have entered host states legally and subsequently become irregular migrants as a result of changes in the law or refusals to renew resident or work permits. It is accepted that granting irregular migrants the full range of socio-economic rights would amount to bringing their status in line with that of regular migrants. Furthermore, the potential cost of such policies on the host State cannot be ignored. Also there is an argument that some degree of discrimination between these two categories of migrants may be objectively justified on the basis of the illegality of entry and/or sojourn. Denying host states the right to discriminate against irregular migrants could be construed as an erosion of their sovereign right to devise their immigration policies and control immigration within their borders. However, it remains that irregular migrants, because of their lack of recognised status in the host state, are paradoxically highly dependent on the latter to meet their essential living needs.

4

5

Host countries such as France and the United Kingdom have worked towards the integration of those non-nationals lawfully settled within their territory through the adoption of measures aiming to achieve greater equality in fields such as working conditions, housing, social protection, vocational training and education. For instance, ‘national preference’ has been a recurrent theme in the anti-immigration discourse of the French far-right.

365

Sylvie Da Lomba

3. THE SIGNIFICANCE OF

THE

RIGHT TO HEALTH CARE FOR IRREGULAR MIGRANTS

The link between health and socio-economic circumstances is well established and the adverse impact of poor living conditions on health is well documented.6 Because they largely fall outside the protection offered by the host state to its residents, irregular migrants constitute a particularly vulnerable group7 and any limitations to their rights to health care may have serious implications for their health. Hence, ensuring irregular migrants’ access to health care is essential to their well-being. However, it is also in the best interests of the host state as will be returned below. To impede access to health care is to render individuals more vulnerable to illhealth. The absence of early diagnosis and medical follow up means that minor illnesses may become serious or even fatal. Moreover, poor access to health care may lead to a deterioration of living conditions. Indeed, ill-health may incapacitate people to the extent that they can no longer work and become unable to support themselves and their dependents. The problem is exacerbated in respect of irregular migrants as their unlawful presence in the host state makes them largely ineligible for state support. Studies show that the incidence of communicable diseases such as tuberculosis tends to be significantly higher in migrants’ countries of origin than in host countries in the west.8 As stressed in the Preamble to the World Health Organisation (WHO) Constitution, ‘unequal development in different countries in the promotion of health and the control of disease, especially communicable disease, is a common danger’.9 Moreover, poor living conditions for irregular migrants in western host states make them more susceptible to communicable diseases than the host population. Indeed, some studies suggest that the health status of irregular migrants actually worsens subsequent to their arrival in host states.10 It is therefore argued that the institutional exclusion of irregular migrants from health care services may prove counterproductive11 since this

See J. Lebas and P. Chauvin, Précarité et Santé (Paris: Flammarion, 1998). Observatoire du Droit à la Santé des Etrangers, Rapport d’Observation: Année 2000 (Paris: ODSE, 2000). 8 See B. Decludt and C.Campese, ‘Les cas de tuberculose déclarés en France en 1998 et 1999’, BEH, Nº10/2001, 6 March 2001. 9 Constitution of the World Health Organisation, 14 UNTS, 186. 10 See O. Brixi, ‘Santé et migration’, in J. Lebas and P. Chauvin, n. 6, p. 99. 11 Health screening at international borders is often presented as an efficient means to avert the risk of spread of disease in countries of destination. It cannot take place where entry into the host country is clandestine. Hence, this method is of very limited use in respect of irregular migrants. 6 7

366

Fundamental Social Rights for Irregular Migrants undermines the effectiveness of disease prevention within the host state overall, in particular in respect of communicable diseases. Such policies put the whole population at risk. Thus, it is argued that it is also in the host state’s self interest to provide effective access to health care for irregular migrants. Irregular migrants’ economic circumstances reinforce their need for health care that is free at the point of delivery. An argument that is often used to deny or restrict free health care for irregular migrants relates to the financial burden that they place on host states coupled with the limited capacity of host states’ health care systems that make them unable to respond to significant increases in demand.12 The current political climate in countries such as England and France is not conducive to fully meeting irregular migrants’ right to health care. The voluntary sector is often called upon by government as an alternative provider of services. However, the resources available to charitable bodies are inevitably limited. Consequently, they can only realistically provide supplementary, rather than alternative, health-related services. Whilst resource implications for the host state must not be overlooked, they must not be exaggerated either.13 As noted above, limited access to health care for irregular migrants may prove counterproductive in that minor diseases that could be treated relatively easily in the early stages of development may become more serious and therefore more expensive to treat. Excluding irregular migrants from health care services may therefore undermine attempts to rationalise health expenditure in the host state.14

4. DOMESTIC PROVISIONS: FRENCH AND ENGLISH EXPERIENCES Irregular migrants lack ‘legal citizenship’ and the social protection it entails. Hence, often regarded as having no claim against the host state, their entitlement to social rights tend to be seen as a humanitarian matter falling within the discretion of the host state that, ultimately, depends on the ‘generosity’ of the state. However, as argued later in this essay, international human rights law is not silent on the issue and sets out minimum standards. 12 Here a parallel may be drawn with the treatment and perception of asylum seekers by

the public and policy makers within host countries. For instance, asylum seekers in England have been accused of burdening the National Health Service notwithstanding the fact that they are entitled to free health care. See, for instance, ‘Refugees could ‘break’ the NHS’, 17 July 2000, http://news.bbc.co.uk/1/hi/wales/83621.stm 13 Seventeen studies on the effect of immigration were examined by the OECD: four concluded that the impact of immigration on public finances was zero or positive; six that it was zero or negative; and seven could not decide. None of them was said to be conclusive (OECD/SOPEMI, Trends in International Migration, Paris, 1999). 14 Observatoire du Droit à la Santé des Etrangers, ‘Politique de santé: retour au 19ème siècle. Les sans-papiers exclus des soins’, 17 December 2002, http://odse.eu.org/docs/ communiques/comm17-12-02.html

367

Sylvie Da Lomba France Since the end of the nineteenth century, French law has guaranteed free access to health care for the poorest groups of society, irrespective of legal status and nationality.15 The problematisation and politicisation of irregular migration,16 however, has had repercussions for irregular migrants’ access to health care in France leading to stigmatisation and potential discrimination. Recent stigmatisation in the law resulted from the creation of the Couverture Maladie Universelle (CMU) (universal sickness cover) in 1999.17 The purpose of the CMU was to ensure that economically deprived people had equal access to health care. The CMU was part of a wider national programme aimed to eradicate all forms of exclusion.18 The personal scope of the CMU, however, is not universal as it makes entitlement conditional on stable and regular residence,19 thus excluding irregular migrants from its benefits. Free access to health care for irregular migrants was maintained through the Aide Médicale de l’Etat (AME) (state medical assistance)20 which makes express provision for those migrants who do not reside in France lawfully.21 The AME entitles them to hospital services free of charge (aide médicale hospitalière), namely free consultations and treatments as in- and out-patients and free prescriptions. Entitlement to the AME is initially for one year and can be granted immediately where necessary.22 Irregular migrants who have been residing in France for at least three years without interruption are also eligible for home medical assistance (assistance médicale à domicile).23 This allows them to consult general practitioners free of 15 Loi of 15 July 1893. 16

17 18

19 20

21 22 23

368

See for instance, D. Papademetriou and K. Hamilton, Converging Paths to Restriction: French, Italian, and British Responses to Immigration (Washington: Carnegie Endowment for International Peace, 1996) 5. Loi n° 99-641 of 27 July 1999 portant création d’une couverture maladie universelle, Journal Officiel de la République Française of 28 July 1998, 11229. This programme culminated with the adoption of the Loi d’orientation relative à la lutte contre les exclusions, Loi n° 98-657 of 29 July 1998, Journal Officiel de la République Française of 31 July 1998, p. 11679. Its aim is to set out the bases for the effective realisation of socio-economic rights for deprived groups in fields such as work, housing, health and education (Article 1). Article 3 of the Loi that created the CMU, n. 17. Loi n° 92-722 of 22 July 1992 as amended, which created a right to the AME. In 2002, about 176, 000 individuals benefited from the AME (the majority of whom were irregular migrants). Article L251-1 of the Code de l’Action Sociale et des Familles. Ibid., Article L252-3. Loi Pasqua of 1993 (Loi n° 93-1027 of 24 August 1993 relative à la maîtrise de l’immigration et aux conditions d’entrée et de séjour des étrangers en France, Journal

Fundamental Social Rights for Irregular Migrants charge. In practice, however, this right is undermined by difficulties in supplying evidence of a three-year continuous residence in France. Reliance on the AME is problematic in many respects. Firstly, it stigmatises irregular migrants by making their access to health care subject to a specific mechanism. Secondly, too often the right to the AME does not materialise in practice owing to insufficient resources.24 Thirdly, complex and protracted procedures render the exercise of this right extremely intricate for irregular migrants.25 Difficulties are exacerbated when irregular migrants do not speak French and shortages of professional interpreters have made matters worse.26 Moreover, because irregular migrants are required to supply evidence of their irregular sojourn in France, their right to the AME is difficult to ascertain.27 Fourthly, the AME has been criticised for making hospitals the primary providers of health care for those who fall within its scheme, when most forms of health care could be provided by general practitioners at a lesser cost.28 Finally, there is some reluctance on the part of irregular migrants to use hospital services. Many irregular migrants are not aware of their rights and consequently may be anxious about not being able to meet hospital costs. This is reinforced by restrictive immigration policies that have not promoted better awareness. Moreover, irregular migrants may be circumspect towards health and social authorities as they may fear that their presence within the French territory will be reported to or detected by immigration authorities.29 The exclusion of the ‘sans-papiers’ from the scope of the CMU was symptomatic of a trend towards limited social rights for irregular migrants as part of restrictive immigration policies aiming to tackle irregular migration.30 In December 2002, the French Government took that trend a step further by re-

24 25

26 27 28 29

30

Officiel de la République Française of 29 August 1993, Article 38-I(4) and Code de l’Action Sociale et des Familles, Article L111-2. GISTI, Groupe Protection Sociale, ‘L’accès aux soins des étrangers: les débats et les évolutions du droit’, in Hommes et Migration, n°1225, May-June 2000. Ibid. See also P. August and A. Veïsse, ‘Droit à la santé et situation d’exil’, Droits des Etrangers, Informations Sociales, n°78, CNAF, Paris, 1999 and Observatoire du droit à la santé des Etrangers, n. 7, p. 5. Ibid., Observatoire du Droit à la Santé des Etrangers, p. 13. See GISTI, n. 24. Ibid. For instance, there is evidence that the persistent use of specific ‘windows’ to deal with AME applications within the premises of some social security services has facilitated the detection of irregular migrants by immigration authorities (ibid.). For instance, the Loi Pasqua of 1993 (n. 23) made the regularity of sojourn a condition of eligibility for social security benefits (Article 36). This condition was formerly confined to family benefits.

369

Sylvie Da Lomba introducing a discriminatory policy that was originally abolished in 1893.31 The Loi de finances rectificative pour 2002 required the beneficiaries of the AME to contribute towards the costs of their health care.32 A health minister33 emphasised that the AME reform should not be construed as a repressive measure directed at irregular migrants, but as a means to control and reduce health expenditure and make AME users more responsible.34 He also stressed the fact that contributions towards treatment would not be required from children, pregnant women and people suffering from serious illnesses. The end of gratuity of health care for irregular migrants was met with very strong criticism emanating from members of the medical profession, migrants support organisations, trade unions and academics.35 The reform was denounced for using the threat of illhealth as a weapon against irregular migration.36 The changes made to the AME were perceived as jeopardizing the right to health, including the right to health care. It was feared that expecting irregular migrants to bear part of the cost, however small, would dissuade them from seeking medical help making them even more vulnerable to illness. These problems of access to health services for irregular migrants would inevitably result in late, if any, diagnosis, delayed treatment and greater risk of developing serious diseases. It was also felt that retaining gratuity for children, pregnant women and seriously ill people would not be sufficient to offset the detrimental impact of the reform on irregular migrants’ health. The reform was described as a ‘public health nonsense’37 as it could leave carriers of communicable diseases outside the reach of the health care system, thus putting the whole public at risk. It was stressed that the AME reform contravened the principle of public health

31 See n. 15. 32 Loi n° 2002-1576 of 30 December 2002, Journal Officiel de la République Française of

33 34 35

36 37

370

31 December 2002, p. 22070 (Article 31-1). The AME reform requires its beneficiaries to pay the ‘forfait hospitalier’ in case of hospitalisation and the ‘ticket modérateur’ for out-patient consultations. Alain Lambert, Ministre délégué au budget. B. Bissuel, ‘Le gouvernement met fin à la gratuité des soins pour les sans-papiers’, Le Monde, 4 March 2003, p. 11. See, for instance, Observatoire du Droit à la Santé des Etrangers, n. 14; E. Favereau, ‘Ils ne pourront pas payer’, Libération, 24 December 2002, at: http://www.liberation.fr/ imprimer.php? Article=76671; Observatoire du Droit à la Santé des Etrangers, n. 7; and E. Favereau, ‘Campagne pour les soins aux plus démunis’, Libération, 31 January 2003, at: http://www.liberation.fr/imprimer.php?Article=85117 Bertrand Bissuel, n. 34. This view was expressed by the President of Médecins du Monde, C. Moncorgé (ibid.).

Fundamental Social Rights for Irregular Migrants protection38 upheld by the Conseil Constitutionnel on a number of occasions.39 In practice, hospital personnel also observed that the vast majority of irregular migrants would be unable to pay, leaving hospitals with “unpaid bills”. Moreover, because the AME reform hinders access to health care, it makes irregular migrants more susceptible to serious conditions that remain treated free of charge. Furthermore, French law provides for the regularisation of irregular migrants whose return to their country of origin would have severe consequences for their health in the absence of appropriate treatment there.40 The fact that the overall budget allocated to the AME was reduced by 30% for 200341 may aggravate the situation further. These observations cast serious doubts on the viability of the AME reform as an instrument of financial rationalisation. Faced with such strong criticism and opposition, the French government put the AME reform on hold in March 2003. Indeed, its implementation required further legislation (décret d’application), the adoption of which has been put off for the time being. However, the provisions reforming the AME have not been repealed. Moreover, shortly, after it took the decision to suspend the operation of the AME reform, the French Government started to work on a draft Circulaire designed to prevent abuses of the AME.42 The proposed Circulaire tightens 38 See Argumentaire du Gisti sur l’inconstitutionnalité de la réforme AME et CMU,

39 40

41

42

in Réclamation Collective contre la France, Réformes de l’Aide Médicale de l’Etat (AME) et de la Couverture Maladie Universelle (CMU) contraires aux articles 13,17, E et G de la Charte Européenne Révisée, Annex 3. Since the Loi de finances rectificative pour 2002 has entered into force, its compatibility with the French Constitution can no longer be challenged (French Constitution, Article 61). See, for instance Conseil Constitutionnel, Decision 90-283 DC of 8 January 1981, para. 15 and Decision 90-287 DC of 16 January 1991, para. 24. Article 25-8 of the Ordonnance nº 45-2658 of 2 November 1945 relative aux conditions d’entrée et de séjour des étrangers en France as amended (Journal Officiel de la République Française of 4 November 1945). The Loi Debré, which was repealed by subsequent legislation, only specified that irregular migrants suffering from severe pathologies could not be expelled (Loi nº 97-396 of 24 April 1997 portant diverses dispositions relatives à l’immigration, Article 10, Journal Officiel de la République Française of 25 April 1997, p. 6268). However, those concerned were not issued with documents regularising their sojourn in France. Loi de finances pour 2003 (n° 2002-1575) of 30 December 2002, Journal Officiel de la République Française of 31 December 2002, p. 22025. See Observatoire du Droit à la Santé des Etrangers, ‘Le gouvernement veut pénaliser la santé des sans-papiers. La loi de finances 2003 impose une diminution de 30% du budget alloué à l’Aide Médicale de l’Etat (AME)’, December 2002, http://www.odse.eu.org/docs/communiques/ comm12-02.html. Ministère des Affaires Sociales, du Travail et de la Solidarité, Minitère de la Santé, de la Famille et des Personnes Handicapées, Projet de Circulaire relative aux conditions d’attribution de l‘aide médicale de l’Etat, version nº 2, 9 May 2003.

371

Sylvie Da Lomba the procedure and makes it extremely cumbersome for irregular migrants to the extent that it is likely to impede their access to free health care.43 The Circulaire lists in great detail the documents that AME applicants must supply in support of their claim. Comprehensive evidence must be provided in order to establish the person’s identity, residence, domicile and resources.44 Failure to submit the required documents results in the automatic rejection of the application. Where their authenticity is questioned, it is incumbent on the applicant to supply new evidence.45 Practice has so far acknowledged irregular migrants’ difficulties in satisfying evidentiary requirements and applicants’ statements (‘déclarations sur l’honneur’) have been deemed sufficient. The Circulaire, however, strongly criticises this practice and stresses that statements should only be accepted in exceptional cases.46 Moreover, it makes AME renewals, where initially granted on the basis of statements,47 conditional on applicants submitting hard evidence.48 The AME shall no longer be conferred automatically save in exceptional circumstances that worryingly do not cover medical emergencies.49 Eligibility to the AME is means tested – less than 562 Euro per month – and concern arises from the suggested approach to the resource condition. Indeed, under the Circulaire, any assistance granted to irregular migrants such as food and shelter provided by friends, relatives or charitable organisations counts towards their resources.50 This method of calculation is likely to artificially inflate irregular migrants’ resources and render them ineligible for the AME. Finally, the Circulaire proposes the setting up of a database of the people who have applied for the AME.51 Because the vast majority of applicants are irregular migrants, there is a risk that this database may double up as a database of the ‘clandestins’ present in France. This is likely to discourage AME applications. It is feared that the procedure as revamped by the Circulaire will erect a bureaucratic barrier that will jeopardise irregular migrants’ access to health care. The AME reform, notwithstanding its suspension, and the draft Circulaire show 43 Médecins sans Frontières, ‘L’Aide Médicale de l’Etat à nouveau menacée’, 26 May 2003,

44 45 46 47 48 49 50 51

372

http://www.paris.msf.org/Content/News.nsf/html/france260503?OpenDocument. See also GISTI, ‘La chasse aux pauvres est ouverte’, 26 May 2003, http://www. gisti.org/doc/actions/2003/sante-pour-tous/chasse.html. Article 2 and Annexes 1 to 5, n. 42. Ibid., Article 3(E). Ibid., Article 1. The AME is granted for one year in the first instance (Article L252-3 of the Code de l’Action Sociale et des Familles). Article 3(D), n. 42. Ibid., Article 3(C). Ibid., Annex 5. Ibid., Article 3(F).

Fundamental Social Rights for Irregular Migrants that the principle of gratuity of health care for irregular migrants remains under threat in France. England In England, the right to health care was realised through the establishment of the National Health Service (NHS) in 1948. Central to the provision of NHS health care, is the principle of gratuity. Indeed, services must be provided free of charge unless the law expressly permits the imposition of charges.52 The creation of the NHS revolutionised the delivery of health care. Prior to its existence, hospitals charged people for beds and only the poorest workers were exempt from charges for consulting a doctor. Unlike French law, English law does not explicitly ascertain, deny or curtail irregular migrants’ rights to health care. This silence in English law may be explained by the fact that the NHS was intended primarily to address the health care needs of United Kingdom residents. Moreover, a tradition of rigidly limiting immigration in the United Kingdom and the increasing politicisation of irregular migrants have contributed to the persistence of this omission in English law.53 The latter is also consistent with United Kingdom Governments’ use of cuts in basic social benefits as means to contain immigration and asylum seeking.54 In that respect, it is interesting to note that the alarm raised by cutbacks in state support for asylum seekers has largely ignored the fate of irregular migrants.55 In the absence of specific legal provisions for irregular migrants’ rights to health care, it is necessary to examine the relevance of more general health care provisions. In England, eligibility to receive free medical treatment is contingent on whether a person is ordinarily resident in the United Kingdom. Thus, eligibility is not related to nationality or payment of taxes or national insurance contributions.56 As already noted, English law underpins this discrimination on the ground that ‘[t]he National Health Service is primarily for the benefit of people 52 National Health Service Act 1977, s. 1(2). 53 On this issue, see for instance, D. Papademitriou and K. Hamilton, n. 16, p. 55. 54 See infra n. 103, 104 and 114. 55 On refugees and asylum seekers’ health and access to health care in the United King-

dom, see, for example, London Health Observatory, ‘Health of refugees and asylum seekers’, 13 September 2002, http://www.lho.org.co.uk/hil/refugee.htm; Refugee Council, ‘Health services for asylum seekers and refugees’, July 2002; British Medical Association, ‘Access to health care for asylum seekers’, January 2001; and British Medical Association, ‘Asylum seekers: meeting their health care needs’, October 2002. 56 HSC 1999/018, 1 February 1999, Overseas Visitors’ Eligibility to Receive Free Primary Care, para. 2.

373

Sylvie Da Lomba who live in this country [the United Kingdom]’.57 To be considered ordinarily resident in the United Kingdom, an individual must be lawfully living in the United Kingdom and settled there.58 ‘A person must have an identifiable purpose for his or her residence and that purpose must have a sufficient degree of continuity to be properly described as settled. It is unlikely that anyone coming to live in the United Kingdom, intending to stay for less than six months, will fulfil these criteria’.59 Those falling out with the scope of this definition are described as overseas visitors60 and have limited access to free health care. Because they reside unlawfully in the United Kingdom, irregular migrants cannot be regarded as ordinarily residents. It is therefore necessary to determine whether, for the purposes of health care access, they may be categorised as overseas visitors.61 While NHS services are primarily designed to address the health needs of residents, overseas visitors may, to a limited extent, enjoy access to free health care. Central to the delivery of free health care are General Practitioners (GPs) and NHS hospitals. GPs have an obligation, within their geographical area of practice, to offer treatment which they consider to be immediately required owing to an accident or any other emergency free of charge, irrespective of nationality or residence.62 Consequently, overseas visitors, which could include irregular migrants, can receive urgent treatment free of charge on the same terms as ordinary residents. However, a strict interpretation of the concept of ‘emergency’ and ‘immediately required treatment’ is recommended, confining the provision of free treatment to ‘essential treatment which cannot be reasonably delayed until the patient returns to [his or her] home country’.63 Overseas visitors are required to contribute towards the cost of prescriptions in the same way as United Kingdom residents64 and groups exempt from prescription charges do not include irregular migrants.65 Also the quantities of prescribed medication supplied to overseas visitors should be no more than what is necessary for imme-

57 Ibid. 58 Ibid., para. 3. 59 Ibid. 60 Ibid., para. 4. 61 Private health care is available in the United Kingdom. However, the economic cir-

cumstances of many irregular migrants make it an unrealistic option. 62 This obligation is laid down in paragraph 38 of Schedule 2 to the NHS (GMS) Regu-

lations 1992 as amended and paragraph 24 of Schedule 1 to the Directions to Health Authorities Concerning the Implementation of Pilot Schemes (Personal Medical Services). This obligation is reiterated in paragraph 5 of HSC 1999/018, n. 56. 63 HSC 1999/018, ibid., para. 6. 64 SI 2000 No. 620, The National Health Service (Charges for Drugs and Appliances) Amendment (No. 2) Regulations 2000. 65 Ibid. s. 7 on groups exempt from charges.

374

Fundamental Social Rights for Irregular Migrants diate purposes.66 This may be highly problematic where irregular migrants suffer from chronic illnesses or diseases requiring long term treatment and follow up. In respect of non-emergency treatment, GPs have discretion to offer overseas visitors either treatment through the NHS or on a paying basis as a private patient.67 Where NHS treatment is provided, GPs may decide to fully register overseas visitors or register them as temporary patients. Private treatment is particularly encouraged when it appears that patients have come to the United Kingdom specifically to seek treatment there.68 This could potentially be used against irregular migrants whose reasons and purposes for living in the United Kingdom are not considered legitimate by the authorities. Because of GPs key role in the provision of primary health care and as gate keepers of most other forms of health services, registration with a GP is clearly critical. There is evidence that asylum seekers and homeless people experience difficulties when attempting to register with a GP owing to their circumstances, and in particular the absence of a permanent address.69 There is a temptation for GPs to register them on a temporary basis with the consequence that their personal medical records, if any, are not requested from previous GPs. Such practices may detrimentally affect the continuity of their health care. NHS hospitals also play an important role in the provision of health care services. In principle, overseas visitors are liable to pay for hospital services. This principle, however, is not absolute as overseas visitors are exempt from charges in respect of certain hospital services, and this irrespective of their status.70 These exemptions include treatments provided in accident and emergency departments,71 treatments for communicable diseases72 and sexually transmitted diseases73 and compulsory psychiatric treatment.74 Moreover, some categories

66 HSC 1999/018, n. 56, para. 7. 67 Ibid., paras. 13-15. 68 Ibid., para. 15. 69 See, for instance, R. Dunne, ‘Analysis: GPs and asylum seekers’, 7 November 2002,

70 71 72 73 74

http://news.bbc.co.uk/1/hi/health/2414887.stm; ‘Asylum health hurdles’, 6 May 2001, http://news.bbc.co.uk/1/hi/health/1310278.stm. In 1996, Shelter found that while 97% of the general population was registered with a GP, 28% of homeless users of a London hospital were not on a GP’s register (Homeless Link, ‘Putting homelessness on the new health agenda’, http://www.homeless.org.uk/db/20020612220415). NHS (Charges to Overseas Visitors) Regulations 1989, SI 1989 N°306, s. 3. Ibid., s.3(a). Ibid., s.3(c). Ibid., s. 3(d). This provision specifically excludes HIV with the exception of testing and counselling associated with a positive test result. Ibid., s.3 (e) and (f).

375

Sylvie Da Lomba of overseas visitors are exempt from charges. Whilst these exceptions do not explicitly include irregular migrants, they apply to overseas visitors who have been residing in the United Kingdom for more than 12 months.75 For those irregular migrants who do not satisfy this requirement, free treatment is likely to be confined to exempted hospital services. As for those who have sojourned in the United Kingdom for more than one year, difficulties in supplying evidence in support of their claim to free health care combined with a fear to make their irregular presence ‘official’ may dissuade some irregular migrants from seeking health care.76 Restricted access to hospital services, poor knowledge of health care entitlements and distrust of public officials mean that seeking hospital treatment may become a last resort for irregular migrants. The United Kingdom Government is currently looking into amending the National Health Service (Charges to Overseas Visitors) Regulations 1989 with a view to ensuring that overseas visitors, unless exempt, pay for their health care. The Government has stressed that: [h]ospitals have a right, and a duty, to charge for services provided to those who do not live in the UK. These powers are set out in the Regulations. They need to be clear and up to date so that hospital staff can implement them uniformly, and so that visitors to the UK are in no doubt about their position should they need health care whilst visiting the UK.77

The shadow Health Secretary suggested the introduction of ‘entitlement cards’ which would have to be produced to prove eligibility to free treatment.78 The

75 Ibid., s.4. 76 For instance, hospitals may directly contact the Home Office if a patient claims to be

a refugee or an asylum seeker, but is unable to provide evidence in order to confirm his or her status (BMA, ‘Access to health care for asylum seekers’, January 2001, http://www.bma.org.uk/ap.nsf/Content/asylumhealthcare. Unlike irregular migrants, refugees and asylum seekers are exempt from hospital charges (NHS (Charges to Overseas Visitors) Regulations 1989, n. 70, s. 4(c)). 77 Proposed Amendments to the National Health Service (Charges to Overseas Visitors) Regulations 1989: A Consultation, http://www.doh.gov.uk/overseasvisitors/ nhschargesconsult.htm. The closing date for the consultation was the 31st of October 2003. 78 ‘Crackdown on “health tourists”’, BBC News, 29 July 2003, http://newsvote.bbc.co.uk/ mpapps/pagetools/print/news.bbc.co.uk/1/hi/health/3105931.s. The BMA head of science and ethics, Dr Vivienne Nathanson, stressed that ‘[i]t is important that any government measures to clamp down on health tourism ensure that emergency lifethreatening interventions continue to take place [and that] doctors are able to treat people who have transmissible illnesses’. She also pointed out that decisions about whether health care is urgent should rest with doctors (ibid.).

376

Fundamental Social Rights for Irregular Migrants danger here is that these measures will ‘brand’ irregular migrants as ‘health tourists’ and contribute to hinder their access to health care while further scapegoating foreigners. The French and English experiences show that irregular migrants tend to ‘fall through the net’ of health care systems.79 Whilst French law stigmatises by ensuring access through a specific scheme (the AME), English law makes entitlements uncertain because it fails to expressly identify irregular migrants as potential NHS users. This silence in English law also creates problems for clinicians who are often unsure of migrants’ rights.80 While the French approach is more apt to protect the right to health care as the full realisation of any right partly rests upon its recognition in the law, ensuring its effectiveness in practice is a vital aspect of its fulfilment. In that respect, the situation remains unsatisfactory within both jurisdictions. In both countries, irregular migrants’ access to health care is hindered by inadequate structures and mechanisms which fail to take into consideration the specificity of their circumstances.

5. INTERNATIONAL LAW AS A BASIS FOR THE RECOGNITION OF HEALTH CARE FOR IRREGULAR MIGRANTS

A

RIGHT TO

In both France and England, health care for irregular migrants tends to be viewed as a generous and humanitarian gesture on the part of the host country rather than the product of legally binding obligations. Yet the affirmation of a right to health care for irregular migrants finds support in international human rights law. Indeed, the latter has upheld the right to health, which encompasses the right to health care, as a socio-economic right generating positive obligations for states to provide health care services.81 Moreover, denying or impeding access to health care for irregular migrants may also conflict with other human rights provisions such as the prohibition of inhuman and degrading treatment. This 79 The Health Summary, ‘Who falls through the net’, vol. IX, n°III, March 1992, p. 13.

The article identifies other vulnerable groups, namely homeless people, refugees and travellers. 80 L. Power, ‘Law and access to care for recent migrants’, British HIV Association, Newsletter, November 2002, Number 13, 5. 81 The formulation of health as a socio-economic right was initiated in the second half of the 20th century at the United Nations Conference on International Organisation held in San Francisco in 1945. This led to the insertion of a reference to health in Article 55 of the United Nations Charter which provides that ‘the United Nations shall promote (…) solutions of international economic, social, health, and related problems…’ This development also led to the establishment of the World Health Organisation in 1946. On the definition of the right to health, see B. Toebes, The Right to Health as a Human Right in International Law’ (Oxford: Hart-Intersentia, 1999), p. 16-26.

377

Sylvie Da Lomba section examines provisions of human rights law elaborated within the United Nations and European frameworks which support the recognition of irregular migrants’ right to health care in France and England. UN Instruments Article 25 of the Universal Declaration of Human Rights (UDHR) of 1948 establishes the fundamental principle that: [e]veryone has the right to a standard of living adequate for the health and wellbeing of himself and his family, including food, clothing, housing and medical care and necessary social services… (emphasis added).82

This provision identifies health care as an essential determinant of good health. The UDHR does not discriminate as it entitles everyone to the rights and freedoms set forth in the Declaration without distinction.83 The universal scope of the UDHR rests upon the over-arching principle that ‘[a]ll human beings are born free and equal in dignity and rights’.84 Notwithstanding its lack of binding effect, the UDHR has played a considerable part in the shaping of human rights law and the adoption of subsequent human rights treaties. The right to health care is reiterated in the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966.85 ‘The creation of conditions which would assure to all medical service and medical attention in the event of sickness’86 is presented as a necessary step for the full realisation of the right to health care.87 As in the case of the UDHR, the protection conferred by the Covenant is far reaching as it requires all state parties to undertake to guarantee the rights articulated in the Covenant without discrimination. States are under the obligation to progressively realise the rights enshrined in the ICESCR to the maximum of their resources.88 It follows that the right to health care as laid down in the 82 General Assembly Resolution 217A (III) 10 December 1948. 83 Article 2 UDHR. 84 Article 1 UDHR. 85 UN Doc A/6316 (1966). The importance of the right to health care has also been

stressed by the World Health Organisation (WHO). See, for instance, WHO, Global Strategy for Health for All by the Year 2000 (adopted in WHO Resolution WHA.34.36), 1981. ‘Health for all’ means that ‘resources for health are evenly distributed and that essential health care is accessible to everyone’ (emphasis added) (ibid). The wording used in WHO instruments suggests that the right to health, including the right to health care, is granted to all irrespective of status and nationality. 86 Article 12(2)(d) ICESCR. 87 Article 12(1) ICESCR. 88 Article 2(1) ICESCR.

378

Fundamental Social Rights for Irregular Migrants Covenant has no immediate effect.89 In that respect, host states could argue that limited resources have slowed, halted or prevented progress in the provision of health care for irregular migrants. The right to health care is also upheld in UN instruments which aim to protect the rights of particularly vulnerable groups.90 Of particular interest is the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families of 1990,91 hereafter the Convention on the Rights of Migrants. Article 27 of the Convention confers migrant workers and members of their families the right to emergency medical care. What is significant is that the same article prohibits any form of discrimination based on the irregularity of stay or employment and stipulates that emergency medical care must be delivered on an equal basis as it is to nationals. In extending the benefit of the right to emergency medical care to irregular migrants, the Convention on the Rights of Migrants departs from the distinction between ‘documented’ and ‘undocumented’ migrants which was inserted at the insistence of the host countries which took part in the drafting of the Convention. The right to health care for irregular migrants as construed in the Convention on the Rights of Migrants constitutes a considerable step towards greater protection. However, it remains imperfect as it is confined to access to emergency medical care, thus failing to secure that irregular migrants benefit from disease prevention measures such as early diagnosis and medical follow up. Moreover, the propensity of the Convention to promote and protect migrants’ rights depends on the number of ratifications and its ‘popularity’ amongst host states. The Convention came into force

89 However, some of the obligations imposed on state parties to the Covenant are of

immediate effect (e.g. the obligation to ensure trade union rights (Article 8) and the obligation not to interfere with parental choice of school (Article 13(3)). On this issue, see D. Harris, Cases and Materials on International Law, 5th ed., (London: Sweet and Maxwell 1998), p. 695. 90 The right to health care is also guaranteed in the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) of 1979 (UN Doc A/34/46 (1980)) and the Convention on the Rights of the Child (CRC) of 1989 (28 ILM 1448 (1989)). Article 12 of the CEDAW provides for equal access to health care for women (Article 12(1)) with special concern for access to pregnancy-related services (Article 12(2)). Article 24(1) of the CRC recognises a comprehensive right to health care for children. 91 A/Res/45/158 adopted December 18, 1990. The European Convention on the Legal Status of Migrant Workers was adopted under the auspices of the Council of Europe in 1953. The Convention grants the right to social and medical assistance to migrant workers (Article 19). However, this right is only conferred upon migrant workers who are nationals of Contracting Parties and are lawfully residing within the territory of a Contracting Party (Article 1). Unlike France, the United Kingdom has not ratified the Convention. The Convention entered into force on 1 May 1983.

379

Sylvie Da Lomba on 1 July 2003.92 However, so far the Convention has essentially been ratified by emigration countries. The United Kingdom Government clearly indicated that it had no intention to sign and ratify the Convention on the Rights of Migrants93 and to date France has not signed it. European Instruments At European level, the right to health care is primarily enshrined in the European Social Charter of 1961,94 hereinafter the Social Charter. Article 13, Part I of the Social Charter provides that ‘anyone without adequate resources has the right to social and medical assistance’. The meaning of this right is explicated in Article 13, Part II; it requires contracting parties: to ensure that any person who is without adequate resources and who is unable to secure such resources either by his own efforts or from other sources, in particular by benefits under a social security scheme, be granted adequate assistance, and, in case of sickness, the care necessitated by his condition.

The extent to which this provision could benefit irregular migrants within the territory of the contracting parties, that is host countries, however, is not explicit. Indeed, Article 13(4), Part II of the Social Charter stipulates that conferment of the rights granted by Article 13 ‘on an equal footing with (…) nationals’ is subject to lawful residence in the state concerned. It follows that equality of treatment with nationals is subject to two conditions: nationality of and lawful residence in a Contracting Party. The obligations contained in Articles 13, Parts I and II are reiterated in Articles 13, Parts I and II of the Revised European Social Charter of 1996, hereafter the Revised Social Charter.95 92 Twenty ratifications were necessary for the entry into force of the Convention on the

Rights of Migrants. 93 On 9 January 2002, in response to a parliamentary question regarding the position of

the United Kingdom vis-à-vis the Convention on the Rights of Migrants, the Labour Government Minister, Angela Eagle, declared: ‘We have no plans at present to sign and ratify the convention. The Government consider they have already struck the right balance between the need for immigration control and the protection of the interests and rights of migrant workers and their families in the UK. The rights of migrant workers and their families are protected in UK legislation, including the Human Rights Act 1998, and the UK’s existing commitments under international law.’ http://www.december18.net/UnconventionLetters.htm. 94 European Treaty Series – No. 35. 95 European Treaty Series – No. 163. Unlike the United Kingdom, France has ratified the Revised European Charter.

380

Fundamental Social Rights for Irregular Migrants The question of irregular migrants’ eligibility to the benefits of Article 13 arose in a collective complaint lodged by the International Federation for Human Rights (IFHR) before the European Committee of Social Rights.96 The IFHR argues that the reform of the AME is in breach of Article 13 of the Revised Social Charter. They take the view that requiring a financial contribution from AME beneficiaries, essentially irregular migrants, would amount to denying them health care in contravention with their right to health. The IFHR contends that, whist irregular migrants do not enjoy equality of treatment with nationals under Article 13, this provision does not deny them the right to health since Article 13 only permits differentiation. In the French context, this means that the provision of free health care for irregular migrants through a specific scheme, that is the AME, is consistent with France’s obligations under Article 13 of the Revised Social Charter. However, undermining their right to health care by requiring them to contribute towards the cost of their health care would not. The position of the IFHR appears to be consistent with the wording, object and spirit of both the Social Charter and the revised Social Charter.97 Another European instrument which may be of great significance in ascertaining the existence of a right to health care for irregular migrants in host countries is the 1950 European Convention of Human Rights (ECHR). The ECHR does not protect the right to health, nor does it guarantee the right to health care. However, this does not mean that health-related issues, including access to health care, fall automatically outside the scope of the ECHR. It may be argued that denying irregular migrants effective access to health care may in some cases amount to a breach of Article 3 ECHR which prohibits, inter alia, inhuman and degrading treatment.98 Article 2 (right to life) and Article 8 (right to respect for private and family life) may also be considered. To be regarded as inhuman within the meaning of Article 3, treatment must meet a minimum level of severity which must be assessed in light of all the circumstances of the case.99 To be considered degrading, treatment must entail an element of humiliation or debasement.100 The European Court of Human

96 Collective complaint No. 14/2003 International Federation for Human Rights (IFHR) 97 98 99

100

v. France. The complaint was declared admissible on the 16th of May 2003. The European Committee of Social Rights had not examined the collective complaint lodged by IFHR at the time this essay was written. Article 3 ECHR reads: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ On the concept of inhuman treatment, see for instance T & V v. United Kingdom (Applications 24888/94 and 24724/94), Judgment of 16 December 1999, (2000) 34 EHRR, 753, para. 78. See for instance Cyprus v. Turkey (Application 25781/94) [2002] EHRR 30, paras 302311.

381

Sylvie Da Lomba Rights has consistently held that Article 1101 together with Article 3 of the Convention impose a positive obligation on High Contracting Parties to provide protection against torture, inhuman or degrading treatment or punishment to individuals within their jurisdiction.102 The decision of the English Court of Appeal in R (on the Application of Q and Others) v. Secretary of State for the Home Department103 may be of assistance in appreciating the relevance of Article 3 in ensuring effective access to health care for irregular migrants in states parties to the ECHR, which include France and the United Kingdom. The Home Secretary challenged a decision of the High Court in which Collins J. held that Section 55 of the Nationality, Immigration and Asylum Act 2002 (the NIA Act 2002), which deprived asylum seekers who had failed to lodge their application as soon as practicable after their arrival in the United Kingdom from state support, contravened Article 3 of the ECHR.104 Firstly, the Court of Appeal recalled that the concept of treatment within the meaning of Article 3 ECHR required a positive action on the part of the state.105 In that instance, the Court found that the fact that asylum seekers were prohibited from working106 together with the fact that they were no longer entitled to support if destitute amounted to a positive action on the part of the United Kingdom Government.107 Secondly, the Court noted that the level of degradation necessary to violate Article 3 of the ECHR was below the Immigration and Asylum Act 1999 definition of destitution.108 In Pretty v. United Kingdom, the European Court of Human Rights provided guidance on the conditions required to engage Article 3. The Court held: As regards the types of “treatment” which fall within the scope of Article 3 of the Convention, the Court’s case law refers to “ill-treatment” that attains a minimum 101 Article 1 of the ECHR requires the High Contracting Parties to secure the rights and

freedoms set forth in the ECHR to everyone within their jurisdiction. 102 See for instance A v. United Kingdom (1998) 27 EHRR 611, para. 22, where the child

103 104 105 106

107 108

382

applicant had been caned by his stepfather, and Z and Others v. United Kingdom (2001) 34 EHRR, where four children applicants were severely abused and neglected by their parents. Judgment of 18 March 2003, [2003] EWCA Civ 364, paras 44-63. Judgment of 19 February 2003 [2003] EWHC 195 (Admin), paras 62-67. Para. 56, n. 103. Asylum seekers cannot work in the United Kingdom (Asylum and Immigration Act 1996, s. 8), unless the Home Secretary gives them special permission to do so (Immigration (Restrictions on Employment) Order 1996). Para. 57, n. 103. Ibid., para. 59. Section 93(3) stipulates that an individual will be deemed destitute if his or her living accommodation is not adequate and the regulations state that a minimum sum of money or money’s worth must be provided by way of subsistence.

Fundamental Social Rights for Irregular Migrants level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.109 (Emphasis added)

Unlike Collins J., the Court of Appeal found that the mere fact that there was a real risk that asylum seekers’ conditions could be on the verge of the degree of severity required in Pretty was not in itself sufficient to constitute a breach of Article 3.110 The Court took the view that it was not unlawful for the Secretary of State to refuse support unless and until it was clear that charitable support was not available and that the asylum seeker could not fend for himself or herself,111 the burden of proof being on the asylum seeker.112 In the absence of other sources of support, however, a state’s refusal to provide support may amount to treatment that contradicts Article 3.113 On the basis of this judgment, one could argue that where irregular migrants cannot afford health care and do not benefit from other sources of support, the state’s refusal to provide free health care could engage Article 3 where the consequences for the irregular migrant’s health, dignity and/or feelings satisfy the level of severity set out in Pretty. In July 2003, the English High Court confirmed that the Home Office had actually breached Article 3 of the ECHR by refusing to provide subsistence and accommodation to three asylum seekers under Section 55 of the NIA Act 2002.114 The principal obligation arising from Article 2 ECHR (right to life) is a negative one. High Contracting Parties are required to refrain from taking life

109 110 111 112 113 114

In O’Rourke v. United Kingdom (Application 39022/97, Judgment of 23 June 2001, unreported), the applicant was evicted from temporary accommodation provided for him when he came out of prison. His destitution contributed to worsening his asthma and chest infection. The European Court of Human Rights held that his experience failed to attain the degree of severity required to engage Article 3. Judgment of 29 April 2002 (Application No. 2346/02), para. 52. Paras 62-63, n. 103. Ibid., para. 63. Ibid., para. 119(iii). Ibid., para. 63. Judgment of 31 July 2003. See UK Refugee Council, ‘High Court rules Home Office in breach of human rights convention’, http://www.refugeecouncil.org.uk/news/ august2003/relea128.htm1.

383

Sylvie Da Lomba outside the circumstances specifically authorised by Article 2(2).115 However, a more positive obligation may be discerned.116 The European Court of Human Rights has been concerned with risks to life resulting from illness and none of these risks have been considered outside the scope of Article 2 per se, although claims have encountered little success.117 The case law of the European Court of Human Rights requires that the risk of death from the alleged threat be ‘real and immediate’ in order to avoid placing ‘an impossible or disproportionate burden on the authorities’.118 In respect of irregular migrants, the decisive issue would be whether the risk to life caused by a persistent failure on the part of the state to ensure effective access to health care could meet the threshold set forth in the case law of the Court, namely that the threat to life is ‘real and immediate’. One must bear in mind that this threshold is a high one. In R (on the Application of Q and Others),119 Collins J took the view that Section 55 of the 2002 Act entailed a real risk to leave asylum seekers destitute in breach of both Article 3 and Article 8(1) as ‘[he was] not persuaded that charity offer[ed] a real chance of providing support’.120 Article 8(1) protects the right to respect for private and family life. It follows from the case law of the European Court of Human Rights that, whilst not every act or measure which adversely affects moral or physical integrity will interfere with the right protected in Article 8(1), treatment which did not meet the severity of Article 3 could infringe Article 8(1).121 It results from the case law of the Court that, in addition to a negative obligation, Article 8(1) imposes positive obligations on states inherent in effective respect for private life.122 It was held that there could be interference with the right to respect for private life in presence of ‘sufficiently adverse effects

115 Article 2(2) ECHR reads:

116 117 118 119 120 121 122

384

Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. On this issue, see J. McBride, ‘Protecting life: a positive obligation to help’ (1999) European Law Review 43. See, for instance, LCB v. United Kingdom (Application 23413/94) (1998) 27 EHRR 212. Osman v. United Kingdom (Application 23452/94) (1998) 26 EHRR 357. n. 104. Ibid., para. 72. Bensaid v. United Kingdom (2001) 33 EHRR 205, para. 46. See for instance Marzari v. Italy (1999) 28 EHRR, p. 179.

Fundamental Social Rights for Irregular Migrants on physical and moral integrity’.123 Article 8(1) will be breached where public authorities interfere with a person’s private life by adversely affecting his or her mental or physical health to a sufficiently serious extent.124 In attempting to rely on Article 8(1) of the ECHR to consolidate the existence of a right to health care for irregular migrants present within the territory of the High Contracting Parties, one must acknowledge that, while it is not as stringent as that applicable under Article 3, the threshold required to engage Article 8(1) remains a high one. Moreover, unlike Article 3, the rights protected in Article 8(1) are not absolute and derogations are permissible under Article 8(2). The ECHR has the potential to contribute to the recognition of irregular migrants’ right to health care. However, this statement must be qualified in light of the high thresholds that must be met to elicit breaches of Articles 3, 2 and 8(1). Another instrument that can be considered is the Charter of Fundamental Rights of the European Union, hereafter the EU Charter.125 In particular, Article 35 of the EU Charter provides that: [e]veryone has the right to access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human protection shall be ensured in the definition and implementation of all Union policies and activities. (emphasis added).

The wording of Article 35 is to be welcome on two accounts. The right that it protects seems to be granted to anyone who finds himself or herself within the territory of the European Union (EU). Moreover, it is not confined to emergency health care and expressly recognises the importance of prevention as a determinant of good health. However, the role of the Charter in ascertaining a right to health care for irregular migrants within the EU is limited by a number of factors.126 Firstly, the Charter lacks binding effect and so far the European Court of 123 Bensaid, n. 121, para. 46. 124 See Bensaid, ibid., para. 47. The applicant was an Algerian national who suffered from

schizophrenia and whose condition was controlled by medication. He alleged that his removal to Algeria where he would have to travel long distances to obtain medical treatment combined with the threat of terrorist attacks would breach Articles 3 and Article 8(1). Both claims were dismissed by the Court. In respect of Article 8(1), the Court held that the risk was speculative and therefore failed to meet the required threshold. In Marzari v. Italy (n. 122), the applicant had serious health problems. He had been evicted from his accommodation and compelled to live in a camper van. His health deteriorated and he was taken to hospital. The Court found that his eviction had resulted in a breach of Article 8(1), but that the breach could be justified under Article 8(2). 125 OJ 2000 C 364/1. 126 Its role could potentially be enhanced if underpinned by the principle of respect for human dignity enshrined in Article 1 of the EU Charter. However, this assertion

385

Sylvie Da Lomba Justice has been reluctant to refer to it in its judgments. Secondly, the regulation of health care systems remains within the competence of EU Member States.127 Lastly, the EU immigration policy is subject to the same restrictive trends as national policies. With irregular migration at the forefront of the agenda of the EU immigration policy, it is unlikely that the Member States will agree to secure basic social rights for irregular migrants.

6.

CONCLUSIONS

Effective access to health care is a basic social right upheld in international human rights law. Whilst irregular migrants are largely excluded from the protection granted by the host state to its lawful residents, paradoxically they are highly dependent on that State for their well-being. While the interests of host countries must not be overlooked, arguments based on the potentially excessive demands irregular migrants place on their resources must not be exaggerated. Curtailments of basic social rights as a means to reduce levels of irregular migration constitute a worrying development which exacerbates the tensions that exist between domestic immigration policies and human rights. The right to health care as upheld in UN and European instruments does not exclude irregular migrants from its scope and therefore can impose constraints on domestic legislation. A number of factors limit their ability to fully protect irregular migrants’ right to health care in host states. Firstly, these instruments, with the exception of the Convention on the Rights of Migrants, fail to explicitly confer the right to health care on irregular migrants and are therefore open to restrictive interpretations by host states. Secondly, weak enforcement mechanisms, particularly at international level, make state compliance with these provisions difficult to guarantee. Thirdly, host states may impede the adoption of conventions that grant fundamental social rights to irregular migrants. Finally, reluctance on the part of host states to ratify instruments that promote irregular migrants’ social rights, as in the case of the Convention on the Rights of Migrants, profoundly affects their effectiveness. Excluded on account of their unlawful presence in the host state, irregular migrants are rarely in a position to vindicate any rights they may have under domestic, European or international law. It is therefore vital that host countries such as France and England protect irregular migrants’ basic social rights, including their right to health care.

must be tempered in light of the vagueness of the concept of human dignity, the weaknesses of the EU Charter and current trends in immigration policies. 127 Article 152(4)(c) of the Treaty Establishing the European Community expressly excludes any harmonisation of the laws and regulations of the Member States of the EU in the field of public health.

386

Paul Minderhoud

COPING WITH IRREGULAR MIGRATION: THE DUTCH EXPERIENCE

1.

INTRODUCTION

After 1945, the Netherlands received a considerable numbers of immigrants. From 1990, immigration reached a constant high level; only in 1994 and 1995 it remained below the level of 100,000 persons (with or without Dutch nationality). In the years 2000 and 2001 the total number of immigrants increased further: in both years more than 130,000 persons migrated. Emigration fluctuated around 60,000 persons per year during nearly the whole post-war period. In 2002 36,000 persons born in The Netherlands emigrated. This figure has not been so high since 1960. On 1 January 2000 the Netherlands had 15,864,000 inhabitants. Nearly 96% had the Dutch nationality. Only 4% (652,000 persons) was ‘alien’. The share of the population born outside the Netherlands was more than twice as high: 9% (1,431,000 persons); these people can be considered as the first generation immigrants. Another 8.5% (1,344,000 persons) was born in the Netherlands but had one or two parents born outside the Netherlands; these people can be considered as second generation immigrants. Statistics often differentiate between immigrants from ‘western’ and ‘nonwestern’ countries. Both categories are about equally large; the share of the non-western immigrants is increasing, however. The non-western immigrants are living unevenly spread over the country. About 40% live in the four big cities (Amsterdam, Rotterdam, The Hague and Utrecht), where only 13% of the total Dutch population is housed. In Amsterdam, non-western immigrants make up one third of the population. Their share in the Amsterdam school population is even higher, because immigrants are relatively young. Table 1 shows the extent of a number of larger groups of immigrants in the Netherlands. When the second generation is included (column 2), Germans and Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 387-406 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Paul Minderhoud immigrants from the former Dutch Indies and Indonesia and their offspring make up the largest groups of immigrants. Other large groups of immigrants – Surinamese, Turks, Moroccans, Antilleans and Arubans – in majority still consist of first generation immigrants. Table 1 also shows that nationality is not an appropriate criterion to identify immigrants and their offspring (column 3). This holds true for groups with a short history in the Netherlands as well as for groups that have been staying longer in the Netherlands. Most former Yugoslavs, Iraqis and Somalis, for instance, have only come to the Netherlands as asylum seekers in the 1990s. Nevertheless, the majority of them already acquired Dutch nationality. Table 1: Immigrants in the Netherlands, by (1) native country, (2) native country parents* and (3) nationality** (1 January 2000) (1) Total

1,431,000

(2)* 2,775,000

Surinam 183,000 303,000 Turkey 178,000 309,000 Morocco 153,000 262,000 Indonesia 141,000 405,000 Germany 107,000 401,000 Dutch Antilles (incl. Aruba) 69,000 107,000 former Yugoslavia 50,000 67,000 United Kingdom 41,000 69,000 Belgium 35,000 113,000 Iraq 30,000 33,000 Somalia 21,000 29,000 China 20,000 30,000 Source: Data form the Central Statistical Office CBS. * **

(3)** 652,000 9,000 101,000 120,000 9,000 54,000 — 16,000 39,000 25,000 10,000 5,000 7,000

The first and second generation are added together. Only persons without Dutch nationality are counted. Immigrants who acquired Dutch nationality while keeping their original nationality are not included.

The exact number of illegal immigrants living in the Netherlands is unknown. Engbersen et al. made in 2002 an estimation of the amount of illegal aliens residing in The Netherlands, based on police-data on registered illegality.1 They come up with a total between 112.000 and 163.000 illegal aliens. They explicitly emphasize that this figure is only a rough indication. This figure is composed

1

388

G. Engbersen et al., Illegale vreemdelingen in Nederland: omvang, overkomst, verblijf en uitzetting, (Rotterdam: RISBO, 2002).

Coping with Irregular Migration: The Dutch Experience of two estimations. One on illegal aliens, excluding East and West Europeans, which is established on the basis of their research method of between 65.000 and 91.000 and one more rough estimation only on illegal East and West Europeans of between 47.000 and 72.000. The latter figures include a lot of EU citizens counted as illegal aliens. The Dutch Central Statistical Office (CBS) also made in 2002 an estimation on the amount of illegal aliens in the Netherlands, using various sources. Their conclusion is that it is highly plausible that the amount of illegal aliens varies between 46,000 and 116,000.2 Almost half of this population of illegal aliens originated from the traditional labour-migration countries Turkey and Morocco. CBS used as they call it a ‘demographic’ definition of illegal stay: illegal aliens are all aliens who stay in the Netherlands for more than 4 months and are therefore not registered in the Municipal Population Registration (GBA). It is not relevant whether these illegal aliens have entered the country legally or illegally nor is it relevant whether they work. Asylum seekers who are allowed to stay during their asylum procedure are not counted as illegal aliens. The population of illegal aliens can be divided in two categories. The first category exists of aliens who try to remain during their stay as much as possible out of sight of the authorities. The second category exists of aliens who have had a residence permit or who have tried to get one. This category contains aliens who overstay their visa, leave (prematurely) the asylum procedure and stay illegally and persons who stay illegally after their (non-asylum) permit has expired.3 Since the beginning of the 1990s the presence of illegal aliens is increasingly considered to be a serious social problem. Initially (1960-1975) there was great leniency towards the admission of ‘spontaneous migrants’, who mainly came from the Mediterranean area. This tolerance was the result of a great need of unskilled workers for the expanding Dutch economy. In the period 1969-1991, a more restrictive aliens policy was developed, but with regard to the effective combat of illegal stay, a large gap between legislation and implementation became apparent. In that period it was still rather easy for illegal aliens to obtain a social-fiscal number and to be employed legally or illegally in certain sectors of the Dutch economy. Illegal employment was controlled and punished only to a limited degree. After 1991, more Acts were introduced to combat illegal immigration more effectively, such as the Identification Act and the Bogus Marriage Prevention Act, and an Act that linked the obtaining of a social fiscal-number to a legal residence status. From 1998, the government tried to further limit the possibilities for illegal aliens to stay in the Netherlands, among other things by the introduction of

2 3

E.M.J. Hoogteijling, Raming van het aantal niet in de GBA geregistreerden, (Voorburg: CBS, 2002) . Mensensmokkel in beeld 2000-2001, (2002), Rotterdam, IAM, 91.

389

Paul Minderhoud the Linking Act, which will be discussed in more detail in this essay. Also, a relation between illegality and crime is increasingly assumed. To what extent this assumed relation is real, remains the question. According to some, due to stricter regulation, illegal aliens hardly have a chance to provide for their subsistence in a regular manner and are thus more or less forced to slip into criminal behaviour. Others state that illegal aliens will do anything to keep out of sight of the police so as not to endanger their existence in the Netherlands.4 In this essay I discuss first the effectiveness of two traditional instruments to combat illegal migration: detention and expulsion. I will pay attention to some new government initiatives such as the building of new expulsion centres and the intention to make illegal stay a criminal offence. I will also pay special attention to the way Dutch authorities try to combat recent illegal immigration from Bulgaria and Rumania. Then I will discuss the effectiveness of the use of other forms of exclusion, like the Linking Act as an instrument to combat illegal immigration.

2.

EFFECTIVENESS OF DETENTION AND EXPULSION

Aliens who are not residing legally or who are waiting for the decision on their appeal against the refusal of their application for a residence permit can be taken into detention. This aliens’ detention is an administrative measure in order to bring about expulsion. It is not a penal (or criminal) measure and explicitly does not concern suspects of a criminal offence. For the arrest it is required that detention is necessary in the interest of public order or national security. This means that detention has to be inevitable. The question when public order demands an arrest is hard to answer. In general, this is the case when expulsion would be hampered without applying detention, for instance when the alien will almost certainly frustrate his expulsion.5 Detention can only come up when there are concrete indications that the alien will, for instance, go into hiding, refuses to cooperate in the assessment of his identity and residence status, or has ducked out of the aliens supervision. With regard to aliens who are not staying legally in the Netherlands, the law does not set a maximum length of detention. The starting point laid down in the Aliens circular is that when expulsion has not been effected after six months of aliens’ detention, it should in principle be assumed that there is no prospect of expulsion. The detention order should then be lifted. However, continuance of detention may be justified when it concerns a persona non grata [undesirable alien, see below] or serious criminal antecedents, frustration by the alien of the

4 5

ACVZ, (2002), Vreemdelingen in bewaring, Den Haag, see www.acvz.nl. A. Kuijer (ed.), Nederlands vreemdelingenrecht, vijfde druk, (Den Haag, Boom, 2002) 508.

390

Coping with Irregular Migration: The Dutch Experience determination of his identity and/or nationality, ‘delay techniques’ of the alien, or when it is very likely that the alien can be expelled shortly after the expiration of the six months.6 Detention of aliens is considered to be allowed within the boundaries of article 5 ECHR, article 15 Constitution and article 59 Aliens Act 2000. The conditions here, however, are: – detention of aliens should be founded on an explicit legal basis and be in conformity with a legally prescribed procedure; – detention of aliens is only allowed as long as there is a real prospect of expulsion; – expulsion must be worked at energetically; – arbitrariness is not allowed. Moreover, regular judicial review has to be possible and, as the detention lasts longer, the prospect of expulsion has to be more concrete and the alien’s interest in the dissolution of detention will be weighing more heavily than the government’s interest to keep the alien in detention awaiting expulsion. When there is no real prospect of expulsion, or expulsion is not pursued actively enough, detention is no longer lawful. There are no possibilities to keep a ‘criminal’ illegal alien in detention without limitation.7 Although the Dutch Aliens Act does not contain a provision that penalizes stay without a valid residence status, there is a possibility to declare an alien undesirable by official banning order. This is an administrative measure to ban certain aliens, who are no longer allowed to stay, from the Netherlands. An alien, who knows or seriously suspects that he has been declared undesirable, can get a prison sentence of six months at the most.8 This official banning order can be based on different grounds.9 The ground which is used most frequently is the circumstance that the alien has been convicted for an intentionally committed crime punishable with a prison sentence of three years or more.10 Apart from the banning order, the administration also has a less heavy instrument to monitor undesirable aliens: an alien can be registered as undesirable in the Dutch police register or in the Schengen Information System, if he is seen as a threat to public order or national security. He has no right of entry to the Netherlands anymore. Unlike the alien who is under an official banning order, an alien registered as undesirable does not commit a criminal offence by simply being in the Netherlands.11 Kuijer, ibid. , at p. 511. ACVZ, ibid., at p. 13. 8 Art. 197 Criminal Code. 9 Art. 67 Aliens Act. 10 W. van Bennekom et al, “Netherlands” in B. Nascimbene, (ed.), Expulsion and detention of aliens in the European Union countries, (Milan: Giuffrè Editore, 2001), 413. 11 Ibid. at p. 431. 6

7

391

Paul Minderhoud As said before, the ultimate goal of detention is the expulsion of the alien. Figures from the IND show that this goal is only partly achieved. See table 2. Table 2: Termination of aliens’ detention by reason Reason for termination of aliens detention Expulsion No prospect of expulsion Technicality Unknown Other/unknown Total

2000 2000 2001 (abs.) (%) (abs.) 6,695 60.7 4,910 825 7.5 267 572 5.2 415 258 2.3 520 2,674 24.3 2,512 11,024 100.0 8,624 Source: IND/INDIAC.

2001 (%) 56.9 3.1 4.8 6.0 29.1 100.0 (rounded)

Although the reliability of these figures is questionable because of the large category ‘other/unknown’ a tentative conclusion can be that in 2000 only 60% of all detentions led to expulsion and in 2001 this was only 57%. In 2000, the number of terminations of aliens’ detention, caused by the fact that there was no prospect of expulsion, was 825 (7.5%). In 2001 this number was 267 (3.1%). The length of detention, terminated because there was no prospect of expulsion was 121 days on average in 2000-2001. In the case of expulsion this was 36 days. According to the Advice Commission on Aliens Affairs (ACVZ), the figures show that the effectiveness of extremely long detention (longer than one year) is little. If the alien has not been expelled within half a year of detention, the chance that this will happen within in the remaining detention period is very small.12 These problems with expulsion are not just a consequence of difficult identification of the alien and reluctant cooperation of countries of origin, but also have to do with the inadequate cooperation between the various competent administrative partners like the police and the IND. Recent figures over 2002 from the main detention centre in Tilburg (with a detention capacity for 550 aliens) show that from the 2341 illegal aliens who had been detained there only 998 were actually expelled by force. This means that the effective expulsion percentage was only 43%. An interesting recommendation the ACVZ recently made is that the offer to help and support in rehabilitating illegal aliens should be considered a regular government task. Rehabilitation activities primarily aimed at stimulating to leave the Netherlands and preparing the return to the country of origin should deserve a chance. Here, the Commission refers among others to jurisprudence

12 ACVZ, ibid., at p. 24.

392

Coping with Irregular Migration: The Dutch Experience of the Supreme Court, in which is stated that “the lack of a person’s bond with Dutch society cannot be an argument for withholding an offer which promotes rehabilitation/ reintegration into society in general”.13 What can be done when an alien’s identity is determined and the country of origin does not want to take back the alien, despite his full cooperation? In that case any prosecution because of being an undesirable alien will founder on the impossibility of expulsion. The illegal alien’s own responsibility for leaving becomes quite theoretical in this situation. For this group, which according to the ACVZ is very small, it could be considered to grant them a residence status. A disadvantage of this solution is that the behaviour of states that, contrary to international law obligations, do not want their (criminal) citizens back, is being rewarded, The advantage is that it is perhaps prevented that part of this group that finds itself is in an impossible position, falls into criminal behaviour because they simply have to survive. Penalization of Illegality A next step to combat illegal immigration is the initiative of the Dutch government to penalise illegal stay. Until now, these plans have not been elaborated in concrete measures. But it has already led to discussion on the question of whether such a measure is desirable from a legal point of view and would effectively contribute to the departure of aliens and prevention of aliens from coming to the Netherlands. Penalizing illegal stay is considered to be in contradiction with the ultimum remedium – principle, which means that criminal law can only be used if no other less radical remedies are for hand. As illegal staying aliens already can be detained and expelled on the basis of the Dutch Aliens Act, penalizing is superfluous and therefore undesirable, according to several Dutch criminal law specialists.14 Penalizing unlawful stay can according to Van Wersch even be contra-productive.15 When police officers exercise their administrative control competences (powers) based on the Aliens Act, they can demand from an alien who is suspected of illegal stay, almost full cooperation. But if this alien is suspected of a criminal offence at the same time he will have some legal guarantees, among which is especially important the right to secrecy (right to remain silent). From the perspective of the state the powers of police officers to combat illegal stay will probably become narrower after criminalizing this situation. Another problem is that criminal judges will be confronted with elements of aliens law, they are not familiar with. How do they have to decide in the situ13 Hoge Raad 16 January 1987, NJ 1987, 405. 14 Nederlands Juristenblad 32, 13 September 2002, 1609-1610. 15 N. Van Wersch, “Illegaliteit als strafbaar feit, het rijmt wel, maar het spoort niet”

(2003) unpublished paper.

393

Paul Minderhoud ation an alien does an appeal to force majeure (overmacht), given the fact he is not capable to end his criminal behaviour, because of the impossibility to leave Dutch territory (no laissez-passer, violation of Art. 3 ECHR). A criminal conviction can also lead to the paradoxical situation that it will hinder expulsion instead of stimulating it. Unless explicitly otherwise arranged, the expulsion of the alien will have to be postponed, for the time his imprisonment continues. In the meantime a voluntary return will also be out of the question, while this is at present an existing possibility to end the administrative form of detention.16 Moreover the fair trial principle requires there is no prosecution and expulsion until the court has dealt with the case. From a practical point of view it seriously remains the question whether penalization will solve any problems. It will certainly not increase the possibility to expel an alien. That possibility is already present. The already existing problems of expulsion will also remain after imprisonment. Nor will penalization increase the possibility to arrest an alien. That possibility also exists already. Moreover, because of capacity problems, not all aliens arrested by the police can actually be detained. Prison cell capacity mid 2002 was about 1350 cells. This is insufficient to cover the need. According to the police, officers in the four big cities are regularly instructed to restrict the number of aliens’ arrests because of the lack of cell capacity. Also, arrested illegal aliens have to be released due to the lack of cells. ‘Criminal’ illegal aliens also belong to this group. The aim of criminalizing illegal stay is to reduce the number of illegally staying aliens. This however seems to be an impossible task. Trying to expel the estimated more than 100,000 illegal aliens by imprisonment would take at least 10 years, assuming that every year 10,000 illegal aliens can be detained and no new illegal aliens enter the country. Moreover, for this purpose at least five thousand new prison cells will be necessary.17 Expulsion and Return Policy Although efforts to expel aliens in an active manner have been intensified in recent years, this remains the Achilles heel of Dutch migration policy. A great part of the aliens who have to leave the country, are removed only ‘administratively’. This means that when the police does not find the alien concerned present at his last know address, he is registered as ‘left without known destination’. These aliens may indeed have left the Netherlands voluntarily, but they may also have gone into hiding. The main measures taken the last years have been the intensification of identity checks, the increasing of numbers of forced expulsions by charter and 16 Ibid. 17 NRC Handelsblad, 30 July 2002.

394

Coping with Irregular Migration: The Dutch Experience the promotion of return agreements with countries of origin. All these measures have proven to be not very effective. Although the number of planes the Immigration and Naturalisation Service (IND) has chartered to return rejected asylum seekers to their country of origin has increased from 6 to 36 (concerning 1500 aliens) in two years time, and although the air force will even assist this activity,18 the capacity of this kind of expulsion is too small to really be of use. In the period 2000-2001 about 19.000 people were refused entry to the Netherlands at Schiphol airport. 55% of these “inadmissibles” were refused entry on document related grounds (no (valid) travel document or a forged one). 45% were refused entry because of insufficient means or on public order or public health reasons. The Royal Military Police, who are responsible for border control issued in that period 622 negative travel advices at pre-boarding checks at the airports of Abidjan (Ivory Coast) and Kano (Nigeria). The number of asylum related expulsions (rejected asylum seekers) has increased by nearly one third in 2002. That year 21,255 persons have been expelled, whereas this number was 16,023 in 2001 and 16,622 in 2000. Of this number, in 2002 only 18% has been expelled by force or has left under supervision. In 2001 this was 21% and in 2000 this was 31%. The remaining 70-80% has been removed ‘administratively’. See table 3. The number of regular expulsions (all other illegal aliens except rejected asylum seekers) increased from 24,897 (2001) to 29,126 (2002) but was less than 2000 (32,472). Of this number, 59% has been expelled by force, or has left under supervision. See table 4. The Royal Military Police are responsible for the mobile control of aliens (Mobiel Toezicht Vreemdelingen, short MTV). 10 to 15% of the regular aliens has returned by this type of departure (table 4). Most of the persons actually ‘detected’ and returned by the mobile brigades of the Royal Military Police are legally resident elsewhere in de EU.19 In the period 1995-2000 these mobile brigades annually checked more than 700,000 people, who crossed the border by land.20 Regarding the figures in table 4, it looks as if only 0.8% were refused entry and were returned to Belgium or Germany in 2000.

18 De Volkskrant, 8 and 21 February 2003. 19 K. Groenendijk, “New borders behind old ones: Post-Schengen controls behind the

internal borders and inside the Netherlands and Germany” in K. Groenendijk, E. Guild & P. Minderhoud (eds.), In search of Europe’s borders (The Hague: Kluwer, 2003) 131. 20 R. Witte et al, Effectief Mobiel Toezicht Vreemdelingen: eindrapportage, (The Hague: Den Haag, ES&E, 2001).

395

Paul Minderhoud Table 3: Return by type of departure for rejected asylum-seekers

Deportation Departure under supervision Check at address21 Notification after alien detention22 Other (including MTV)

2002 2,276 1,537 16,875 483 84

2001 2,112 1,253 11,967 510 181

2000 2,027 3,188 10,871 462 74

Total

21,255

16,023

16,622

Table 4: Return by type of departure for regular aliens Deportation Departure under supervision Check at address23 Notification after alien detention24 Mobile control of aliens (MTV)25 Other Total

2002 9,739 7,518 5,308 3,341 3,184 36

2001 7,386 5,797 3,861 3,768 4,070 15

2000 7,920 12,074 4,007 3,084 5,382 5

29,126

24,897

32,472

Source: Annual report 2002 Immigration- and Naturalisation Service (IND)

21 The Aliens Police establishes actual departure after check at home address. 22 Aliens that must leave the Netherlands after alien detention. 23 The Aliens Police establishes actual departure after check at home address. 24 Aliens that must leave the Netherlands after alien detention. 25 The Royal Military Police checks persons crossing borders.

396

Coping with Irregular Migration: The Dutch Experience Tables 5 and 6 show the top 10 removals by nationality for rejected asylum seekers and for regular aliens. Table 5: Top 10 removals by nationality for rejected asylum seekers

1 2 3 4 5 6 7 8 9 10

Iraq Somalia Yugoslavia Turkey Iran Afghanistan Sierra Leone Angola Sudan China Other

Total

2002 2,421 1,526 1,229 1,047 1,012 882 801 764 698 695 10,180

2001 1,772 938 843 1,259 778 1,086 488 258 412 425 7,764

2000 1,309 886 1,976 879 733 658 286 164 354 483 8,894

21,255

16,023

16,622

Table 6: Top 10 removals by nationality for regular aliens 1 2 3 4 5 6 7 8 9 10

Turkey Bulgaria Poland Morocco France China Rumania Yugoslavia Nigeria Algeria Other

Total

2002 4,235 2,209 1,879 1,608 1,105 908 881 869 686 668 14,078

2001 4,468 918 1,284 1,551 944 705 424 1,022 523 750 12,308

2000 7,961 583 1,478 2,843 1,253 698 445 1,711 456 872 14,172

29,126

24,897

32,472

Source: Annual Report 2002 Immigration- and Naturalisation Service (IND).

Table 6 shows that a substantial part of the regular aliens that are removed, come from the traditional immigration countries Turkey and Morocco. The amount of removals of Bulgarians and Romanians has doubled between 2001 and 2002 and is probably related to the lifting of the visa requirements for those countries in that period. Poland will probably lose its third position as soon as it becomes a 397

Paul Minderhoud Member State of the EU. A remarkable position is taken by France. This figure consists for a large part of French drug tourists coming to the Netherlands. The question is whether these EU-citizens can be seen as illegal aliens at all. Introduction of New Expulsion Centres Under a new government policy 2 or 3 so-called expulsion centers are being set up. It is the intention of the government to realize a total of 300 places in these expulsion centers in 2003 to detain aliens.26 The location of these centers will be in the vicinity of an airport in order to facilitate the expulsion by charter or airliner. The legal basis for the detention is found in the Articles of the Aliens Act regarding aliens detention.27 According to the Minister of Immigration and Integration, the population of these centres will differ from the population of the detention centre in Tilburg. First the population of these expulsion centres will be a result of large scale actions on combating illegal stay (like the raids on the Bulgarian and Romanians, see below) and these aliens will leave these centers quicker than on average by expulsion from the Netherlands. The first new centre was opened in the end of June 2003. In order to finance the setting up of these centers, including the costs of charters used for group expulsion, the government has made 40 million euro’s available in 2003. This money comes from the security policy budget. Combating Irregular Immigration from Bulgaria and Rumania A topic mentioned frequently in the newspapers last year was the illegal immigration from a substantial number of Bulgarians (and to a lesser extent Rumanians) to the Netherlands. Regarding the Bulgarians a direct link was made to the abolition of the visa obligation after 1 April 2001. These Bulgarians are said to mainly travel to The Hague, Amsterdam and Rotterdam to work illegally in the agriculture or cleaning sector or as a prostitute. Some of them engaged in criminal activities. Most of these Bulgarians belong to the Turkish minority, who live in Bulgaria in a disadvantaged position. The Dutch police has conducted several raids until now and arrested some times more than 100 illegal Bulgarians. By the end of 2002 the Dutch authorities had deported about 600 Bulgarians by charter flights. Dutch, Bulgarian (and Rumanian) authorities concluded however that many deported illegal immigrants returned to the Netherlands shortly afterwards. In order to prevent deported Bulgarians from returning immediately, the Royal Military Police (the border control authorities) have got instructions to put a ‘deportation stamp’ in the travel documents of these Bulgarians. On the basis of this 26 TK 2002-2003, 28600 VI, no. 120. 27 Art. 56 ff. Aliens Act.

398

Coping with Irregular Migration: The Dutch Experience ‘deportation stamp’ the Bulgarian can be refused entrance at the Schengen border. For this category of aliens an alert will also be issued into the Schengen Information System (SIS) for the purpose of refusing entry for a period of 3 years. The Dutch and Bulgarian authorities reached an oral agreement in which the Bulgarian authorities promised on the basis of their own national legislation to withdraw the passport for a year of Bulgarian citizens, who were arrested in the Netherlands for a criminal offense. The condition for this action is that the Dutch authorities file a reasoned request to the Bulgarian authorities for withdrawal of the passport before the expulsion takes place. The problem with this condition is that the Dutch authorities are not always allowed to give the necessary information (like criminal records) on the basis of the Act on the Protection of Personal Data. Therefore the Bulgarian authorities lack most of the time a legal basis to withdraw a passport. It appears that withdrawn passports under Bulgarian law have to be returned after a judicial sentence. Nevertheless, according to the Dutch Minister of Justice, deported Bulgarians are registered upon arrival in Bulgaria and in several cases passports are withdrawn indeed.28 On the other hand the Bulgarian authorities question the approach of the Dutch police. According to a government official of the Bulgarian Ministry of Foreign Affairs, some of the deported Bulgarians hardly have done anything wrong. He accused the Dutch police of setting a date for a charter flight after which they go ‘Bulgarian-hunting’ to reach their quota to fill the plane. The Dutch police denies the accusation that they are trying to reach a target. According to the same government official, the Dutch are partly responsible for the problem themselves, because the recruitment of Bulgarians to come to work illegally in the Netherlands is largely done by Dutch citizens.29 The most recent information in the newspaper was that some of the Bulgarians, who were expelled, got their passports back within a few weeks.30 A complicating factor is the existence of a lot of so-called ‘travel agencies’ in Bulgaria. Tackling these ‘travel agencies’ is not easy. Offering traveling possibilities as such is a regular business activity and therefore not a criminal offence. Only when the travel agency also guarantees a job in the Netherlands, this is a criminal offence according to Bulgarian legislation, which can be sanctioned. A recent study among 128 illegal Bulgarians in The Hague indicates that the intensifying of controls makes live more difficult but has hardly no influence on their decision to come to the Netherlands. Many respondents stated that the circumstances in Bulgaria are still worse.31 28 Aanh. Hand. TK 2002-2003, no. 1213. 29 Het Parool, 17 January 2003. 30 Metro 8 May 2003. 31 K. Kloosterboer et al., We willen gewoon werken en belasting betalen, een onderzoek

onder Bulgaarse illegalen in Den Haag, (The Hague: Den Haag: VIA, 2002) 8.

399

Paul Minderhoud A similar agreement was reached with the Rumanian authorities according to a press-release of the Ministry of Justice of 21 May 2003. Both agreements seem to be in violation with Article 2 (2) Protocol no. 4 ECHR: ‘Everyone shall be free to leave any country, including his own’, and Article 12 (2) International Covenant on Civil and Political Rights (ICCPR) with the same wording. Although Article 2 (3) Protocol no. 4 ECHR and Article 12 (3) ICCPR allow restriction by law under strict conditions, it is doubtful the Dutch interests would fit within these conditions.32

3.

BOUNDARIES TO “TRADITIONAL” CONTROL INSTRUMENTS

Although governments still make extensive use of ‘traditional’ instruments to regulate migration (visas, border control, residence permits, detention and expulsion), several developments make these instrument less attractive and more difficult to use. Due to the globalisation of the trade in goods and services, for instance, large international companies and multinationals have gained more power to decide on which economic activity is performed in which country. The international co-operation in Europe has diminished the significance of national borders and nationality strongly.33 Because of improved transport means, effective control has also become harder. The internally divided political opinion about the treatment of immigrants makes the use of methods of coercion like detention and deportation on a large scale an unattractive option. Moreover, Western democracies do not seem to be able to regulate migration of aliens by means of the above ‘traditional’ measures without violation of fundamental human rights.34 Other Instruments of Exclusion As control at and before the Dutch border has become harder, there is a supplementary move toward internal forms of control. When building the welfare state, in the set-up of the various provisions hardly any attention had been paid to 32 Art. 2(3) Protocol No. 4 ECHR: No restrictions shall be placed on the exercise of

these rights other than such are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 33 S. Sassen, Transnational Economies and National Migration Policies (Amsterdam: IMES publication, University of Amsterdam, 1996). 34 K. Calavita, “US Immigration Policymaking: Contradictions, Myths, and Backlash” in A. Böcker et al. (eds), Regulation of Migration. International Experiences (Amsterdam: Het Spinhuis, 1998) 139. See also W. Cornelius, P. Martin & J. Hollifield, Controlling Immigration. A Global Perspective, (Stanford, Cal.: Stanford University Press, 1994).

400

Coping with Irregular Migration: The Dutch Experience possible consequences of immigration. Moreover, until 1990, it was considered undesirable to make a distinction by nationality or residence status for the eligibility of collective services. This changed after 1990. Measures such as linking the issuing of a social-fiscal number to a valid residence permit and the introduction of the Identification Act, which introduced the obligation to identify oneself at the workplace, de facto excluded illegal aliens from access to the regular labour market and many facilities. In addition, the tracing and sanctioning of illegal employment has increased over the last decade. The most drastic change, however, took place by the introduction of the Linking Act in 1998. This Act entails that aliens who are not residing lawfully in the Netherlands, are excluded from access to secondary and higher education, housing, rent subsidy, facilities for handicapped persons, health insurance and all social benefits, including social assistance. To achieve this not only the Aliens Act but also 25 other Acts were amended. The exclusion not only concerns illegal aliens, but also aliens still in a legal procedure for admission to the Netherlands. This means that generally only aliens with a temporary and a permanent residence permit can claim collective benefits.35 Illegal aliens are only entitled to education until the age of 18, emergency health care and legal aid. The goal of the Linking Act was twofold. On the one hand, exclusion of facilities had to guarantee that illegal aliens were not enabled to continue their stay. On the other hand, it had to be prevented that aliens not yet admitted would get a semblance of complete legality, which would hinder the possibilities of expulsion. The Effectiveness of the Linking Act The available research until now, however, shows that unlawfully residing aliens rarely used or use collective provisions before as well as after the introduction of the Linking Act. They mainly try to earn their living by work or are supported by fellow countrymen.36 The official evaluation for the government of the Linking Act in 2001 also concluded that its introduction had resulted in just a small number of exclusions 35 P. Minderhoud, Vreemdelingen en voorzieningen, De uitwerking van het koppelingsbe-

ginsel in de Invoeringswet Vw 2000 (Utrecht: FORUM, 2001). See also P. Minderhoud, “The Dutch Linking Act and the Violation of Various International Non-Discrimination Clauses” (2000) European Journal of Migration and Law 185. 36 See P. Minderhoud, “De koppeling van voorzieningen aan het verblijfsrecht van vreemdelingen” (1994) Migrantenrecht 179. G. Engbersen et al., De ongekende stad 2: Inbedding en uitsluiting van illegale vreemdelingen, (Amsterdam: Boom, 1999); R. Staring, Reizen onder regie, Het migratieproces van illegale Turken in Nederland (Amsterdam: Het Spinhuis, 2001); J. Van der Leun, Looking for loopholes (Amsterdam: Amsterdam University Press, 2003).

401

Paul Minderhoud from government facilities.37 For instance, in the framework of the Linking Act, the implementation agencies of the employee insurances made 309,403 checks, as a result of which eventually only 8 benefits had to be ended.38 The evaluation report therefore raised serious doubts about the proportionality of the Linking Act. “The elaboration of the principle of linking and the introduction of the Linking Act has taken much time and manpower. 25 Acts have been changed and in total 47 new regulations have been introduced. The efforts concerning the amendments and the introduction of the Linking Act seem to contrast with the limited number of exclusions actually realised”, the evaluation report states.39 When the State Secretary of Justice subsequently writes in her accompanying letter to the report addressed to the Parliament that the evaluation report shows that the Linking Act has proven to be effective, this mainly seems to be ‘wishful thinking’. Exclusion measures such as the Linking Act will probably not have the result that illegal aliens will leave and thus enlarge the chance of the emergence of a continuing marginalized group in our society.40 Illegal aliens who can make no claim at all to social provisions, might even undermine the balance of the welfare state.41 Furthermore, it is not likely that such measures will prevent aliens from coming to the Netherlands. In the official evaluation of the Linking Act, the B & A Group wrote that, when asked, the various respondent groups involved in the research (implementation officers, aldermen, social institutions, illegal aliens) state that they do not see any effect of the Linking Act on the influx and efflux of illegal aliens. These respondents make in this regard a connection with the motivations of aliens to come to the Netherlands. The possibility to appeal to a social benefit hardly plays a role in that consideration. More determining are the expectations to be able to work in the Netherlands and the presence of family, acquaintances or fellow-countrymen. More Measures of Exclusion After the introduction of the Linking Act, which was announced as the centrepiece of what is called an “integrated aliens policy”, (which means that the 37 B & A Group, Evaluatie van de Koppelingswet, Een onderzoek naar de effectiviteit,

efficiëntie en legitimiteit van de Koppelingswet.(The Hague: 2001) 16. 38 B & A Group, Ibid., at p. 14. 39 B & A Group, Ibid., at p. 17. 40 H. van Amersfoort, Transnationalisme, moderne diaspora’s en sociale cohesie (IMES-

publication, Amsterdam: University of Amsterdam, 2001). 41 G. Brochmann, “The Mechanisms of Control” in G. Brochmann and T. Hammar

(eds.), Mechanisms of Immigration Control, A Comparative Analysis of European Regulation Policies (Oxford: Berg, 1999) 1.

402

Coping with Irregular Migration: The Dutch Experience legislation of all other departments may not interfere with the alien policy of the Justice department) new forms of exclusion have emerged in the meantime. For instance, asylum seekers who filed a second asylum request are excluded from any form of reception. A new element in the Aliens Act 2000 is the so called ‘extended order’. When the alien is no longer staying lawfully in the Netherlands, he is obliged to leave voluntarily the Netherlands within four weeks, and reception and other facilities and benefits end automatically after these four weeks have expired. It is not relevant whether he is actually able to leave the country or not. The responsibility to leave is put entirely on the alien. The consequences of the Linking Act are more radical than only preventing illegal immigrants to stay. It also affects aliens, who do not have a ‘perfect’ residence permit. For instance aliens, who forget to renew their residence permit in time, no longer have the right to social assistance until their residence permit is actually renewed. This creates the controversial situation that the person concerned remains in the Netherlands with the consent of the authorities , but does not receive the means to support him- or herself nor his or her family. Protest on a Local Level As the central government fails to succeed in an effective way in expelling illegal aliens, the consequences of this integrated aliens policy lead to a great amount of protest on a local level.42 In several cities, local authorities and humanitarian organisations have taken measures in order to limit the effects of the Linking Act for the most vulnerable group of illegal immigrants. Local funds and networks have been set up to provide an alternative safety net. Humanitarian organisations are often involved in the preparation of these ‘bypasses’ and part of the delivery of the alternative provisions is attributed to them. A broad variation of activities is undertaken by the humanitarian organisations in order to support undocumented migrants. Support can consist of practical, social, legal and financial help. Practical forms of help, aimed at making life in illegality more bearable, are for example the practice of referring migrants to doctors and schools. By offering social help, organisations can also try and make undocumented migrants learn to deal with the tensions and insecurity that follows from their unlawful residence. At times, organisations try to work with the migrant on the development of a realistic perception of the future, that might involve making the option of return a subject of discussion. With regard to juridical help, some organisations either have the expertise to offer juridical help with procedures themselves or they have connections with lawyers to consult. In most municipalities several humanitarian organisations operate next to each 42 M. Pluymen, “The Netherlands” in PICUM (ed.), Book of Solidarity: Providing

assistance to undocumented migrants in Belgium, Germany, the Netherlands and the UK (Brussels: PICUM, 2002) 35.

403

Paul Minderhoud other, but their goals and activities and the group they concentrate on are characterised by a great variety. Almost every organisation applies its own criteria as to whether or not assistance can be offered. These choices in the focus on a particular group of migrants to be helped and the criteria to be applied in the selection within this group are often determined by the organisation’s historical and ethical background. The decision to render support to undocumented migrants sometimes stems from a religious background, but can also derive from humanitarian considerations.43 In 2000 ‘a large shadow network of over 600 addresses in the Netherlands’ was reported where illegal aliens can get help, including, for instance, regular centres for the homeless.44 In 2000, the Homeless Centres Federation conducted its own research among the associate agencies for care of homeless people and crisis reception. It showed that overall in 1999, they had offered shelter to nearly 1,600 (former) asylum seekers. However, because not all agencies ask for the residence status of visitors, this figure was a conservative estimate of the real number of persons offered help. Moreover, the reception of illegal aliens surely does not only concern agencies for the homeless, but also a colourful collection of societal organisations, migrants’ associations, autonomous groups and religious organisations. A number of municipalities are also regularly in the news with reports on their own policy.45 The assistance to aliens without a residence permit by local organizations shows four major problems. First, these organizations lack sufficient financial means to offer support. Second, in some cases the destitute immigrants make much longer use of this support than was foreseen. A third problem is the inaccessibility of certain provisions. This problem is mainly mentioned by health care institutions, which point out that illegal aliens often wait very long before they apply for any health care provisions. The fourth problem is that the burden on the assisting organizations is not equal. In certain circuits aliens always turn to the same assisting persons. These problems indicate the different dilemma’s of these organizations. The first dilemma is that of responsiveness versus selectivity: who is entitled to shelter and who has to be sent away? A second dilemma occurs when aliens receive assistance. Many assisting persons realize that the continuation of help will create false expectations. This produces the dilemma between humanity and sense for reality. A third dilemma is that organisations are often, mostly because of financial reasons, bound to the policy of the local or central administration. It is then up to the organisations to decide whether

43 Pluymen, ibid. 44 Algemeen Dagblad, 23 October 2000. 45 J. van der Leun, “Illegale migranten en de mazen van het web; solidariteit voorbij de

systeemgrenzen van de verzorgingsstaat” (unpublished paper, Balieproject, Amsterdam, 2003).

404

Coping with Irregular Migration: The Dutch Experience they will adhere to this policy, or whether they will continue the assistance on their own account. This can be seen as the dilemma between loyalty to independent responsibility or to official governmental policy.46 Granting any form of reception at a municipal level causes tension in the administrative relations between central and local authorities.47 Municipalities take the position that they are competent to offer reception to rejected aliens, on the basis of article 124, section 1 Constitution and article 108 Municipality Act. These articles state that the municipality has the autonomy to run its own financial household and would therefore offer sufficient basis for autonomous municipal assistance. Enforcement of public order is often used as an argument for the decision to offer reception facilities.48 The present situation tends to result in a deadlock. On the one hand, the severity of the various Dutch municipal administrators can make or break the severity of the Dutch return policy.49 On the other hand, considerations of an inter alia humanitarian nature advocate a more flexible attitude of municipalities. The present situation also entails a risk of legal inequality. Rejected asylum seekers and aliens who submit a repeat request for asylum are very dependent on the variation in criteria used by the various municipalities and private organisations.

4.

CONCLUSION

Bhagwati observed that: “Paradoxically, the ability to control migration has shrunk as the desire to do so has increased. The reality is that borders are beyond control and little can be done to really cut down on immigration (….) Thus there must be a seismic shift in the way migration is addressed: governments must reorient their policies from attempting to curtail migration to coping and working with it to seek benefits for all”.50 Although new restriction measures time and again raise high expectations that are not met, a general effect of this ‘discouragement policy’ is that the differences between legal and illegal migrants have become sharper. This is even 46 J. van der Leun, and K. Rusinovic, Illegaliteit en solidariteit. Nieuwe vangnetten

47 48 49

50

in de samenleving, in F. Becker (ed.), Transnationaal Nederland (Amsterdam: De Arbeiderspers, 2002) 182. See for example, VNG-magazine 2 March 2001, 21-23. M. Pluymen, and P. Minderhoud, “Access to public services as an instrument of migration policy” (2002) 16 Immigration, Asylum and Nationality Law 208. W.R. Pattje, ‘Gemeentelijke dilemma’s rond de Koppelingswet: Een verkenning van de grenzen van de humaniteit” (“Municipal dilemmas concerning the Linking Act: An investigation of the boundaries of humanity”), in H.B. Winter, A. Kamminga and M. Herweijer (eds.), Een grens gesteld: een eerste evaluatie van het Nederlandse terugkeerbeleid (Deventer: Kluwer, 1999) 29. J. Bhagwati, “Borders Beyond Control” Foreign Affairs January/February 2003, 98.

405

Paul Minderhoud reinforced by the recent change in thinking about migrants, in which illegal migrants are depicted more and more openly as profiteers. Thereby, in a sense, the door is opened to a more strict execution of official government policy.51 The recent ‘sweeping actions’ in The Hague and Amsterdam among Bulgarians and Rumanians – although symbolic in extent and effect – are a visible expression of this development. Engbersen et al. observe that the formal world of legal labour has closed for aliens within a decade.52 Whereas five years ago they found that nearly one third of the illegal aliens still had a formal job and paid taxes and premiums just like any other citizen in the Netherlands, nowadays no one has such a position anymore. According to Engbersen this means that illegal aliens, with regard to labour, have become increasingly dependent on the informal economy and the gatekeepers that offer access to illegal labour. This has also resulted in the increase of the number of illegal contractors, who act as a buffer between employers and illegal aliens. Greater dependence on the informal economy and illegal contractors seems to go together with a greater degree of marginalisation.53 The fencing off of the formal labour market has created a legal ceiling beyond which undocumented workers have great difficulty to rise even if they do possess considerable human capital . The legal ceiling limits the upward opportunities for illegal immigrants and enhances the risk that people will get caught in the trap of an illegal status in the long run.54 It is remarkable that the ever-increasing attempts to systematically exclude at the national level go together with counter movements at local level. Where formal solidarity is restricted at the national level, all kinds of forms of solidarity seem to become more important at the local level. The regulation of immigration knows no simple recipes. But the instruments used until now, which mainly are of a controlling nature and are aimed at the right of entry and residence or at the in- or exclusion of social services, clearly have their boundaries. It seems sensible in future immigration policy to pay more attention to alternative ways of regulating the entry and return of migrants by means of offering facilities and financial impulses. In this connection it can also be considered to stimulate implicit external forms of migration control, as Brochmann calls it.55 Development aid, direct foreign investments and pushing back trade barriers are examples of this. 51 J. van der Leun, “Illegale migranten en de mazen van het web; solidariteit voorbij de

52 53 54 55

406

systeemgrenzen van de verzorgingsstaat” (unpublished paper, Balieproject Amsterdam, 2003). G. Engbersen et al., Illegale vreemdelingen in Nederland: omvang, overkomst, verblijf en uitzetting, (Rotterdam: RISBO, 2002, 111). Ibid., at p. 112. J. van der Leun above n. 36. Brochmann, above n. 41 at p.14.

Erika Szyszczak

REGULARISING MIGRATION IN THE EUROPEAN UNION

Irregular migration in Europe is seen in the popular imagination, as well as in theoretical and academic concepts, from the perspective of the regulation of external borders, the battle for competence to regulate migrants, third country nationals, asylum seekers, refugees, and illegal migrants. This essay examines the ways in which Community law has regularised what would otherwise be seen as irregular migration by individuals1 who fall outside of the scope of the Community law migration framework. The essay will examine how far the motive for regularisation of such individuals is informed by human rights (and now citizenship) principles and how far it is motivated by practical, technical and pragmatic responses.2

1.

THE COMMUNITY FRAMEWORK FOR REGULAR MIGRATION

The EU system of intra-Community migration is distinctive. It has established a complex web of differential migration rights leaving regulatory gaps in the Community law system. The differentiated status of migrants falling within the 1

2

The expansive scope of economic migration within the Community law framework embraces migration by legal persons – companies, partnerships, persons providing services – but for reasons of space this essay confines its discussion to migration by individuals. “The framework of the Union for primary migration is to remove any possibility not only that an intra-Member State migrant citizen might be illegal but to promote positively migration as an important element. The purpose is to open European labour markets to all EU workers, thereby contributing to the overall goals of peace and prosperity and complementing the development of the Single Market for goods, services and capital.” E. Guild, “Primary Immigration: The Great Myths” in E. Guild and C. Harlow (eds), Implementing Amsterdam (Oxford: Hart Pub, 2001).

Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 407-429 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Erika Szyszczak Community law framework has been described as multi-layered and hierachical.3 A more recent typology describes “…individuals viewed through the prism of Community law as falling along different points of a spectrum. It is even possible to divide that spectrum into bands …”.4 Ackers’ empirical research in this area is invaluable in understanding and explaining the practical effects of the Community system of differentiated migration rights.5 The complexity of the legal regime is characterised by a sophisticated system of migration liberalisation driven by economic imperatives but informed by liberal ideas underpinned by human rights and citizenship rights. Over time the EU has created privileged status for regular migrants whereas the control and treatment of irregular migrants is left to the Member States.6 The sophisticated legal framework has been reinforced and extended, both tangibly and symbolically by the European Court of Justice’s wide interpretation of the regulatory framework, casting the net of Community law wide to include rather than exclude migrants who are potential beneficiaries of EU rights. But, as we continue to be reminded, even for regular migrants who qualify as potential beneficiaries of the EU law rights such rights are qualified and conditional.7 The initial regulatory framework was unashamedly economic in approach. Even today, in the policies of labour market liberalisation informed by the European Employment Strategy, priority is given to the economic imperatives of filling skills shortages.8 But alongside these developments the Advocates 3 4 5

6

7

8

I. Moebius and E. Szyszczak, “Of Raising Pigs and Children” (1998) 18 YEL 125. G. Barret, “Family Matters: European Community Law and Third-Country Family Members” (2003) 40 CMLRev 369, 370. L. Ackers, “Women, Citizenship and EC Law: The Gender Implications of the Free Movement Provisions” (1995) 17 JSWL 498; L. Ackers, Shifting Spaces: Women, citizenship and migration within the EU (Bristol: The Policy Press, 1998); L. Ackers and H. Stalford, “Children migration and citizenship in the European Union: intraCommunity mobility and the status of children in EC law” (1999) Children and Youth Services Review 21 (Nos 11/12) 987; L. Ackers and H. Stalford, A Community for Children? Children, Citizenship and Internal Migration in the EU ( Aldershot: Ashgate, 2002); L. Ackers and P. Dwyer, Senior Citizenship? Retirement, Migration and Welfare in the European Union (Bristol: The Policy Press, 2002). The Martínez Sala case shows, a migrant may regularise his/her residence in a Member State from other legal sources, for example, international law or bilateral/ multilateral agreements: Case C-86/96 [1998] ECR I-2691. See Case C-356/98 Arben Kaba v. Home Secretary [2000] ECR I-2623; Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002] ECR I-7091; Case C-100/01 Oteiza Olazabal [2002] ECR I-10981. See EC Commission, New European Labour Markets, Open to All, Access to All COM (2001) 116 final; Action Plan on Skills and Mobility COM (2002) 72; The Future of the European Employment Strategy COM (2003) 6. Further information can be found at: http://europa.eu.int/comm/employment_social/skills_mobility/index_en.htm.

408

Regularising Migration in the European Union General9 and the ECJ have introduced and used a human rights dimension to migration. Today the economic rights of free movement are intertwined with the far more symbolic and potent ideas of Citizenship.10 The reason for addressing this issue within the framework of this book is to move the focus away from the traditional issues of migration law scholarship on irregular migration and to cast light upon how far a human rights dimension has informed the regularisation of migration within the EU. This reflects a view that even with the more sophisticated rights being granted to a wider group of would-be migrants11 regulatory gaps will always form, through opportunistic litigation attempting to cast the net of Community law even wider, differences in political and legal interpretation of the rules and changes in demography and the socio-political climate. It is important, to understand the principles which inform and underpin the policy of regularisation within the EU as ideas of human rights and Citizenship expand on the European political agenda.

2.

THE NOTION OF “REGULAR” MIGRATION

I prefer to refer to the rights of free movement as hierarchical as this captures the intended differences in nature and status accorded to the rights to freedom of movement within the EU. The Commission’s policy towards regularising the status of long-term residents in the Member States is also based upon a hierarchical approach to status.12 The rights are layered, and technical in their application. The rights are multi-dimensional in that they refer to basic rights of migration but seek, in different ways, to impose obligations upon the Member

See, for example, Advocate General Trabucchi in Case 7/75 F v. Belgian State [1975] ECR 679 a migrant worker is not a “ mere source of labour but a human being.” Advocate General Jacobs in Case C-168/91 Konstantinidis v. Stadt Altensteig, Standesamt, & Landratsamt Calw [1993] ECR I-1191, para 24 “Community law does not regard the migrant worker … purely as an economic agent and a factor of production … it regards him as a human being who is entitled to live in that State in ‘freedom and dignity’ … and to be spared any difference in treatment that would render his life less comfortable, physically or psychologically, than the lives of the native population. The Commission also attempted to introduce what was then described as “the social dimension” to migration, for example, the Commission’s Guidelines on a Community policy on migration stated that free movement should not be driven by only by labour market interests but by the desire to embrace the wider social aspects of European citizenship. (Supplement 9/85, Bull EC, 5). 10 N. Reich, “Union Citizenship – Metaphor or Source of Rights?” (2001) 7 ELJ 4. 11 For example, non-economic migrants, extended family members, Accession State migrants, family members where there is no crossing of a frontier, long term Third Country National residents. 12 See the discussion later in this essay. 9

409

Erika Szyszczak States as to how to treat regular migrants and their families after admission to the host State. This has led to claims that in some circumstances Member States are obliged to give more rights to regular migrants than are accorded to their own nationals. Such effects are felt acutely in the area of family migration where the rights accorded to migrants under Regulation 1612/68/EEC13 create disparities with national law.14 A Member State may not have set out deliberately to discriminate against its own nationals. But the intrusion into national autonomy is now being felt15 with Member States being placed under pressure to withdraw social benefits accorded to their own citizens rather than extend benefits to legally resident migrants or Citizens of the EU. Such pressures are exacerbated by the policies to reduce public expenditure in the modernisation of social protection programmes as well as the over-arching compliance with the Broad Economic Policy Guidelines of the Member States and the Community.16 In many instances the Court has interpreted the technical rules liberally and widely to allow a wide group of migrants and their families to regularise their position in the host State. Examples of this technique would include the wide interpretation given to the term “worker” to trigger Article 39 EC17 into play, the use of parallel rights approach to extend Community law rights to migrants legally resident in the EU under Agreements made with third States,18 the partial extension of rights to equal treatment for cohabitees of migrant workers,19 the creation of the rights of children of migrant workers to remain within the host State to continue their education after the migrant worker has left, or

13 OJ Sp. Ed. 1968, L 257/2. 14 On the right to migration see: Cases 35 & 36/82 Morson and Jhanjan v. Netherlands

15 16

17

18 19

[1982] ECR 3723; Case 147/87 Zaoui v. Caisse Régionale d’assurance maladie de l’Ilede-France [1987] ECR 5511. On the right to equal treatment see Cases C-64 & 65/96 Land Nordrhein-Westfalen v. Ücker and Jacquet [1997] ECR I-3171. See for example, Article 7(2) of Regulation 1612/68/EEC and the discussion in Martínez Sala and Grzelczyk below. The most recent are Council Recommendation of 26 June 2003 on the Broad Guidelines on the Economic Policies of the Member States and the Community (for the 2003-2005 period) (2003/555/EEC), OJ 2003 L195/1. See, inter alia, Case 53/81 Levin v. Stassecretaris van Justitie [1982] ECR 1035; Case 139/85 Kempf v. Staatsecretaris van Justitie [1986] ECR 1741; Case 196/87 Steymann v. Staatsecretaris van Justitie [1988] ECR 6159; Case C-292/89 R v IAT, ex parte Antonissen [1991] ECR I-745. Case C-171/95 Tetik v. Land Berlin [1997] ECR I-329; Case 438/00 Deutscher Handballbund e.V v. Maros Kolpak, judgment of 8 May 2003. Case 59/85 Reed [1986] ECR 1283. Cf the limitations of this comparative approach in Case C-243/91 Belgian State v. Taghavi [1992] ECR I-4401 and Case C-356/98 Kaba v. Secretary of State for the Home Department [2000] ECR I-2623.

410

Regularising Migration in the European Union changed his/her status20 and the protection afforded to TCN spouses who are not living with the migrant worker but still legally married21 or are the primary carers of children exercising their rights to complete their education in the host State.22 But by casting the net of Community competence wide, inevitably some migrants fall through the mesh where competence is partial or incomplete especially as the Court is aware of the differences in policy between the Member States and the need to respect national competence in certain areas of immigration control.23 The Advocates General and the Court are ready to remind would-

20 Cases 389/87 Echternacht and Moritz v. Minister van Onderwijsen en Wetenschappen

[1989] ECR 723. This case is unusual. Cf, Case C-33/99 Fahmi and Amado v. Bestuur van de Sociale Verzekeringsbank [2001] ECR I-2415; Case C-389/99 Rundgren [2001] ECR I-3731. The ruling in Baumbast, supra n. 7 is different as the primary worker had lost his status as migrant worker under Article 39 EC but was still present in the host Member State. 21 Case 267/83 Diatta [1985] ECR 567; Case R v. IAT & Surinder Singh, ex parte Secretary of State for the Home Department [1992] ECR I-4265. In both cases the spouses were separated but the national of the Member State who was able to trigger Community law competence remained within the host and the home Member State. The regularisation of the position of divorced spouses has been recognised by the Report of the High Level Panel on the Free Movement of Persons, presented to the Commission on 18 March 1997, pp 74-75, Proposal for a European Parliament and Council Regulation Amending Council Regulation (EEC) No. 1612/68 of 15 Oct. 1968 on freedom of movement for workers within the Community (COM (1998) 394 (Art. 1(9)), Proposal for a European Parliament and Council Directive Amending Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of member States and their families COM (1994) 394, Art. 1(4). Cf the treatment of the separated spouse in Case C-351/95 Kadiman [1997] ECR I-2133 where the Court ruled that under Decision 1/80 family members who have been authorised to join a Turkish worker may have access to employment after three years’ residence but must reside with the Turkish worker for the first three years of residence unless there are “objective circumstances” such as work or education which justify living in separate accommodation. It was left to the national court to determine if leaving an abusive husband was an “objective reason” for the couple to live apart. The Court was concerned, at paras 38-40 to ensure that such (abused) spouses did not gain rights which were greater than those of the migrant worker. 22 Baumbast R above n. 7. 23 See Cases C-63/99 Secretary of State for the Home Department ex parte Wieslaw Gloszczuk [ 2001] ECR I-6369; Case C-235/99 Secretary of State for the Home Department ex parte Kondova [2000] ECR I-6427; C-257/99 Secretary of State for the Home department ex parte Barkoci and Malik [2001] ECR I- 6557; See Case C-162/00 Land Nordrhein-Westfalen v. Pokrzeptowicz-Meyer [2002] ECR I-1049 in relation to the application of the non-discrimination principle to a legally resident Polish national in Germany; Case C-438/00 Deutscher Handballbund eV v. Maros Kolpak [2003] ECR I-4135.

411

Erika Szyszczak be migrants that freedom of movement and the rights to equality of treatment with non-nationals within the EU is neither absolute or unconditional. In reading the judgments of the Court which widen the scope of Community law to regularise migrants who are at risk of falling through the net of Community law competence it is surprising how little attention is paid to human rights ideas.24 The Court refers to free movement of persons as a fundamental freedom of the EC Treaty, but this is seen as a core economic right to facilitate market integration. In fact by elevating a core market freedom into a fundamental right this may not always be in the interest of protecting other social, civil or political human rights. Since the Treaty of Amsterdam, the Court has attempted to balance the economic values of the EC Treaty with other values, there is still a tendency to allow economic rights to trump other rights and values in the name of economic integration. The Court’s elevation of the right to free movement within the EU as a fundamental freedom has been complemented by a number of soft law measures recognising the fundamental rights nature of migration25 as well as the inclusion of Article 18 EC in the Citizenship of the Union rights. Only recently has the language of human rights and citizenship begun to play a more central role in establishing the nature of the rights which are being regularised. The next section looks at the role of citizenship and human rights from two perspectives in the migration process: firstly, migration and residence rights and secondly, postmigration rights.

3.

RECENT EXAMPLES OF THE HUMAN RIGHTS/CITIZENSHIP DIMENSION IN REGULARISING MIGRATION

Under Article 3(2) of Council Directive 68/360/EEC26 Member States may require an entry visa or equivalent document from members of the migrant worker’s family who are TCNs. Member States must “accord to such persons 24 Peers provides a useful typology of approaches in “Aliens, Workers, Citizens or

Humans?” Models for Community Immigration Law” in E. Guild and C. Harlow (eds), Implementing Amsterdam: Immigration and Asylum Rights in EU Law (Oxford: Hart Pub, 2002). 25 Community Charter of the Fundamental Social Rights of Workers, Social Europe 1/ 90, 46, Articles 1,2,3 in particular, but other provisions in this document are also relevant in relation to the quality of the life of a migrant worker. In contrast the “right” to freedom of movement and of residence is part of the Chapter on Citizens’ Rights, Article 45, in the Charter of Fundamental Rights of the European Union, OJ 2000 C 364/01. But note, as far back as 1968, the Preamble to Regulation 1612/68 refers to the right of free movement to be exercised “… by objective standards in freedom and dignity” and the right “… shall be ensured in fact and in law”. 26 OJ Sp. Ed. 1968 L 257/13.

412

Regularising Migration in the European Union every facility for obtaining any necessary visas.”27 In MRAX 28 the Member States’ discretion to apply this provision was curtailed using the importance attached to the protection of family life in Community law and by applying the principle of proportionality. The Court ruled that a Member State may not send back to the border a TCN who is married to a Community national where the person concerned is able to prove his/her identity and the marriage relationship and where there is no evidence that the person poses a threat to public security, public health or public policy. Rather, in order to give full effect to Article 3(2) a visa should be issued without delay and as far as possible at the place of entry to the national territory. The Court also ruled that a Member State is not permitted to refuse to issue a residence permit or issue an expulsion order against any TCN who can prove his/her identity and provide evidence of marriage to a migrant worker who is a Community national. Where a TCN spouse has overstayed his or her visa Member States may not refuse to issue a residence permit nor issue an expulsion order on the ground that the visa has expired. The use of proportionality is evident: expulsion would be a disproportionate response. Proportionality is thus used as a procedural right. The Court picks up a technical ground in that Article 4(3) only allows the Member States to demand the document with which the person first entered the territory for the purposes of issuing a residence permit, Community law did not require that the document to be still valid. Finally, but a very important point, the Court also extends the procedural rights and guarantees of Article 9 of Directive 64/221/EEC to cover the situation where a TCN is refused a first residence permit, where an expulsion order is issued for failure to produce an identity document or where there is no visa or an invalid, out of date visa. Carpenter 29 concerned an appeal against a deportation order issued by the UK Secretary of State against a Filipino national who was married to a UK national. At first sight it is hard not to disagree with the position of the UK government that Mrs Carpenter had no right of residence in the UK and there was nothing in her situation, or that of her husband, to trigger into play Community law competence. There were children from Mr Carpenter’s first marriage but this would have been a tenuous peg on which to invoke rights to the protection of family life as guaranteed under Article 8 of the ECHR. The link to Community law invoked by Mrs Carpenter was even more tenuous. She argued that

27 Identical provisions are found in Council Directive 73/148/EEC, OJ 1973 L 172/14,

which applies to the abolition on restrictions on movement and residence within the Community for nationals of member states with regard to establishment and provision of services. 28 Case C-459/99 [2002] ECR I-6591. 29 Case C-60/00 [2002] ECR I-6279.

413

Erika Szyszczak her husband’s business required him to travel to other Member States where he provided (and received) services and he was able to do this by virtue of the fact she stayed at home in the UK to look after his children. Both the Advocate General and the Court accepted that this was not a case of reverse discrimination, or a wholly internal situation. Advocate General StixHackl noted the changes to the concept of the family which had taken place in Europe and interpreted Directive 73/148/EEC in the light of “primary law and fundamental rights, in particular the right to respect for family life” as allowing a right of residence for the TCN spouse of a person providing services in another Member State. The Court also allowed Mrs Carpenter to fall within the ambit of Community law protection, but used a different route.30 The Court starts with a technical approach finding the situation covered by Community law in that Mr Carpenter carried out a significant proportion of his business in a cross-border context and this triggered Article 49 EC into play. The Court then found that the deportation notice was a “restriction” on the exercise of a fundamental Treaty right in that it was clear that the separation of Mr and Mrs Carpenter would be detrimental to their family life and therefore, to the conditions under which Mr Carpenter was exercising a fundamental freedom of the Treaty. The Court moves on to reflect that Community law recognised the importance of protecting family life in order to eliminate obstacles to the freedom of movement and this was seen in Regulation 1612/68/EEC and Directive 68/360/EEC stating … that freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse.31

The Court uses technical arguments to interpret the scope of Community law as widely as possible.32 It is in relation to the question as to whether there is any justification to the restrictions on the fundamental right to provide and receive services that the language of human rights emerges. Firstly the Court acknowledges the role of fundamental rights in Community law and its duty to protect such rights. The Court then recognises a specific fundamental right protected in Community law:

30 The Court argued that Directive 73/148/EEC did not cover the rights of residence of

the family of a service provider in the home State. 31 Para 39. 32 The case has been criticised by Internal Market analysts who argue that “… the

Court has dramatically extended its control over non-discriminatory measures of the State of origin to all conditions under which the service-provider exercises his fundamental freedom.” Editorial Comments, (2003) 40 CMLRev 537.

414

Regularising Migration in the European Union The decision to deport Mrs Carpenter constitutes an interference with the exercise by Mr Carpenter of his right to respect for his family life within the meaning of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms … which is among the fundamental rights which, according to the Court’s settled case law, restated by the Preamble to the Single European Act and by Article 6(2) EU, are protected in Community law.33

Without discussing the case law, the Court accepted that under the ECHR it was possible to limit the right but this limitation was to be interpreted in the light of the principle of proportionality. The Court applied the principle of proportionality finding that the deportation order did not satisfy the principle. 34 It is interesting to note that the Court uses proportionality as a balancing act: looking to see if a fair balance had been struck between the interference with the fundamental right and the need for the maintenance of public order and safety on the other hand. Proportionality is used here as a procedural right. It is also worth noting that the fundamental right to be protected belongs to Mr Carpenter, not the applicant. Her right to residence is a derived, or parasitic right which has been read into Article 49 EC, not Directive 73/148/EC. At this juncture it is tempting to start flying kites. How far can the ruling in Carpenter take us? Letting our imagination run wild, given that recipients of services also fall within the ambit of Community law, and given that the definition of a service may encompass ideas of merely sitting in an armchair watching satellite TV, would this be a sufficient nexus with Community law to trigger Article 49 EC? It would take the concept of a “marriage of convenience” to extremes. It is hard to see how a deportation order against one’s spouse would interfere with such a right. There is a general feeling that the Court was being intuitive in Carpenter, stretching Community law protection to fit the circumstances of the case.35 But the suggestion is that all indirect effects on family life, even where they are non-discriminatory in nature are open to strict scrutiny under Community law. It may be possible for a provider or recipient of services not to move across a border yet the service itself trigger the cross-border element bringing into play the Carpenter reasoning.

33 Para 41. 34 At the time of deportation order and the decision of the Immigration Adjudica-

tor the ECHR had not been incorporated into English law. But the case law of the ECHR in relation to Article 8 ECHR is well established: Benes v. Austria No 18643/ 91, Abdulaziz, Cabales and Balkandali v. UK A 94 (1985); Berrehab v. Netherlands A. 138 (1988); Beldjoudi A 234-A (1992) 35 See the Editorial Comments at n. 32 above, J. Snell, “And Then There Were Two” T. Tridimas (ed.), EU Law for the 21st Century: Rethinking the New Legal Order (Oxford: Hart Pub, 2004).

415

Erika Szyszczak Let us also imagine another scenario. Is Carpenter limited only to the domestic services provided by spouses? Such an interpretation would be out-dated but also fails to recognise different family structures, especially where other family members look after children to allow parents to engage in paid economic activity. Think of the Morson and Jhanjan 36 situation. What if Mr Carpenter found himself to be a lone parent – Mrs Carpenter having died or having divorced him? Would it be possible for him to argue that other TCN family members could look after his children in order to facilitate his exercise of the fundamental right to provide and receive services? Or is marriage special? A fundamental criticism of the Court’s approach in Carpenter is the “patriarchical”37 assumptions of married life and also the failure to appreciate that in different family situations childcare duties may be undertaken by other (extended) family members, not just wives.38 Test case litigation under the ECHR and though the EU system is beginning to initiate changes in attitude towards conventional family life in Europe.39 Givane 40 is an example of the arbitrary nature of some of the Community based rights to migration and residence, especially as they apply to TCN family 36 Above n. 14. 37 See the criticisms made by a member of AG Stix-Hackl’s cabinet Egger, (2002) EuZW

607 cited in N. Reich and S. Harbacevica, “Citizenship and Family on Trial: A Fairly Optimistic Overview of Recent Court Practice With Regard To Free Movement of Persons” (2003) 40 CMLRev 615. 38 In this context see the attempt to extend rights to unmarried partners in Article 2(2)(b) of the draft Directive of free movement of Union citizens COM(2001) 257 final; the use of Article 7(2) of Regulation 1612/68/EEC in Case 59/85 Netherlands v. Reed [1986] ECR 1283. Contrast the unease, along with the unwillingness to recognise employment rights within same-sex partnerships in Case C-244/96 Grant v. South-West Trains Ltd [1998] ECR I-621and Joined Cases C-122& 125/99P D and Sweden v. Council [2001] ECR I-4319. Cf Opinion delivered by Advocate General Ruiz-Jarabo in Case C-117/01 K.B. v. The National Health Service Pensions Agency and the Secretary of State for Health, 10 June 2003. See M. Bell, “We are Family? Same-sex Partners and EU Migration Law” (2002) 9 MJ 335; H. Toner, “Immigration Rights of Same-Sex Couples in EC Law” in K. Boele-Woelki and A. Fuchs (eds) Legal Recognition of Same-Sex Couples in Europe (Intersentia, Antwerp, 2003); H. Toner, “Community Law Immigration Rights, Unmarried Partnerships and the Relationship between European Court of Human Rights Jurisprudence and Community law in the Court of Justice” (2001) 5 Web JCLI available at: http://webjcli.ncl.ac.uk/ 2001/issue5/toner5.html. 39 See for example the greater recognition given to homosexual rights in custody battles in Salgueiro da Silva Mouta No. 00033290/96, Rec 1999-IX; transsexual rights to marry in I v. UK No. 28957/95 nyr and Christine Goodwin v UK No 28957/95, nyr. Cf. H. Stalford, “Regulating Family Life in post-Amsterdam Europe” (2003) 28 ELRev 39. 40 Case C-257/00, [2003] ECR I-345.

416

Regularising Migration in the European Union members of the migrant worker. Under Regulation 1251/70/EEC 41 a migrant worker enjoys rights of residence in the host State after retirement. Under this Regulation, when the migrant worker dies, the family accrue rights which are personal rights, not derived rights. In Givane a Portuguese national entered the UK in 1992 to work as a cook. After being continuously resident for three years he travelled to India where he stayed for 10 months. He returned to the UK with his spouse and three children, all of whom were Indian nationals. But 21 months after his return to the UK Givane died from kidney failure and chronic liver disease. Givane’s family applied for leave to remain in the UK pursuant to Article 2(1) of Regulation 1251/70/EEC but this was refused on the ground that Givane had not resided continuously in the UK for the two years immediately preceding his death. The Court refers to its ruling in Carpenter and alludes to the fact that the purpose of the Community law rules on family migration and residence is to ensure the “protection of the family life of the nationals of the Member States.” (my emphasis). This seems to signify the point made in relation to Carpenter that the Court views such rights as derived rights. But such an interpretation is misplaced in relation to the rights being sought under Regulation 1251/70/EEC. The Court does not touch upon a human rights or citizenship discourse but focuses upon a textual analysis of the various language versions of the Regulation.42 While other language versions would support the argument put forward by the Givane family, that a two year period of residence by the migrant worker at any time is sufficient to trigger the family rights to remain in the host State, the Court opted to apply the more restrictive version which required the two year period of continuous residence immediately preceding the death. The Court’s ruling is difficult to square with its reasoning in Surinder Singh.43 What if the Givane family had lived in the UK for a number of years and then decided to move to another Member State or, even back to the home State of Mr Givane, Portugal? 44 If Givane knew he had a terminal illness, knowledge that his TCN family would not acquire rights to stay in the next host Member State 41 OJ Sp. Ed. 1970 L142/24. 42 Advocate General Alber, working within a textual analysis of the Regulation, was

more sympathetic to the family situation. He did not view the problems through a human rights/citizenship lens but saw the problems as social and psychological. He was willing to accept that a two year continuous period of residence did not have to immediately precede the death. 43 Case C-370/90 [1992] ECR I-4265. 44 A return to one’s home State while the migrant worker is alive would seem to be a rational decision to make, particularly if a worker has relatives there. The Givane family would be able to rely upon Surinder Singh to distinguish the Morson and Jhanjan ruling. Would the ECHR jurisprudence under Article 8 ECHR be of any benefit to this kind of family situation?

417

Erika Szyszczak would be a deterrent to the exercise of the right to free movement in much the same way the Court found such a disincentive to move in Surinder Singh. Baumbast 45 is a good example of how a regular migrant who is a national of one of the Member States and initially a holder of one of the primary migration rights can fall through the gaps in Community law protection. A German national worked in the UK for a period of time and this was followed by a period of self-employment running a business. During this time Baumbast (and his family) held residence permits in the UK as “regular” migrants. When the business failed Baumbast then worked for German companies in China and Lesotho and the family maintained a family home in the UK with the children attending local schools. An application for indefinite leave to remain in the UK was answered in the negative coupled with a refusal to renew the residence permits for Baumbast and his family.46 The Court’s ruling on the Citizenship rights of Baumbast is a substantial step forward in recognising a wider Citizenshipbased right to freedom of movement and residence: … a citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a Citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality.47

Baumbast should not come as a great surprise. I see the case, not as a step forward from Martínez Sala, but in terms of the rights granted, a step behind Martínez Sala. The magic of Baumbast is to allow for another gateway to regular migration independently of the “economic” rights to migration and the “selfsufficiency” required through the Residence Directives.

45 Above n. 7. 46 Baumbast was considered not to have rights of residence under Directive 90/364/EC

(OJ 1990 L180/26) as he did not have “sickness insurance in respect of all risks in the host Member State” as required by Art. 1. He was covered by medical insurance in Germany but the UK authorities argued that he and his family were not covered for emergency health care cover in the UK. 47 Para 94. See the criticisms of the previous reluctance of the Court to address the scope of Article 18 EC, despite encouragement to do so from several Advocates General: C. Tomuschat, “Case C-85/96 María Martínez Sala v. Freistaat Bayern” (2000) 37 CMLRev 449; N. Reich, “Union Citizenship – Metaphor of Source of Rights?” (2001) 7 ELJ 4.

418

Regularising Migration in the European Union From the reported facts of the case the family had led a normal and unremarkable life in the UK for a number of years. There was no reason to suggest that their continued presence in the UK posed a threat or danger to public security, and apart from the unforeseeable hazards of an accident occurring or a life-threatening emergency illness, everyday life posed no threat to the UK’s social security budget.48 Thus, as with Martínez Sala, the Court was prepared to make the UK accept the Baumbast family not as “migrants” but as long term “regular” residents. Sala went further than Baumbast. Sala was also a long-term resident in Germany having migrated from Spain. Despite the fact that, in the absence of a clear ruling on the scope of Article 18(1) EC, Sala did not satisfy the conditions for regular, “economic” migration and that by applying for a social security benefit she was calling into question her rights to residence under Directive 90/364/EC.49 But Sala was found to be legally resident in Germany as a result of rights accrued under the European Convention on Social and Medical Assistance. The facts of the Sala case take Citizenship rights further. Coupled with the non-discrimination principle of Article 12 EC, Citizenship of the Union allows regular migrants to demand equal treatment on the same terms as nationals of the host State. The Sala case thus decouples the link between economic migration rights and social rights and introduces a normative basis for the creation of Citizenship rights to EU migrants. But Citizenship rights under Article 18 EC merely allow for “national treatment”. As Maduro50 has pointed out, a migrant may require more than national treatment if she is to adapt and integrate fully into the social and economic 48 This indeterminate risk is handled by the Court through the use of proportionality:

the UK’s assessment of the risk was disproportionate to the important realisation of allowing for an “irregular migrant” to regularise his, and his family’s residence in the host state. A similar approach is seen in Case C-184/99 Grzelsczyk [2001] ECR I-6193. This approach ignores the cumulative effect that such claims may have upon a Member State’s public expenditure budget. The fears of social dumping and health care tourism can be addressed in the policies used to attempt convergence of social protection systems through the use of the open method of co-ordination. Cf the legislative reaction to Martínez Sala and Grzelczyk in the proposal of the European Parliament and Council Directive on the Right of Citizens of the Union and their Family Members to Move and Reside Freely Within the Territory of the Member States (COM (2001) 257 final). Article 21(2) allows a discretion to the Member States to refuse to grant social assistance to migrants who are not engaged in gainful activity or to award maintenance grants to persons having the right of residence who have entered the host State to study. 49 OJ 1990 L180/26. 50 M. Poiares Maduro, “The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination” in C. Kilpatrick, T. Novitz and P. Skidmore (eds), The Future of Remedies in Europe (Oxford: Hart Pub, 2000).

419

Erika Szyszczak fabric of the host State. The major limitation of the Baumbast route to regularising migration in the EU is seen in the structure of the Court’s judgment and reasoning. The case is unusual since it turns the derivative rights approach to the dependants of migrants workers on its head. By placing the children’s rights to regular migration and residence (coupled with the equal treatment/non-discrimination principle) centre stage the Court has enhanced the position of the family members. But by so doing, it neatly avoided addressing the question of whether there are any derivative rights for family members flowing from the use of Article 18(1) EC to regularise the situation of Baumbast, who, under our normal understanding of these provisions, should have been placed centre-stage in the hierarchy of rights flowing from economic migration. Baumbast begs a number of questions: would the same conclusion have been reached if the Baumbast family were not such long term regular residents in the host State? Can TCN family members derive rights under Article 18(1) EC? Elevating Citizenship of the Union to such a fundamental role in regulating migration in the EU could be a step backwards where family rights are concerned. There is scope for interpreting Article 18(1) EC widely. The Court seems to be clear that the limitations to the right to free movement set out elsewhere in the EC Treaty and secondary legislation can be read into Article 18(1) EC. Arguably, then the word “conditions” might be read expansively to include the conditions of migration set out in Regulation 1612/68/EEC which allow for family migration and the acquisition of various social rights. Alternatively Article 18(2) EC allows for the Council to enact secondary legislation to facilitate free movement and a Directive recognising family rights to migration attached to the Citizenship provisions could facilitate family migration. Both solutions detract from the simplicity and crispness of the Citizenship right to migration and would complicate the legal base to free movement even further. The use of Citizenship ideas to regularise irregular migration which falls through the net of Community law protection has other limitations: the nationality requirement is obvious and the use of Article 12 EC only allows for national treatment to apply to the Citizen-migrant. Citizenship of the Union is an incomplete project giving few positive rights to migrants. The novelty of the Baumbast case is seen in the Court’s use of the children’s derived rights to enter the host State and to enjoy social advantages and access to the education system on the basis of the non-discrimination principle and the way these rights are used to allow the mother, who is a TCN, to also enjoy a right of residence in the UK. The question sent by the IAT is framed in the language of Citizenship rights and the Court uses this language as well as adopting a technical, practical approach to addressing the issue, looking at the aim and spirit of Articles 10 and 12 of Regulation 1612/68/EEC. The point on the right to remain to continue an education in the host State pursuant to Article

420

Regularising Migration in the European Union 12 of Regulation 1612/68/EEC was uncontentious.51 The Court affirms a human rights approach: … it must be borne in mind that the aim of Regulation 1612/68, namely freedom of movement for workers, requires, for such freedom to be guaranteed in compliance with the principles of liberty and dignity, the best possible conditions for the integration of the Community worker’s family in the society of the host Member State (see Case C-308/89 Di Leo [1990] ECR I-4185, paragraph 13).52

But the right is immediately linked to the primary migrant. The Court states that by preventing the continuation of education in the host State after the migrant worker has lost the status conferred by Article 39 EC may be a obstacle to the effective exercise of the right of free movement as it might dissuade the migrant worker from taking the initial step to migrate.53 But then, two paragraphs later, in paragraph 54, the Court slips back into the language of citizenship rights to refute the arguments put forward by the German government that the child’s right to remain in the host State only existed where it was not possible to continue the education in the home State. The real novelty of Baumbast R is the Court finding a right for the mother of the children enjoying the rights to residence by virtue of their derived rights from the migrant worker. In both cases the mother was a TCN.54 In Baumbast the marriage subsisted but in R the parents were divorced and the migrant worker had returned to France. At paragraph 64 the Court rules that where the children of a migrant worker have a right to reside in a Member State in order to attend educational course pursuant to Article 12 of Regulation 1612/68/EEC … that provision must be interpreted as entitling the parent who is the primary carer of those children, irrespective of his nationality, to reside with them in order to facilitate the exercise of that right notwithstanding the fact that the parents have meanwhile divorced or that the parent who has the status of citizen of the European Union has ceased to be a migrant worker in the host Member State.

Are the words “primary carer” a limitation on this right? 55 What if there is a

51 Joined Cases 389/87 Echternach and Moritz [1989] ECR 723. 52 Para 50. Similar language is used again in para 58. 53 Para 52. 54 In Baumbast the mother was a Columbian national; in R the mother was a United

States’ citizen. 55 Cf also para 44 of Carpenter, supra n. 29 which has been interpreted by Reich and

Harbacevica “… as being implicitly based on the same concept of “primary carer” …”. 633.

421

Erika Szyszczak joint custody? Can a primary carer be a relative other than the mother or father? Other language versions do not use the word “primary”. The UK and German governments and the Commission had argued for a narrow interpretation of Article 12 of Regulation 1612/68/EEC arguing that in the event of divorce or the migrant worker leaving the host State a TCN spouse could derive no rights from Community law. To counter the human rights argument put forward that to deny such rights of residence would be a breach of Article 8 ECHR the UK government argued that where there was an unjustified interference with family life discretion could be used to grant exceptional leave to remain in the UK. The Court counters this with emotive language drawn from its case law emphasising that it is the children’s rights which are interfered with: … it is clear that if those parents were refused the right to remain in the host Member State during the period of their children’s education that might deprive those children of a right which is granted to them by the Community legislature.56

Read in this context the Court de-couples the economic right to migration from the social right enjoyed by the children. This is enhanced further by reference to the additional right to residence enjoyed by the primary carer derived from the interpretation of Article 12 of Regulation 1612/68/EEC in the light of the ECHR: Moreover, in accordance with the case-law of the Court, Regulation 1612/68 must be interpreted in the light of the requirement of respect for family life laid down in Article 8 of the European Convention. That requirement is one of the fundamental rights which, according to settled case-law, are recognised by Community law (see Commission v Germany, para 10).57

The final case reviewed is Akrich.58 Even before Surinder Singh,59 one of the easiest ways to circumvent the reverse discrimination rule of Morson and Jhanjan 60 was to exercise rights to free movement and invoke Article 10 of Regulation 1612/68/EEC. Surinder Singh raised the possibility of there being an abuse of rights in using the Community law migration provisions in this way, but, as we have seen the Court’s generous interpretation of the concept of a “worker” allowed much scope for triggering Article 39 EC. 56 Para 71. 57 Para 72. 58 Case C-109/01, judgment of 23 September 2003. 59 Above n. 21. 60 Above n. 14.

422

Regularising Migration in the European Union In Akrich a Moroccan national had been refused entry to the UK, had subsequently entered as a tourist and tried to remain in the UK as a student. In June 1990 he was found guilty of attempted theft and being in possession of a stolen identity document. Deportation was recommended and he was deported to Algiers. Akrich entered the UK in 1992 using a false French identity card but was arrested and deported. He remained outside of the UK for one month, returning clandestinely and living unlawfully in the UK for a number of years. In 1996 he married a British citizen and applied for leave to remain and for asylum in the UK. His wife moved to Ireland where she found work, knowing that this could trigger the rights associated with Article 39 EC. Mr Akrich requested that he be removed to Ireland. An application by Akrich from Ireland to have the 1990 deportation order revoked and for entry clearance to the UK for Mr Akrich was refused, despite the fact that Akrich’s wife had an offer of work and appropriate accommodation. The UK government invoked the public proviso of Article 39(3) EC, arguing that Community law was being misused to achieve rights which would not otherwise be available under national immigration law. The Opinion of Advocate General Geeldhoed surveys the problem of reconciling national competence in the field of immigration with the wide area of Community competence, embracing immigration issues, citizenship, fundamental rights and the fundamental economic freedom of movement. While accepting that the UK has a good argument, that the application of national immigration policy is justified by an overriding public interest in ensuring the viability and enforceability of national immigration laws, this competence is still circumscribed by Community law. He concludes that the intentions of the worker and his spouse in making use of the rights conferred on them by Community law and, in particular, the rules on freedom of movement for workers are “immaterial.” The Court also takes this view … the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the latter State provided that he there pursues or wishes to pursue an effective and genuine activity (Case 53/81 Levin [1982] ECR 1035, paragraph 23).61

Similarly the Court ruled that there was no abuse of rights where a worker and his family sought to return to the home Member State. There would only be an abuse where the marriage was not genuine – a marriage of convenience entered into in order to circumvent the provisions relating to entry and residence of nationals of non-Member States. But the Court ruled that Article 10 of Regu-

61 Para 55.

423

Erika Szyszczak lation 1612/68 only covers freedom of movement within the EU – “It is silent … in regard to access to the territory of the Community”.62 This view accepts that Member States still retain sovereignty to regulate and police their external frontier. The Court ruled that in order to invoke the provisions of Article 10 of Regulation 1612/68 the non-EU spouse must be lawfully resident in a Member State when he/she exercises the right to free movement. Thus the Court was able to distinguish Surinder Singh in that if there was no initial right of residence in the home State, the exercise of the free movement rights would not be a deterrence. The Member States’ control over the external border and the rights to free movement within the EU is circumscribed by human rights considerations. The Court notes that the ECHR may not guarantee the right of TCNs to enter or reside within a Member State but the removal of a TCN from a State where close members of a family are living may infringe the right to respect for family life guaranteed in Article 8(1) ECHR. Citing its previous ruling in Carpenter, the Court sets out the requirements of Article 8(2) ECHR demanding procedural propriety – the removal must be in accordance with the law, motivated by one or more of the legitimate aims set out in Article 8(2) ECHR and necessary in a democratic society – interpreted by the ECJ as “ justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued.”63 The Court goes further than the ruling in Carpenter by mentioning the case law of the ECHR in relation to the limits of what is necessary in a democratic society.64 Akrich raises issues which are discussed in Elspeth Guild’s essay in this volume, and in the cases of Givane, Baumbast and R discussed above, as to when a TCN family member is illegally present within a Member State. The focus of the UK government’s concern65 was the abuse of rights issue raised in Surinder Singh. Returning to the earlier rulings of Carpenter 66 and MRAX 67 the ruling 62 Para 49. 63 Para 59. 64 There is no mention of other international sources of rights, for example Article

19(8) of the European Social Charter. The European Committee on Social Rights has found that the liability to expulsion from the UK of the family members of a migrant worker who are nationals of Contracting States (not members of the EU/ EEA) following deportation of the migrant worker is contrary to Article 19(8) ESC. See the discussion in E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF), Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, 84ff. 65 A position taken also by the Commission and the submissions of the Greek government. Similarly the Advocate General did not focus on the issue of legal residence before migration. 66 Above n. 29. 67 Above n. 28.

424

Regularising Migration in the European Union in Akrich introduces a number of inconsistencies into Community law. In both cases the Court accepts that EU nationals have a right to freedom of movement between the Member States and under Regulation 1612/68/EEC the right to be joined by TCN family members from outside of the EU even where they have never had residence in another Member State of the EU. In MRAX the Court decides that the TCN’s rights are derived from Council Directive 68/360/EEC, but following Akrich the wife in MRAX would not have rights under Article 10 of Regulation 1612/68/EEC. In Givane 68an EU national returned to the host State from outside of the EU with a family composed of TCNs. A question raised by Akrich is whether the migrant worker and her husband could have achieved a right to enter the UK by Akrich returning to either his country of origin (or, if he could gain admission, another Member State of the EU) and travelled directly to Ireland to be admitted under Article 10 of Regulation 1612/68/EEC? Again an issue of whether there was a genuine marriage in place to stall an abuse of rights objection would be legitimate but this approach would wipe out any public policy reasons raised by the UK government in denying the right to residence under UK law. The use of the Community law public policy proviso against Akrich when he was trying to enter the UK from Ireland is, arguably, subject to stricter scrutiny than UK immigration law.

4.

POST-MIGRATION RIGHTS

Once a right to migration and residence has been established, issues arise of whether access to social, political and economic rights are informed by Citizenship rights and human rights in the treatment of migrants within the host State. In Martínez Sala 69 the Court relies upon Article 12 EC to ensure equality of treatment with host State nationals. Arguably this provision provides a better standard of human rights treatment than Article 14 ECHR which is not a free standing right and which allows for the defence of objective justification. Indications of the Community approach to the treatment of migrants is seen also in Grzelczyk.70 We might have placed this case in the migration section above. It concerned a French student who studied for three years in Belgium. He enjoyed rights of residence under Directive 93/96/EC. In his fourth year he applied for social assistance from the Belgium government. One of the conditions of Directive is that the student should be self-sufficient. The social assistance was granted but then withdrawn when the Belgian government refused to reimburse 68 Case C-257/00 [2003] ECR I-345. 69 Above n. 6. 70 Case C-184/99 [2001] ECR I-6913.

425

Erika Szyszczak the social assistance agency. It was argued that Grzelczyk was not entitled to the social assistance as he was not a worker within the meaning of Article 39 EC. Grzelczyk successfully argued that because Belgian nationals applying for the social assistance were not required to show that they were workers this was discrimination contrary to Article 12 EC. The Court not only combined Article 12 EC with the Citizenship provisions of the EC Treaty it elevated Citizenship to a central role: Union citizenship is destined to be the fundamental status of nationals of the member states, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for. 71

Additionally an increasing raft of Community based employment and social measures will apply to ensure a certain level of protection within all Member States.72 Of increasing importance is the evolution of Article 13 EC as the legal base for a number of initiatives in the field of equality, embracing hard law73 and soft law measures.74 But there are limitations to these rights. What are the human rights/ citizenship rights which might apply to the legally resident TCN spouses in Baumbast and R.? They cannot rely upon the Citizenship provisions of Articles 17 and 18 EC or Article 12 EC.75 Do the other rights which normally flow from Regulation 1612/68/EEC76 apply to these spouses? The Court has been insistent that the rights are derived rights, aimed to make the life of the migrant worker under Article 39 EC as comfortable as possible. Another source of rights in the future is the Charter of Fundamental Rights of the European Union77 which is incorporated in the draft Constitution pre-

71 Para 31. See also Case C-148/02 Carlos Garcia Avello v. État Belge, judgment of 2

October 2003. 72 Details of the EU employment and social policy can be found at: http://europa.eu.int/

pol/socio/index_en.htm. 73 Directives 2000/43/EC, OJ 2000 L 180/22 and 2000/78/EC, OJ 2000 L 303/16. See E.

Ellis, “Social Advantages: A New Lease of Life?” (2003) 40 CMLRev 639. 74 See http://europa.eu.int/comm/employment_social/fundamental_rights/index_en.htm. 75 The argument over whether Article 12 EC should apply to discrimination against

non-EU nationals is charted in E. Szyszczak, “Race Discrimination and the Limits of Market Equality” in B. Hepple and E. Szyszczak (eds), Discrimination: The Limits of Law (London: London, 1992). 76 For example, Article 7(2) and Article 11. 77 http://europa.eu.int/eur-lex/en/treaties/dat/C2003169en.002201.htm.

426

Regularising Migration in the European Union sented in July 2003.78 This contains a number of rights which are applicable to all persons regardless of nationality.79 Together, with the raft of proposed immigration measures80 the regularisation of migrants within the EU, migrants may have a secure and more stable future than is evident from the casuistic approach revealed in the discussion of the Court’s case law above. When looking at the rights of regular migrants the case law emphasises that the rights are granted on the basis of long-term residence. This is an assimilation approach: rights are more easily acceptable where the migrant has a long-term attachment to a Member State.81 This approach ignores the various forms of migration in Europe. It has also failed to keep up with the fact that travel within Europe is more affordable and accessible. It is possible to move between Member States without seeing migration as a permanent move. Not wanting to become a long-term resident in a Member State is not a good reason, from an economic,82 or a human rights perspective, to deny basic human rights and equal treatment with nationals in the host state. It may be that moves to improve the situation of migrants within the Member States will come from below but steered through EU processes. The open method of co-ordination is being suggested for handling a number of immigration issues relating to the integration of migrants and the role of migration in the Lisbon Process.83 This may provide a vehicle for greater recognition of post-migration 78 http://europa.eu.int/futurum/constitution/index_en.htm. 79 See Summary of the Paper submitted by M. Vitorino, Commissioner, Member of the

80

81

82

83

Convention Working Group X Freedom, Security and Justice, WGX – WD 14 (15 November 2002). Cf the EC Commission’s ideas of Civic Citizenship, COM(2000) 757. For example, the right to family reunification COM (2002) 225; the status of third country nationals who are long-term residents COM (2001) 127; the conditions of entry and residence of TCNs for the purpose of paid employment and self-employed economic activities COM (2001) 386. See the essays by Peers and Cholewinski in this volume. See also the EC Commission policy “Integration involves the development of a balance of rights and obligations over time, thus the longer a third country national resides legally in a member State, the more rights and obligations such a person should acquire.” 18 See also EC Commission Communication COM (2000) 757. Member States use migrants to fill jobs which their own nationals will not undertake but also to fill skills shortages. By not recognising the role of migrants in the economy, or forcing migrants to be clandestine, a number of public finances may not run efficiently, for example, taxation of migrants to pay for host state social security programmes. There are similar consequences for the home state where migrants may not be able to draw upon social security contributions from economic activity in the host State to fund various social and economic needs such as education, healthcare or pensions in the home state. EC Commission, Choosing to Grow: Knowledge, Innovation and Jobs in a Cohesive Society. Report to the Spring European Council, 21 March 2003 on the Lisbon Strategy of Economic, Social and Environmental Renewal COM (2003) 3.

427

Erika Szyszczak rights than attempting to impose such rights through the traditional Community method of law-making.84 The EC Commission is also looking for a holistic approach of including issues relating to migration into its employment policy and social inclusion policy. The use of co-ordination mechanisms may stimulate responses from the Member States towards recognising the need for greater pluralism alongside citizenship and human rights ideas in their national policies towards migrants.85 Such ideas are by no means universally accepted in Europe,86 but the EU is moving towards greater recognition of human rights monitored by independent (non-governmental) networks, the rights being derived from a wide range of sources, using reporting, peer review and best practice as a means of developing the Community acquis.87

5.

CONCLUSION

The discussion of recent cases on regularising irregular migration in the EU reinforces the argument that, despite the sophisticated approach towards freedom of movement of persons, a number of inconsistencies are emerging in the Court’s approach to applying the technical rules of free movement.88 There is 84 The use of the omc is the immigration area is a new and distinctive move. It does not

85

86 87

88

embrace as wide a network of actors or new institutional configurations as the more developed European Employment Strategy. To date the focus of the omc method has been on collecting data and developing indicators for benchmarking (Action Plan for the collection and analysis of Community statistics in the field of migration, COM (2003) 179) preparation for a European Migration Network, a synthesis report on national immigration policies presented to the European Council in Thessaloniki, Greece on 20-21 June 2003. See EC Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on Immigration, Integration and Employment, COM (2003) 336 final; Communication of July 2001 on an open method of co-ordination for the Community Immigration Policy COM (2001) 387. See the essay by Bogusz in this volume. See S. Fredman, “Combating Racism with Human Rights: the Right to Equality” in S. Fredman (ed), Discrimination and Human Rights. The Case of Racism (Oxford, OUP, 2001); M. Coussey, Framework of Integration Policies Strasbourg, Council of Europe 2000. See D. Chalmers, “The Mistakes of the Good European?” in Fredman, op. cit. See E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF), Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002 (March 2003). Available at: http://europa.eu.int/comm/justice_home/ cfr_cdf/doc/rapport_2002_en.pdf This tentative approach is seen in Kaba where, despite Advocate General La Pergola’s positive approach, Court declined to rule whether leave to remain indefinitely in the territory of a Member State fell within the meaning of a social advantage in Article 7(2) of Regulation 1612/68/EEC: Case C-356/98 Arben Kaba v. Home Secretary [2000] ECR I-2623.

428

Regularising Migration in the European Union also uncertainty as to the scope of a human rights dimension to such rights. Under the new Article 13 EC Directive on Race Discrimination,89 discrimination on the ground of nationality is excluded from the scope of the Directive.90 Cholewinski 91 explains that this was to ensure that national immigration laws were not open to challenge. The Preamble to the Directive states that the Directive does not apply to provisions governing entry or residence or access to employment and occupation of TCNs. The long-awaited Directive on the rights of long-term TCN residents continues to gather dust on the Council political agenda. It is unlikely that any further improvement to migration rights for TCNs will be found under the new human rights dimension to Community law and the rulings of the Court of Justice remain a central source of such rights. In contrast where a migrant is able to regularise his/her position in a Member State the Citizenship of the Union provisions trigger the non-discrimination principle for EU nationals and Community law provides a raft of basic social rights where the migrant is economically active, irrespective of his/her nationality.92 These rights will be reinforced if the Charter of Fundamental Rights of the EU becomes justicable as a result of incorporation into the anticipated EU Constitution.

89 Council Directive (EC) 2000/43 of 29 June 2000 implementing the principle of equal

treatment between persons irrespective of racial or ethnic origin OJ 2000 L 180/22. 90 For detailed analysis see M. Bell, Anti-Discrimination Law and the European Union (Oxford: OUP, 2002). 91 R. Cholewinski, Borders and Discrimination in the European Union (London: ILPA and Brussels, Migration Policy Group, 2002) 43. See also I. Chopin and J. Niessen (eds), The Starting Line and the Incorporation of the Racial Equality Directive into the National Laws of the EU Member States and the Accession States (London: CRE and Brussels Migration Policy Group, 2001). 92 Article 194 and 195 EC allow for the right to petition the European Parliament and the European Ombudsman, and Article 255 the right to access certain documents irrespective of nationality. Details of Member States extending civic and political rights to TCNs legally resident in their territory can be found in: EC Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on Immigration, Integration and Employment, COM (2003) 336 final; E.U. Network of Independent Experts in Fundamental Rights (CFR-CDF), Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002 (March 2003). Available at: http://europa.eu.int/comm/justice_home/cfr_cdf/doc/rapport_ 2002_en.pdf.

429

This page intentionally left blank

Nicholas Blake

DEVELOPMENTS IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

1.

INTRODUCTION

This paper is concerned with the contribution the European Convention on Human Rights (ECHR) can make to the problem of irregular migration. For present purposes a person is irregular with respect to his or her immigration status if threatened with expulsion or denied admission to the territory of the state. The paper draws on the UK experience of incorporation of the ECHR in its domestic law under the Human Rights Act 1988 (HRA) that came into force in October 2000. If the ECHR has a role to play it was badly needed. Immigration law in the UK has by and large seen a drastic reduction in appellate rights over refusal of visit visas and against deportation for irregular stay, and a massive increase in controls and restrictions placed on migrants from the Commonwealth and those not privileged by Community law. Asylum law has by comparison grown enormously in significance, but in the current climate the signs are that the liberal developments in the case law are being reversed by national measures and inter-state action. The irreducible minimum standards of the ECHR are in some circumstances the best that some migrants can hope to have applied to them. Litigation is a fragile response to these developments, vulnerable to the chance ability of the migrant to obtain access to a competent lawyer who is sufficiently funded to take the point, and always liable to legislative reverse if the outcome displeases the executive. It is right that these questions are ultimately political questions for society as a whole rather than the province of the lawyer, but democracy is more than electoral accountability. Electoral power as an untrammelled sovereignty for the executive and without respect for due process and constitutional rights is merely the tyranny of the decreasing numbers who can be bothered to vote. In the UK, outside the sphere of EU law, the constitution is weak and unwritten. The ECHR and other norms Barbara Bogusz, Ryszard Cholewinski et al. (eds.),Irregular Migration..., 431-451 © 2004 Koninklijke Brill NV. Printed in the Netherlands.

Nicholas Blake of international human rights and humanitarian obligations now increasingly provide the bottom line in a contentious debate. What is has to say about migration is thus an urgently relevant consideration. If the officious bystander had asked the signatory states to the ECHR in 1950 what assistance it might provide to secure admission to or prevent expulsion from the frontiers of those who did not otherwise qualify under immigration laws, the answer would most likely be short in words and temper and could not have anticipated the developments that have led to this conference, let alone this essay. The only reference to aliens in the original rights afforded under Articles 1 to 13 of Part 1 of the Convention, indeed, is in the context of Article 5(1)(f) identifying detention for immigration purposes as a potential justification to detention without trial. Subsequently in 1963 the Contracting States agreed Protocol No. 4, Articles 2 to 4 of which gave certain rights in the context of immigration. In 1984 Protocol No. 7 was adopted, Article 1 of which gave certain procedural rights to aliens. The UK has not ratified these additional Protocols nor incorporated them into domestic law under the Human Rights Act. The Court has recently pointed to the existence of the procedural rights under Protocol No. 7 Article 1 to suggest that “States were aware that Article 6.1 of the Convention did not apply to procedures for the expulsion of aliens and wished to take special measures in that sphere.”1 We have long since learnt that the ECHR is a living instrument, to which an updating technique of construction is to be applied.2 That process has been at work in the application of the Convention to migrants. I shall first draw attention to the techniques that enabled the Convention to gain some relevance in the field of migration. I shall focus on the scope of Article 8 ECHR (the right to respect for private and family life), touch briefly on Article 3, and will not review the case law relating to detention or appellate rights of review.3

2.

TERRITORIAL SCOPE OF

THE

CONVENTION

Some preliminary points should be made about jurisdiction. Article 1 ECHR requires states to secure rights to everyone within the jurisdiction of the Contracting States. The European Court of Human Rights (the Strasbourg Court) has recently confirmed that the meaning of jurisdiction is primarily territorial:

1 2 3

Maaouia v. France (2001) 33 EHRR 42; 9 BHRC 205, para. 36. Soering v.UK (1989) 11 EHRR 439, para. 102. I have sought to address these questions more fully in a book co-authored with Raza Husain, Immigration and Asylum and Human Rights in Blackstone’s Human Rights Series (Oxford: OUP, 2003). This book is already in need of an update in the fast moving world of case law and legislation.

432

Developments In the Case Law of the European Court of Human Rights i.e. it only applies to things that happen within the territory. First, the case law makes it plain that one does not have to be lawfully in the United Kingdom.4 Of course, the immigration status of a person affected by a decision of a public official may be highly relevant in deciding whether the action violates a Convention right or not.5 Everyone in the jurisdiction is entitled to their rights irrespective of their status. Secondly, the duty to secure the rights and freedoms to everyone within the jurisdiction includes everyone who is physically present in the territory of a state whether they are deemed to have entered it or not. 6 This is to be contrasted to certain provisions of the Refugee Convention that are applicable only to those who are lawfully within the territory and can exclude those who are awaiting a decision on leave to enter or who have been refused leave to enter.7 Third, the case law suggests that in certain circumstances when a state exercises its authority abroad its officials will be accountable under the Convention.8 The Loizidou 9 case involved the Turkish army’s occupation of Northern Cyprus and the exercise of governmental control over its inhabitants. A similar approach was applied when Turkey seized a suspected criminal abroad10 and when the Italian navy intercepted a ship carrying refugees.11 Subsequently the Court concluded that Turkey could be liable for the acts of the civilian administration it installed in Northern Cyprus and not just for the acts of its own troops.12 Cases where states were liable for acts of public officials outside their territory were exceptional therefore. Nationality of a Contracting state, grant of travel documents or even prior residence or domicile there may be a sufficient link to bring consular acts within the jurisdiction of the Contracting State for the purposes of Article 1.13 4 5 6 7 8 9 10 11

12 13

D v. UK (1997) 24 EHRR 423. Berrehab v. Netherlands (1988) 11 EHRR 322. D v. UK, above n. 4, para. 48; see also Case C -357/98, R v. Secretary of State ex p. Yiadom [2000] ECR I-9265, [2001] INLR 300; Amuur v. France (1996) 22 EHRR 533. Bugdaycay v. Secretary of State for the Home Department [1987] AC 514, 526G; see also Kaya v. Haringey LBC [2001] EWCA Civ 677. Loizidou v. Turkey (1995) 20 EHRR 90. Ibid. Issa and Others v. Turkey, Application No. 31821/96, Eur. Ct. HR admissibility decision of 30 May 2000, unreported and Öcalan v. Turkey (2003) 37 EHRR 10. Xhavara and Others v. Italy and Albania, Application No. 39473/98, Eur. Ct. HR admissibility decision of 11 January 2001, unreported (alleged deliberate striking of an Albanian ship by an Italian naval vessel 35 nautical miles off the coast of Italy). Cyprus v. Turkey (2002) 35 EHRR 30. See X v. FRG, Application No. 1611/62, Decision of 25 September 1965 YB where the Commission concluded “in certain respects the nationals of a Contracting state are within its jurisdiction even when domiciled or resident abroad; whereas in par-

433

Nicholas Blake In the Roma Rights Centre case,14 the UK Court of Appeal has recently declined to follow the reasoning of the US Supreme Court in Sales v. Haitian Centres Council 15 and preferred the opinion of the Inter-American Commission on Human Rights to the effect that when an act is done abroad that results in harm to the asylum seeker, the human rights responsibilities of the state concerned are engaged. The result in the Roma case and other decisions demonstrate that the mere fact that an alien applies for an entry clearance abroad does not of itself engage the responsibility of the Contracting State for all the consequences of a refusal of a visa.16 Nevertheless there is a difference between the question whether the Convention applies in principle and what the particular obligations are under the Convention in the context of international relations. The fourth observation about jurisdiction is that acts done by public authorities in the United Kingdom may have consequences elsewhere outside the United Kingdom. This was the important conclusion reached in the landmark case of Soering 17 followed and applied in the case of Chahal.18 In the context of immigration this means that if there are substantial grounds for concluding that there is a real risk that the consequence of an expulsion to country X is torture or exposure to inhuman or degrading treatment the act of expulsion is unlawful . There is now authority from the Bosnian Rights Chambers that a similar approach applies to exposure to the risk of the death sentence.19 Contrary to the submissions of the States parties in some of the early cases, the Convention is not being applied “extraterritorially” to prohibit acts done abroad governed by laws of States that are outside its competence. It prohibits acts done by officials of the state party and subject to its jurisdiction that cause harm to the individual wherever the end result of the harm is occasioned. This follows whether the con-

14

15 16

17 18 19

ticular the diplomatic and consular representatives of their country of origin perform certain duties with regard to them which may in certain circumstances, make that country liable in respect of the Convention”. R (European Roma Rights Centre) v. Secretary of State for the Home Department [2003] EWCA Civ 666 CA at paras. 33 and 34. This case is otherwise an extremely disappointing decision demonstrating the inability of the courts to check discriminatory behaviour abroad by immigration officers selecting Czech Roma for pre-boarding scrutiny. (1993) US 155. R v. Secretary of State for the Home Department ex p. Sritharan [1993] Imm AR 184 concerned with the Refugee Convention, and see also R (Manickavasagam) v. Secretary of State for the Home Department [2001] EWHC Admin 1028, and the decision of the Court of Appeal in R (Abbasi) v. Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598. Soering v. UK, above n. 2. Chahal v. UK (1996) 23 EHRR 413. See also Cruz Varas v. Sweden (1991) 14 EHRR 1 and Vilvarajah v. UK (1991) 14 EHRR 248. BHRC (2003).

434

Developments In the Case Law of the European Court of Human Rights sequence is direct by expelling a person to a state where ill treatment is feared or indirect by sending the person to another state from where he or she may be expelled, even if the other state is itself a party to the ECHR.20 The Court has reviewed the reasoning behind these decisions in the Bankovic case.21 It noted at paragraphs 67 to 68: In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention. Reference has been made in the Court’s case-law, as an example of jurisdiction “not restricted to the national territory” of the respondent State (the Loizidou judgment (preliminary objections), at § 62), to situations where the extradition or expulsion of a person by a Contracting State may give rise to an issue under Articles 2 and/or 3 (or, exceptionally, under Articles 5 and or 6) and hence engage the responsibility of that State under the Convention (the above-cited Soering case, at § 91, Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, §§ 69 and 70, and the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, § 103). However, the Court notes that liability is incurred in such cases by an action of the respondent State concerning a person while he or she is on its territory, clearly within its jurisdiction, and that such cases do not concern the actual exercise of a State’s competence or jurisdiction abroad (see also, the above-cited Al-Adsani judgment, at § 39).

In addition, a further example noted at paragraph 62 of the Loizidou judgment (preliminary objections) was the Drozd and Janousek case where, citing a number of admissibility decisions by the Commission, the Court accepted that the responsibility of Contracting Parties (France and Spain) could, in principle, be engaged because of acts of their authorities (judges) which produced effects or were performed outside their own territory (the above-cited Drozd and Janousek judgment, at § 91). If the causal consequence principle is the means of engaging a state party’s responsibility for harm experienced abroad, why should this not apply to other human rights that may not be respected abroad? This raises real problems, recently considered by the UK Court of Appeal in R (Ullah) v. Special Adjudicator.22 As the Bankovic extract above illustrates, the principle has not hitherto extended to expulsions that cause a person some restriction of human 20 TI v. UK [2000] INLR 211. 21 Bankovic and others v. Belgium, Application No. 52207/99, Eur. Ct. HR admissibility

decision of 12 December 2001, 11 BHRC 435. 22 [2002] EWCA Civ 1856; [2003] 1 WLR 770.

435

Nicholas Blake rights he or she enjoyed in the United Kingdom, thus diminished rights to practice a religion, to marry, to freedom of expression and association do not of itself make an expulsion unlawful.23 The Court of Appeal in Ullah has gone so far as to rule that Article 3 is the only Convention right that has extraterritorial effect, in the sense that the claimant can rely on the consequences abroad to restrain the expulsion. In a judgment now under appeal to the House of Lords it noted: 63. ..we hold that a removal decision to a country that does not respect article 9 rights will not infringe the 1998 Act where the nature of the interference with the right to practice religion that is anticipated in the receiving state falls short of article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practice religion in such circumstances will not result in the engagement of the Convention unless the interference is “flagrant”. 64. This appeal is concerned with article 9. Our reasoning has however, wider implications. Where the Convention is invoked on the sole ground of the treatment to which an alien, refused the right to enter or remain, is likely to be subjected by the receiving state, and that treatment is not sufficiently severe to engage article 3, the English court is not required to recognise that any other article of the Convention is, or may be, engaged. Where such treatment falls outside article 3, there may be cases which justify the grant of exceptional leave to remain on humanitarian grounds. The decision of the Secretary of State in such cases will be subject to the ordinary principles of judicial review but not to the constraints of the Convention (our emphasis).

This seems to “flagrantly” ignore the careful jurisprudence that the Court does not rule out that flagrant violations of Articles 5 and 6 may be engaged in an expulsion. Although there may be room for greater debate, it is perfectly possible in principle to envisage trials so unfair and detention so arbitrary and unreviewed as to manifestly violate these articles whatever margin of appreciation is afforded for national conditions. Even apart from the risk of the death penalty, or oppressive conditions of confinement, no Council of Europe state could surely hand over terrorist suspects to the USA with a risk of removal to the “black hole” of Guantanamo Bay.24 It is hoped that this sweeping statement will 23 See for example Drozd and Janousek v. France and Spain (1992) 14 EHRR 745. See

also R (Holub) v. Secretary of State for the Home Department [2001] INLR 219; [2001] 1 WLR 1359, CA. 24 See Abbasi, n. 15 above. Bonner makes reference to the response of the US, the UK and the EU to the problems of Al Quaeda related terrorism in his essay in this volume. I would add that whatever the criticisms of the special advocate system are,

436

Developments In the Case Law of the European Court of Human Rights be modified when the case reaches the House of Lords. On the other hand, the rights to respect for possessions, free speech or even to manifest one’s religion, are unlikely on the present state of authorities to engage a Contracting State on expulsion, if for no other reason that difficult questions of whether a local state had a justified claim for a proportionate interference with those rights could not be adequately adjudicated on. Most of all the Ullah reasoning seems wholly unsatisfactory in the context of Article 8. These problems are made apparent in a Court of Appeal judgment in the case of Razgar and others 25 examining the scope of private life that may be protected by Article 8. It is artificial in the extreme to distinguish between a lack of respect by separating the claimant from family members in the host country and the conditions and lack of respect in the destination country.

3.

TORTURE OR INHUMAN OR DEGRADING TREATMENT

It is clear from the line of cases from Soering onwards that Article 3 provides a powerful addition to the non-refoulement principal of the Refugee Convention. It applies even where the state has good reason to consider that the person concerned is a threat to its national security and would otherwise fall outside the scope of Article 33(2) of that Convention. This indeed is the whole basis for the UK’s derogation from Article 5 ECHR under the Anti-terrorism, Crime and Security Act (ATCSA) 2001 and the debatable procedures of the Special Advocate process. At the moment in the United Kingdom it will only be where the treatment abroad reaches the minimum level of severity to constitute inhuman or degrading treatment that the Convention will stay an expulsion. Prolonged detention without a fair trial or access to a court might have this character as well as detention in appalling life threatening prison conditions. Detention where there is a risk of capital punishment will now be precluded under Protocol No. 6. We know from HLR v. France 26 and TI v. UK 27 that treatment contrary to Article 3 does not have to emanate from state agents to be either torture or inhuman or degrading. Racial discrimination may reduce the threshold of severity to constitute inhuman or degrading treatment (see Cyprus v. Turkey 28), and deliberate humiliation in the way expulsions are cared out may engage both Article 3 and

25 26 27 28

as applied to the UK, Anti-terrorism, Crime and Security Act (ATCSA) 2001 detainees, it preserves the vital principle that there must be independent judicial scrutiny of the question whether the criteria for detention are made out. R (Razgar and others) v. Secretary of State for the Home Department [2003] EWCA Civ 840. (1998) 26 EHRR 29. [2000] INLR 211. (2002) 35 EHRR 30.

437

Nicholas Blake the prohibition on collective expulsions in Protocol 4 (Conka v. Belgium 29). It is clear from D v. UK 30 that the treatment may consist of exposure to a deprivation of basic health and social facilities in another country, and need not amount to a breach of a third country’s human rights obligations. The treatment complained of is the deprivation of necessary assistance (see Pretty v. UK).31 This essentially negative obligation where the state controls the parameters of existence may require social and health support for destitute asylum seekers during the determination process see (R (Q and others).32 This case and its implications are more fully discussed in Da Lomba’s essay in this volume. I would agree with her that the essence of the values that Article 3 protects in a case of threatened expulsion is respect for human dignity. This is indeed a value that runs throughout the Convention and should thus be a guide to the kind of unacceptable treatment that is inhuman or degrading, a flagrant denial of a right to liberty and security and a disproportionate interference with respect for private and family life. Although a vague word, it derives content from the case law. Its status in the European Charter on Fundamental Rights,33 should give judges a litmus test for unduly harsh behaviour by the state. In brief, Article 3 remains an important although exceptional restraint on expulsion, unless and until severe violations of other rights are located under Article 3 as inhuman or degrading in the expulsion context.

4.

RESPECT FOR FAMILY AND PRIVATE LIFE

However there is much to be said for Article 8 as the most appropriate location of developments likely to give rights to irregular migrants. It permits a greater measure of fact sensitivity and overall appraisal than is sometimes thought possible under Article 3. It is a balanced right rather than an absolute one and can thus give effect to important concerns of immigration and security policy that a state may have for enforcing an immigration measure. Article 8(1) protects the right to respect for both private and family life. In the seminal case of Abdulaziz 34 and others, the Strasbourg Court recognised that whilst there is no right for foreigners to locate a matrimonial home in a country of their choice, and states have rights to control their own frontier, the Court concluded that the exercise of immigration control had to be compatible with the state’s obligations 29 (2002) 34 EHRR 54. 30 Above n. 4. 31 (2002) 35 EHRR 1. 32 R (Q and others) v. Secretary of State for the Home Department (2003) EWCA Civ

364; [2003] 3 WLR 365. 33 OJ 2000 C 364/1. 34 Abdulaziz, Cabales and Balkandali v. UK (1985) 7 EHRR 481.

438

Developments In the Case Law of the European Court of Human Rights under Article 8. The sweeping submission that immigration control fell outside the scope of Article 8 altogether was rejected, even though a wide margin of discretion was afforded to the states as to how to formulate their immigration policies governing family reunion. 60. The Court is unable to accept the Government’s submission. The applicants are not the husbands but the wives, and they are complaining not of being refused leave to enter or remain in the United Kingdom but, as persons lawfully settled in that country, of being deprived (Mrs. Cabales), or threatened with deprivation (Mrs. Abdulaziz and Mrs. Balkandali), of the society of their spouses there. Above all, the Court recalls that the Convention and its Protocols must be read as a whole; consequently a matter dealt with mainly by one of their provisions may also, in some of its aspects, be subject to other provisions thereof .. Thus, although some aspects of the right to enter a country are governed by Protocol No. 4 as regards States bound by that instrument, it is not to be excluded that measures taken in the field of immigration may affect the right to respect for family life under Article 8. The Court accordingly agrees on this point with the Commission… 67. The Court recalls that, although the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in an effective “respect” for family life. However, especially as far as those positive obligations are concerned, the notion of “respect” is not clear-cut: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation in determining steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals. In particular, in the area now under consideration, the extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the Court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well established international law and subject to its treaty obligations, a State has the right to control entry of non-nationals into its territory. 68. The Court observes that the present proceedings do not relate to immigrants who already had a family which they left behind in another country until they had achieved settled status in the United Kingdom. It was only after becoming settled in the United Kingdom as single persons that the applicants contracted marriage. The duty imposed by Article 8 cannot be considered as extending to a general obligation on the part of a Contracting State to respect the choice by

439

Nicholas Blake married couples of a country of their matrimonial residence and to accept the non-national spouses for settlement in that country.

It is unfortunate that a similar approach was rejected in the case of Maaouia v. France 35 concerned with procedural rights under Article 6. One early beneficiary of the Abdulaziz approach was the case of Berrehab 36 that demonstrated that Article 8(1) could indeed be violated where a residence permit had been revoked on the grounds of marital breakdown, but the expulsion of the non-national father interrupted settled access between father and child. The expulsion was an interference that was in accordance with the law and for a legitimate aim of securing order through immigration control, but the state had failed to justify it as necessary in a democratic society. It was disproportionate to the legitimate aim concerned, and did not represent a fair balance between the public interest and those of the family concerned. The most frequent use of Article 8 to give protection to those who fall to be expelled has been in the case of criminal or other conduct justifying expulsion, deportation or removal. The case law has developed in a sequence of French and Belgian cases concerned with young men of frequently North African origin, who had spent many years resident in the host country and may even have been born here but had not acquired the nationality of the country of origin. The disruption caused to their family and private life was total: they were facing return to countries many had never visited, where their knowledge of the language was patchy, and were no close family members resided. In addition they were deprived of the companionship and social support of siblings, parents and partners. Even when serious crimes had been committed the deportation decisions were considered to be a disproportionate interference with the right to respect for family life that could not reasonably be undertaken anywhere else in the world. The Moustaquim,37 Beldjoudi,38 Boughanemi,39 Nasri 40 line of cases did not however spawn a body of case law in which certain clear lines of assessment could be spelt out to predict when expulsion would be permissible and when precluded. The Court failed to heed the warnings of Judge Martens, of Belgium, who observed that the case law was confused, inconsistent and contradictory and called for a recognition that integrated aliens should be treated equally with the host state’s own nationals in the absence of compelling justification to the con35 Above n. 1. 36 Above n. 5. 37 (1991) 13 EHRR 802. 38 (1992) 14 EHRR 801. 39 (1996) 22 EHRR 228. 40 (1995) 21 EHRR 458.

440

Developments In the Case Law of the European Court of Human Rights trary. It is certain that the Court did not want to travel down a route whereby the principles of Protocol No. 4 of the Convention (non-expulsion of own nationals) were to be applied to integrated aliens, under the guise of an expansive interpretation of Article 8. For cautious governments such as the UK, and an unresolved colonial inheritance of complex nationality laws to deal with, the simple clean lines of Protocol No. 4 and the right of nationals to be admitted to their territory of nationality was too much to adhere to in its international obligations. Indeed, outside the criminal law sphere, deportation of parents of British born children for breach of the immigration law were regularly held to raise no serious question of compliance with Article 8(1) even where the consequence was that British citizen children of tender years were being constructively deported to foreign lands where they would be denied the education, medical and subsistence support that would be their birthright as nationals of the Member States.41 By and large, with the introduction of the Human Rights Act 1998, the UK courts viewed the tests contained in the case law on Article 8 to be no more than a question of fair balance to be performed by the executive, to which the courts would afford a substantial measure of deference on review of their decisions. Thus in Gangadeen and Khan 42 where deportation would have the consequence of separating parents and children in two cases of expulsion in the context of divided families, the Court of Appeal concluded that a mere balance was required with the scales held neutral, and the principle of the paramountcy of the best interests of the child reflected in the UN Convention on the Rights of the Child could not assist to decisively tip the scales against deportation. In an early decision under the HRA in Mahmood,43 the Court of Appeal concluded that insistence on compliance with the immigration rules was a legitimate basis for interference with any family life owed in the United Kingdom, and that even where a claimant had a good basis for admission insistence on the prior entry clearance rule was a proportionate requirement justifying interference with actually enjoyed family life. Mahmood was not on its facts a case where the Strasbourg Court would have had real difficulties in dismissing the claim as unfounded, concerned as it was with family life established only after irregular entry to the UK, and where there were no serious obstacles to the couple either living abroad or applying from abroad for entry clearance to return. The case of Samaroo 44 was of a different kind. On the one hand there was a Guyanese family where the mother had worked for some 20 years in the UK and

41 Poku v. UK (1996) 22 EHRR CD94. 42 Gangadeen and Khan v. Secretary of State for the Home Department [1998] Imm AR

106; [1998] 1 FLR 762. 43 R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840. 44 R (Samaroo) v. Secretary of State for the Home Department [2001] EWCA Civ 1139; [2002] INLR 55.

441

Nicholas Blake had extended family links here. The children and step-children had been born here and never visited Guyana. They were British citizens. The father had been a respectable resident for some 10 years until a single conviction for a very serious offence of being concerned with the importation of a large quantity of class A drugs. It was recognised that implementation of the court’s recommendation for deportation would have a devastating impact on the family life enjoyed here. It was further recognised that there was no likelihood of re-offending and the question was therefore whether the deterrent effect of a deportation decision justified the real damage it would cause to family life. The Court of Appeal nevertheless reviewed the authorities and noted the absence of case law in Strasbourg where a deportation for a drugs conviction had been held to be disproportionate. It also concluded that the test of the necessity of the interference with family life in Article 8(2) was met by an application of a fair balance test. A more strenuous approach to the proportionality of means of promoting the public interest was not required: namely the Secretary of State was not required to demonstrate that there were no less intrusive means of achieving the legitimate object of protecting the public from the scourge of hard drugs. The contribution of Article 8 to immigration policy therefore seemed of limited value and restricted to extreme cases. The discussion of Article 8 has so far focused on the case law related to expulsions. This might be said to concern the negative obligation not to interfere with actually existing family life. There are also positive obligations imposed upon a state to actually admit family members of a person lawfully resident in a host state, such as the admission of children. The height of the barrier set for positive obligations seemed to offer even greater hurdles. In Gül v. Switzerland,45 on a striking set of facts, a Turkish couple with exceptional leave to remain on humanitarian grounds were not permitted to have their minor child join them whom they had left behind in Turkey. A similar result followed in the case of Ahmut v. the Netherlands.46 The decision in Abdulaziz (itself an admission case) remained the exception, where the immigration rules themselves were held to violate Article 8 when taken with Article 14 because foreign spouses of women settled in the UK were treated less favourably than foreign spouses of men settled here. Discrimination as an objection in immigration policy is a fragile argument and two-edged sword, since the respondent state can frequently respond by levelling downwards to an equality of misery. In brief, until quite recently, it could be said that the case law was exhortatory in reminding governments of their international obligations in framing their policies but failed to deliver significant dividends to individual litigants save in the most exceptional case. Even this, however, is to be contrasted to the regime 45 (1996) 22 EHRR 93. 46 (1996) 24 EHRR 62.

442

Developments In the Case Law of the European Court of Human Rights in the United States where even minor penal infringements lead to the automatic deportation of the offender without regard to the period of residence or social consequences for the family. The US Constitution offers no human rights guidance in these cases, and the case law of the Inter-American Commission of Human Rights has not even considered that family life was engaged in these circumstances. The Human Rights Committee under the International Covenant on Civil and Political Rights has not developed a comparable jurisprudence. At present this is a singularly European approach to these questions. However slow the progress, frustrating and disappointing individual decisions may be, this European approach does however provide a significant framework for policy decisions of national governments and the European Union in developing legislative norms and interpretative jurisprudence. Indeed, I would suggest that recent developments have narrowed the margin of discretion afforded to states and the strengthening of the application of the norms to the practical benefit of individuals. What I suggest is that the wide margin of discretion afforded to states in the development of immigration laws has contracted significantly as a result of decisions in cases where the consequence of the denial of the visa or the expulsion from the territory will split up families or place intolerable obstacles to their unity. There are four features I would like to examine: i) the contribution of Community law to the case law; ii) the distinction between positive and negative obligations in respect to private or family life; iii) the development of the concept of private life to non-marital relationships of relevance in immigration decisions; and iv) the setting of firmer parameters to the concept of fair balance where certain consequences are likely to occur. (i)

The Contribution of Community Law

There is a well known and well developed body of case law inspired by EC Directive 64/221/EEC 47 to the effect that criminal convictions are not a sufficient basis for an expulsion decision directed against a national of an EU Member State exercising treaty rights in the host state. For expulsion to be justified, the individual must present a current threat to public policy, which usually requires an adverse assessment of propensity to re-offend. For a long time this case law has not been adopted as general criteria in purely domestic cases where the appellate authority had to consider the balance of compassionate factors over the requirements of the public good. One of its more significant conclusions was in 47 Council Directive 64/221/EEC of 25 February 1964 on the co-ordination of special

measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health, OJ Sp. Ed. 1963-64, 117.

443

Nicholas Blake a case arising from Germany under the Turkish Association Agreement between the EU and the Government of Turkey where in certain cases Turkish workers admitted to the territory of the EU and resident here for a number of years, are entitled to the renewal of their resident permits subject to the requirements of public policy. In Nazli 48 such a worker had been remanded in custody for some 18 months before being sentenced to a suspended sentence for involvement in the supply of dangerous drugs. He was liable to deportation under German rules. The ECJ held however, that public policy means the same as in Directive 64/221/EEC and this expressly prohibited the expulsion of criminals to deter others. Present dangerousness was required, and a person could not be both rehabilitated and dangerous. Although there remains a keen debate as to whether a person can be a registered member of the labour force if sentenced to a custodial sentence, the case emphasises (as does Calfa v. Greece 49) that interference with fundamental rights cannot be justified by mechanical application of rules designed to promote public policy at the expense of the individual. What is of interest is that in the earlier case of Bonsignore 50 the ECJ had described the principles of Directive 64/221/EEC as doing no more than giving effect to the principle of proportionality as set out in Article 8 of the ECHR. The papers of Guild and Bell in this volume discuss some of these cases and the role of EU legislation in this area. It is a fact noted by the UK Court of Appeal decision in Samaroo that by 2001 the Strasbourg Court had never precluded deportation where a drugs conviction was involved, and laying great emphasis on the state’s ability to deport to protect the public against the scourge of drugs, even where there was no criminal history (Aftab v. Norway 51) and even though such expulsion might not be justified in EU law (Caglar v. Germany 52). It seemed that whilst the institutions of the EU were developing the concept of proportionality in Article 8 in a a practical and effective way, the Strasbourg Court had for long deferred to policy choices made by contracting states. In the case of Amrollahi v. Denmark 53 however, the “drugs drought” was beaten where a case of intended deportation of an Iranian husband causing insuperable separation from his Danish family was held to be disproportionate despite the fact that the basis for the decision was importation of dangerous drugs. This was not a direct dialogue between the two European Courts but is perhaps at least a recognition that developments in one sphere 48 Case 340/97 Nazli v. Stadt Nürnberg [2000] ECR 1-957. 49 Case 348/96 Calfa v. Greece [1999] ECR I-11. 50 Case 67/7 Bonsignore v. Oberstadtdirektor der Stadt Köln [1975] ECR 297. 51 Application No. 32365/96, Eur. Ct. HR, admissibility decision of 4 May 2000. 52 Application No. 62444/00, Eur. Ct. HR, admissibility decision of 7 Dec. 2000. Both

Aftab and Caglar were cited and relied on in Samaroo, above n. 44. 53 Application No. 56811/00, Eur. Ct. HR judgment of 11 July 2002.

444

Developments In the Case Law of the European Court of Human Rights might have relevance for assessments in another. Why should it be harder for the state to expel a Turkish worker who has committed an offence than the spouse of a British national? In July 2002 the ECJ delivered two significant decisions in the cases of Carpenter v. SSHD 54 and MRAX v. Belgium.55 In the former case, a non-national wife of a British businessman who resided in the UK but transacted business in France was faced with removal as someone who had no leave to remain. She might have returned abroad and sought readmission under the immigration rules as a spouse, assuming her previous breach of the law was not held against her. The husband had no need for or entitlement to an EU residence permit from his own government and no directive required the UK to recognise the wife as a family member of an EU national and therefore entitled to a resident permit. The Court nevertheless concluded that the husband was exercising a Treaty right to give and receive services abroad and that administrative decisions by the UK should not disproportionately interfere with such a right. The expulsion of the wife would interfere with the husband’s right of residence as he would be less able to pursue his services if he either was bereft of a wife or had to relocate abroad outside the EU. The Advocate General’s Opinion was expressly based on Article 8(2) of the ECHR and the absence of sufficient factors to justify the expulsion of the wife. Prior residence without authority was not enough. In the MRAX case, the provisions of Belgian law that required the foreign spouse to obtain an entry clearance from abroad before admission to the territory to join the Belgian or other EU worker was held to be incompatible with Community rules that afforded a right to a visa that could in many instances be properly granted on arrival. Again the importance of a respect for the right to enjoy family life was emphasised by the Court as part of its conclusions for its decision, and shows that entry clearance and visas should be used as way of granting rights to those who are entitled to them as opposed to an obstacle. These two cases demonstrate that rights to reside and undertake economic activity in the EU and a right to every facility to demonstrate qualifying status as a spouse could not without good reason be interfered with by expulsion or denial of admission to a spouse. This gives proportionality real teeth as opposed to the somewhat theoretical balance previously noted. More significantly it poses the direct issue, if denial of residence to a family member is an interference with the right of residence of an EU national quae his economic activity, then surely it would be no less of an interference with the right of residence of a British national quae national-

54 Case C 60/00 Carpenter v. Secretary of State for the Home Department [2002] ECR

1-6279. 55 Case C-459/99 Mouvement contre le racisme, l’antisémitisme et la xénophobie ASBL

(MRAX) v. Belgian State [2002] ECR I-6591.

445

Nicholas Blake ity where a family member faces expulsion. The reluctance of the Strasbourg Court and indeed the UK Court of Appeal in Phull 56 to recognise constructive deportation or interference with a right by removal of a spouse or child or parent is surely ripe for review. Article 8 played some role in the decisions in the joined cases of Baumbast and R 57 in September 2002 where a right of the child to have its non-national mother remain to give effect to its right of residence to pursue education was in part derived from the concept of respect for family life. Having previously only hinted at the relationship between human rights and the construction of community legislation, this group of cases materially advanced the debate in creating bold and innovative jurisprudence of considerable importance. All these cases are more fully discussed by Szyszczak in this volume. I would debate her suggestion that Baumbast was no advance on the Martinez Sala 58 decision in terms of a directly effective right of residence derived from Article 18 of the Treaty on European Union (TEU). Sala was a case about discrimination in social security rights where the State had extended a residence permit for a former worker. In Baumbast the residence permit was precisely in issue for the whole family and on a strict reading of national and EU rules there was no right of residence as such. A purposive approach to both human rights implications and the broad terms of the TEU yielded a right of residence and regularisation, rather than merely a right not to be discriminated against once residence had been granted. (ii)

Positive and Negative Obligations

The Court has frequently indicated that the notion of respect is not clear-cut and may involve both positive obligations to support family life and negative ones to refrain from interference with it. As we have noted above, an immigrant is more likely to succeed in claiming than an immigration measure is disproportionate if it can be characterised as a breach of the negative obligation not to disproportionally interfere with family life established in the territory rather than an implied duty as part of the positive one. Given that there is no right of admission to the territory of another state for family life purposes, the notion of respect as positively requiring a certain set of immigration rules has traditionally afforded a generous margin of appreciation to Contracting States as in the Gül case. Nevertheless in an important judgment in Sen v. Netherlands,59 the court revisited its previous decisions in Gül and Ahmut and reconsidered the requirements of 56 Phull v. United Kingdom (1998) 25 EHRR CD166. 57 Case C-413/99 Baumbast and R v. Secretary of State for the Home Department [2002]

ECR-1 7091. 58 Case C-85/96 Martínez Sala v. Freistaat Bayern [1998] ECR I-2691. 59 (2003) 36 EHRR 7.

446

Developments In the Case Law of the European Court of Human Rights respect in a much more helpful way. It was held to be intolerable to require a family lawfully established in the Netherlands to chose between its continued residence there and the educational and social rights of the elder children and step-children and abandoning a younger child left behind in the state of origin. The notion of respect had been violated where such a consequence necessarily followed. This significantly narrows the gap between positive and negative obligations, and moreover, enables a stronger case to be mounted that henceforth where a state has permitted a family to settle and reside within its borders future action expelling one member is likely to be “degrading treatment ” or a breach of the negative obligation of respect for the existing established family unit. In either eventuality the margin of discretion is narrowed considerably where the consequence of the decision is to enforce family separation. Another aspect of the notion of respect emerged in the case of Ciliz v. Netherlands 60 where access between father and child had been interrupted following marital breakdown. The state expelled the father at a time when an application for access to the child was pending and had not been resolved by the family court, thus preventing the parent from establishing that continued contact was in the child’s best interests, which would in turn have had impact on whether expulsion should proceed. Respect here required access to a court to establish whether family life should continue and the premature expulsion was an unjustified interference with this requirement of respect. (iii)

The Scope of Private Life

In a controversial decision in B v. Secretary of State for the Home Department,61 the UK Court of Appeal concluded that deportation of a father whose contact with wife and children had been terminated after commission of a serious sexual offence and sex offender registration, nevertheless had a private life in the sense of his broader social relations and ties with the UK that would be disproportionately interfered with by deportation. It would be sending him into exile. The Strasbourg Court has developed the notion of private life in a number of significant ways. First, it embraces personal and intimate relationships that presently fall outside the scope of family life: non-marital relationships of a homosexual or heterosexual nature are covered. Thus in one Court of Appeal decision of Z, A and M 62 separation from a gay partner was acknowledged to require proportionate justification to comply with Article 8(2). Secondly, even where there were family relationships concerned, private life as embracing a wider social circle of 60 [2000] 2 FLR 469. 61 [2000] 2 CMLR 1086; [2000] Imm AR 478. 62 Z, A and M v. Secretary of State for the Home Department [2002] EWCA Civ 952,

[2002] Imm AR 560.

447

Nicholas Blake friends has been referred to in both Nasri and the recent decision of Jakupovic v. Austria 63 as requiring respect and justification. The foundation for this jurisprudence may be the Court’s remarks in the case of Niemitz:64 it would be too restrictive to limit the notion (of private life) to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.

Thirdly, private life is engaged as an aspect of physical and mental integrity, so where expulsion could aggravate the mental health of an irregular migrant by depriving him of necessary treatment to keep him sane and stable it engages the notion of respect for private life. In Bensaid v. UK65 the Court said: 46. Not every act or measure which adversely affects moral or physical integrity will interfere with the right to respect to private life guaranteed by article 8. However, the court’s case law does not exclude that treatment which does not reach the severity of article 3 treatment may none the less breach article 8 in its private life aspect where there are sufficiently adverse effects on physical and moral integrity. 47. Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name and sexual orientation and sexual life are important elements of the personal sphere protected by article 8. Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity. Article 8 protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world. The preservation of mental stability is in that context an indispensable precondition to effective enjoyment of the right to respect for private life.

This has recently been confirmed in an important decision of the UK Court of Appeal decided after the Ullah case, where removals to Germany under the Dublin Convention were quashed as arguably contrary to human rights obligations by reason of their impact on the mental health of the claimants (see Razgar and others).66 These are all welcome developments and enable a broader 63 Application 36757/97, Eur. Ct. HR judgment of 6 February 2003. 64 (1992) 16 EHRR 97. 65 (2001) 33 EHRR 10. 66 Above n. 25.

448

Developments In the Case Law of the European Court of Human Rights field of social relations with employers, doctors, friends and neighbours to be taken into consideration. Plainly, only a strong case will trump considerations of immigration control. (iv)

Judicial Determination of Proportionality

In the case of Boultif v. Switzerland 67 the Court had to deal with a case of a recent immigrant to Switzerland married to a Swiss national who had committed a series of criminal offences. It decided that it was necessary to give guidance to the relevant process of balance involved in the justification of an interference with family life by reason of criminal conduct. In a passage that was intended to represent the distillation of the guiding principles it said: 46. The Court recalls that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens. To that end they have the power to deport aliens convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. 47. Accordingly, the Court’s task consists in ascertaining whether the refusal to renew the applicant’s residence permit in the circumstances struck a fair balance between the relevant interests, namely the applicant’s right to respect for his family life, on the one hand, and the prevention of disorder and crime, on the other. 48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other’s country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society. In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant’s conduct in that period; the nationalities of the various persons concerned; the applicant’s family situation, such as the length of the marriage; and other factors expressing the

67

(2001) 33 EHRR 50; [2001] 2 FLR 1228.

449

Nicholas Blake effectiveness of a couple’s family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.

When this case was first cited to a division of the British Court of Appeal, one judge commented but where is the margin of appreciation? In the Razgar case, a subsequent division recognised that the Court as a judicial body must make the judgment itself: The importance of Boultif is twofold: first it provides a guide as to the criteria that are relevant to the article 8(2) exercise; and secondly, it shows that the court is willing to find a breach of article 8 after having itself conducted a careful review under article 8(2). Other similar recent decisions of the ECtHR are Jacupovic v. Austria App No 36757/97 and Yildiz v. Austria App No 37295/97.

A few months earlier another division of the Court of Appeal in the case of Shala 68 had decided that requiring a Kosovan asylum seeker to return to Pristina to obtain entry clearance to join a Czech wife he had married here whilst there was a long delay in determining his asylum claim was a disproportionate interference with the right to respect for family life. In both cases clear limits are being placed on the wide deference or margin of appreciation that the courts are prepared to grant to Contracting states in the formulation and application of immigration policy. Sweeping statements of general practice must yield to a particularised consideration of factors that point in a different direction. What is significant about Boultif and the cases that follow is, in my opinion, a recognition that the nationality of the parties is an important factor. This might eventually lead to a rule mirroring Community law that restores the constructive deportation argument, where it would be unreasonable to expect the national spouse to abandon his or her country of residence and nationality for the uncertainties of life elsewhere. Secondly, I read the conclusions of the Strasbourg Court’s judgment in Boultif as indicating that where the consequence of deportation would be to split families (even in the absence of children) because there were insuperable obstacles to family life being lived elsewhere, then the deportation is disproportionate. This again would be a significant border to the margin of discretion, although it remains to be seen whether the decisions in Boultif, Amrollahi, Jacopovic and Yildiz will be applied to cases where the deportee is

68 Shala v. Secretary of State for the Home Department [2003] EWCA Civ 233.

450

Developments In the Case Law of the European Court of Human Rights considered to be still dangerous by reason of a continuing series of offences or conviction of a drugs offence of the highest order of criminality.

5.

CONCLUSIONS

The case law of the ECHR sets judicially supervised limits to the consequences of an expulsion or certain refusals of admission. In doing so, it gives a minimum content to the core concept of dignity that is distributed throughout the Convention as a founding value. The case law operates on governments and legislatures inside the EU in the formation of its migration policy. It seems unlikely that the application or interpretation of that policy could conflict with established human rights principles. It also enables the individual to litigate in reliance on the case law in national courts and the Strasbourg Court itself, using such procedures as are available to ensure state compliance with these human rights. As the issues become clearer, and as more materials become available whether in the form of treaties, resolutions, or decisions of other international bodies relevant to the treatment of migrants, the notion of respect, dignity and the justification for a proportionate interference will yield a firmer set of principles and a narrower margin of appreciation depending on the facts of the case. It is worth recalling the long hard slog of British transsexuals in the Strasbourg Court. In 1986 in the case of Rees,69 a claim for recognition of post-operative gender for all legal purposes was dismissed. The Court concluded that states had a broad margin of appreciation on how to deal with a novel and controversial concept. The matter needed to be kept under review however. Further challenges were regularly dismissed until July 2002.70 Faced with the UK Government’s reluctance to legislate on the question, the Court decided that there was no longer any scope for the margin of appreciation. The case succeeded, and with it came a raft of rights including the right to marry in the new identity. The law of humanity is thus progressive and incremental, not technical or static. Some migrants who have contributed to their host society’s economy and face dire circumstances abroad will be protected from expulsion and refusal of admission by these principles.

69 Rees v. UK (1987) 9 EHRR 56; [1987] 2 FLR 111. 70 Goodwin v. UK (2002) 35 EHRR 18; I v. UK (2003) 36 EHRR 53.

451

This page intentionally left blank

LIST OF CONTRIBUTORS

Mark Bell is a graduate of the University of Ulster, Jordanstown. In 2000, he was awarded a doctorate in law by the European University Institute, Florence. Within the field of EU law, his principal research interests include issues relating to equality and discrimination, and immigration and asylum. He is the author of Anti-discrimination Law and the European Union (Oxford: OUP, 2002). He works closely with a variety of non-governmental organisations at the European and national level in the field of combating discrimination. From January to June 2004, he will be a Jean Monnet Fellow at the Robert Schuman Centre of the European University Institute. Didier Bigo is Professor of International Relations at Sciences-Po, the Institut d’Etudes Politiques de Paris and a researcher at CERI/FNSP. He is also the Director of the Centre for Study of Conflict and the editor of the quarterly journal Cultures & Conflits published by l’Harmattan. Nicholas Blake QC has practised in the field of immigration, asylum, free movement and human rights law for 28 years. He has appeared in a number of leading cases referred to in this book including Chahal v. UK, D v. UK (Strasbourg) Surinder Singh, Radiom and Shingara, Barkoci and Malik, Baumbast and R (Luxembourg), JCWI, Q and others, Ullah, Razgar, Abbasi, Farrakhan (Court of Appeal); he has appeared as special advocate in the national security cases of Rehman and A and others. He has written and lectured extensively on immigration and asylum law and is the co-author of Immigration Asylum and Human Rights (Oxford: Oxford University Press, 2003) as well as a past editor of Macdonald’s Immigration Law and Practice in the United Kingdom and a present contributor to Jackson’s Immigration Law and Practice. Barbara Bogusz is a Lecturer in Law at the Nottingham Law School having previously been a lecturer at the University of Leicester. Her research interests include the eastern enlargement of the European Union, fundamental rights, immigration and asylum issues within the context of the justice and home affairs policy of the EU, the application of the open method of coordination to immigration and e-conveyancing. David Bonner holds degrees from Leicester University and from Queen’s University at Kingston, Ontario, Canada. He is a Senior Lecturer in the Faculty of Law at the University of Leicester, teaching public law and human rights. One of his research specialisms is terrorism and the law.

List of Contributors Linda Bosniak is Professor of Law at Rutgers University. She has written widely on the subjects of immigration, citizenship, rights, and nationalism in law and political theory. She holds a B.A. from Wesleyan University, an M.A. from the University of California at Berkeley, and a J.D. from Stanford Law School. She recently completed a year as a Faculty Fellow and Visiting Professor at Princeton’s Law and Public Affairs Program. In 2003-2004, she will serve as Director of the year-long faculty seminar on “Citizenship” at the Center fror the Critical Analysis of Contemporary Culture (CCACC) at Rutgers. She is currently writing a book entitled The Citizen and the Alien (Princeton University Press, forthcoming). Ryszard Cholewinski is a Reader in Law at the University of Leicester. He has written extensively in the field of migration and human rights. Author of Migrant Workers in International Law, published by Oxford University Press in July 1997, he is working on a number of research projects relating to the protection of migrant workers and international labour standards, the development and implementation of the EU acquis on migration and asylum and the human rights of irregular migrants. Adam Cygan is a Lecturer in Law at the University of Leicester and has taught at the Universities of Warsaw, Kings’ College London and Nottingham. He has written in the area of EC law and governance and is particularly interested in issues relating to the enlargement of the EU. His research interests include the eastward enlargement of the European Union, institutional reform of the European Union and the relationship between national parliaments and the European Institutions. Sylvie Da Lomba is a Lecturer in Law at the University of Leicester having studied at the University of Paris I Panthéon-Sorbonne and undertaken postgraduate studies at the Universities of Paris and Paris II and the University of Strathclyde. She completed a doctorate in law at the University of Glasgow. She joined the University of Leicester as a Lecturer in Law in September 2002. Kees Groenendijk is Professor of Sociology of Law and Director of the Centre for Migration Law at the University of Nijmegen, the Netherlands. He is Chairman of the Standing Committee of Experts on international immigration, refugee and criminal law (Meijers Committee). Recent publications include: Western Europe and its Islam (2001, with others); The Legal Status of Third Country Nationals Who Are Long Term Residents in a Member State of the European Union (2001, with E. Guild and R. Barzilay) and K. Groenendijk, E. Guild and P. Minderhoud (eds), In Search of Europe’s Borders (2003). Elspeth Guild is Professor of European Immigration Law at the University of Nijmegen, Netherlands, and also a partner at the London law firm Kingsley Napley. She is the author of a number of books on the development of citi-

454

List of Contributors zenship, immigration and asylum law at the European and national levels. She lectures widely in Europe on the subject. Theordora Kostakopoulou is Senior Lecturer in European Law and European Integration at the University of Manchester. She was formerly a Jean Monnet Lecturer in European Law and European Integration, and Deputy Director of the Centre for European Law and Practice at the University of East Anglia. Her research interests lie in European Public Law, European Integration, in the intersection of the European Union Law and Political Theory, European Citizenship and Migration Law and Policy. She is the author of Citizenship, Identity and Immigration in the European Union: Between Past and Future (Manchester: University Press 2001). Paul Minderhoud is a senior researcher at the Centre for Migration Law of the University of Nijmegen, the Netherlands. His doctoral thesis is a socio-legal study into the differences between immigrants and native citizens in the implementation of the child benefits and disability insurance legislation in the Netherlands: Voor mij zijn ze allemaal gelijk (Amsterdam: Thesis Publishers 1993). His main research interests are the juridical and sociological aspects of immigrants and social security. He is co-editor of the European Journal of Migration and Law. Valsamis Mitsilegas is the Legal Assistant to the House of Lords European Union Committee. Prior to this appointment he was a research associate at the Centre for European Politics and Institutions, University of Leicester, working mainly on the ESRC-funded project “Towards a New European Governance of Internal Security”, funded within the framework of the ESRC “One Europe or Several” Programme. The project focused on the development of EU policies on organised crime and irregular immigration. He has taught EU law at Kent, Edinburgh and Leicester Universities and EU History and Politics at Leicester. Steve Peers is Professor of Law at the University of Essex. He received a B.A. (Hons.) History from McMaster University (Canada) in 1988 and graduated with a LL.B. from the University of Western Ontario in 1991, and an LL.M. in EC Law from the LSE in 1993. His research interests include EU Justice and Home Affairs, External Relations, Human Rights, Internal Market and Social Law. He is a regular contributor to Statewatch. Ryszard Piotrowicz is a Professor of Law at the University of Wales, Aberystwyth. His research interests include International Law, International Humanitarian Law, Nationality, Refugee Law, Trafficking and Smuggling of Human Beings. He is currently engaged in a major project that looks at the legal response to people trafficking at the international, regional and national levels. He has been an Adviser to the Pakistan People’s Party on the detention of, and criminal charges brought against, Asif Ali Zardari (2001) and a Consultant to United Nations High Commission for Refugees on trafficking and refugees (2002), Harrisons (Belgrade energy law firm) on the 455

List of Contributors status of Yugoslavia (2002), the European Commission and the European Law Academy on EU asylum and trafficking law (2002, 2003). Jillyanne Redpath is an Associate Legal Officer in the Legal Services section of the International Organization for Migration, Geneva. During her time at IOM she has worked on issues such as migrants’ rights, comparative immigration policies, and trafficking in human beings. Prior to joining IOM Jillyanne completed a Master of Laws at the University of Cambridge focusing on international law and human rights. She has previously worked as a Lecturer at the School of Law of Deakin University, Australia and as a solicitor at the law firm, Allens Arthur Robinson, Australia. Erika Szyszczak is a Jean Monnet Professor of European Law ad personam at the University of Leicester where she is also the Professor of European Competition and Labour Law and Director of the Centre for European Law and Integration (CELI). Her research interests include new forms of governance in the EU. She has acted as an advisor to the EC Commission and participated in a number of EU law training projects in the Accession States to the EU. Patrick A. Taran is Senior Migration Specialist at the International Labour Office (ILO) in Geneva. Previous posts were Secretary for Migration of the World Council of Churches, Director of Migrants’ Rights International, and Program Officer for the UN inter-agency International Migration Policy Program. Earlier experience included directing the South American Refugee Program in Seattle and a decade at the Immigration and Refugee Program of the National Council of Churches of the USA. Simon Tonelli is Head of the Migration Division of the Council of Europe’s Directorate on Social Cohesion and Roma/Gypsies Department of the Council of Europe, and Secretary to the Council of Europe’s European Committee on Migration. Prior to joining the Council of Europe he worked as lawyer in the UK specialising in immigration and discrimination law. Recent articles include “Migration and Democracy in Central and Eastern Europe”, Transfer Review, Vol 9. No 3, Autumn 2003. Johannes van der Klaauw has a Masters in Theology/Comparative Religion and a Bachelors in Philosophy from the University of Leiden, the Netherlands. He was a research assistant at the Faculty of Theology of Leiden University from 1981 - 1985. From 1986 - 1989 he served as a staff member at the secretariat of the Dutch section of Amnesty International. From 1989 to 1995 he headed the Amnesty International European Union Office in Brussels as the organisation’s EU Representative, and from 1992 also as its Executive Director. In 1995 he joined the UNHCR Regional Office in Brussels as Senior European Affairs Officer. He is responsible for the liaison with the EU institutions, particularly regarding the harmonisation of asylum policies in Western Europe, asylum capacity- and institution-building in the EU enlargement process, the external dimension of EU justice and home affairs, 456

List of Contributors and the EU common security and defence policy. He is a regular contributor to conferences and academic publications on asylum policy in Europe.

457

This page intentionally left blank

INDEX

Accession 7, 8, 73, 75, 239, 244, 255, 303 Afghanistan 126, 162, 180, 397 Aliens 19, 22, 23, 26, 27, 34, 43, 390, 391 Aliens Act (Dutch) 391, 393, 403 Asylum & Immigration Act 1996 382 Asylum, Nationality & Immigration Act 2002 101, 113 Anti-terrorism, Crime & Security Act 2001 109, 110, 111, 437 Asylum 11, 18, 20, 22, 26, 32, 39, 64, 75, 78, 79, 80, 81, 83, 86, 88, 99, 100, 101, 104, 105, 108, 115, 120, 122, 123, 124, 127, 134, 167, 168, 170, 179, 184, 207, 212, 213, 226, 223, 293, 308, 352, 373, 388, 395, 405, 431,438, 450 Bogus Marriage Prevention Act 1990 389 Border Controls 12, 18, 188 Border Guards 103, 118 Broad Economic Guidelines of the Member States & the Community 410 Carriers Liability 11 CEEC Nationals 8 Centre for Information, Discussion and Exchange on the Crossing of Frontiers and Immigration (CIREFI) 30ff Charter of Fundamental Rights for EU 184, 348, 362, 412, 426, 429, 438 Citizenship 4, 407, 408, 409, 410, 412, 417, 419, 425, 426, 428 Civil Liberties 12, 80, 82 Civil Society 229, 236, 259 Civil Society Organisations 259ff, 289 Clandestine Immigration 70, 75, 76, 86, 325, 354, 372, 427

Commission for Human Rights 305 Commonwealth Immigrants Act 1962 50 Community Charter of the FSR of Workers of 1989 412 Constitution for the EU 10, 38, 184 Convention on the Participation of Foreigners in Public Life 304 Contonou Agreement 198, 202, 216 Council of Europe 301ff, 436 Crime Criminal Law 4, 12, 24, 37, 74, 82, 150, 391, 393 Deportation 20, 22, 105, 390, 398, 413, 423, 441 Discrimination 13, 71, 89, 335, 345ff, 354, 356, 362, 420 – Race 13, 426, 429 – Nationality 13 Dublin Convention 26, 71, 104, 127, 170, 190 Dulding xvii, 18 Early Warning System 31 Economic Migration 124 European Economic Agreement 9 EES 222, 361, 408 ECHR xix, 4, 12, 20 22, 26, 28, 94, 96, 98, 101, 106, 109, 111, 112, 151, 154, 164, 171, 176, 178, 184, 302, 304, 347, 381, 382, 383, 385, 391, 394, 400, 413, 415, 416, 422, 424, 425, 431ff European Court of Human Rights 12, 99, 112, 113, 179, 382, 383, 384, 431ff ECJ xx, 5, 9, 224, 410ff Education 14 European Convention on the Legal Status Of Migrant Workers 1953 303, 379 Equal Treatment 346, 348, 427 Equal Treatment Directive 357

Index EURODAC 104, 190 EUROJUST 109 EUROPOL 109, 161, 354 EUROSTAT 31, 37 Europe Agreements 351 European Migration Observatory 39 EU Charter of Fundamental Rights xix, 106, 164, 179 EU Network of Independent Experts In Human Rights 100, 105, 428 European Social Charter 1961 303, 380, 381 Expulsion 3, 11, 13, 15, 21, 173, 186, 190, 193, 390, 440, 443 Expulsion Order 6 Former Yugoslav Republic of Macedonia (FYROM) 215 Fortress Europe 39, 74, 76, 78, 79, 80, 81, 87, 89, 176, 254 Freedom, Security & Justice 4, 10, 176, 183, 223 Geneva Convention 1951 13, 20, 21, 26, 27, 28, 78,126, 128, 151, 169, 174, 176, 178, 181, 213, 318 Health Care See medical treatment High Commission of Refugees 78 Human Rights 29, 100, 118, 119, 130, 138, 142, 146ff, 159ff, 173, 181, 208, 212, 214, 236, 240, 278, 285, 288, 301, 322, 324, 333, 339, 360, 400, 408, 409, 412, 414, 417, 422, 427, 428, 431ff Human Rights Act 1998 110, 112, 431, 441 Identification Act (The Netherlands) 389 Illegal Migrants xvii, xx, xxii, 3, 4, 5, 9, 10, 13, 15, 25, 29, 36, 88, 118, 127, 162, 163, 173, 175, 176, 186, 187, 211, 249, 388ff, 393, 402, 407 Immigration & Asylum Act 1999 27, 28, 382 Immigration Act 1971 27 Immigration Control 14 International Covenant on Civil & Political Rights (ICCPR) 1966 xix,

460

152, 153, 346, 400 International Convention on the Elimination Of all Forms of Racial Discrimination 1965 347 International Covenant on Economic, Social & Cultural Rights 1966 378 ILO 267ff, 271, 273, 275, 276, 287, 312 ILO Conv 29 (Forced Labour Conv 1930) 139, 281 ILO Conv 87 1948 280-1 ILO Conv No. 97 Migration of Employment Conv 117, 267, 280 ILO Conv No. 98, 281 ILO No. 105 Abolition of Forced Labour 139, 281 ILO Conv No. 100 281 ILO Conv No. 111 Employment & Occupation 281 ILO Convention 143 xxi, 117, 160, 168, 267, 280, 313 ILO Conv No. 182 Worst Forms of Child Labour 139 ILO Recommendation 190 Worst Forms of Child Labour Recommendation 139, 281 ILO Declaration on Fundamental Principals & Rights at Work 1998 280 International Federation for Human Rights 381 International Organisation for Migration (IOM) 34, 86, 131, 138, 141, 154, 263, 268, 271, 284, 286, 287, 291ff International Maritime Organisation 140 Irregular Migration 42, 86, 103, 113, 115,117, 119, 121, 133, 134, 137, 159, 163, 167, 174, 180, 181, 182, 193, 294, 301, 306, 308, 312, 317, 334, 341, 346, 354, 359, 362, 364, 386, 398, 407 Laeken European Council 153, 161, 208, 226 Linking Act (The Netherlands) 390, 401, 402 Lisbon European Council/Lisbon Process 221, 224, 237, 427 Long Term Residents 10, 427

Index Maghreb States 9, 75, 76, 79, 82 Medical Care xxi, 14, 24, 363ff, 427 Migrant (Workers’) Families xxi, 6, 28, 140, 164, 311ff, 410, 411, 416, 420, 425 Mutual Recognition – expulsion orders 12, 172, 173, 190 – return decisions 180 Nationality, Immigration & Asylum Act 2002 382 NGOs 80, 87, 260, 263, 265, 272, 312 Odysseus Academic Network 18 Office of the High Commissioner for Human Rights (OHCHR) 269, 273, 285, 287 OMC 221, 427 Organisation for Security and Cooperation in Europe (OSCE) 140 Platform for International Co-operation on Undocumented Migrants (PICUM) 262, 403 Positive Action 14 Public Health 5, 6 Public Policy 5, 6 Public Security 5, 6 Race Equality Directive (EU) 349, 352, 357, 362 Race Relations (Amendment) Act 2000 15 Re-Admission Agreements 82, 194 Refoulement 24, 91, 96, 130, 152, 173, 176, 318, 437 Refugees 118, 124, 132, 133, 134, 151, 407 Refugee Convention – Convention Relating to The Status of Refugees 1951 105, 109, 115 Regularisation 35 Repatriation 144, 159, 167, 173, 178, 179, 180, 181, 187, 210, 292, 295, 394 Removal of Migrants 10 Resident Permit 5, 22, 23, 26, 390, 413 Residence Permit xviii Reverse Discrimination 414, 422 Roma 15, 434

Sans Papiers xix, 18, 369 Seville European Council 13, 159, 161, 177, 209, 211, 213, 215, 226, 360 September 11th xvii, 93, 94, 99, 104, 105, 111, 113, 283 Schengen xviii, 11, 12, 26, 70, 71, 74, 75, 76, 77, 84, 88, 96, 101, 108, 119, 167, 169, 190, 239, 240, 241, 243, 245, 246, 247, 285, 391, 399 Sieve Europe 73, 74, 76, 78, 80 Special Immigration Appeals Commission 110, 111 Soering Principle 97, 153 Soft Law 142, 160, 175, 235, 412, 426 State Benefits 5 Stateless Persons 14 Tampere European Council 10, 177, 195, 198, 207, 208, 226, 227, 360 Terrorism 4, 77, 82, 93, 99, 101, 105, 106, 107, 110 Thessaloniki European Council 159, 162, 181, 213 Third Country Nationals (TCNs) xviii, 5, 6, 7, 14, 167, 170, 172, 181, 188, 190, 212, 226, 353, 407, 411, 412, 413, 414, 416, 417, 424, 425, 429 Trade Unions 264, 266, 267, 272, 275 Trafficking In Persons 10, 11, 13, 30, 31, 34, 37, 105, 117, 118, 120, 128, 131, 133, 137, 140, 161,168, 175, 176, 189, 243, 281, 292, 294, 296, 312, 359 – In drugs 88 Trafficking in Persons Protocol 140, 141, 143ff, 174, 175, 284 Undocumented Migrants 43, 50, 321ff, 335, 339 UN Convention against Trans-National Organised Crime (UNCTOC) 120, 140, 141, 209 UN Convention on the Rights of the Child 1989 139, 171, 174, 178 UN Convention for the Elimination of All Forms of Discrimination against Women 1979 139, 379 UN Convention on Migrant Workers xxi, 117, 140, 168, 181, 216,

461

Index 279, 280, 311ff, 347, 360, 362, 363, 379, 386 UN Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Other 1949 139 UN Special Rapporteur on the Human Rights of Migrants 269, 273, 285, 287 UN Centre for Human Rights 145, 146, 147, 271, 147 Universal Declaration of Human Rights 1948 139, 278, 331, 378 UN Human Rights Committee 177 UN Commission on Human Rights 284, 295 UN High Commissioner for Refugees 132, 135, 147, 149, 151, 263, 273 UNHCR 115, 118, 125, 127, 128, 130, 131, 147, 149, 151 UNESCO 269, 271 UN Resolution 1373 (2001) 93, 95 Visas 6, 9, 72, 77, 85, 88, 89, 91,101, 102,121,133, 171, 213, 246, 250, 302, 351, 359, 400, 412, 413, 431 Visa Information System 171, 188 Vienna Council 224 WHO 269, 366 War Crime 154 Work Permit xviii Xenophobia

462

282, 289, 365æ

Immigration and Asylum Law and Policy in Europe 1. E. Guild and P. Minderhoud (eds.): Security of Residence and Expulsion. 2000 ISBN 90-411-1458-0 2. E. Guild: Immigration Law in the European Community. 2001 ISBN 90-411-1593-5 3. B. Melis: Negotiating Europe’s Immigration Frontiers. 2001 ISBN 90-411-1614-1 4. R. Byrne, G. Noll and J. Vedsted-Hansen (eds.): New Asylum Countries? Migration Control and Refugee Protection in an Enlarged European Union. 2002 ISBN 90-411-1753-9 5. K. Groenendijk, E. Guild and P. Minderhoud (eds.): In Search of Europe’s Borders. 2003 ISBN 90-411-1977-9 6. J. Niessen and I. Chopin (eds.): The Development of Legal Instruments to Combat Racism in a Diverse Europe. 2004 ISBN 90-04-13686-X 7. B. Bogusz, R. Cholewinski, A. Cygan and E. Szyszczak (eds.): Irregular Migration and Human Rights: Theoretical, European and International Perspectives. 2004 ISBN 90-04-14011-5

Martinus Nijhoff Publishers – LEIDEN/BOSTON