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< Viewpoints
< 2007
“The new European migration policy should be based on human rights
principles, not xenophobia”
[17/12/07] The demographic trend in Europe gives a clear message: the ageing
continent needs more immigration. However, anti-foreigner parties have advanced
or maintained their strong position in recent elections. At the same time, some
of the mainstream parties - instead of explaining facts and defending the rights
of immigrants - have copied slogans from the extremists and thereby legitimized
xenophobic jargon. Expressions like “if they do not love our country they can
get out” have been repeated from the rostrums. This should be deplored.
Such an atmosphere victimizes all foreigners, including genuine refugees and
even citizens with foreign origin. However, the main targets are the irregular
migrants, those who stay in the country without permission. Decisions are taken
to intensify efforts to round them up for deportation.
Each state has of course the right and duty to keep control of its borders and
to know who are inside. Irregular migration can pose problems for the country in
question and may also harm the many migrants who suffer exploitation, including
those who have been trafficked. The challenge for the state is to strike a
proper balance between protecting the rights of those who are inside or at its
borders, and at the same time maintain control of the frontiers.
This is not a small problem. Though precise statistics for obvious reasons are
not available, it is estimated that there are more than 5.5 million irregular
migrants within the European Union and more still in other parts of Europe. For
the Russian Federation it is estimated that they are no less than 8 million.
The irregular migrants may have entered the host country illegally without valid
visas, by avoiding border controls or with false documents. There are also those
who enter legally but overstay their visas; this is likely to account for most
irregular migrants, including those who are trafficked. Migrants may also enter
on a non-working visa but then still take a job.
A humane migration policy requires that we learn more about their present
situation and alternative ways of protecting the irregular migrants. Some steps
in that regard are taken in national programs against Trafficking of Human
Beings. Victims, when identifiable, are in many countries now treated with
respect, given protection and sometimes even a permit to stay, at least for a
limited time.
It should be fully recognized that irregular migrants do in fact have human
rights, even if their right to stay is not protected. Indeed, most human rights
apply without distinction between citizens and aliens. The principle of equality
and non-discrimination means that distinctions between groups are only
permissible if they are prescribed by law, pursue a legitimate aim, and are
strictly proportionate to that aim.
The UN Convention on the Rights of the Child applies also to migrant children
including those who have been denied a permit to stay. For instance, the state
has an obligation to ensure a child’s right to healthcare and education.
The Council of Europe’s Parliamentary Assembly has spelled out the need to
clarify the rights to be enjoyed by irregular migrants. On the basis of the
European Convention of Human Rights and other relevant treaties it highlighted
rights such as the right to primary and secondary education for children, the
right to emergency health care, the right to reasonable working conditions, the
right to have one’s private and family life respected, the right to equality,
the right to seek asylum and be protected from refoulement (enforced return to a
place where the individual’s life or freedom could be threatened) and the right
to an effective remedy before removal.(1)
However, even if the irregular migrants formally have such rights, their
insecure status makes them vulnerable to human rights abuse. In reality, they
are often unable to claim their rights when these have been infringed by
officials, employers or landlords. Exploitation is common. This is the problem
which governments in Europe still have not tackled with sufficient priority.
Another truth now needs to be recognized: a large proportion of the irregular
migrants will remain in Europe and will not - or cannot - be returned to their
country of origin. In some cases this is because removal would constitute
refoulement and is therefore prohibited under international law. In other cases
the removal would not be realistic because nationality or identity are disputed
or because the country of presumed nationality refuses to cooperate. In other
cases the migrants are stateless and there is therefore no country to return to.
This raises the issue of regularisation – government decisions to legalize the
presence of certain irregular migrants. Such moves do not entail any diminution
of the state’s national sovereignty, nor of its right to control its national
borders. They are voluntary acts, similar to amnesties, in which the state
intentionally decides to overlook the infringement of immigration controls in
limited and specific cases.
This is controversial but the Council of Europe’s Parliamentary Assembly, to its
credit, has raised the issue.(2) I do recommend member states to listen to this
signal and seriously consider such regularisation programs as a means of
safeguarding the dignity and human rights of a particularly vulnerable group of
persons.
As in many other fields, the European Union itself is becoming a key player in
the broad policy area of migrations. I had recently a discussion on the issue
with Franco Frattini, Vice-President of the European Commission. He is proposing
a comprehensive EU migration policy which would improve border controls and
prevent illegal employment in the EU countries and at the same time develop
common admission procedures and strengthen integration policy. He also suggests
more development aid to countries of origin.
Measures for stricter border control are already taken with the strengthening of
the Borders Agency (FRONTEX) and the establishment of the Rapid Border
Intervention Teams (RABITs). Cooperation between the EU and the UN High
Commissioner for Refugees has been initiated to ensure that border operations
fully observe international protection standards, including the right to apply
for asylum.
Of particular urgency is that the responsibility to rescue persons at sea is
respected as the first priority by all parties. Moreover, it is crucial that the
principle of non-refoulement is guaranteed so that no one is forced back to a
situation of persecution and torture.
Vice-President Frattini should be commended for trying to push governments
towards more cooperation: there is indeed a need for a common European migration
policy. It is important as well that these moves are also coordinated with
relevant countries outside the EU; the Council of Europe and its Parliamentary
Assembly should be seen as important partners. The aim is a policy based on
facts and human rights, not on xenophobia.
Thomas Hammarberg
Notes
1. PACE resolution 1509 of 2006
2. See PACE Recommendation 1807 (2007):
Regularisation
programmes for irregular migrants
This Viewpoint can be re-published in newspapers or on the internet without
our prior consent, provided that the text is not modified and the original
source is indicated in the following way: "Also available at the
Commissioner's website at
www.commissioner.coe.int"
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