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< Viewpoints
< 2008
“It is wrong to criminalize migration”
[29/09/08] I have observed with increasing concern a trend to
criminalize the irregular entry and presence of migrants as part of a
policy of ‘migration management’. Such a method of controlling
international movement corrodes established international law
principles. It also causes many human tragedies without achieving its
purpose of genuine control.
States do have a legitimate interest to control their borders and can
refuse the entry and stay of persons coming from the ‘outside’. However,
there are binding international agreements about the right of
individuals to seek asylum through fair, rights-based procedures. The
principle of non-refoulement has been established in order to protect
individuals from being sent back to situations which would threaten
their lives or personal safety.
However, many migrants cannot claim refugee status, even if their
enforced return would amount to personal tragedy and/or economic
disaster. Many have not managed to regularize their presence in their
new country and live underground, constantly fearing to be caught by the
police and sent away. A number have lived in the host country for long
periods and may have children at school.
Migrants are finding themselves increasingly targeted and some
governments have even set quotas on how many should be found and
deported through fast-track procedures. It has been necessary – and
important – to make clear that irregular migrants have human rights.
I am now aware of proposals to criminalize attempts to enter a country
or to stay there without a permit. This may be popular among xenophobes
but would be a retrogressive step.
For one thing, to put a criminal stamp on attempts to enter a country
would undermine the right to seek asylum and affect refugees. In
addition, persons who have been smuggled into a country should not be
seen as having committed a crime(1). There are agreed international
standards to protect persons who have been victims of human trafficking
from any criminal liability.
The 1990 International Convention on the Protection of the Rights of all
Migrant Workers and Members of their Families, expressly holds that if
migrants are detained for violating provisions relating to migration,
they should be held separately from convicted persons or persons
detained pending trial. They should not be seen as criminals.(2)
Criminalization is a disproportionate measure which exceeds a state’s
legitimate interest in controlling its borders. To criminalize irregular
migrants would, in effect, equate them with the smugglers or employers
who, in many cases, have exploited them. Such a policy would cause
further stigmatization and marginalization, even though the majority of
migrants contribute to the development of European states and their
societies. Immigration offences should remain administrative in nature.
There are two particular side effects which States should also bear in
mind when they think about resorting to criminal law in order to control
irregular immigration:
Firstly, the issue of over-burdening the court system. When in Italy
recently, I learned that national judges were worried about the
introduction of new criminal offences into domestic legislation which
would target migrants. Courts in several European countries face
problems of excessive length of proceedings, in violation of Article 6
of the European Convention on Human Rights. Indeed, this in turn
encourages a large number of applications before the European Court of
Human Rights.
Secondly, the issue of over-crowding in prisons and detention centres.
Categorizing irregular migrants as “criminals” under national law would
entail their pre-trial and post-conviction detention. It is well-known,
and I have personally witnessed this in several countries, that a number
of Council of Europe member states are faced with a serious problem of
overcrowding and of inhumane and degrading conditions in detention
centres and prisons. Aliens in administrative detention are particularly
vulnerable to such abusive treatment.
In this context, I should like to reiterate my grave concern about the
possibility of detaining irregular migrants in EU member states for a
maximum period of 18 months. This possibility is provided for by the
legislative resolution on the “Returns Directive” which was adopted by
the European Parliament last June. This was a mistake and an unfortunate
response to the urgent need to harmonize European policies in this area.
Political decision-makers should not lose the human rights perspective
in this discussion and should try to formulate a rational long-term
strategy. Such an approach has to include the need for migrant labour to
perform the jobs which nationals very often refuse to take. In other
words, European states should face up to the reality that irregular
migrants are working because migrant labour is in demand.
By way of example, the agricultural sector in southern European
countries is one where irregular migrant workers have been extensively
employed. Sadly, migrants in this field often fall prey to substandard
working and living conditions(3).
Migration is a social phenomenon which requires multi-lateral and
intelligent action by states. Irregular migration has increased and
thrived not only because of underdevelopment in migrants’ countries of
origin. Another root cause is the lack of clear immigration mechanisms
and procedures which can respond to labour demands through regular
migration channels.
It is characteristic that immigration in most European states remains
one of the most complex areas of law. Efforts to simplify immigration
law,
such as those under way in the UK, should be further promoted.. In
this regard, I draw attention to the important guidelines contained in
Parliamentary Assembly’s Recommendation 1618 (2003) and Resolution 1509
(2006) regarding irregular migrants. Member states should endeavour to
establish transparent and efficient legal immigration avenues, as a way
out of irregular migration routes.
Such efforts may well benefit from member states’ accession to the 1977
European Convention on the Legal Status of Migrant Workers: an important
treaty concerning regular migrant workers from Council of Europe member
states. It covers the principal aspects of regular migration, such as
migrant labour recruitment, working and living conditions, social and
medical assistance. Regrettably, after thirty-one years, this treaty has
still only been ratified by 11 member states.
I recommend that member states accede to the 1990 International
Convention on Migrant Workers, the most comprehensive, international
treaty on migrant workers reaffirming and establishing basic human
rights norms for regular and irregular migrants. To date it has been
ratified by four and signed by two Council of Europe member states, even
though many European countries actively participated in its drafting.
Ratification and implementation of this treaty will enhance the
effective protection of all migrant workers’ fundamental rights which
should be an absolute priority for every state’s immigration policy and
practice.
Thomas Hammarberg
Notes
1. Article 5, the 2000 Protocol Against the Smuggling
of Migrants by Land, Sea and Air, Supplementing the UN Convention
Against Transnational Organized Crime
2. Article 17, paragraph 3 of the Convention
3. See, inter alia, Parliamentary Assembly Recommendation 1618 (2003)
Links
Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention Against Transnational Organized Crime
Migrants in irregular employment in the agricultural sector of southern European countries
PACE Recommendation 1618 (2003)
Human rights of irregular migrants
PACE Resolution 1509 (2006)
UK Border Agency
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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