< 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


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"