EU Asylum and
Immigration Policy (4)
Undocumented migrants: Halting the traffic of human beings while
protecting fundamental rights
Contents:
•
Introduction
•
European
Efforts to Reduce Irregular Migration
•
For
more Information
•
Other Papers in this Series
Introduction
Migratory
movements have always happened and today they have become a permanent
global phenomenon. European countries have been, and continue to be,
places not only of mass immigration, but also emigration even today.
The roots of migration are diverse in nature, from war, conflict and
persecution to abject poverty, exclusion, ignorance and natural disasters.
However, we must consider migration in terms of ‘pull’
factors as well as ‘push’ factors. The explosion of the
consumer society in west European countries and the spread of European
and American entertainment and products through globalisation have
played a major role. This is coupled with the continued need for low-wage,
low-status workers in the world’s wealthiest regions.
Therefore,
migration must be considered from a holistic perspective looking
at our policies on development, trade and arms exports. The natural
result is not necessarily open borders, but could rather be humane,
transparent and fair asylum and immigration policies.
Over
the last 15 years most Member States have seen a dramatic increase
in the number of both asylum seekers and clandestine migrants. This
can be attributed at least in part to the ‘zero immigration’
policies of European countries which were put in place in the 1970s.
These policies dictate that virtually the only means to get legal
residence and rights in the EU is by claiming asylum. The figures
are staggering. More than 4.4 million people have applied for asylum
in the last 10 years, with only 20% on average being granted protection.
What have all these other people done?
The
political debate on the situation of undocumented migrants has long
been taboo. At root we must not forget that we are dealing with
human beings and their lives. People may arrive in Europe by a legal
route (e.g. student visas, or as asylum seekers) but find themselves
in an irregular situation (e.g. if war breaks out at home); they
may arrive by illegal means without documents (e.g. via human smugglers
or traffickers), in search of a refuge or to improve their lot.
All too often they find themselves in the uncomfortable position
of being vilified by politicians (of all persuasions) and by the
mass media. They have become our folk devils. However, these are
human beings, who are at high risk of violence, discrimination and
exploitation. Much of the food we eat is the result of hard labour
in European fields by undocumented migrants. Undocumented domestic
workers clean European homes and evidence demonstrates that sweatshops
in the textile sector still exist in Europe. Often only churches
and voluntary organisations are willing to provide the essential
support and resources that these people need.
No
one can be sure of the exact number of irregular migrants in Europe,
but it is clear that we are talking about a lot of people. In recent
years a number of countries have offered amnesties to undocumented
migrants, according to specific rules (e.g. a certain number of
years’ residency). When Belgium launched a regularisation
scheme in January 2000, an unexpectedly high total of 33,000 applications
were filed; including families this amounted to about 60,000 people.
In France’s 1997 regularisation around 90,000 individuals
were given a legal status, and strikingly between 1997 and 2000
Greece regularised over 100,000 people (from 300,000 applications).
Mass regularisations have also happened in Italy (around 250,000)
and in Spain (over 125,000).
The
ease by which people fall into the precarious position of being
undocumented migrants is increasing, as a result of new changes
to asylum procedures and rules and the tightening of border controls.
The Spanish and Italian immigration authorities estimate that in
2000 alone 3,000 people drowned in the Mediterranean trying to reach
the EU. As the European Council for Refugees and Exiles highlight:
‘There has been a significant emphasis in the EU’s
work on the fight against illegal immigration to the detriment of
the development of adequate safeguards for refugee protection or
measures and procedures on admission and legal migration to the
EU. The situation is now one whereby the act of seeking asylum in
Europe has effectively been criminalized.’ (ECRE, June
2004)
This
is in shocking contradiction to the declaration by the national
governments at the European Council in Tampere (1999), which declared
that harmonisation of European asylum and immigration policies would
be based on an ‘absolute respect of the right to seek asylum’.
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European
Efforts to Reduce Irregular Migration
According
to the Commission, Community efforts are aimed at stopping irregular
migratory flows at the source, through aid and support to projects
in the country of origin and transit countries. The aims are stated
as being to improve the situation for potential migrants, and to undermine
and destroy the networks of human traffickers and smugglers.
On
28 February 2002, the Council of Ministers adopted a plan to combat
illegal immigration and the trafficking of human beings in the European
Union. This plan, which is due to be fully implemented by 2005,
identifies a number of areas where action is deemed necessary:
- Visa
policy
The European Commission and Member States are working on a common
European visa scheme, but in the meantime, both the requirements
to attain a visa and cooperation between consular authorities
have been the subject of harmonisation legislation.
- The
exchange and analysis of technical information to improve action
against illegal immigration
A number of policies have been initiated to improve the exchange
and analysis of technical information. Moreover legislation on
short-term residence permits issued to people who have been victims
of activities to facilitate illegal immigration or trafficking
in human beings and who cooperate with the competent authorities,
has been proposed by the Commission and formally adopted by the
Council in April 2004 (COM(2002)71 final). This can be seen as
an attempt to gain access to information increasing the likelihood
of prosecutions and latterly an attempt to protect human rights.
- Readmission
and repatriation policies:
At the Tampere Summit in 1999, the European Council agreed to
call for assistance to countries of origin and transit to be developed
in order to promote voluntary return as well as to help the authorities
of those countries to strengthen their ability to effectively
combat trafficking in human beings and to cope with their readmission
obligations towards the Union and the Member States. The Amsterdam
Treaty conferred powers on the Community in the field of readmission.
The European Council invited the Council of the European Union
to conclude readmission agreements or to include standard clauses
in other agreements between the European Community and relevant
third countries or groups of countries. Consideration should also
be given to rules on internal readmission. Thus, migration has
been integrated into the standard negotiations on aid and trade,
in which the EU has overwhelmingly the stronger negotiating position.
Moreover, EU legislation has been adopted to support common policies
on removal by air (Council Directive 2003/110/EC) and Council
Directive 2001/40/EC on the mutual recognition of decisions on
the expulsion of third- country nationals.
-
Pre-frontier measures:
There have been successive attempts to create a series of migrant
camps in various border regions or areas of large-scale migration,
for instance on the North African coast, to process asylum seekers
trying to reach Europe. British minister, Jack Straw, first proposed
the idea in 2003, and although rejected then, the idea has gained
strength. Italy and Germany are working on a joint plan following
the events of summer 2004, which were revealed at a meeting of
the big five (Italy, Germany, France, UK and Spain) in Florence
in mid-October 2004.
- Penalties
on carriers and those who aid and abet:
In 2001 a Directive was adopted intending to combat illegal immigration
through the harmonisation of the financial penalties imposed by
the Member States on carriers (i.e. rail companies, lorry drivers
etc.) of migrants without proper documents. Under the new provisions,
carriers must ensure that third-country nationals who intend to
enter Member States possess the necessary travel documents and,
where appropriate, visas.
Many
organisations (refugee rights groups, trade unions etc.) have
criticised these rules as they risk placing the responsibility
for assessing an individual’s asylum case on people who
have no training or expertise in the area. Thus, they directly
undermine the universal right to a fair asylum procedure.
Furthermore,
in December 2002, a Directive was adopted (to be implemented by
December 2004) making the following offences:
-
Directly or indirectly aiding the unauthorised entry, movement
or residence of nationals of third countries;
- Participating as an accomplice or instigator in the preceding
offence.
These
offences must be punishable by effective, proportionate and dissuasive
penalties. The provisions are aimed at punishing gangmasters and
trafficking networks, with exemptions available only for close
family of the migrant. The knock-on effect could be that church
and voluntary support of those finding themselves in an irregular
position would be effectively criminalized. This is a worrying
situation.
There
are also policies relating to border management, police cooperation
and the strengthening of the role of Europol (the European Police
Agency).
To
counterweight these aggressive policies against human traffickers
and the beneficiaries of illegal migration to the benefit of the
undocumented migrant, as mentioned above, a Directive was adopted
in April 2004 providing short-term residence permits for victims
of human trafficking who cooperate with the authorities (COM(2002)71
final).
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For
more information
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Other
Papers in this Series
(1)
Recognising peoples’ rights: Qualifying for Refugee Status HTML
PDF (58KB)
(2)
A race to the bottom: Harmonisation of where and how asylum applications
are dealt with HTML
PDF (80KB)
(3)
Tools for integration: Harmonising reception conditions HTML
PDF (57KB)
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