Issue Paper
Criminalisation of Migration in Europe:
Human Rights Implications
Table of Contents
II. An overview of international responses to the trend
of criminalisation of migration. 3
III. Criminal law and implications of its use in the
field of migration. 4
a. Criminal law and victims. 4
b. Implications of the language of criminalisation. 4
IV. European migration law and policy developments
towards criminalisation. 5
a. External border crossing. 5
Irregular entry and the individual 5
Irregular entry and third parties. 6
The Human Rights Challenges. 6
b. Immigrants’ residence and employment 7
The Human Rights Challenges. 8
The Human Rights Challenges. 10
The Human Rights Challenges. 11
e. Implications for social rights. 11
The Human Rights Challenges. 12
V. Implications of current European migration law and
policy. 12
a. External border crossing. 13
b. Immigrants’ residence, employment and return. 15
VI. Conclusions and Recommendations. 17
Issue Papers are
commissioned and published by the Commissioner for Human Rights for the
purpose of contributing to debate or further reflection on a current and
important human rights matter. All opinions in these expert papers do not
necessarily reflect the position of the Commissioner. The Issue Papers are
available on the Commissioner’s web-site: www.commissioner.coe.int
The present Issue Paper was
prepared by Professor Elspeth Guild, Radboud University, Nijmegen and drafted
following an expert workshop organised by the Commissioner’s Office in Paris on
24-25 September 2009.
I. Introduction
On 29 September 2008, the Council of
Europe Commissioner for Human Rights (the Commissioner) issued a Viewpoint
expressing his concern regarding the trend to criminalize the irregular entry
and presence of migrants in Europe presented as part of a policy of migration
management. He stated that ‘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.’[1]
This Issue Paper builds on the
concern of the Commissioner by examining, systematically, the human rights
issues which arise from the phenomenon in Council of Europe member states of
criminalisation of border crossing by people and of their presence on the
territory of a state.
II. An overview of international responses to the
trend of criminalisation of migration
Concern
regarding the use of criminal sanctions, or administrative sanctions which
mimic criminal ones (such as detention), in respect of border and immigration
control issues has been rising for some time.[2]
The consequences for refugees of hardening access to European borders backed up
by criminal sanctions, has been questioned by academics, non-governmental
organizations and international organisations.[3]
In July 2008, ten independent human rights experts of the Special
Procedures of the United Nations Human Rights Council criticised the EU’s
directive on the return of irregular migrants also on grounds of the
intersection of criminal sanctions and immigration control. They stated that
“irregular immigrants are not criminals. As a rule they should not be subjected
to detention at all. Member states are obliged to explore the availability of
alternatives to detention and detention must only be for the shortest possible
period of time.”[4]
On the treatment of foreigners in detention more generally, already in 2009,
the European Committee for the Prevention of Torture (CPT), Council of Europe, raised
questions about the practices in Finland, the Netherlands and Portugal. In
2008, the Committee expressed concern about the treatment of foreigners seven
times, including a highly critical report on facilities in Greece. A parallel
move, which also causes substantial concern, is the use of criminal law
sanctions to punish individuals and businesses which engage with individuals
whose immigration status is either uncertain or unauthorized.
The issue revolves around the
consequences of two quite distinct fields of law – criminal law and
administrative law in the area of borders, immigration and asylum and how they
become woven together. One of the key challenges of this intersection is the
commitment and ability of states to comply with their human rights obligations.
The adoption of criminal laws establishing offences which can only be committed
by or in respect of foreigners presents important challenges for human rights
norms. First and most centrally is that of non-discrimination. While
discrimination on the basis of nationality is the basis of border controls on
persons – some persons, i.e. citizens have a right to enter the territory
of a state while others, non-citizens do not - nonetheless, the treatment of
non-citizens at the borders does not escape human rights law. Indeed, the treatment
of persons beyond the state’s physical borders where the state’s agents are in
control of the individual is also subject to states’ human rights obligations.[5]
Discrimination on the basis of nationality in fields tangential to border
crossing can be contrary to European human right standards as the European
Court of Human Rights has held.[6]
Member states cannot park their human rights obligations in their
constitutional settlements as engaging only their own citizens.
III. Criminal law and implications of its use in
the field of migration
a. Criminal law and victims
Criminal law has a very different
place in democratic societies from that of administrative law. Criminal law is
designed to punish individuals who harm other individuals or the society at
large. There are two quite different streams of criminal law: (a) the
criminalisation of acts against individuals, who as a result of the act, become
victims and (b) crimes which do not have a concrete victim but are rather
against society at large. In liberal democracies, crimes against individuals
attract the most concern and attention of the public. The punishment of
individuals who harm other individuals is the most obviously legitimate task of
the criminal justice systems. Crimes against the general good as defined by the
state tend to be more contested. For instance, approaches to the consumption of
drugs across the EU member states varies substantially on account of the lack
of consensus among populations and the governments which represent them whether
such consumption should be a criminal act where there is no victim or the
victim is the individual making the choice of consumption. Crimes of border
crossing are similarly victimless crimes. Leaving aside the issue of
trafficking in human beings, an individual who irregularly crosses a border or
stays on the territory of a state beyond his or her permitted period does not
harm a specific individual. To the extent that harm is done at all, it is to
the integrity of the state’s border and immigration control laws.
b. Implications of the language of criminalisation
Before moving to the specific issues
which are giving rise to concern, it is important to take stock of the language
which is used. Most international organizations, including the Council of
Europe,[7]
and non-governmental organizations use a fairly neutral terminology when
addressing the question of non-nationals whose presence on the territory of a
state has not been authorized by the state authorities or is no longer so
authorized. The Council of Europe Parliamentary Assembly highlighted the
importance of the language used in its Resolution 1509(2006): “the
Assembly prefers to use the term ‘irregular migrant’ to other terms such as
‘illegal migrant’ or ‘migrant without papers’. This term is more neutral and
does not carry, for example, the stigmatisation of the term ‘illegal’. It is
also the term increasingly favoured by international organisations working on
migration issues.” However, all the EU institutions and member state
governments use the expression ‘illegal immigrants’ and ‘illegal immigration’
to describe this category.[8]
Sadly, these terms are used even in
situations where the individuals concerned have not even approached the EU
territory where, for all the knowledge of EU officials, they may still be in
their country of nationality.[9]
This use of the term ‘illegal immigrant’ and ‘illegal immigration’ is erroneous
as neither have the individuals necessarily committed a criminal offence under
the laws of any member state nor is the term immigration legitimate when the
individual is a national within his or her own territory and may or may not be
considering travelling abroad.
The choice of language is very
important to the image which the authorities project to their population and
the world. Being an immigrant becomes associated, through the use of language,
with illegal acts under the criminal law. All immigrants become tainted by
suspicion. Illegal immigration as a concept has the effect of rendering
suspicious in the eyes of the population (including public officials) the
movement of persons across international borders. The suspicion is linked to
criminal law – the measure of legality as opposed to illegality. Other
international organizations and governments have chosen to use terms such as
undocumented migrants and migration, or irregular migrants or immigration. This
political choice about the language to use focuses attention on the
relationship of the individual with the mechanisms of the state to document or
regularize status rather than conjuring up images of police and the criminal
justice system.
IV. European migration law and policy developments
towards criminalisation
a. External border crossing
The crossing of external borders of
member states of the Council of Europe is regulated by national law as modified
by human rights and EU obligations. States are under a duty to admit their own
nationals. This is an obligation under Article 3(2) of Protocol N° 4 to the European
Convention on Human Rights (ECHR).[10]
Membership of the EU obliges states to admit nationals of any other member
state (and their family members of any nationality) for a period of three
months without formalities unless exclusion can be justified on the basis of
public policy, public security or public health.[11]
Nationals of other states may be permitted to enter the state (or not) in
accordance with national and EU law, depending on which applies. For those EU
member states which participate in the Schengen free movement area (i.e. an
area without internal controls on the movement of persons),[12]
any third country national (i.e. not a national of any of the participating
states) who holds a document which the issuing state has notified to the
European Commission as valid for the purposes of movement, is entitled to move
for three months within the territory of the states.[13]
Irregular entry and
the individual
Where
foreigners who are subject to immigration control, cross external borders into European
states otherwise than in accordance with the national law on border crossing,
in many states an administrative sanction applies. For instance, this has long
been the case in the UK where so-called ‘illegal entry’ has included not only
clandestine entry onto the territory avoiding any immigration control but also
entry obtained by deceiving an immigration officer who, if in full knowledge of
the facts, would not have permitted the individual entry onto the territory.
However, irregular entry is also a criminal offence punishable by a fine and/or
up to six month imprisonment and expulsion.[14] In
Germany, irregular entry (and residence) is an offence under the criminal law.[15]
The sanction for the least severe form is imprisonment up to one year or a fine
in addition to expulsion. Similar criminal law sanctions are provided for
irregular entry in Greek immigration law.[16] In
2008 Italian law was changed to make the irregular status of aliens who commit
a criminal offence an aggravating circumstance for the purposes of punishment
on conviction. Further, the letting of accommodation to irregular migrants
became a criminal act conviction of which carries a sentence ranging from 6
months to three years’ imprisonment.[17] In
2009 irregular entry became a criminal offence, subject to financial penalties,
in Italy.
Irregular entry and
third parties
Activity in the international
community has been an important factor for some member states in adopting
criminal laws both in respect of irregular entry onto the territory and
assisting such activities. The UN Convention against transnational organized
crime (2000) and its Protocols (commonly called the Palermo Protocols) includes
the Protocol against the Smuggling of
Migrants by Land, Air and Sea and the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children. The Protocols call for sanctions
against persons who assist individual foreigners to cross borders
without authorization, the smuggling Protocol requires signatories to take
action where the activity is for profit and the trafficking Protocol requires
sanctions specifically where exploitation in various forms is present. The
Council of Europe Convention on Action against Trafficking in Human Beings
(2005) also provides for the criminalisation of human trafficking, of the use
of services of a victim and of acts relating to travel or identity documents.
It is to be noted that in none of these international treaties is there a
provision concerning criminalisation of irregular entry by the migrant victims
of trafficking. In particular, Article 5 of the 2000 UN Protocol
against the Smuggling of Migrants expressly proscribes the criminal liability
of migrants who have been the object of conduct relating to their being
smuggled into a country.[18]
Assisting irregular entry and the
smuggling of foreigners is also commonly a criminal offence. This offence can
be carried out by both citizens and foreigners but must be in respect of a
foreigner who does not have a right of entry onto the territory of a state. For
example in Germany, the offence of people smuggling has been the subject of
substantial modification with important changes being introduced to crack down
on those committing it in 1992 and 1994.[19]
A number of Council of Europe member states, such as Spain, criminalized
irregular entry or assisting irregular entry ten years later – through
the Aliens Act 4/2000 and Organic Laws 11/2003 and 14/2003.[20]
On 13 May 2009, the Italian lower chamber passed a law which is aimed at
curbing boats run by smuggling rings.[21]
This is intended to criminalize the owners or captains of boats bringing
foreigners who are undocumented to Italy.[22]
In general the ‘security package’ in Italy presents a number of difficult
challenges regarding the criminalisation of foreigners.[23]
The Human Rights
Challenges
While the European Court of Human
Rights has been careful to affirm the right of states to control their borders,
the actions of states at borders on many occasions may have human rights
consequences. First, Article 2 of Protocol N° 4 to the ECHR provides that
everyone shall be free to leave any country, including his own.[24]
While there is no right of entry into another country, where member states
collude or incite third countries to prevent their nationals from leaving their
states of origin (or current residence) out of fear that the individuals might
become ‘illegal’ immigrants in a European state, there is certainly a question
of liability under this Article. Further, the way in which border controls are
applied may engage a duty not to discriminate against one foreigner in comparison
with another unless this can be justified. Protocol N° 12 to the ECHR contains
a general duty on member states not to discriminate on grounds set out therein.[25]
Secondly, the conditions under which
individuals are refused access to states or admission may give rise to
questions under Article 3 ECHR – the prohibition on torture, inhuman or degrading
treatment or punishment. Thirdly, where the individual arrives irregularly as a
result of flight from torture inhuman or degrading treatment or punishment,
then his or her treatment as a criminal may also contravene Article 3 ECHR. In
respect of refugees, the UN Convention Relating to the Status of Refugees
(1951) and its 1967 Protocol specifically provides, at Article 31(1), that
“states shall not impose penalties, on account of their illegal entry or
presence, on refugees who, coming directly from a territory where their life or
freedom was threatened…enter or are present in their territory without
authorization.” Fourthly, the fact that a person never arrived regularly on the
territory of a state does not exclude the fact that his or her family life in
the state may preclude expulsion. In a case regarding the Netherlands, the
European Court of Human Rights found that the family life interest of a
foreigner who had arrived clandestinely was more important than the state’s
claim to an interest in her expulsion.[26]
Fifthly, as regards persons who assist foreigners to enter the territory, the
criminalisation of their activities may have human rights consequences. For
instance, a UK court was not satisfied that an automatic fine against a
transporter for carrying persons who were refused admission was consistent with
the transporter’s interest in private life under Article 8 ECHR.[27]
Sixthly, any criminal charge whether it is related to border crossing or not
must fulfill the fair trial obligations of Article 6 ECHR.
b. Immigrants’ residence and employment
Leaving the issue of entry onto the
territory, the next area in which one can see an increasing criminalisation of
immigration is regarding presence on the territory and exercise of economic
activities. Here, the individual foreigner may have arrived lawfully but then overstayed
his or her permitted period of residence or entered into activities which are
not permitted under national law such as working. Increasingly, states make
continued presence on the territory a criminal offence and in many cases a
continuing criminal offence. In practice, it appears that as long as there is
no obstacle to the expulsion of the individual, many member states continue to
use administrative law measures even though they have at their disposal
criminal law sanctions for overstaying which could be used against foreigners.
Individuals who assist the foreigner
whose status is irregular may also be subject to criminal law sanctions. The
case of Jennifer Chary in France is an example. In April 2009, she was charged
with giving aid and assistance to a person irregularly present in France
– the man she was about to marry. The couple had been living together for
over five months. When they applied to marry they were questioned, the groom
was expelled for irregularity in France and Jennifer Chary was charged with the
offence which carries a penalty of five years in prison and a € 30 000 fine.
Following substantial publicity about the case, the prosecutor decided to drop
the charges.[28] In Italy, a
proposed amendment to the ‘security package’ attempted to repeal the protection
for doctors treating patients with an irregular immigration from prosecution.[29]
Businesses which employ foreigners without permission to reside are the subject
of criminalisation as well. While many member states fine companies for failing
to check the residence documents of their employees, the inclusion of criminal
sanctions and sanctions which carry criminal law consequences is increasingly
common. Often this legislation has been put into place under the aegis of
anti-trafficking measures.[30]
The UK has recently included on its website the names of all businesses
subjected to administrative fines for employing persons irregularly present on
the territory.[31] It is quite
surprising that the vast majority of businesses fined have names which indicate
ethnic minority owners.
The Human Rights
Challenges
The right to effectively enjoy human
rights is not predicated on the authorization by the state authorities of the
presence of an individual on the territory. As Article 1 ECHR states, it
applies to everyone within the jurisdiction of the Council of Europe member
states – this is not limited to those whom the state has authorized to be
there, it means exactly what it says – everyone. Two human rights are of
particular significance here – the right to enjoy private and family life
contained in Article 8 ECHR, the right not to be subject to torture or inhuman
and degrading treatment contained in Article 3 ECHR.
In respect of the first, the fact
that an individual is irregularly present on the territory of a state is only
one consideration in the assessment of whether his or her private and family
life obliges the member state to provide the individual with a residence
permit.[32] Thus the criminalisation of foreigners’ presence
on the territory does not displace the obligation of states to ensure that they
respect the individual’s right to private and family life. Secondly, Article 3 ECHR
requires states to ensure that all persons are protected from torture, inhuman
and degrading treatment or punishment. The way in which an individual is
treated on account of being classified as a potential criminal (or convicted)
must fulfill the Article 3 requirements irrespective of the immigration status
of the individual.[33] The denial
of food, shelter, medical treatment etc are all potential breaches of Article 3
ECHR as they may reduce the individual to a circumstance which is inhuman and/or
degrading.[34]
Third parties, including family
members such as Jennifer Chary hoped to be, are also entitled to rely on
Article 8 ECHR to protect their family life. The most famous case on this issue
in which the European Court of Human Rights set out the threshold for expulsion
of foreigners revolves around facts similar to those of Ms Chary except that
this woman and her husband had managed to marry and thus establish family life.[35] The action
of the French government which by expelling Chary’s fiancé on the eve of the
wedding effectively prevented her marrying him in France (though not in Morocco
where they subsequently married) may be questioned as to its consistency with
Article 12 ECHR, the right to marry. Companies and businesses may have a right
to work permits for their employees and most certainly have a right to fair
procedures under Article 6 ECHR in the consideration of their applications.[36] Businesses
are also entitled to privacy under Article 8 ECHR. The publication of their
names and details of fines made against them in respect of the status of their
employees may be contrary to that right.[37]
c. Asylum
The criminalisation of persons
seeking international protection is a matter of substantial concern in Europe.[38]
This takes place in a number of ways – measures which make access to
European territory extremely difficult for refugees, such as visa requirements,
carriers sanctions, interdiction at sea, criminal sanctions on the using of
false documents etc. Secondly, when asylum seekers manage to arrive in Europe,
they often face further criminal sanctions – criminal charges in respect
of the manner of their arrival, prohibition on employment and criminalisation
of unauthorized employment when there is no functioning reception system which
will permit asylum seekers to eat and have shelter.[39]
Criminal penalties for changing address without authorization, failing to
notify state authorities of changes of circumstances and detention are all
increasingly common and permitted in the EU acquis.
The treatment of asylum seekers and
those whose asylum applications have been rejected in Europe has been
comprehensively documented by a number of non-governmental organizations in
reports which raise serious questions about human rights compliance.[40]
Again, the criminalisation of third parties here too constitutes part of the
problem. Transporters are fined and increasingly subject to criminal sanctions
if they bring to EU member states persons who are not admissible or who have
forged documents. But refugees are often unable to get genuine documents as
they fear persecution from their authorities. Thus carriers’ sanctions may
result in refugees being obliged to use the services of smugglers who provide
them with false or forged documents in order to get around the vigilance of the
carriers. The result, however, may be that the refugee commits a criminal
offence the moment he or she arrives on the territory of the state by having
false documents.[41] The
carriers are fined for carrying the individuals. Third parties, often family
members of the asylum seeker, who facilitated the entry of the individual into
the state, are often the objects of criminal charges of smuggling human beings.[42]
The Commisssioner believes that of
all the areas of criminalisation of migration, the fate of asylum seekers is
indeed the most problematic at the moment in Europe. Governments appear to have
invested too much political capital in ‘being tough’ on asylum seekers. This
has resulted in the use of criminal laws against persons seeking protection and
highly unsatisfactory and contradictory protection rates in different EU
countries. For example, of Afghan asylum seekers in Europe in 2008, according
to UNHCR, 67% who sought protection in Italy received it; 80% seeking
protection in Austria received a status; 95% in Finland and 0% of those Afghans
seeking protection in Greece received any protection at all.[43]
Those whose applications are refused, in other words 100% of those seeking
protection in Greece risk committing the criminal offence of staying without
authorization while 95% of them might, had they managed to apply in Finland,
have received protection.[44]
The detention of asylum seekers in
Europe has also raised deep concern in the international community. The
European Court of Human Rights found Greece in violation not only of Article 3
as regards the detention of a Turkish asylum seeker because the conditions of
detention were so poor, but also of Article 5(1)(f) ECHR (the power to detain
at all) on two key grounds: first, the attempted prosecution of the asylum
seeker on the basis of irregular entry into the country (he swam across the
border from Turkey); secondly, the authorities failed to take into account the
fact that he was an asylum seeker and therefore could not be expelled until a
consideration of his application had been completed. The Court noted that the
Greek authorities had not justified the detention of the man on the grounds of
public order or security and thus it constituted a human rights breach.[45]
As the Commissioner has said “The conclusion of [Council of Europe and
international] standards is that detention upon entry of asylum seekers should
be allowed only on grounds defined by law, for the shortest possible time and
only for the following purposes:
- To verify the identity of the refugees;
- To determine the elements on which the claim to
refugee status is based;
- To deal with cases where refugees have destroyed
their travel and/or identity documents or have used fraudulent documents to
mislead the authorities of the country of refuge;
- To protect national security or public order.”[46]
The Human Rights
Challenges
The UN Convention Relating to the Status
of Refugees (1951) and its 1967 Protocol require states not to refoule[47]
to persecution anyone who has a well found fear of persecution for reasons of
race, religion, nationality, membership of a particular social group or
political opinion (Article 1A). Article 3 of the UN Convention against torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and
Article 3 ECHR prohibit the forced return of any person to a country where
there is a substantial risk that he or she would suffer torture (and in the
case of the ECHR, also inhuman or degrading treatment or punishment). The
criminalisation of the means of arrival, within the asylum determination
procedure and of presence once an application has been rejected, all have a
cumulative effect (with all too common popular media depiction of asylum
seekers as ‘criminals’) of rendering the position of refugees and asylum
seekers particularly fragile and exposed to criminal sanctions.
d. Detention
Lengthy detention of migrants has been a
major facet of the phenomenon of criminalisation of migration in Europe. The
Council of Europe Parliamentary Assembly has paid particular attention to this
and has invited member states to ‘progressively proscribe administrative
detention of irregular migrants and asylum seekers, drawing a clear distinction
between the two groups, and in the meantime allow detention only if it is
absolutely necessary to prevent unauthorised entry into the country or to
ensure deportation or extradition, in accordance with the European Convention
on Human Rights’, as well as to ‘ensure that detention is authorised by the
judiciary’.[48]
The use of detention as a
pre-expulsion mechanism has blossomed across Europe over the past ten years.
The non-governmental organization, Migreurop, has kept and updates a map of all
the detention camps for foreigners in Europe.[49]
A quick look at that map indicates that there are hundreds of such camps,
dotted across the European landscape. The French NGO, Cimade, published a
report on administrative detention in France over 400 pages long signaling
serious problems. UNHCR highlighted another problem regarding the detention of
foreigners – the appalling conditions of detention which foreigners are
all too frequently subjected to in detention.[50]
As the CPT has stated on many
occasions, persons in detention are at higher risk than the non detained of
suffering human rights abuses. The concern of the CPT regarding the detention
of foreigners is well evidenced in its compilation of standards which includes
a specific section on the treatment of foreigners detained under aliens
legislation.[51] The CPT has
made clear that it does not accept the argument that foreigners held in
detention are not detainees because they can leave the state whenever they
wish. The Committee has expressed its grave concern that foreigners are
detained in prisons, a practice it considers fundamentally flawed.[52]
Further, the use of coercion in the context of expulsion procedures has been
addressed by the CPT which states “Law enforcement officials may on occasion
have to use force in order to effect [such] a removal. However, the force used
should be no more than is reasonably necessary. It would, in particular, be
entirely unacceptable for persons subject to an expulsion order to be
physically assaulted as a form of persuasion to board a means of transport or
as a punishment for not having done so.”[53]
The separation of the individual from the community in circumstances which
permit the guards very substantial power over the well being of the individual
puts such persons at special risk and as such in need of particular attention.
The increasing use of detention against foreigners is a matter of grave concern
to the CPT.
The Human Rights
Challenges
Lawful detention, under Article 5
ECHR, is an exception to the right to personal liberty and security. That
exception is strictly delineated and permitted in respect of persons convicted
by a court, for the purpose of bringing a person before a court, in respect of
minors, persons with illnesses and foreigners. For foreigners, the exception
must be justified on the grounds that “the lawful arrest or detention of a
person [is] to prevent his effecting an unauthorized entry into the country or
of a person against whom action is being taken with a view to deportation or
extradition.”
The European Court of Human Rights
had to consider the lawfulness of the detention of a foreigner for
administrative purposes when his expulsion was not contemplated.[54]
The Court stated that it had “regard to the importance of
Article 5 in the Convention system: it enshrines a fundamental human right,
namely the protection of the individual against arbitrary interferences by the
State with his right to liberty” (paragraph 63). However, it considered that
“until a State has ‘authorised’ entry to the country, any entry is
‘unauthorised’ and the detention of a person who wishes to effect entry and who
needs but does not yet have authorisation to do so, can be, without any
distortion of language, to ‘prevent his effecting an unauthorised entry.”
However, the Court went on to state that “to avoid being branded as arbitrary…such
detention must be carried out in good faith; it must be closely connected to
the purpose of preventing unauthorised entry of the person to the country; the
place and conditions of detention should be appropriate, bearing in mind that
‘the measure is applicable not to those who have committed criminal offences
but to aliens who, often fearing for their lives, have fled from their own
country’ (see Amuur, § 43); and the
length of the detention should not exceed that reasonably required for the
purpose pursued” (paragraph 74). In view of the serious consequences of
detention for the individual, the guidelines for legality set out by the Court
are very important. States must not just lock up foreigners because of their
status as such (i.e. without authorization) and throw away the key.
e. Implications for social rights
Access to social rights such as
health care or accommodation is fundamentally affected by the criminalisation
of foreigners. When state authorities make a decision that an individual is no
longer regularly on the territory the consequences for his or her access to
social rights is essentially changed. While foreigners who are lawfully present
on the territory and working lawfully enjoy protection under the European
Social Charter, those who are in an irregular status in practice generally do
not.[55]
Thus at the stroke of an administrative pen, authorities can extinguish
foreigners’ rights and access to social benefits and housing notwithstanding
the fact that the foreigners may be working, paying social insurance
contributions or have a long record of contributions in the past.
The Human Rights
Challenges
The European Court of Human Rights
has held that social benefits come within the scope of Article 1 of the first Protocol
to the ECHR, as a property right, even in circumstances where there is no
longer a contributory element to the social benefit or where the individual has
never worked and made contributions.[56]
Similarly, they may come within the scope of Article 8 ECHR where the state
makes them available to families of their nationals and thus the
non-discrimination duty in Article 14 (and potentially Protocol N° 12) requires
such benefits also to be made available to foreigners with family members who
meet the criteria.[57]
Further, the European Committee of Social Rights, the body charged with supervising
the application of the European Social Charter, has held that “legislation or
practice which denies entitlement to medical assistance to foreign nationals,
within the territory of a State Party, even if they are there illegally, is
contrary to the Charter.”[58]
The Commissioner has expressed his human rights concerns in the specific case
of Italy where in 2008 a law has been passed which makes it a criminal offence
to let accommodation to persons irregularly present (and allows for the seizure
of property and income from it on this ground), while in 2009 there was a government
proposal to lift the ban on medical personnel notifying the authorities
regarding access to medical services by persons irregularly present on the
territory.[59] A
particularly vulnerable group of migrants in need of effective access to health
care are those who become disabled while trying to cross borders, as in the
case of maimed migrants who attempt to cross the mined areas of the
Greek-Turkish borders in Evros.[60]
It is to be noted that treatment accorded by states to this group of persons
may raise very serious issues with regard to their right to life (Article 2
ECHR) and their freedom from inhuman or degrading treatment (Article 3 ECHR).
V. Implications of current European migration law
and policy
This section focuses on the measures
which have been adopted by the European Union, a major actor in the field of
European immigration and asylum, which touch on the question of
criminalisation. Most of the measures discussed below set minimum standards.
Thus it is in the transposition of the measures that member states are at risk
of failing to comply with their obligations under international or European human
rights treaties.
On 1 December 2009 the Lisbon Treaty
entered into force and made the EU’s Charter of Fundamental Rights legally
binding. Also in December the EU adopted the new five year programme for the
development of its Area of Freedom, Security and Justice within which the law
and policy of the EU regarding border controls on persons, immigration and
asylum are found (the Stockholm Programme). In this context, the question of
human rights compliance is central to the legitimacy and the legality of the existing
and forthcoming EU legislative programme in these areas. Already the European Commission
undertakes impact assessments of proposed legislation which include fundamental
rights however the comprehensiveness of these assessments is somewhat disputed.[61]
The EU’s Charter on Fundamental
Rights is an internal EU Charter which repeats the key provisions of the ECHR
and adds rights which derive from EU law. As it takes a legally binding form,
any failure to meet the standards set out in the ECHR will also result in a
breach of the EU’s internal Charter. The EU Charter will make the
justiciability of human rights standards included in it simpler within the EU
system without diminishing the responsibility of the EU Member States within
the Council of Europe human rights system.
The EU’s new five year programme for
border controls on persons, immigration and asylum (and other related areas of
AFSJ) calls for the EU to accede to the ECHR. Should this be achieved there
will be a more coherent and comprehensive system whereby the EU participates in
the ECHR directly rather than indirectly through its member states. Sadly, the
Stockholm Programme continues to use the language of “illegal immigration”
calling for effective policies to combat it. On a more positive note, the
Programme calls for these policies to be implemented with full respect for the
principle of “non-refoulement” and for the fundamental rights and dignity of
the individual.
Until 2003, it was generally
believed that EU hard law (directives and regulations) could not include
criminal sanctions. A series of decisions by the European Court of Justice
clarified that such hard law measures could include criminal sanctions in the
pursuit of objectives of the European Community. The first hard law measure to
be adopted in the EU’s Area of Freedom, Security and Justice which includes
such criminal sanctions is the Directive providing for minimum standards on
sanctions and measures against employers of illegally staying third country
nationals (adopted on 25 May 2009). Earlier EU measures in the field either
permit and encourage the use of criminal sanctions or are adopted in the EU’s
so-called Third Pillar, in the form of Framework Decisions, which while binding
on the member states are subject to less rigorous implementation obligations.
Each part of this section will be divided into two: (a) direct and (b) indirect
criminalisation measures.
a. External border crossing
Direct measures
The EU adopted Regulation
562/2006, the Schengen Borders Code, on 15 March 2006. It entered into
force in the member states on 13 October 2006.[62]
This Regulation sets out the circumstances under which a non-EU national (or
his or her family members) may enter the EU and the basis on which he or she
may cross the internal borders of the member states. The objective is, among
other things, crime related. The policing aspect of border controls is apparent
in particular in actions required around the identification of stolen,
misappropriated, lost and invalid documents and the presence of signs of
falsification or counterfeiting (Article 7(2)).
On 28 November 2002, the EU adopted Directive
2002/90 defining the facilitation of unauthorized entry, transit and
residence. Member states were required to transpose it into national law by 5
December 2004.[63] This
directive requires member states to adopt appropriate sanctions for
intentionally assisting a person who is not a national of a member state, to
enter, or transit across the territory of a member state in breach of the laws
of the state concerned with the entry or transit of aliens or assisting for
financial gain, a person (similarly qualified as above) to reside within the
territory of a member state in breach of the laws of the state concerned on the
residence of aliens (Article 1(a) and (b)). The sanctions must be effective,
proportionate and dissuasive (Article 3).
In the so-called Third Pillar of the
EU, a Framework Decision on facilitating unauthorized entry, transit and
residence, 2002/20/EC, was adopted on 28 November 2002 to be transposed
by the member states at the latest by 5 December 2004. This measure is tied to
Directive 2002/90 in that it provides that the sanctions which can be applied
to those who help foreigners include deportation and a prohibition on
practicing directly or through an intermediary the occupational activity in the
exercise of which the offence was committed. Member states are required to take
“measures necessary to ensure that a legal person held liable for an offence is
punished by effective, proportionate and dissuasive sanctions." The
inclusion of deportation as a sanction indicates that the drafters certainly
contemplated that the offence would be committed by foreigners rather than or
in addition to nationals. A discretionary humanitarian exception is included.
Directive 2001/51 strengthens
the sanctions on assisting foreigners through its express extension to
carriers. This directive had to be transposed into national law by 11 February
2003. Article 4 of the directive provides that member states shall take
“necessary measures to ensure that the penalties applicable to carriers…are
dissuasive, effective and proportionate” and sets out minimum sums which must
be applied.
Framework Decision 2002/629
adopted on 19 July 2002 creates criminal offences around the trafficking in
human beings. The decision requires each member state to take effective,
proportionate and dissuasive sanctions, including criminal or non-criminal
fines in respect of the recruitment, transport, transfer, harbouring, subsequent
reception of persons, including exchange of control. The objective must be for
the purpose of exploitation of the person’s labour or services, including
forced or compulsory labour or services, slavery or practices similar to
slavery or exploitation of the prostitution of others or other forms of sexual
exploitation including pornography (Article 1(1) & (2)).
Indirect measures
There are three main databases which
the EU has at its disposal in respect of foreigners. The first is the Schengen
Information System. While this database also holds information on EU nationals
in relation to criminal justice issues, the vast majority of information held
on it is in relation to foreigners. It is the list of those people whose entry
onto EU territory has been prohibited by one of the member states.[64]
For the moment, the SIS does not contain biometric data, though it does perform
a stigmatization function which it tantamount to criminalisation.[65]
The second database is EURODAC which
contains the fingerprints of all persons who have applied for asylum or have
been apprehended when irregularly crossing an external frontier. The European
Commission proposed in September 2009 that this database be made available to
all EU law enforcement agents. This places asylum seekers at further risk of
stigmatization as ‘criminals’.
The third is the Visa Information
System (VIS) which is under construction and according to the EU Presidency
should be operational within 2 years. The VIS will contain information on every
person who applies for a visa to enter the EU. It will include all the
information required on a standard visa application form as well as biometric
data in the form of facial images and ten fingerprints (unless the person has
fewer than ten fingers). Regulation 767/2008 which establishes the VIS
states among its purposes: “to contribute to the
prevention of threats to the internal security of any of the Member States.”[66] Article
3(1) states “The designated authorities of the Member
States may in a specific case and following a reasoned written or electronic
request access the data kept in the VIS referred to in Articles 9 to 14 if
there are reasonable grounds to consider that consultation of VIS data will
substantially contribute to the prevention, detection or investigation of
terrorist offences and of other serious criminal offences”. ‘Designated
authorities’ are those designated by member states and by Europol for the
purposes of the prevention, detection and investigation of terrorist offences
and of other serious criminal offences. Thus visa applicants find themselves
classed together with persons suspected of committing terrorist or other
serious crimes. Of course, not all foreigners are visa nationals. Only those
persons whose countries of nationality are contained on the black list attached
to Regulation 539/2001 (as amended) must obtain visas to enter the EU
for short stays. An examination of the countries on that black list indicates
that their most striking common characteristics are that most of their
nationals are (a) not white; (b) Muslim and/or (c) poor (in relation to the EU
average).[67]
b. Immigrants’ residence, employment and return
Above reference was made to Directive
2002/90 defining the facilitation of unauthorized entry, transit and
residence which applies equally to residence on the territory. Most of the
measures in this section which have criminalizing effects relate to expulsion.
Direct Measures
Directive 2001/40 on mutual
recognition of expulsion decisions provides a mechanism whereby a decision
adopted against a foreigner in one member state may be automatically treated as
equivalent in another member state for the legality of expulsion of the
individual. The language of illegality is not used in the Directive (with the
exception of preamble (1)). Article 3(1) of the Directive provides that it
applies to decisions taken against foreigners on the basis of a serious and
present threat to public order or to national security where: a) there has been
a conviction for an offence punishable by a penalty involving deprivation of
liberty for at least one year; b) there are serious grounds for believing that
the foreigner has committed serious criminal offences or the existence of solid
evidence of his/her intention to commit such offences within the territory of a
member state (Article 3(1)(a) & (b)).
The threshold in respect of which a
foreigner becomes categorized as an unacceptable criminal risk (ie a threat to
public order or national security) is surprisingly low. Taking into account the
variations among the member states of penalties for different types of offences,
this includes, in some member states, very minor crimes. Further, the ground of
suspicion is somewhat problematic.
Directive 2009/52, providing for
minimum standards on sanctions and measures against employers of illegally
staying third-country nationals, is the first hard law measure in this area
which explicitly includes criminal sanctions. The preamble states that member
states should strengthen their activities in the fight against illegal
immigration (preamble (1)). Further “[a] key factor for illegal immigration
into the EU” according to the preamble “is the possibility of obtaining work…”
(preamble (2)). Two definitions are central to the directive: first an
illegally staying third-country national is a foreigner who does not fulfil or
no longer fulfils, the conditions for stay or residence in that member state.
Secondly, ‘illegal employment’ is defined as the employment of an illegally
staying third-country national. The offences created in the Directive all
revolved around the employment of
‘illegally staying’ foreigners. Member states are required to prohibit
the employment of ‘illegally staying’ foreigners. Employers are obliged to
document their efforts to ensure they have not employed a prohibited person in
a variety of ways set out in the directive (Articles 4 et seq). The employer who
is found to have breached the duty is subject to civil law penalties, repayment
of wages and social contributions where appropriate and criminal sanctions
(Article 9). The criminal offence must be punishable by effective,
proportionate and dissuasive criminal penalties (Article 10).
Directive 2008/115 on common
standards and procedures in member states for returning illegally staying
third-country nationals has incurred substantial criticism not least from a
number of UN Special Rapporteurs (see above). The language of the directive is
very much couched in terms of illegal immigrants – for instance preamble
(8) states “it is recognised that it is legitimate for Member States to return
illegally staying third-country nationals…” The Directive provides at Article
6(1) that “Member States shall issue a return decision to any third-country
national staying illegally on their territory,” without prejudice to a number
of exceptions contained in the provision. The use of the terminology of
illegality renders a certain legitimacy to the provisions on use of coercive
force by the state. Article 8(4) provides “Where Member States use – as a
last resort – coercive measures to carry out the removal of a
third-country national who resists removal, such measures shall be
proportionate and shall not exceed reasonable force.” That a state should use
coercive force against an individual outside of the criminal justice system and
the strict controls on the police in such circumstances, is a matter of some
contention, particularly in light of findings in various member states of the
ill treatment of third country nationals in expulsion procedures.[68]
If the foreigners were described as undocumented, the use of coercive force
against them might be harder to justify. The language of criminalisation
assists in justifying the deployment of coercive enforcement techniques in the
field.
Indirect Measures
Directive 2003/110 on
assistance in cases of transit for the purposes of removal by air aims to end
‘illegal residence of third country nationals who are the subject of removal
orders’ (preamble (1)). The terminology of the directive is very much oriented
towards that of convicted (and possibly dangerous) criminals.
c. Asylum
Direct Measures
Directive 2003/9 sets out the
minimum standards for the reception of asylum seekers in the member states. It
applies to all persons who apply for asylum in a member state and sets out what
member states must ensure as regards conditions of life. Article 16(3) relates
to the provision of accommodation for asylum seekers. It states “Member States
may determine sanctions applicable to serious breaches of the rules of the
accommodation centres as well as to seriously violent behaviour.” There is an
obvious overlap with criminal law as the criminal law of most member states
provides for crimes of damage to property or assault against persons. The
sanctions available include “Decisions for reduction, withdrawal or refusal of
reception conditions or sanctions….shall be taken individually, objectively and
impartially and reasons shall be given. Decisions shall be based on the
particular circumstances of the person concerned…” (Article 16(4)). As the
reception conditions are by their very nature minima, allowing states to lower
them as a sanction against criminal behaviour means that the individual may be
reduced to a state of abject poverty.
Indirect Measures
Regulation 2725/2000 provides
for the creation of a database containing the fingerprints of all asylum
seekers in the EU and those persons apprehended irregularly crossing an
external frontier.[69]
As mentioned above the Commission has proposed allowing all EU law enforcement
agencies access to the database.
Directive 2005/85 establishes
the minimum standards on procedures in member states for granting and
withdrawing refugee status. While the language of `unlawful´ is used rather
than `illegal´ (see for instance Article 23(4)(l) “the applicant entered the
territory of the Member State unlawfully…”) a number of its provisions raise
questions as to an indirect effect in criminalizing asylum seekers. For
instance, Article 11 imposes a series of obligations on asylum seekers which
otherwise only apply to persons under suspicion of or convicted of committing a
criminal offence.[70]
These include: a duty to report to the authorities at any time designated by
the later; a duty to hand over all their identity documents and any other
documents which the authorities consider relevant to the application; a duty to
inform the authorities of any change of address coupled with no duty on the
authorities to ensure that correspondence is necessarily sent to the correct
address; a power to the authorities to search the individual and his or her
belongings at any time without specifying a reason; a power to the authorities
to record the individual without consent.
d. Detention
The banalisation of the detention of
foreigners on the grounds that they are not citizens has been much discussed
elsewhere.[71] This
section focuses on three EU measures which include provisions to limit the
liberty of foreigners.
Direct Measures
Directive 2008/115 (already
referred to above) on common standards and procedures in Member states for
returning illegally staying third country nationals provides in Chapter IV -
Detention for the Purpose of Removal - that foreigners may be detained for the
purposes of return or removal where other less coercive measures cannot be
applied (Article 15(1)). The examples given for the use of detention are: where
there is a risk of absconding; where the foreigner avoids or hampers the
preparation of return of the removal process (Article 15(1)(a) & (b)). In
the first instance, detention must not exceed six months (Article 15(5)).
However, this period can be extended for a further twelve months.
Directive 2005/85 on minimum
standards on procedures for asylum also includes a provision on detention. Here
it is stated “Member States shall not hold a person in detention for the sole
reason that he/she is an applicant for asylum” (Article 18(1)). Where held in
detention, the second part of this provision requires “the possibility of
speedy judicial review.”
Finally, Directive 2003/9 on
reception conditions for asylum seekers contains an oblique reference to
detention in Article 7(3) “when it proves necessary, for example, for legal
reasons or reasons of public order, Member States may confine an applicant to a
particular place in accordance with their national law.” Confinement is another
way of speaking of detention. There is a proposal under discussion to extend
the provisions on detention in this Directive.
VI. Conclusions and Recommendations
As can been seen from the above
description of the Council of Europe member states’ and EU measures which
relate to the criminalisation of migration, there is a steady advance of the
discourse of ‘illegality’ in migration law and policy. While the early EU
legislation refrains from using the terminology, after about 2003, it becomes
common currency appearing again and again throughout documents, legislation and
decisions.[72] This trend
is of questionable consistency with the human rights obligations of the member
states and their activities within the Council of Europe. As regards human
rights, all the EU measures discussed above confirm, at least in their
preambles, that they comply with the EU’s fundamental rights obligations.
Explicit references are made to member states’ duties under the ECHR and, in
asylum related measures to the UN Refugee Convention. However, the recognition
of these commitments does not appear to influence, in practice, the approach
towards criminalisation.
Two aspects of the EU’s
criminalisation of foreigners are striking. First there is the pervasive way in
which the measures (a) separate foreigners from citizens through an elision of
administrative and criminal law language and (b) subject the foreigner to
measures which cannot be applied to citizens, such as detention without charge,
trial or conviction. Secondly, there is the criminalisation of persons, whether
citizens or foreigners who engage with foreigners. The message which is sent is
that contact with foreigners can be risky as it may result in criminal charges.
This is particularly true for transport companies (which have difficulty
avoiding carrying foreigners) and employers (who may be better able to avoid
employing foreigners at all). Other people, going about their daily life, also
become targets of this criminalisation such as landlords, doctors, friends etc.
Contact with foreigners increasingly becomes associated with criminal law. The
result may include rising levels of discrimination against persons suspected of
being foreigners (often on the basis of race, ethnic origin or religion),[73]
xenophobia and/or hate crime.[74]
The Council of Europe member states should
reverse these trends and establish a human rights compliant approach to
irregular migration.
For this reason a number of
recommendations are provided below, as a starting point to ensure the correct
intersection of human rights and the treatment of foreign nationals. They touch
on hard issues of sovereignty versus the dignity of the individual. But the
duty of Council of Europe member states to protect the individual and promote
human rights is not limited to states’ own nationals. The treatment of the
foreigner is the challenge in respect of which the commitment of member states
to human rights is measured internationally.
The key issues which need to be
considered and the recommendations come within the following six categories.
- General policy and law-related issues
- The language which Council of
Europe member states use regarding foreign nationals must exclude the term
’illegal immigrant’. The term is counter productive and misleading. People
are not ‘illegal’. Their status vis-à-vis state authorities may not be
regular but that does not render the individual somehow beyond humanity.
- Member states should refrain
from adopting criminal laws which apply exclusively to foreign nationals
unless this is specifically and clearly justified on grounds of
international human rights commitments and is consistent with the Council
of Europe treaties applicable.
- Member states should not use
the term ‘illegal immigrant’ or ‘illegal immigration’ in their press
releases and discourage the use generally in the media. Ministers and
other public officials should be vigilant in this regard in all their
public and semi-public pronouncements and deliberations.
- External border crossing
- Foreign nationals arriving at
the external borders of member states should be treated with respect and
dignity. Their application to enter the state should be considered on the
merits and not be tainted by discrimination which is prohibited in human
rights law.
- Border guards should not use
the language of ‘illegal immigrant’. Any decision to refuse admission to
the state to an individual should not have any automatic consequence as
regards criminal law.
- Where individuals arrive at
places outside designated border crossing points, the reasons for such
arrival must be taken into account and not permitted to colour or
otherwise prejudice the consideration of their application to enter the
state.
- In whatever circumstances an
individual makes apparent his or her claim to international protection
(whether through an indication of fear to return to the country of
destination or a more express claim) the individual must be able to enjoy
his or her international law right to non-refoulement and to protection
during the consideration of the claim.
- Immigrants' residence and employment
- Member states must ensure that
their administrative systems are sufficiently effective that foreign
nationals’ residence does not become irregular merely because the
authorities have failed to deal with an application in a timely manner.
- Where necessary, member states
should ensure that their legal systems provide that so long as the
authorities have failed to make a decision on a foreigner’s outstanding
application which was made before the individual’s permission to reside
expired, the individual is entitled to residence and economic activities
until there is a final decision.
- Member states must ensure that
foreigners receive documentation at each stage of their residence which
clarifies to all other authorities both public and private, the
individual’s residence status so that they can prove beyond doubt the
regularity of their residence and employment.
- Where a member state has
refused a foreigner residence, but failed to ensure his or her departure
within 30 days, the state must issue the individual with at least a
preliminary residence document and permission to work. States may not
leave people in limbo neither permitted to be present nor expelled.
- Where there is no reasonable
prospect of expelling a foreigner within 30 days of the individual coming
to the attention of the authorities, he or she should be given a
preliminary residence document and permission to work.
- Asylum
- All Council of Europe member
states are committed to protecting those in need of international
protection because they fear persecution, torture, inhuman or degrading
treatment or punishment in their home country. Full and inclusive effect
must be given to this commitment.
- Wherever an individual in need
of international protection and outside his or her country of origin or
persecution comes into contact with the authorities of a state and
indicates his or her need for protection, the state authorities must
protect the individual and consider the application in accordance with
their international commitments.
- Where an individual seeks
international protection, state authorities must register the claim in a
timely manner and ensure that the individual receives documents confirming
the regularity of his or her presence on the territory.
- All persons seeking
international protection in Council of Europe states must be provided with
their basic needs (housing, food, health care, education) while their
applications are under consideration.
- Where an application for
international protection is rejected, state authorities must ensure that
the individual can return in dignity to his or her country of origin or
issue the individual with a preliminary residence document and permission
to work.
- Detention
- No one should be subject to detention
of any kind on the sole basis that he or she is not a national.
- Every migrant’s detention should
be subject to an effective judicial review.
- As a matter of principle, no
person seeking international protection should be subject to detention.
- Any place of detention must
provide conditions of detention which meet the needs of the individuals
and fulfil the requirements set out by the Council of Europe standards.
- No migrant child should ever be
subject to detention. The fact of having a dependent child must be ground
for an adult not to be detained except in accordance with the lawful order
of a criminal court.
- Social rights
- Differences in access to social
rights on the basis of nationality must be subject to anxious scrutiny to
ensure that they are consistent with the human rights obligations of
Council of Europe member states.
- No difference in access to
social benefits should be based exclusively on nationality.
- The level of minimum
entitlement to social benefits should not discriminate between foreigners
and citizens – if a state assesses that a level of poverty is
unacceptable for its citizens then the same level should also apply to
foreign nationals.
- The fact that a foreign
national’s presence on the territory of a state is unauthorised should not
be the primary consideration regarding access to social benefits. It
should never be a consideration regarding access to emergency health
treatment.
- The duty of confidentiality
between health professionals and their patients, educators and their
students and other professionals should always be respected and never
subject to reporting possibilities regarding immigration status.