“Dignity and Rights of Irregular Migrants”: Statement by the Deputy High Commissioner

21 November 2011

Excellencies, ladies and gentlemen,

It is a great honor and pleasure for me to take part in this annual conference of the European Union Fundamental Rights Agency. I am grateful for this opportunity to add the voice of our office, the Office of the UN High Commissioner for Human Rights (OHCHR) to today’s discussion on a very important and timely subject that the FRA has chosen as the theme for the annual conference this year.

Ensuring the realisation of human rights in the context of migration is a thematic priority for the Office of the United Nations High Commissioner for Human Rights. An important part of our strategy on migration is to advocate for the effective protection of all migrants, wherever they are and regardless of their legal status.

In 2010, under the chairmanship of the High Commissioner, the international organisations comprising the Global Migration Group (GMG) adopted a landmark statement, expressing their deep concern about the human rights of international migrants in an irregular situation, noting that migrants in irregular situation are more likely to face discrimination, exclusion, exploitation and abuse at all stages of the migration process. The GMG called on States to review the situation of migrants in an irregular situation within their jurisdiction and to work towards ensuring that their laws and regulations conform to international human rights standards.

The European Union’s institutions have made important contributions to the migration policy domain. It is a clear sign of progress that the European Union has changed its terminology a few years ago, referring to “irregular” rather than “illegal” migrants. This is in line with the UN General Assembly Resolution which recommended that stakeholders avoid using the term “illegal” to describe migrants in an irregular situation, in order to underscore the point that all migrants are human beings with human rights, and to avoid connotations of criminality.

However, the challenge goes beyond mere terminology. Although there are differences between States, the security-focused approach to migration policy continues to dominate and public discussion on irregular migration is overwhelmingly framed around risk and border control, security threats and expulsion. This has serious implications for the human rights of migrants in irregular situation. Let me elaborate on some of the most salient aspects.

Detention
One of the main human rights challenges facing irregular migrants is that of detention. In some States, administrative detention lacks proper judicial oversight and procedural safeguards. For instance, as shown by recent judgments of European Courts, conditions in Greek detention facilities have reached the level of inhuman and degrading treatment.

Under international human rights law, and because of the drastic impact of detention on the individual human being, the deprivation of liberty should in all cases be a measure of last resort and as the result of an individual determination. There should be a presumption against immigration detention in the case of children and other vulnerable groups, such as women at risk or migrants with disabilities.

Earlier this year, OHCHR and UNHCR organized a roundtable on the issue of alternatives to immigration detention. In our joint report, we found that there was no empirical evidence that such detention deters irregular migration, and argued convincingly for alternatives.

Criminalisation
The second key issue is that of criminalisation of migrants. In the current atmosphere of economic crisis, migrants in general and irregular migrants in particular risk becoming targets not just of hostile discourse by the media and some politicians, but also of repressive policies which increase their social exclusion and further aggravate the already existing rights challenges. Such policies include

• making irregular entry or stay a criminal offence,
• obliging health-care professionals, educators or workers in social services to report irregular migrants to immigration authorities, sometimes under the threat of being themselves penalized if they fail to do so.

As the High Commissioner and other UN human rights entities have repeatedly stated, crossing a border or residing in a country without the legal permission to do so should at most be considered an administrative offence. Simply put, irregular migration is not a crime. Violations of immigration law should not be encouraged, but where that happens, the response of the States must be proportionate and in line with their commitments under international human rights law.

Regimes of criminalization tend to have a disproportionately negative effect on the rights and well-being of the migrants who are targets of such regimes. Furthermore, to impose reporting duties on helping professions such as health-care workers, social workers or teachers not only risks cutting irregular migrant off from these essential services, but also undermines the ethics of these professions. Moreover, such harsh regimes mostly fail to reach their objective of deterrence and create further public risks. For instance in the area of public health, experts agree that enabling migrants to access early diagnosis and follow-up services makes much more sense than preventing them from accessing these services.

Therefore, I would like to use this opportunity to call on all states, in Europe and elsewhere, to ensure that irregular entry or stay of migrants is not subject to criminal penalties, and to remove criminal law provisions which may apply.

Access to ESCR and rights of the child
The aforementioned issue is closely linked to the third one, namely the question of access of irregular migrants to economic, social and cultural rights. States have the sovereign prerogative to manage their borders, and to make legitimate distinctions between nationals and non-nationals as well as between persons of different legal status. The situation varies considerably between EU Member States, but some of the differential treatments and restrictions are clearly excessive - as shown by the new study of the Fundamental Rights Agency on the access to health, which cites the UN Committee on Economic, Social and Cultural Rights as source of guidance. This Committee has clarified that the obligation to respect the right to health requires that States refrain from denying or limiting the equal access of migrants in an irregular situation to preventative, curative and palliative health services.

Children, in particular, cannot be denied the rights guaranteed to them under the Convention on the rights of the child on the basis of their (or their parents’) legal status. The best interest of the child must always be given precedence over other concerns. In July, a judicial colloquium organized in Barcelona by the OHCHR’s Regional Office for Europe brought together prominent European judges to discuss the specific challenges concerning the best interest of the child in cases of migrant children, unaccompanied as well as accompanied. The Barcelona colloquium showed that practices vary across Europe, and so does the role played by the judiciary as the ultimate guarantee of rights. The outcome of the colloquium in draft form is available to the Conference participants.

Connections between regular and irregular migration
The fourth issue is perhaps the most difficult one as it would require the real development of a common European migration policy. Namely, while it is legitimate for States to distinguish between migrants of regular and irregular status, the stark dichotomy between policies for “good” regular migrants and policies against “bad” irregular ones is disconnected from reality.

Research tells us that most irregular migrants were in a regular situation at some time; and the rest mostly either tried to be, or at least would have wished to be regular. Some deliberately overstay, in the absence of sufficient opportunities to maintain a legal presence, while others will have lapsed into irregularity due to bureaucratic obstacles or will have been driven into irregularity through exploitation by their legal employers. This is, for instance, the case of many construction workers from Eastern Europe who only get access to a regular job in EU Member States through employment by legally operating but very exploitative networks - or migrant domestic workers tied by their work permit to a single employer. If these workers leave their employers, they find themselves in an irregular situation.
Therefore, States should create conditions for would-be migrants which would facilitate regularity. They should protect regular migrants effectively from exploitation, and prevent them from lapsing into irregularity. In addition, as some EU Member States have already been doing, they should have policies for active regularization, creating conditions under which those in irregular situation could regularize their stay.

ICRMW
My statement would not be complete without addressing the conspicuous lack of ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families by EU Member States. This Convention is sometimes caricatured as being something that “sending countries” of the global South wish to impose on “receiving countries” of the global North. This is misinformed and misleading. The Convention is an integral part of international human rights law that the United Nations has elaborated and adopted over decades.

The arguments against ratification, which date back to the early 1990s when the EU migration policy consisted chiefly of police cooperation in the area of border control, appear increasingly obsolete. I urge the EU and its Member States to rethink the issue. Ratification of this international instrument would be a concrete affirmation of their commitment to protecting and promoting the rights of all migrants in their territory. Many other countries that also have not ratified the convention yet look to EU action and leadership in making progress on this key issue on the global human rights agenda.

While international human rights law protects all migrants regardless of their status, the Convention recognises that lawful presence in a country is an important pathway to greater protection of rights. Thus, it enjoins States to work together to prevent and eliminate irregular migration. Its article 69 calls on States Parties to consider regularization, particularly taking into account the circumstances of the migrant’s entry and length of residence, as well as his or her family situation in the host country. The Committee on Migrant Workers has recently held a Day of General Discussion on the human rights of irregular migrant workers and members of their families, which will enable it to elaborate a General Comment on this important issue.
Ladies and Gentlemen,

To conclude, I would like to express the OHCHR’s appreciation of our very constructive partnership with the EU’s Fundamental Rights Agency on the issue of human rights in the context of migration as well as on many other human rights issues. I believe that together with FRA, but also in cooperation with the whole array of EU institutions and its Member States, we can jointly make progress in addressing the challenges in ensuring the dignity and rights of irregular migrants, which remain among the most pressing human rights challenges of our times.

Thank you.