PICUM Bulletin — 17 December 2015
- United Nations
- European Policy Developments
- National Developments
- Health Care
- Labour and Fair Working Conditions
- Undocumented Women
- Undocumented Children and Their Families
- Detention and Deportation
- PICUM IN THE NEWS
COURT OF JUSTICE OF THE EUROPEAN UNION / Lawful for the United Kingdom and Ireland to not participate in the Schengen acquis relating to the crossing of external borders
In its judgment on Case C-44/14 Spain v. European Parliament and Council of the European Union, issued on 8 September 2015, the Court of Justice of the European Union (CJEU) ruled that it is lawful for the United Kingdom and Ireland to participate only in a limited way to the Schengen acquis on external border controls. The United Kingdom and Ireland do not participate in the Schengen acquis relating to the crossing of external borders, in line with Articles 4 and 5 of the Schengen Protocol. This means that the United Kingdom and Ireland have border controls for people from the Schengen area and third country nationals alike. However, Ireland and the United Kingdom take part in the Eurosur Regulation No. 1052/2013, in line with its Article 19, through multilateral cooperation agreements which need not be authorised by the Council. Spain brought an action to annul this provision for infringement of the Schengen Protocol on the basis that the United Kingdom and Ireland should not take part in the development of an area of the Schengen acquis which they have not accepted. The Court dismissed Spain’s action, arguing that it is lawful for the UK and Ireland to participate in a limited way to the Schengen acquis on external border controls. The full judgment is available here.
EUROPEAN COMMISSION / “State of play” of measures taken to address the situation at the external borders of the EU
The European Commission issued, on 30 November 2015, a document outlining the state of play of measures taken to “address the refugee crisis”. The document includes a list of actions endorsed by the informal meeting of Heads of State and Government on 23 September 2015 and again 15 October 2015 and reiterates the EU’s commitment to boost financial resources devoted to the crisis by €1.7 billion, resulting in a €9.2 billion total for 2015 and 2016. The European Commission also encourages member states to implement the EU Action Plan on Return proposed by the Commission and endorsed by Member States at the October 2015 the Justice and Home Affairs Council. The full document is available here.
Source: European Commission Press Release, 30 November 2015
The United Nations Refugee Agency (UNHCR) expressed concern about the tension and violence at the border between Greece and the Former Yugoslav Republic of Macedonia in a statement on 3 December 2015. According to reports, only Iraqis, Syrians and Afghans are being allowed to cross the Greek-Macedonian border, now separated by a 59-Km border fence. Due to these restrictions, tensions have been rising at Idomeni, on the Greek side of the border. These tensions have led to violence and a temporary closure of the border. A 20-year old man was electrocuted after touching railway cables. To address the situation, transportation has been made available for the refugees and migrants who have been refused admission into the Former Yugoslav Republic of Macedonia to return to Athens. According to the Ministry of Interior all those who will not introduce an asylum claim within 30 days will be deported to their country of origin.
Source: UNCHR Greece Press Review, 25 November; 3 and 4 December 2015; UNCHR press release, 3 December 2015; ECRE Weekly Bulletin, 11 December 2015
Ahead of International Migrants’ Day on 18 December 2015, several United Nations experts have called on governments across the world to guarantee access to services for all migrants, regardless of residence status. In a statement on 15 December 2015, the Special Rapporteur on the human rights of migrants, Francois Crepeau, and the Chair of the Committee on the Protection of the Rights of Migrant Workers and Members of Their Families, Francisco Carrión Mena, called on governments to establish a ‘firewall’ between access to services and immigration enforcement. The statement is available in UN languages here. The UN Special Rapporteur on the human rights of migrants together with the International Detention Coalition (IDC) and the support of a group of non-government organisations also organises a webinar on 18 December. The initiative entitled ‘Talk Migrants’ also includes a series of visuals and videos on migrants’ rights. Participants of the webinar can engage in the conversation on what migrants’ rights mean to them. To register for the webinar, click here. For more information on the initiative, click here. Meanwhile, civil society organisations also organised several actions to celebrate International Migrants’ Day. The Platform for International Cooperation on Undocumented Migrants (PICUM) organised a week-long action where members and partners submitted photos highlighting their key demands and concerns on poster messages. To view the photos, click here.
European Policy DevelopmentsTop
COUNCIL OF EUROPE / Commissioner Muižnieks submits written observations to European Court of Human Rights on migration cases concerning Spain
Commissioner Muižnieks submitted, on 12 November 2015, written observations to the European Court of Human Rights (ECtHR) in relation to two complaints concerning cases of alleged pushbacks of migrants from Melilla (Spain) to Morocco. In the written observations, based on his previous visit to Melilla carried out in January 2015, Commissioner Muižnieks highlights the existence of an established practice of summary forced returns of migrants who attempt to enter Melilla by climbing the fence which is surrounding the city. The Commissioner pointed out that deportations are carried out in the absence of any formal procedure and without an individual assessment and identification of the persons concerned.
Source: Council of Europe, 12 November 2015
After a three-day visit to Hungary, Nils Muiznieks, the Council of Europe’s human rights commissioner, released a statement on 27 November 2015 expressing his deep concerns over the country’s response to 400,000 people arriving at its borders in 2015 in search of international protection. Hungary introduced an accelerated asylum procedure lacking safeguards; authorities constructed a razor-wire fence at the Serbian and then at the Croatian borders and the country established offences related to irregular crossing of the border fence. Nils Muiznieks notes that the recent measures implemented make access to protection ‘extremely difficult and unjustifiably criminalise immigrants’. Muiznieks called for a review of the immigration and asylum legislation. Finally, the commissioner criticised the systematic criminalisation of migrants and stated that political leaders “should refrain from using xenophobic rhetoric linking migrants to social problems or security risks, thereby making the integration of the few migrants staying in the country even more problematic.”
Source: Dailynewshungary, 28 November 2015; CoE, 27 November 2015
The European Commission adopted, on 27 October 2015, its 2016 Work Programme. While maintaining a strong focus on “tackling people smuggling and dismantling human trafficker groups” and on “returning more people who are not in need of international protection”, the work programme includes proposals for developing new initiatives concerning channels for regular migration. In 2016, the European Commission plans initiatives on 'Better Migration Management', which include the development of a Commission Communication and further legislative measures on channels for regular migration, including the extension of the 'Blue Card' approach and a proposal for a structured system on resettlement of refugees coupled with a revision of the Dublin system on asylum. The Work Programme also includes new initiatives on 'Border Management', with the aim of progressing towards a European Border and Coast Guard building on a “significantly reinforced Frontex”. The full European Commission 2016 Work Programme is available here. Modified proposals for the 'EU Smart Borders Package' will also be presented by the Commission in 2016.
A study on the smuggling of migrants, carried out by Optimity Advisors, the International Centre for Migration Policy Development (ICMPD) and the European Council of Refugees and Exiles (ECRE) and commissioned by the European Commission’s DG Migration and Home Affairs was published in September 2015. The study entitled “A Study on Smuggling of Migrants: Characteristics, responses and cooperation with third counties” offers a systematic review of existing policies against smuggling and a comparative assessment of practices in various parts of the world where smuggling of migrants takes place. Key findings include that there is an active market for migrant smuggling services; there are strong communication networks including through the use of social media and smart phones; and that the business model for the supply of smuggling services is network based. Groups or “cells” of actors/facilitators communicate to enable movement of people from one country to another, from source to destination. To read the study, click here.
EU heads of states or government held, on 29 November 2015, a meeting with Turkey’s government to further develop EU-Turkey relations and to discuss issues relating to migration management. The summit concluded with a joint statement detailing bilateral commitments and proposed actions in several areas. In particular, Turkey and the EU agreed to activate and implement the Joint Action Plan approved on 15 October 2015 to step up their cooperation on deporting migrants who are not in need of international protection, preventing travel to Turkey and the European Union, ensuring the application of the established bilateral readmission provisions. Both sides underlined their shared commitment to take “decisive and swift action” to contrast criminal smuggling networks. In exchange, EU leaders pledged to provide an “initial” €3 billion to Turkey to support the country in migration management. EU and Turkey leaders also agreed that the EU-Turkey readmission agreement will become fully applicable from June 2016 and, once the requirements of the Roadmap are met, to complete the visa liberalisation process by lifting visa requirements for Turkish citizens in the Schengen zone by October 2016.
Source: European Council Press Release, 29 November 2015
The European Parliament published a study, entitled “Migrants in the Mediterranean: Protecting Human Rights” on 29 October 2015 which evaluates existing and planned EU policies aimed at protecting migrants’ rights before entering the EU or after having left EU territory. The study highlights that current policies are mainly focused on deportation of irregular migrants instead of primarily focusing on protecting their human rights and saving their lives. General recommendations include, among others, to address root causes of migration and to create more regular channels for migrants to enter the EU. To read the study, click here.
The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament published a Working Document on EU internal and external funding related to its migration and asylum policy on 18 November 2015. To achieve objectives of member states and third countries in the area of regular migration, irregular migration, return, asylum, visa policy, border management and integration, funding has been entrusted to a number of programmes that are managed by several Directorates General of the European Commission (‘DGs’) as well as by other EU bodies such as the European External Action Service (‘EEAS’), depending on their areas of competence. The document highlights that it is difficult to depict the different shares of funds that are available in the area of migration and asylum and how they are used because of the fragmentation of budget lines and budget responsibilities indicated above. An overview of the available EU thematic funds and instruments and their geographical scope are listed according to “migration priorities” in the tables annexed in the end of the document. The paper also outlines issues, such as the lack of a comprehensive common approach to migration, as well as recommendations concerning the allocation of funds. These include, among others, the recommendation to EU member states and the European Commission “to fund projects managed by civil society organisations working in the areas of migration, integration and asylum” and to invest further “in developing legal migration channels and supporting integration of migrants in the EU”.
Sources: Statewatch, November 2015; European Commission Press Release, November 2015
FRANCE / Administrative Court in Lille orders interim relief measures to improve conditions in Calais
The Administrative Tribunal of Lille, in its ruling n. 1508747 of 2 November 2015, ordered the application of interim relief to ensure human dignity, the right to respect for life, the right to freedom from inhuman or degrading treatment and the right to asylum, for people living in the camp surrounding the Jules Ferry centre in Calais. In particular, the judge noted that, due to insufficient access to water and toilets, and lack of waste collection, migrants in the camp were exposed to a risk of inhuman and degrading treatment. The judge therefore ordered the prefect of Pas-de-Calais and the commune of Calais to, within eight days from the ruling and with a penalty of 100 Euro per day in the event of failure to comply with the order, install 10 additional water points and 50 latrines, set up a trash collection system, install mobile rubbish containers, clean the site and install one or more routes for emergency access. The prefect of Pas-de-Calais was also ordered to identify unaccompanied children in distress within 48 hours of the judgement, so that they could be adequately accommodated. On 23 November 2015, the urgent applications judge (‘juge des référés’) of the Council of State upheld the order of the president of the Administrative Tribunal of Lille of 2 November 2015. The measures ordered are thus now definitive and the public authorities are obliged to take necessary action.
Source: European Database of Asylum Law (EDAL), 2 November 2015.
Both German and Swedish police have reported that hundreds of thousands of migrants have disappeared in their countries respectively. According to the German federal police, nearly 25,000 people who arrived in Germany are irregularly staying in the country without having registered with migration authorities. The head of the police union, Rainer Wendt, told media on 27 November 2015 that the police has no resources to track these irregular migrants and does not plan to search for them. According to Federal police, in late November numbers of new migrants and refugees arriving in Germany decreased to about 3,000 counted per day, compared to 6,000 to 10,000 per day between the summer months and early November. Swedish police stated that about 14,000 irregular migrants who had been awaiting deportation have disappeared. On 12 November, Sweden announced a 10-day temporary border control to carry out checks of arriving refugees and migrants. In November, Sweden also introduced new measures with the aim to control the number of incoming refugees and migrants. The ages of children seeking asylum will be medically verified and the right for family reunification will be strictly scrutinized.
Sources: Sputnik News, 27 November 2015; Der Spiegel, 30 November 2015; RT News, 2 December 2015; The Atlantic, 12 November 2015
German Chancellor, Angela Merkel, announced that Germany and Afghanistan will cooperate to end irregular migration of Afghans to Germany after a meeting with the Afghan President, Ashraf Ghani in Berlin on 2 December 2015. Angela Merkel announced that, among other measures, German police will train Afghan security forces in fighting smuggling, deterring irregular migration and detecting false passports. The number of Afghan migrants arriving in Germany has been increasing recently. In October 2015, reception centres reported a total of 31,000 Afghan migrant arrivals. Angela Merkel noted that, while those who cooperated with German forces in Afghanistan are often in danger and should be granted protection, others who come for economic reasons should be deported back to Afghanistan. Germany does not consider Afghanistan a safe country of origin but states that new 'relatively safe' zones should be defined within the country, as zones where Afghans can live with future prospects. According to EUROSTAT figures, Afghan nationals make up the second largest group seeking asylum in Europe, including a large number of unaccompanied and separated children. Although there is a high EU-wide rate of Afghans being granted international protection of 70%, a number of EU countries such as Germany and Sweden have become more restrictive towards Afghan asylum seekers negotiating readmission agreements to facilitate deportation.
Sources: N-TV, 2 December 2015; Frankfurter Allgemeine Zeitung, 3 December 2015; ECRE Weekly Bulletin,11 December 2015
The Council of State of the Netherlands, in a decision issued on 26 November 2015, upheld a government policy of making the provision of food and shelter to undocumented migrants conditional on their cooperation towards forced return. In the ruling, the Council of State asserted that the government "has the right, when providing shelter in so-called locations of limited freedom, to require rejected asylum-seekers to cooperate with their departure from the Netherlands". This decision follows the collective complaint brought forth by the Conference of European Churches (CEC) v. the Netherlands in 2014, in which the European Committee of Social Rights found that the Dutch social welfare system violates the rights of irregular migrants under the European Social Charter. In particular, as the large majority of irregular adult migrants without resources were generally not provided with accommodation and are denied medical assistance in legislation and practice. According to the Committee, shelter must be provided not only to migrant children but also to adult migrants in an irregular situation, even when they are requested to leave the country. A summary of the Council of State of the Netherlands’ decision is available here. The ruling also contradicts the Concluding observations on the combined 19th to 21st periodic reports of the Netherlands issued by the UN Committee on the Elimination of Racial Discrimination (CERD) on 24 September 2015, which urged the Netherlands to meet migrants' basic needs unconditionally.
Source: Reuters, 26 November 2015
EU / Restricted access to ART for undocumented migrants is a bottle neck to controlling the HIV epidemic
An article entitled ‘Restricted access to antiretroviral treatment for undocumented migrants: a bottle neck to control the HIV epidemic in the EU/EEA’ was published in the BioMedCentral (BMC) Public Health journal (2015, 15:1228) on 10 December 2015. Authored by Deblonde et al, the article highlights that beyond the multiple risk factors that migrants face, undocumented migrants incur additional risks for contracting HIV due to limited access to adequate health care services, protection and justice, alongside insecure housing and employment conditions. From a clinical and public health perspective, early HIV care and treatment is associated with viral suppression, improved health outcomes and reductions in transmission risks. Although the majority of EU/EEA countries regard migrants as an important sub-population for their national responses to HIV, and despite the overwhelming evidence of the individual and public health benefits associated with HIV care and treatment, a significant number of EU/EEA countries do not provide antiretroviral treatment to undocumented migrants. The article concludes that, following the recommendations of the European Union Agency for Fundamental Rights, ensuring access to HIV-care for all sub-populations, including undocumented migrants, would fulfil the human rights of those populations and also strengthen the control of HIV incidence among those not currently able to access HIV care. Read the article here.
Ministers of health, representatives of the health sector and representatives of international organisations met for the World Health Organization’s (WHO) European high-level meeting on refugee and migrant health in Rome, Italy on 23 and 24 November 2015. The aim of the meeting was to move towards a shared understanding and approach to migrants’ and refugees’ health. Main issues discussed were the public health and health system challenges that have occurred in the context of increased migration. According to the WHO, nearly two million refugees and migrants have taken shelter in Turkey, while over 700,000 have entered other countries in the European Region. Up to 5% of these people need medical assistance, faced with health issues such as accidental injuries, hypothermia, burns, cardiovascular events, pregnancy- and delivery-related complications, diabetes and hypertension. Factors such as mass population movement, water shortage and inadequate shelter and sanitation also increase the risks for acquiring communicable diseases. A number of migrants and refugees also suffer from mental health issues. To access background documents of the meeting, click here.
Sources: World Health Organization, November 2015; Lippische Landeszeitung, November 2015; Sueddeutsche, 2015; Neweurope, November 2015
The new Naviduo foundation in Frankfurt am Main, Germany, will help to cover costs for medical treatment of undocumented migrants in the city. This was announced by Dr. Nargess Eskandari-Grünberg, Councillor for Integration of the City of Frankfurt on 10 December 2015. The foundation has a start-up budget of 15,000 Euro and will closely cooperate with other organisations to reach those in need. The project is also looking for additional donations. Naviduo is a service provider in the areas of social welfare, education, integration, asylum and refugees. The Department of Health of the City of Frankfurt, together with the organisation Maisha e.V., has already been providing medical consultations for undocumented migrants.
Source: Frankfurter Rundschau, 10 December 2015
Labour and Fair Working ConditionsTop
The Domestic Workers Convention (No. 189) entered into force in Switzerland on 12 November 2015 after the country ratified the convention the year before. The Swiss organisations 'Women in Development Wide Schweiz' (Switzerland) and the national 'Platform for Undocumented Migrants' (nationale Plattform zu den Sans-Papiers) are now calling for rapid and effective implementation of the convention. For this reason they have launched a petition which is available in German and French. The organisations demand, among other things, the possibility for undocumented domestic workers to get a permit to stay and work; access to social security and labour courts for domestic workers; and to ensure that domestic work is subject to labour law.
Source: Sans- Papiers Switzerland, December 2015
On 25 November 2015, the annual International Day for the Elimination of Violence against Women renewed awareness of the persisting barriers to protection that women experiencing violence face. For many undocumented survivors of violence, U.S. immigration policies represent an obstacle for accessing help. Initiatives taken in response to violence against women, such as the Violence Against Women Act in 2014, have included undocumented women but only those that have been directly related to a U.S. citizen or permanent resident. The U nonimmigrant status (or U visa) offers immigration protection for victims of crime. The T nonimmigrant status (or T visa) provides immigration protection to victims of severe forms of trafficking in persons who assist law enforcement in the investigation and prosecution of human trafficking cases. More information for undocumented victims of crime in the United States is available here. According to reports, only a quarter of all employment visas are given to women as principal holders. This means that most migrant women in the employment visa category are dependent on a spouse’s visa, without authorisation to work themselves, making them more vulnerable to endure abusive relationships.
Sources: Realitycheck, 25 November 2015; U.S. Homeland Security, September 2015; We Belong Together Factsheet, December 2015
Undocumented Children and Their FamiliesTop
EU / Members of the European Parliament sign declaration on investing in children, following adoption of resolution
428 Members of the European Parliament (MEPs) signed a declaration on investing in children on 7 December 2015. The written declaration (number 0042/2015) calls upon the European Commission to introduce specific indicators on children at risk of poverty; it also urges EU member states to use EU funding to implement the Commission Recommendation ‘Investing in Children: Breaking the cycle of disadvantage’. A group of 11 MEPs had launched the initiative at the European Parliament to collect signatures to support the declaration. European Parliament resolution of 24 November 2015 on reducing inequalities with a special focus on child poverty (2014/2237(INI), rapporteur: Inês Cristina Zuber) was adopted in plenary by 569 votes to 77 with 49 abstentions. It recognises, among many other issues, that children and their parents, foster parents and caregivers must be protected from discrimination on any grounds and that children from vulnerable population groups are more at risk of marginalisation, poverty and social exclusion; and that migrant children are over-represented in the group at risk of poverty, and the situation is worse for undocumented migrant children. The resolution provides a number of conclusions and recommendations. These include: that the Commission establishes with member states a roadmap for the implementation of the Commission recommendation ‘Investing in children: Breaking the cycle of disadvantage’; that Member States adopt, implement and monitor plans for alleviating multi-dimensional child poverty, putting the focus on the intrinsic rights of children and setting targets for reducing child poverty and social exclusion, with an explicit focus on and prioritisation of those children living at the highest risk of poverty; that member states develop and implement integrated child protection systems to protect children against violence, abuse, exploitation and neglect in such a way as to ensure that all duty-bearers and system components work together across sectors and agencies sharing responsibilities to form a protective and empowering environment for all children; that member states guarantee all children access to free, inclusive and quality public education at all ages, including early childhood education and care, and formal and non-formal education; and that member states guarantee universal, public, free and quality health care for all children and their families. The declaration is available in 23 languages here.
Source: Eurochild, 7 December 2014
The Fundamental Rights Agency (FRA) has released a Handbook on European law relating to the rights of the child, jointly prepared with the Council of Europe, to shed light on the role of European legal standards in securing the enjoyment by children of their universal rights. The handbook is designed for non-specialist legal professionals, judges, public prosecutors, child protection authorities, and other practitioners and organisations responsible for ensuring the legal protection of the rights of the child. There is a section on non-discrimination based on nationality and immigration status. The right to education for all children, regardless of their nationality or immigration status is underlined in both this section and the chapter on the right to education. Undocumented children’s entitlements to free medical care beyond urgent medical assistance and including primary and secondary care, as well as psychological assistance, as well as to adequate and appropriate shelter, are also explained. There is also a chapter dedicated to European migration and asylum law, which highlights numerous rights of the child, including to have their rights, including the right to private and family life, protected and their best interests weighed as a primary consideration in all decisions affecting them, including decisions on entry, residence and expulsion of the child and/or their family or primary carers. The obligation to grant permission to reside and work to the parents of an EU citizen child, in the country of their citizenship, and the right to an effective remedy, are also reviewed. The section on detention notes EU restrictions on the conditions and use of detention, as a measure of last resort, and the European Court of Human Rights judgements which found violations of the prohibition of torture and inhumane and degrading treatment, of the right to liberty and security and of the right to private and family life. The Committee on the Rights of the Child has provided additional guidance, not included in the Handbook, that the detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. The Handbook is available in English and French here. Publication of the handbook in other EU official languages is planned for 2016.
UNICEF has launched the global #FightUnfair Campaign which aims to engage a community of advocates and to empower them to speak out about the most unfair situations that children face today. Information about the campaign, including ways to engage, can be found here. Among the unfair facts highlighted by the campaign is that 1 in 5 refugees and migrants arriving in Europe is a child. At the same time, UNICEF has released a new report entitled ‘For Every Child, a Fair Chance: The Promise of Equity’, laying out UNICEF’s equity agenda. The central proposition is that giving a fair chance in life to every child, everywhere – especially the most disadvantaged – offers the greatest hope of breaking intergenerational cycles of inequity and poverty in every society, and realizing universal child rights in the era of the Sustainable Development Goals. The report outlines many of the milestones achieved for the world’s poor and marginalized children to date, as well as many of the remaining gaps. Migrant and refugee children are recognised as a vulnerable and marginalised group of children. The report is available in English, French, Spanish and Russian here.
UK / NETHERLANDS / Two new reports on the best interests of children in the context of immigration and asylum policies
The Law Centre Networks has released a report entitled ‘Put yourself in our shoes: considering children's best interests in the asylum system’, which looks at decision-making in unaccompanied children’s asylum claims, identifies child-centred principles from international practice, and highlights areas of good practice in the UK asylum system. Overall findings underline the lack of opportunities for children to express their opinions, thoughts, feelings or desires and have then duly considered; and the lack of coordination, in particular between the asylum and care systems, necessary for determining the welfare and protection needs of separated children. Based on the analysis, the report makes recommendations to the Home Office, the Legal Aid Agency, HM Courts and Tribunals Service, local authorities and lawyers to improve the procedures for unaccompanied and separated children. The report is available here. Defence for Children – the Netherlands has released the report ‘Families constrained: an analysis of the best interests of the child in family migration policies’, looking at how the right of the child to have their best interests weighed as a primary consideration, as established in law, is construed in family migration policy in the Netherlands. Analysis of the ‘best interests of the child’ in the Convention on the Rights of the Child (CRC), the European Convention on Human Rights (ECHR) and the law of the European Union, is accompanied by analysis of the situation in The Netherlands as illustration of challenges encountered in giving the best interests of the child a prominent place in family migration policy. Recommendations to the Committee on the Rights of the Child, European Commission, and Council of Europe aim to inspire authorities to give primary consideration to the best interests of the child in individual family migration cases and on a macro level in policy and legislation. The report is available in English here and in Dutch (with additional recommendations to the Dutch State authorities and courts) here.
Source: Migrant Children's Project Newsletter, November 2015
The British Dental Association (BDA) has issued a clear warning to dentists that X-rays should not be taken or routinely used in order to help judge the age of young asylum seekers, calling the practice ‘inaccurate’ and ‘unethical’. The BDA has consistently argued that dental x-rays are an inaccurate method for assessing whether individuals have attained the age of 18 years, and that as the process confers no direct health benefit it is both inappropriate and unethical.Source: Migrants’ Rights Network, 24 November 2015
USA / No temporary injunction against policy of denying birth certificates to some American children of undocumented parents
A federal judge in Texas has permitted the state to continue denying birth certificates to US-born children of certain unauthorised immigrant parents. On 16 October 2015, US District Court Judge Robert L. Pitman declined to temporarily block a recent state policy to refuse the issuance of birth certificates to children of parents who present consular identification cards (matrícula consular) as a form of identification (see also PICUM Bulletin 3 July 2015). The plaintiffs challenge the policy in several ways, including by arguing that the inability to obtain a birth certificate curtails their children’s privileges of US citizenship, including access to services. As a result, the lawsuit contends, the Texas policy violates the equal protection and due process rights of both the children and parents. Texas has defended the policy, arguing that it is designed to protect against identity fraud and that the matrícula is not a secure form of identification because consulates lack the ability to verify applicants’ identities. In weighing the opposing arguments, Judge Pitman found the plaintiffs met the “burden for irreparable harm,” stating that “insofar as a birth certificate is the primary means of documenting citizenship, it follows that a citizen’s right to obtain it is as fundamental as the rights and privileges that flow from the status it documents.” However, he also found that Texas has a compelling interest to protect the integrity of its birth certificates. Whether that interest is compromised by accepting Mexican matrículas could only be determined after hearing all the evidence, the judge concluded.
Source: Migration Policy Institute, 12 November 2015
Detention and DeportationTop
Children in immigration detention must be released into the community under new legislation passed by the Senate, to go before the House of Representatives. Amendments made and passed by the Senate on the government-sponsored Migration and Maritime Powers Amendment Bill (No. 1) mandate the release of all children from Australian immigration detention centres, unless a court specifically orders a child’s release is not in the public interest, impose mandatory reporting of abuse in detention centres to the relevant independent authorities, require all reasonable media requests for access to be granted to detention centres, and reverse the secrecy provisions of the Australian Border Force Act which made it an offence to disclose information in the public interest about detention. Senator Hanson-Young, who proposed the series of amendments, told the Senate: “It is a national shame that we have kept them locked up, that we have effectively stolen this amount of time from their childhood.” The House of Representatives, which is controlled by the government, can choose to pass the new bill (with the amendments), reject it or amend it. If the House further amends the bill, it will have to go back before the Senate. For more information on detention and alternatives in Australia, see infographics and a fact sheet from June 2015 by the Australian Coalition to End Immigration Detention of Children, part of the global campaign.
Source: The Guardian, 23 November 2015 c.f. CRINmail 1456, 25 November 2015
COURT OF JUSTICE OF THE EUROPEAN UNION / Return Directive does not prohibit member states to impose a prison sentence on those violating a re-entry ban after deportation
In its ruling in the Skerdjan Celaj case (C-290/14), rendered on 1 October 2015, the Court of Justice of the European Union (CJEU) clarified that the EU Return Directive must be interpreted as not, in principle, precluding national legislation that imposes a prison sentence as a criminal law penalty for non-EU citizens who unlawfully re-enter the country in breach of an entry ban issued after a previous deportation. The CJEU reiterated that the objective of the Return Directive would be undermined should the deportation be delayed by a criminal prosecution leading to a term of imprisonment, as ruled in the cases El Dridi, Achughbabian, and Sagor. However, it stated that the circumstances in the Celaj case were “clearly distinct” from those in El Dridi and Achughbabian, as the case in Celaj did not concern a first deportation procedure. The Court did not follow the Opinion of Advocate General (AG) Szpunar, issued in April 2015 (See PICUM Bulletin, 5 June 2015).
Source: Court of Justice of the European Union, Press Release No 112/15, 1 October 2015.
EUROPEAN COURT OF HUMAN RIGHTS / Ruling in case of Mahamed Jama v. Malta that detention conditions did not violate European Convention on Human Rights
In a judgement issued on 26 November 2015 concerning the case of a Somali national who entered Malta irregularly by boat in May 2012, the European Court of Human Rights (ECtHR) ruled that the conditions of her detention did not amount to a violation of Article 3 of the European Convention on Human Rights (ECHR), the prohibition of torture and inhumane or degrading treatment. The court ruled that the size of her living space, which during the period of her detention, except for one month, was not smaller than 5m2, did not go below the acceptable minimum standard. The Court held that the cumulative effect of the conditions complained of did not meet the threshold of inhumane or degrading treatment within the meaning of Article 3 ECHR. Judge Casadavall issued a dissenting opinion and called on Malta to ensure conditions of detention that were compatible with human dignity. The Court found a violation of Article 5(4), highlighting that the applicant did not have an effective and speedy remedy available in domestic law in Malta. The full judgement is available here.
Source: European Database of Asylum Law (EDAL), 26 November 2015
The Mexican government introduced a prohibition of immigration detention of children in the official regulations for the National Child Rights Law on 2 December 2015. Article 111 of the law states that at no time will migrant children or adolescents, regardless of whether or not they are travelling with adults, be deprived of their freedom in immigration stations or in any other immigration detention centre. Article 111 also explicitly requires that Mexico adopts and implements mechanisms to prevent children accompanied by their parents or guardians from being detained for immigration purposes. In June 2015, the United Nations Committee on the Rights of the Child (CRC) expressed concern about child detention in Mexico as part of its Concluding observations on the combined 4th and 5th periodic reports of Mexico.
Source: International Detention Coalition (IDC), 5 December 2015
The European Network on Statelessness (ENS) has published a toolkit as well as several country reports and personal stories about stateless persons in immigration detention. The resources are part of a three-year project to map the extent of the issue, to create advocacy tools and to train lawyers and NGOs to protect stateless persons from arbitrary detention. The toolkit discusses the decision to detain stateless persons, arbitrary detention, legal frameworks and alternatives to detention. It also provides checklists for advocates pushing for law and policy reform and for practitioners. The country reports discuss how to protect stateless persons from immigration detention in the Netherlands, Malta and Poland.
Source: European Network of Statelessness, December 2015
PICUM IN THE NEWSTop
PICUM Advocacy Officer, Kadri Soova, was interviewed by the Belgian MO Mondiaal Nieuws about how the EU and EU member states should focus on labour policy and labour market demands to effectively address irregular migration and the need for more regular channels.
Source: MO Mondiaal Nieuws, 9 December 2015