Access to justice for undocumented migrants: new PICUM report explains how to engage with legal systems
Paulina* is an undocumented woman from Chile who came to Belgium a few years ago to work as a domestic worker for a diplomat family of her own nationality. For two years, she worked more than 14 hours a day, seven days a week, earning about 300 euros per month and staying in the basement where her employer’s family kept the rubbish, without being allowed to leave the house. Paulina decided to run away but was afraid to report the exploitation out of fear of being deported and therefore remains undocumented.
The situation faced by Paulina is exemplary of the large scale labor exploitation of undocumented migrants in Europe who often have no access to justice. “When looking at access to justice, the focus should be on the crime and not the status of the victim,” Jean Lambert, MEP, Group of the Greens/European Free Alliance stressed.
PICUM’s new report "Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights" outlines ways for advocates of undocumented migrants to engage with legal systems on both national and international levels. The report is a practical guide to mechanisms within the European Union, the Council of Europe and the United Nations that advocates can use to enforce undocumented migrants’ fundamental rights and to fight impunity. The report is the outcome of a discussion amongst representatives from key monitoring bodies, legal experts, and frontline service providers at PICUM’s Annual Workshop in June 2012.
The United Nations Special Rapporteur on the Human Rights of Migrants, François Crépeau, highlighted the need to restrict sharing of information between service providers and immigration authorities:
“Access to justice is key. The voice of migrants has to be heard by institutions. Good practices do exist and firewalls are part of the good practices. Public services, such as the police, healthcare providers, labour inspectors, or school teachers or administrators, should be able to perform their missions, without the unwelcome interference of being forced to act as auxiliaries.”
The European Union Agency for Fundamental Rights (FRA) has developed guidelines for EU member states to enable undocumented migrants to report crime and access justice without fear of being apprehended. These guidelines suggest the possibility for anonymous reporting to the police through a third party and to delink the immigration status of victims from the main residence permit holder if he or she is the perpetrator.
Two European Union directives also foresee ways for undocumented migrants to access justice. Under Article 6 of the Employers’ Sanction Directive (Directive 2009/52/EC), which provides for “minimum standards on sanctions and measures against employers of illegally staying third-country nationals”, undocumented migrants are entitled to introduce a claim against their employer for outstanding payments. The Victims’ Directive (2012/29/EU), establishing “minimum standards on the rights, support and protection of victims of crime,” adopted in October 2012 and to be transposed by EU Member States by 2015, aims at strengthening the rights of all victims and their family members, irrespective of their residence status as stated in Article 1 of the Directive.
The challenge remains on the national, regional and local levels, to ensure that practical measures will be put in place to ensure that undocumented migrants can safely file a complaint if they have been exploited or abused. The national legal frameworks of EU Member States do not always assess sufficiently if undocumented victims of crime are ensured effective access to justice and victim support services.
By building cases, the report gives concrete examples of how to take action at national and at EU level, including the collection of evidence of exploitation, how to lodge a complaint and training within NGOs to proceed with court cases.
To read the European Union Agency for Fundamental Rights’ (FRA) guidelines:‘Apprehension of migrants in an irregular situation – fundamental rights considerations’, click here.
PICUM - the Platform for International Cooperation on Undocumented Migrants, is a non-governmental international organisation (NGO) that promotes respect for the human rights of undocumented migrants within Europe. PICUM provides a direct link between the grassroots level, where undocumented migrants' experience is most visible, and the European level, where policies relating to them are deliberated. PICUM provides regular recommendations and expertise to policy makers and institutions of the United Nations, the Council of Europe and at EU level. In 2009, PICUM was awarded participatory status with the Council of Europe.
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