PICUM Bulletin — 4 aprile 2017
- United Nations
- European Policy Developments
- National Developments
- Health Care
- Labour and Fair Working Conditions
- Undocumented Women
- Undocumented Children and Their Families
- Detention and Deportation
- Publications and other Resources
- PICUM IN THE NEWS
The Hungarian parliament passed a bill on 7 March 2017 which allows the detention of irregular migrants in converted shipping containers. According to a government spokesperson, people in the container camps would only be able to leave the camps if they received permission or if they volunteered to leave the country and be brought to Serbia. Over 320 shipping containers were placed in two transit zones between Hungary and Serbia. The Ministry of the Interior has said that only unaccompanied children below the age of 14 would not be detained but rather placed in childcare institutions in the country. This is contrary to the definition by the UN Convention on the Rights of the Child (which Hungary has ratified), which considers anyone a child until the age of 18. Human rights groups warned of the consequences of the bill. Hungary’s Prime Minister, Viktor Orban, called refugees and migrants the “Trojan horse of terrorism.” Following the new bill, the European Court of Human Rights ruled on 14 March that Hungary unlawfully kept two Bangladeshi migrants in a transit zone on its border with Serbia. In September 2015, the two migrants were removed from Hungarian territory and detained at Roszke transit zone between Hungary and Serbia for 23 days. Hungary will have to pay €10,000 each to the two men, and a further €8,705 to cover their expenses and costs under the ruling. Meanwhile, reports of violence against migrants at the country’s borders persist. Doctors without Borders (MSF) reported that between January 2016 and February 2017, they treated over 100 patients with injuries resulting from violence by Hungarian border patrols. This included beating injuries, dog bites, irritation from tear gas or pepper spray, and other injuries.
Sources: Reuters, 28 March 2017; EU Observer, 7 March 2017; EU Observer 15 March 2017
MEDITERRANEAN / Thousands of migrants rescued, over 520 die, rescue missions face allegations of collusion with smugglers
According to the International Organization for Migration’s (IOM) Missing Migrants Project, 525 people had died at sea from 1 January 2017 until 19 March 2017 and 20,484 migrants and refugees entered Europe by sea within the same period. Doctors without Borders (MSF) reported that among 540 migrants they saved in the Mediterranean within hours on 27 March, many were originally from South Asia. They come through Libya due to the closure of the Balkan route. Within few days in March, 6,000 people were rescued on the central Mediterranean route from Libya to Italy. During one of the rescue operations, a baby girl was born on board a ship. Previously on 21 February, Libya's Red Crescent reported that 74 bodies washed ashore in the Libyan city of Zawiya on the Mediterranean Sea. Meanwhile, Carmelo Zuccaro, a chief prosecutor in the Sicilian city of Catania, has formed a task force to investigate whether the non-governmental organisations rescuing migrants and refugees are funded by smugglers. Sea-Watch, SOS Mediterranee, MSF and the other NGOs operating in the Mediterranean denied the accusations.
Sources: Reuters 28 March 2017; AlJazeera 21 March 2017; The Independent 21 March 2017; International Organization for Migration, Press Release 21 March 2017; La Vanguardia, 27 March 2017
Due to border securisation and the closure of the Balkan route, irregular migrants risk abuse from both the authorities and organised criminal networks. The organisation Legis issued a report ‘Irregular migration in Macedonia - 6 months outreach report in Lipkovo Municipality (villages Vaksince and Lojane)’, gathering its observations during its outreach work with migrants from 25 August 2016 to 31 January 2017. Legis notes that the lack of regular pathways into the EU, restrictive admission policies and the securisation of borders lead to higher risks of rights’ violations by the authorities: migrants are sometimes denied access to asylum procedures, and nearly 1,400 deportations from Serbia did not follow regular procedures. It also boosts smuggling, human trafficking and organised crime, putting irregular migrants at risk of abuse, extortion, and kidnapping. Irregular migrants are unaware of the possibilities for protection, and abuses go unreported as they fear detention and deportation. Read the full report here.
Racial discrimination, Afrophobia and racial profiling are frequently experienced by people of African descent in Germany. This was the finding of a visit to Germany by the United Nations Working Group of Experts on People of African Descent on 20 to 27 February 2017. The Working Group visited several cities and met with representatives of the German Federal and State authorities, representatives of national and provincial human rights institutions, and civil society, to find out about the extent of racial discrimination against people of African descent in the country. It was found that people of African descent face racial discrimination, including racial profiling by the police and institutional racism in the criminal justice system. Racism by the authorities, in addition to the lack of a complaint mechanism for victims, fosters impunity for discrimination. The Working group will present a report containing its findings and recommendations to the UN Human Rights Council in September 2017.
Source: OHCHR, Press Release 27 February 2017
The UN Committee on Economic, Social and Cultural Rights issued a statement on 13 March 2017 on “Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights” (ICESCR). In its statement, the Committee reaffirms the human rights of all refugees and migrants, regardless of status, and notes that all people under a state’s jurisdiction enjoy rights under the ICESCR, “even when their situation in the country is irregular.” According to the Committee, the fact that undocumented individuals are systematically barred from access to health care, employment, education for their children, and social housing “cannot be tolerated”. The Committee urges “strict walls” between health care personnel and law enforcement, so that people need not be fearful of seeking medical assistance. It also acknowledges the contribution of migrant workers to social security systems, and underscores the need to ensure measures to protect them from abuse and to ensure they can file complaints without fear of deportation. The Committee calls on states to gather, and to provide to the Committee, more information on the extent to which refugees, asylum-seekers and undocumented migrants enjoy their rights under the Covenant. The statement is available here.
European Policy DevelopmentsTop
The European Commission presented a renewed EU Action Plan on Return and a Recommendation to EU member states aiming at increasing the rate of deportations. The measures urge member states to systematically issue return decisions and to detain migrants who have received a return decision and ‘show signs’ they might not comply with the decision and cooperate in the return process. The measures also allow for the detention of children and suggest restrictions to appeal rights and other procedural safeguards. The Action Plan also foresees increased readmission agreements with third countries including negotiations with Nigeria, Tunisia and Jordan and aiming to engage with Morocco and Algeria. A group of over 90 civil society organisations addressed the European Commission in a joint statement expressing concern about prolonged detention, recalling EU values and highlighting the absence of evidence that detention and deportation deter irregular migration. A group of child rights organisations, including PICUM, Save the Children, IOM, UNICEF, OHCHR, End Immigration Detention of Children and the International Detention Coalition, highlighted in a joint press release how the measures put children’s lives at risk and would be in violation of the UN Convention on the Rights of the Child. The Office of the United Nations High Commissioner for Human Rights (OHCHR) called the EU recommendation on return procedures a “slippery slope” to solve European migration challenges and stated that alternatives to detention, such as registration and reporting requirements, should be developed and implemented.
Source: European Commission, Press Release, 2 March 2017
EU leaders adopted a declaration at an informal meeting in Malta on 3 February 2017 which proposes cooperation with Libya to limit migratory movement from Libya to Europe. Among others, the ‘Malta Declaration’ foresees training, equipment and support to the Libyan national coast guard and other relevant agencies as well as ensuring adequate reception capacities and conditions in Libya for migrants. In a joint letter addressed to all heads of state of the European Union, a group of over 70 organisations highlighted that the plans will exacerbate arrests and detention of migrants in Libya and increase exposure to severe human rights abuses; that the focus on tackling smugglers will not prevent migration, nor provide solutions to human suffering; and that the EU-Turkey agreement cannot be taken as a good practice example. The letter is available in English, German, Greek, French, Italian, Spanish, Dutch and Polish. In recent years, reports of human rights groups have raised awareness of widespread abuse and violence including torture, rape and killings of migrants in Libya.
Sources: Council of the European Union, 3 February 2017
COURT OF JUSTICE OF THE EUROPEAN UNION / Member states not obliged to grant humanitarian visas to those seeking to apply for asylum
On 7 March 2017, the Court of Justice of the European Union (CJEU) issued its judgement on Case C-638/16, holding that EU law does not require member states to issue a visa on humanitarian grounds to individuals applying to enter their territory with a view to applying for asylum. The case concerned a Syrian couple with three young children residing in Aleppo, who applied from Lebanon for a visa to enter Belgium, with the intention of applying for asylum from within Belgium. EU law (under Regulation 810/2009) sets forth procedures for establishing a Community Code on Visas (Visa Code) including issuance of a visa for transit through member states’ territory, and for stays up to 90 days. According to Article 25(1)(a) of the Visa Code, a visa with limited territorial validity may be issued in exceptional circumstances on “humanitarian grounds, for reasons of national interest or because of international obligations”. The Court ruled that, because the family’s intention was to apply for asylum in Belgium and therefore implied a long-term stay, the case fell outside the scope of the Visa Code, and, therefore, the application of the EU Charter of Fundamental Rights. Moreover, EU asylum law applies to applications within a member state, or at its borders, and not from third countries. The Court noted, however, that Article 79(2)(a) of the Treaty on the Functioning of the European Union empowers the EU to adopt legislation concerning long-term visas, but that to date no such measures have been adopted. The ruling does not, however, affect member states’ responsibility in such cases under international and national law. The ruling goes against the opinion issued in February by Advocate General Mengozzi, which concluded that member states must issue a humanitarian visa under Article 25(1)(a) of the Visa Code when there are substantial grounds to believe that a refusal to do so would expose the applicant to treatment prohibited under Article 4 of the Charter, such as torture, inhuman and degrading treatment or punishment. The judgement is available here.
Source: CJEU Press release
COURT OF JUSTICE OF THE EUROPEAN UNION / Right to reside not automatically lost due to committing crime, under EU law
The Court of Justice of the European Union ruled in two separate judgments on cases concerning third country national parents of EU citizen children on the right to reside in the country if they have committed a crime but if they are the sole carer of an EU national (EU Directive 2004/38). In the case CS v. U.K., c-304/14, the applicant, a Moroccan national, lived in the UK with her British national son. She was imprisoned for twelve months following a criminal conviction and subsequently notified of her deportation liability. Under existing CJEU case law, the applicant cannot be deported if this would put the rights of her son, an EU citizen, at risk under the directive. Consideration must be given to the circumstances of the case, as set out in Article 28(1) of the Directive, including the individual’s conduct, the length of their stay and whether it was regular, the age and state of health of the child, among other factors, as well as the gravity of the offence. UK legislation establishing an automatic and systematic link between criminal convictions and deportation is therefore in violation of EU law. In another case, Marin v. Spain, c-165/14, the applicant, a Colombian national and the sole caregiver of two EU national children, had been refused a residence card in Spain because he had a criminal record. The Court held that, as the children were deemed dependants, it was a breach of EU law to refuse a residence permit solely and automatically because of the fact he had committed a criminal offence, without taking any account of the personal conduct of the offender or the danger he presents to public policy or security. The judgement of the case C-304/14 CS is available here. The judgement of the case C-165/14 – Rendón Marín is available here.
Source: EU Law Analysis, 27 September 2016
EUROPEAN COURT FOR HUMAN RIGHTS / Court rules that deportation of migrant with serious illness would have been human rights violation
The Grand Chambers of the European Court for Human Rights (ECtHR) issued its ruling in Paposhvili v. Belgium (Application no. 41738/10) on 13 December 2016. The case concerned a seriously ill Georgian national. He sought, and was repeatedly refused by Belgian authorities, leave to remain in the country due to his illness. The applicant brought his case to the ECtHR in July 2010 alleging violations of Articles 2 (right to life), Article 3 (prohibition against torture) and Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR, or Convention) in connection with his removal to Georgia. After his death in June 2016, his wife and children were allowed to pursue the case on his behalf. The applicant arrived in Belgium via Italy in November 1998 with his wife and young daughter. Between 1998 and 2005, he was arrested multiple times and served prison sentences for various offences. In 2006, while serving a prison term, the applicant was diagnosed with chronic lymphocytic leukemia and in 2007 requested regularisation due to his state of health under section 9ter of the Aliens Act, and citing Articles 2 and 3 of the ECHR. His request was refused because of the serious nature of the offences he had committed. His subsequent 9ter application was also refused. In its judgment, the Court affirmed the general premise that migrants subject to deportation cannot in principle claim the right to stay to continue to benefit from medical care or other forms of assistance provided by the state. However, the Court clarified that circumstances giving rise to a breach of Article 3 include cases where the applicant is close to death, as well as those where a seriously ill person for whom there is no risk of imminent death would face a real risk, due to the lack of “appropriate treatment in the receiving country or access to that treatment, of being exposed to serious, rapid and irreversible decline in their state of health, resulting in intense suffering or significant reduction in life expectancy.” States therefore have a positive duty to ensure appropriate procedures allowing the individual to bring evidence of the potential risks faced upon return, and to examine foreseeable consequences considering the general situation and the individual’s circumstances. Where doubts remain about the impact of removal, the returning state must get assurances from the receiving country as a precondition for removal that appropriate treatment will be available and accessible. The Court ruled that his removal would have been a violation of Article 3 if the Belgian authorities would not have assessed the risks he faced resulting from his state of health. It also found a violation of Article 8 because Belgian authorities did not examine the degree to which he was dependent on his family, due to his deteriorating health. The Court ruled that the Belgian state has to pay the applicant’s family €5,000 within three months. The ruling is available here.
The mayor of Calais, Natacha Bouchart, has banned the distribution of food to migrants in Calais. The mayoral decree, issued on 2 March 2017, prevents repeated gatherings and essentially targets the presence of volunteers distributing meals to migrants, with the stated aim of preventing the establishment of a new camp for migrants in the area. The mayor of Calais stated that these gatherings allegedly threatened the peace and security of the area and the ban is already being implemented by the police. This makes the living conditions of migrants more difficult, and especially affects migrant children who cannot provide for themselves and make up 80% of the migrant population in the area. Volunteers and associations usually distributed around 400 meals per day. Authorities cleared the migrant camp in Calais in October 2016 (see PICUM Bulletin 14 December 2016). Before the closure of the camp, the Council of Europe Secretary General’s Special Representative on migration and refugees, Ambassador Tomáš Boček, visited migrant camps in the North of France, including Calais, and published a report on his visit on 12 October 2016. The report expresses concern about the situation of migrants in Calais, especially of unaccompanied children, and states that there are no sufficient plans for accommodating migrants after the closure of the camp. The report also highlights how the Council of Europe could assist French authorities by strengthening civil society to improve the provision of information on legal rights, provide expertise on how to assess the best interest of the child in transfer cases, reduce delays for submitting asylum applications in the Calais area and improving integration policies.
Sources: The Guardian, 2 March 2017; Council of Europe Newsletter on migration and refugees, November 2016
GREECE / Cases of self-harm, migrants on hunger strike to protest poor treatment and living conditions
A Syrian refugee set himself on fire on the Greek island of Chios on 30 March 2017 and sustained burns to 85% of his body. A few days before the incident, a man carrying asylum application papers and believed to be a refugee, was found hanged at the port of Piraeus. The first week of February 2017 has seen a string of migrant hunger strikes across Greece to protest the poor living conditions. The latest strike started at Elliniko camp, an abandoned sports complex housing 1,000 people. The protests follow growing discontent due to the bleak conditions faced by migrants. These include lack of warm water, enduring freezing temperatures in tents designed for summer conditions, and overcrowded facilities. Moreover, the processing of asylum claims is very slow, forcing people to stay in this situation for months. The European Commission announced plans to speed up the procedures for people on the islands and mentioned the possibility of transferring people to the mainland, but it is not clear how this will be possible given those on the mainland are also waiting for long periods of time for the completion of the asylum procedure.
Sources: Al Jazeera, 30 March 2017; Al Jazeera, 28 March 2017; EU Observer, 6 February 2017
The Joint Council for the Welfare of Immigrants (JCWI) released a report on 13 February on the effects of ‘right to rent’ checks on migrants and ethnic minorities in England. The evaluation found that as a result of the scheme, landlords were less likely to rent to those without British passports, those with unclear immigration status, and people with ‘foreign accents or names’. The report also found that the government is failing to adequately monitor the effectiveness of the scheme and whether it is causing discrimination; that understanding of the scheme is low among landlords; and that local authorities are unprepared to respond to negative consequences of the scheme. The 2014 and 2016 Immigration Acts introduced this new measure which prohibits irregular migrants in the UK from renting under a residential tenancy agreement. Landlords who fail to check this face civil penalties of up to £3,000 (€ 3,482) or even prison sentences of up to five years, if they knowingly allow someone without the right to rent to occupy a property under a residential tenancy agreement. The 2016 Act also gives new powers to end tenancies and in some cases, evict tenants without a court order. The Right to Rent scheme is currently only in operation in England but the government intend to roll out the scheme across the rest of the UK. JCWI undertook an independent evaluation of the Right to Rent scheme.
Source: Right to Remain, 13 February 2017
The new project ‘Operation Papyrus’ in Switzerland aims to regularise thousands of undocumented migrants in the Geneva canton. The project also aims to address informal work and gather information on employers who hire irregular workers, and it will also help towards integration of irregular migrants in society and the labour market. The State Council, the Centre social protestant (CSP), the Collectif de soutien aux sans-papiers, the Centre de contact Suisses-Immigrés (CCSI) and the union SIT have worked for six years to develop the project. Regularisation is possible for irregular migrants who have been living in Geneva and are considered ‘integrated’, according to the following criteria: families with schooled children need to have lived five years in Switzerland, other applicants 10 years; applicants need to be financially independent; prove ‘successful integration’ by having a certain level of French or having their children enrolled in Swiss schools; and have no criminal record. Applications for regularisation will be individually assessed. Most of those concerned come from the Balkans, Latin America or the Philippines, and work in restaurants, on construction sites or as domestic workers.
Sources: Tribune de Genève, 21 February 2017; Le Temps, 21 February 2017; Collectif de soutien aux sans-papiers
The physical and mental health of migrants and refugees staying in Greece has significantly deteriorated since the EU-Turkey agreement in March 2016. This is the finding of the report 'One Year on from the EU-Turkey Deal: Challenging the EU’s Alternative Facts', published by Médecins Sans Frontières (MSF) on 14 March 2017. MSF psychologists carrying out over 760 mental health consultations observed a mental health deterioration immediately after the implementation of the EU-Turkey deal. They saw a 2.5-fold increase in the percentage of patients with symptoms of anxiety and depression, and a threefold increase in the percentage of patients with post-traumatic stress disorder over the year following the deal. Among others, MSF also expressed concern about increased detention of migrants, stating that in view of the disproportionate risks to individuals’ health and dignity, immigration detention as a practice should be avoided. The report concludes that the EU-Turkey deal is a ‘horror deal’ and not a success story and cannot be a model for further agreements with third countries intended to facilitate returns. To download and read the report, click here.
On 23 February 2017, Médecins du Monde (MDM) Belgium published 'Invisible Emergencies? How Legal Entitlements to Health and Practice Diverse for Migrants in Transit in Belgium'. The report details the hardships experienced by migrants in Belgium and the impact on their health, with a focus on those stranded along the Belgian coast and elsewhere in the country. The report documents research collected by the Médecins du Monde’s clinics that treat individuals at Brussels’ main train stations, and medical consultations with migrants in Zeebrugge, along Belgium’s coast. It contextualises migrants’ experience in Belgium within the broader frame of developments at the EU level. The report describes in detail the barriers migrants experience in accessing health care, despite undocumented migrants’ right to health care under Belgian law, and the resulting low uptake of services (14%). It also describes how being undocumented, and the associated stigma and social exclusion, exacerbate these challenges; as well as the impact of institutionalised forms of violence, such as detention, on migrants’ health and well-being. In April 2016, the Belgian legislature approved a law increasing penalties (including prison sentences of up to a year) against anyone trying to enter buildings in Belgium’s harbour without permission, in response to the growing presence of migrants on the Belgian coast, with penalties doubled for repeat offenders. According to the report, this law and the increased police presence at the border have increased the level of fear among migrants, and worsened social tensions. The report makes several recommendations, including the creation of safe and regular migration channels for migrants, equitable access to primary health care, ending the practice of medical examinations purely for migration control purposes, an end to the criminalisation of solidarity, and the simplification of procedures for obtaining medical assistance. The report is available here.
An interview study of undocumented migrants with end stage renal disease (ESRD) in a Colorado hospital for low-income and uninsured individuals found that undocumented patients suffer from substantial physical and psychological distress due to only being able to receive emergency haemodialysis care. Undocumented migrants in the US are excluded from a range of public services, including Medicare, federally funded Medicaid and the insurance provisions of the Affordable Care Act. The exclusion of undocumented migrants from Medicare coverage for haemodialysis requires physicians in some states to manage the chronic illness only through emergency haemodialysis in emergency departments reimbursed by states’ emergency Medicaid programmes. The study found that this results in debilitating, potentially life-threatening physical symptoms and psychological distress in patients and their families. The study recommends that states reconsider policies on access to routine maintenance haemodialysis for undocumented migrants given the symptom burden and cost.
Sources: EurekAlert, 6 February 2017; JAMA Internal Medicine, 6 February 2017
Labour and Fair Working ConditionsTop
The International Labour Organisation has issued non-binding General principles and operational guidelines for fair recruitment, including for migrant workers. The principles outline that legislation and policies on employment and recruitment should apply to all workers and all aspects of the recruitment process; and that written contracts should be understandable to the worker, provided sufficiently in advance of departure, subject to measures to prevent contract substitution, and enforceable. Freedom of workers to move within a country, or to leave a country, should be respected. Workers’ identity documents and contracts should not be confiscated, destroyed or retained. Migrant workers should not need their employers' or recruiters' permission to change employer. Further, workers, irrespective of their presence or residence status in a state, should have access to free or affordable grievance and other dispute resolution mechanisms in cases of alleged abuse of their rights in the recruitment process, and effective and appropriate remedies should be provided where abuse has occurred. Pending the investigation or resolution of a grievance or dispute, whistle-blowers or complainants should be protected, and migrant workers should have timely and effective access to procedures. Governments should also take steps to ensure that mechanisms can be accessed across borders after a worker has returned to their country of origin. Governments should promote policies aimed at identifying and eliminating barriers to effective access to grievance and other dispute resolution mechanisms, such as complex administrative procedures, unreasonable costs, fear of discrimination or retaliation and dismissal and, in the case of migrant workers, fear of detention or deportation. Guidelines also address governance of labour migration; matching recruitment to labour market needs and labour migration policies; and ensuring standards and oversight of recruitment in bilateral/multilateral agreements on labour migration, as well as their implementation.
LEAFLET / Guidelines for developing an effective complaints mechanism in cases of labour exploitation or abuse
PICUM has published guidelines for developing an effective complaints mechanism in cases of labour exploitation or abuse. The guidelines explain what components are needed for a complaints mechanism to be effective in preventing and responding to labour exploitation of migrant workers. Personal data about the worker cannot be shared between labour authorities and immigration authorities. This ‘firewall’ must extend through labour inspections and labour courts. Other key elements include providing legal representation and a residence permit – at least for the proceedings with possibilities to extend – so that the worker can participate, and ensuring there is a competent and well-resourced body to handle complaints. The guidelines are available in English, Dutch, German and Czech.
The organisation Maisha, which works for the rights of migrant women, published a collection of prayers by women from African countries in March 2017. The prayers tell experiences of violence and reasons why women embarked on their journey to come to Europe, and speak about the perils and hardships they faced during the journey and situations and difficulties in the destination country. Many women share stories of rape, circumcision, stories of trying to provide for their children and keeping them safe and stories of desperation including the fear of being deported back to unsafe environments. The collection of prayers is available in English and German.
On 8 March 2017, International Women’s Day, the Women in Migration Network (WIMN) released a statement, 'For Mobilization and Resistance to Claim the Human Rights of Women in Migration'. In a climate of increased detentions, deportations, and heightened racism and xenophobia, WIMN underscores the human rights of all migrants and refugees, regardless of citizenship or migration status. The network joins other global partners calling for 'No Borders on Gender Justice', to inspire a response to the conditions that have fed populism and authoritarianism, and bring visibility to the role of women in migration and in the global economy, as the UN undertakes negotiations on the global compact on migration. The statement also highlights examples of solidarity and resistance around the world, including numerous women’s marches. The statement is available here.
In February, four victims of domestic violence in Denver, Colorado reportedly declined to pursue their cases when they found out that immigration enforcement officers had been present in the courthouse. Denver’s City Attorney explained that the alleged perpetrators of the four victims of domestic violence are, as a result, back on the street without any kind of punishment. On 9 February, a transgender woman, Irvin Gonzalez, entered a courthouse in El Paso, Texas and was taken into custody by Immigration and Customs Enforcement officials as she left the courthouse with a protective order against her ex-boyfriend. Following the incident, the County Attorney commented that they could not recall an incident where immigration authorities made their presence known inside a courtroom in this courthouse, and especially not in a courtroom that is reserved for victims of domestic violence. Gonzales is currently in detention awaiting deportation proceedings. In late February, her lawyer filed for a residence permit (“U visa”) available under the US Violence Against Women Act to undocumented victims of specific crimes, including domestic violence, sexual assault, and stalking. The law is designed to encourage reporting of serious offences to the police. There is concern among people who work with migrants that the executive order signed by President Trump on 25 January discourages women from applying for U visas. The order directed the deportation of “all removable aliens” through partnership between the Department of Homeland Security and police departments that will be trained to “perform the functions of immigration officers in relation to investigation, apprehension, or detention of aliens.” It can take months to prepare a U visa application together and, once it is approved, it can take one or two more years to be issued the visa. During the initial waiting period, before approval, there is no legal protection from deportation. In the past, immigration lawyers say there was an understanding that applicants would not be removed during this period, and even if denied, that they would not be referred for removal to avoid discouraging victims from applying. Following the new executive order, lawyers indicate women are reluctant to put their names in the system.
Sources: Slate Magazine, 19 March 2017; The Hill, 13 March 2017; Denver Channel, 24 February 2017
Undocumented Children and Their FamiliesTop
Children involved in court proceedings often feel scared, ignored, and ill-informed, a new report from the European Union Agency for Fundamental Rights (FRA) shows. The report ‘Child-friendly justice: Perspectives and experiences of children involved in judicial proceedings’ is based on interviews with 392 children in 9 member states. It identifies the barriers children face as victims, witnesses or parties to judicial proceedings, possible solutions, and several promising practices. One in seven of the children interviewed had a migrant background or belonged to an ethnic/minority group, with experiences in judicial proceedings that were both related and unrelated to their migration status. The children underlined the importance of their right to be heard with understanding and respect, and of being kept informed throughout the often lengthy proceedings about developments in the case and their rights. This demonstrates the necessity of clear and practical guidelines, training for all professionals in contact with children, and age-appropriate information before, during and after trial. The report also includes recommendations for, among others, procedural safeguards and measures; legal aid and representation; special support such as interpretation and translation services and psychological counselling and support for children in vulnerable situations, including migrant children; and child protection systems that are integrated and targeted to ensure protection of children with vulnerabilities, including as a result of their migration status. The report complements the Fundamental Rights Agency’s earlier report containing professionals’ perspectives on child-friendly justice.
The Council of the European Union has adopted new 'Guidelines for the Promotion and Protection of the Rights of the Child'. They establish a framework for the EU to ensure that child rights are considered in all its external policies and actions, and reinforce EU action for the promotion and protection of child rights in external relations, as well as encouraging an overall strategic approach. The European Parliament Intergroup on Children’s Rights issued a statement welcoming the guidelines, encouraging member states to take the necessary steps to ensure that the best interest of the child is always a primary consideration in all actions – including in all EU internal policies - and that there is substantive access to justice for all children. In particular, the Intergroup called on member states to endorse a similar a rights-based approach for migrant children in the EU.
EU / Recommendations to EU and national leaders to end the disappearance, suffering and exploitation of children in migration
45 child rights organisations have issued recommendations to address the situation of missing migrant children. The recommendations include 10 operational and policy recommendations and 7 cross-cutting recommendations on the overall policy framework, data and funding. The recommendations include aspects regarding improving reception conditions and procedures, and ensuring access to trained guardians, information and the right to be heard, regular channels and durable solutions, among others. The recommendations are based on the research, expertise and recommendations put forward by stakeholders at the conference co-organised by Missing Children Europe and the Maltese President’s Foundation for the Wellbeing of Society ‘Lost in migration’ held on 26-27 January. Organisations can still endorse the recommendations here.
Migrant children as young as nine years-old have attempted suicide in Greece. The organisation Save the Children stated that living conditions have driven increasing numbers of migrant and refugee children to harm themselves and have increased drug abuse among children. A 12-year-old boy was reported to have filmed his suicide attempt after witnessing others trying to kill themselves. The deterioration of mental health of refugee and migrant children is seen as a direct result of EU policies, particularly the EU-Turkey deal agreed in March 2016. These policies have forced migrants and refugees - many of them already traumatised by experiences of death and violence - to live for extended periods of time in overcrowded camps without adequate sanitation or heating, at risk of abuse, and feeling uncertain about their future. Children are particularly affected, as well as victims of torture, many of whom do not receive the necessary assistance. The reports follow news about suicides and attempts of suicide by Afghan children in Sweden earlier this year.
Sources: The Independent, 16 March 2017; Reuters, 16 March 2017
SWEDEN / ‘Resignation syndrome’ – migrant and refugee children show symptoms of losing the will to live
More and more reports have emerged in Sweden of migrant and refugee children who fall into a state of apathy as a consequence of the hardships they have been facing. Referred to in Swedish as ‘de apatiska’ or ‘uppgivenhetssyndrom’, meaning ‘resignation syndrome’, there is no underlying physical or neurological disease, but the affected children show signs of having lost the will to live. The disease has been recognised since the early 2000s. In an open letter to the Swedish minister of migration, a group of 42 psychiatrists asserted that the new restrictions on asylum seekers and the time it took the Migration Board to process their applications were causing the disease. In some cases, children have stayed in limbo for years or feared to be separated from family members or deported with their families. After the issue gained visibility, the Swedish Parliament passed a temporary act that gave 30,000 people whose deportations were pending the right to have their applications reviewed. The Migration Board have begun allowing apathetic children and their families to stay.
Source: The New Yorker, March 2017; The Independent, 2 April 2017
Better policies on child protection and prevention of abuse, transnational cooperation, and the establishment of safe and regular pathways need to be developed in order to protect children and women against violence and abuse along the central Mediterranean migration route. A survey by UNICEF and the International Organisation for Cooperation and Emergency Aid (IOCEA) of February 2017, ‘A Deadly Journey for Children - The Central Mediterranean Migration Route’, reveals that 25,846 children attempted to cross the Mediterranean towards Italy in 2016, and over 700 died at sea. Along the route, children and women are highly vulnerable to (sexual) abuse, trafficking, violence, and extortion. They also risk detention in deplorable conditions and torture in Libya. Yet, the number of people attempting to cross the Mediterranean is increasing. Read the full survey here.
UK / Government ignored expert advice on non-detention and forced return of children, security company to provide welfare services in new detention unit
The UK Home Office has published the reports of the Independent Family Returns Panel for 2012 to 2014 and 2014 to 2016. The panel is made up of medical and child safeguarding experts, and was established on 1 March 2011 to provide independent case-by-case advice to the Home Office on how to best safeguard children’s welfare during a family’s enforced return. The recommendations from the panel included more extensive use of the Cedars family returns facility; development of a comprehensive behaviour policy which includes the use of physical intervention as a last resort; and Home Office arrest teams to stop automatically wearing full protective clothing for all enforcement visits and instead apply a risk assessment approach. The panel states that the arrest and return of a family is a traumatic experience for any child, and that automatic use of protective clothing was considered “detrimental” to affected children. However, the Cedars family return facility has since been closed (see PICUM Bulletin 4 October 2016) and a new unit within a closed detention centre opened. The policy on use of force against families and children is yet to be developed, despite recognition that managing removal of a family in which children are uncooperative is “complex”. The Home Office also rejected the proposal on protective clothing. Some other recommendations have been accepted and implemented by the Home Office. The UK government has also faced strong criticism, including from former Lib Dem leader Nick Clegg, for awarding the security company G4S the contract to provide welfare services to families and children who will be locked up in a new unit at Tinsley House immigration detention centre. The Refugee Children’s Consortium has issued a statement stressing that detention is always harmful to the best interests of a child, and condemning the contract given G4S’ record of mismanagement and abuse, and its deplorable track record in caring for vulnerable children and young people.
Sources: Free Movement, 19 January 2017; Coram Children’s Legal Centre, Migrant Children's Project Newsletter, February 2017; The Guardian, 20 February 2017
The European Social Network, a network for local public social services, launched a video series on unaccompanied migrant children in Europe in February 2017. The videos discuss work being done across Europe to integrate and care for these children and to make them more visible in both children's and migration policy; and give a voice to unaccompanied children. To view the series, click here.
Detention and DeportationTop
German Chancellor, Angela Merkel, and Tunisian President, Beji Caid Essebsi, made an agreement in March 2017 that rejected asylum seekers from Tunisia will be deported in faster procedures to Tunisia. In return, Germany will provide €250m in aid for job training and support for small businesses in Tunisia. With the agreement, Tunisia commits to identifying asylum seekers in Germany within a 30-day period and issuing papers needed for deportations back to Tunisia with a week. Germany previously claimed Tunisia had been blocking the deportation of rejected asylum seekers, which Tunisia's Prime Minister denied in February 2017. Angela Merkel meanwhile appealed to governors of German federal states that a greater effort was needed to deport irregular migrants, which was met with opposition and objections from leaders of some federal states such as the left-wing coalition government of Thuringia and the Social Democrat-led Schleswig-Holstein. These federal states particularly objected to planned deportations to Afghanistan. On 10 March 2017, the German Federal Assembly (Bundesrat) rejected the law of the government to declare Morocco, Algeria and Tunisia ‘safe countries of origin’. If the law was approved, asylum applications of people from these three countries would have been dealt with in summary proceedings under the general assumption that people from these countries are not persecuted. The organisation Pro Asyl highlighted that deportations to these countries are nonetheless possible and will continue.
Sources: Pro Asyl News, 10 March 2017; Der Spiegel, 9 March 2017; BBC News, 3 March 2017; Agence France Presse, 14 February 2017
In an open letter to Maltese Prime Minister, Joseph Muscat, and Home Affairs Minister, Carmelo Abela, NGOs urged the government to release nine men from detention immediately. The migrants were part of a group of 33 Malians who were rounded up and detained on 16 November 2016, as part of a joint EU programme which granted EU aid to Mali in return for the West African country’s commitment to accept rejected asylum seekers. The NGOs argue that the men’s prolonged detention is in breach of national and EU law and of their human dignity. The Maltese government is still awaiting documentation from the Malian authorities for the nine migrants. In January, Mr Abela indicated that the government might be open to releasing the migrants from detention if their documents take too long to arrive.
Source: Malta Today, 12 February 2017
UK / New guidance on deportations does away with automatic suspension of deportations during judicial review
In November 2016, the UK Home Office introduced guidance on the stay of deportations pending review by judicial authorities (available here). Under UK law, a person who receives formal warning that they will be deported has seven days’ notice (72 hours if they are in detention), followed by a three month “removal window” during which the person can be removed at any time without further notice. According to the new guidance, removal during this window is no longer suspended should judicial review or appeal of the removal notice be pending, unless an injunction is granted. The removal window makes legal challenges nearly impossible, because they must be prepared under extremely tight time constraints, under the constant threat of removal. To obtain an injunction, the applicant must bring arguments demonstrating the likelihood of success of the legal challenge. This is particularly difficult, given that a person can be deported on the same day that they make legal submissions to the court. The rule also means that people who are not in detention can be removed by force when they go to report to their local Home Office branch, and taken to the airport on the same day – as has reportedly been the case for a number of migrants, who were at the same time deprived of their phones and the ability to contact family and legal counsel. The Home Office guidance notes that this strategy “may be of particular use where non-compliance or disruption by the family has led to a previous failed return or where there is a reasonable likelihood of future disruption or future non-compliance” – acknowledging that this approach makes it very difficult to challenge deportations. The seven “safe” days include weekends, and is the only period during which it is possible to discuss further action with one’s lawyer before the threat of imminent removal – but this does not represent a realistic period in which one can make an appointment, prepare and submit a new claim, make an appeal or judicial review or request an injunction. Taken together with significant cuts in funding to legal aid, the result is to weaken the calibre of those legal challenges that are lodged.
Source: Free Movement, 21 November 2016
US Immigration and Customs Enforcement (ICE) officials removed Sara Beltran Hernandez from a hospital bed in Texas on the night of 22 February 2017, to take her to The Prairieland Detention Center. Sara Beltran Hernandez, who suffers from a brain tumour and needs treatment, reportedly fled domestic violence in El Salvador and was going to reunite with her family in New York when she was intercepted while entering the US. An immigration judge ordered her deportation on January 2017. Amnesty International and other human rights advocates called for her release from detention. On 2 March 2017, Amnesty International USA announced that Sara Beltran Hernandez would be released from detention to seek medical care, and to await the results of her asylum application.
Source: New York Daily News, February 24, 2017; Amnesty International 2 March 2017
Publications and other ResourcesTop
On 12 October 2016, the Migration Observatory at the University of Oxford published 'Trends in Legislation and Criminal and Civil Enforcement' (available here), analysing offences under UK immigration and asylum legislation. It reports that immigration law has created a growing number of acts defined as crimes: notably, the UK added 89 new types of immigration offences from 1999 to 2016, compared with 70 new offences introduced in the nearly 90-year-long period from 1905 to 1998. The Immigration Act 2016 alone created five new crimes, including the criminalisation of landlords who rent their premises to undocumented migrants and of undocumented migrants who drive a car; and modified existing offences, which have been broadened in scope or whose thresholds have been lowered. The report also demonstrates that civil and criminal penalties against employers fluctuated over time, but have increased in recent years. The UK Home Office gathers data on immigration offences, which may have civil or criminal penalties (e.g. imprisonment) for violations of immigration law. They include unauthorised entry, employing someone without permission to work, among others, and can be committed by both UK citizens (such as assisting unauthorised entry or trafficking) and non-citizens. In some cases, the same incident can be approached as a civil or as a criminal matter, such as if someone arrives in the UK with a false document: the person may be removed immediately, or prosecuted for possession of a false document. Civil penalties also exist for carriers and transportation companies that transport undocumented passengers, and educational institutions that fail to report international students who breach the conditions of their student visas. Landlords face both civil and criminal sanctions for renting to undocumented tenants. All of which is intended to contribute to a hostile environment for migrants, justified on the basis of deterrence. No effort has been made to evaluate the impact of these measures vis-à-vis their stated purpose. An October 2016 report indicates, however, that efforts to deny driving licenses and bank accounts to undocumented migrants have wrongly affected a number individuals, resulting in severe inconvenience.
Sources: Free Movement, 17 November 2016; Free Movement, 14 October 2016
PICUM IN THE NEWSTop
On the occasion of the first anniversary of the EU-Turkey deal, PICUM's Director, Michele LeVoy, reflects on the negative impact and human cost of current EU migration policies, asking for more human rights sensitive policies instead of quick fixes that have long-term negative consequences on migrants’ lives.
Source: Open Democracy, 22 March 2017
The opinion looks at studies of EU citizens’ perceptions of migrants and how perceptions relate to migration policies. The piece quotes PICUM Director, Michele LeVoy, saying that protections and rights in Europe are also being ebbed away in order to appear tough on migration.
Source: EU Observer, 14 February 2017
EU / Over 170 civil society organisations express concern about proposed by EU-Libya cooperation in letter to EU heads of state
Media reprinted a joint letter to EU heads of state expressing the concern of over 170 civil society organisations, including PICUM, about proposed cooperation between the EU and Libya to restrict migratory movement.
Sources: Afro Online; APA, Diario de Aveiro, Portal d’Aveiro, Mundo ao Minuto, ReliefWeb, VITA 22 February 2017; MiGazin, Neues Deutschland 23 February 2017; Religión Digital, Archidiócesis de Madrid, Revista Ecclesia 27 February 2017
The EU Observer reported on the EU Commission’s new Return Action Plan and recommendations to member states to detain migrants including children. The article cites PICUM Director Michele LeVoy, saying that these measure violate EU and international law.
Source: EU Observer, 2 March 2017
A joint statement of PICUM Save the Children, IOM, UNICEF, OHCHR, the End Immigration Detention of Children campaign and the International Detention Coalition highlighting how new EU returns policies will harm children was widely picked up and reprinted by media.
Sources: Agencia Efe; AnsaMed , Europa Press , Bez, Begirada, InfoLibre, TeInteresa, TeleCinco, Siglo XXI, EcoDiario, cuatro, Diario Multimedia , Globalist , Ticino Online , ReliefWeb , Family Law Week 3 March 2017 ; UNICEF Slovenia , Altinget , Dublin News 4 March 2017; UNICEF, Otras Voces en Educación 6 March 2017
PICUM is one of the signatories of a joint letter urging EU leaders to resist populist and xenophobic rhetoric and to uphold EU values and the human rights of migrants through long-term, sustainable migration policies.
Sources: EU Observer; ReliefWeb , Communicate de Presa 8 March 2017
The Committee on the Elimination of Discrimination against Women met with representatives of non-governmental organisations and a national human rights institution to hear information on the situation of women in Germany, Sri Lanka, Rwanda and Micronesia. Reports mentioned the participation of PICUM and its German members Maisha and Medibüro Kiel in the meeting.
Sources: Arab News Express; African Press Organization, EIN News, World News Report, Foreign Affairs Publisher, Human Rights Today, Info-Communication, Military technologies, Africa Newsroom, Afrik News, SatPRNews, Politic News Today 21 February 2017
With contributions from Salomé Guibreteau (PICUM Trainee) and Marta Llonch Valsells (former PICUM Trainee)