An EU Strategy that Promotes and Reinforces the Rights of All Victims – Regardless of Residence Status

On 24 June, the EU adopted its first-ever Strategy on Victims’ Rights setting out its priorities for the next five years in this area to reinforce the rights and protections of victims of crime. The strategy has a welcome focus on empowerment, on improving coordination among actors that are critical to ensuring victims’ protection and safety, and on the need to take specific steps to support victims in situations of vulnerability.

Being undocumented makes a person especially vulnerable to mistreatment because coming forward to seek help means risking detention and deportation. Our recent study looks at ten European countries and found that half (France, Greece, Italy, the Netherlands, Spain) provide for special residence permits for undocumented victims of domestic violence, as a way to encourage access to justice. The rest do not.

The strategy represents the first time that victims who are undocumented are expressly recognised by the EU – alongside children, survivors of gender-based violence, and human trafficking, among others – as those who are vulnerable to victimisation. This is important for at least three reasons.

 

1. Improving awareness of, and responses to, victimisation of undocumented people

Too often, irregular migration is framed through the lens of security – security of Europe’s borders, of its “way of life”. Rarely is it considered through the lens of the individual’s security and the ways that being undocumented often puts a person at greater risk of abuse and mistreatment – at the hands of landlords, spouses, strangers, employers, state actors.

For undocumented victims, reporting their mistreatment often does not lead to justice, but instead to being treated as wrongdoers based solely on their administrative status, facing the prospect of detention and deportation. Here are some figures:

  • In the area of domestic violence, according to a 2019 report by the Latin American Women’s Rights Service (LAWRS), 62% of interviewed women survivors of violence felt they could not get support due to their immigration status, and 54% feared the police would not believe them because of their insecure status. Among those women who reported their abuse to the police, 27% reportedly had their residence status questioned and 18% were arrested for immigration issues as a result of reporting.
  • In the area of labor exploitation, the EU’s agency for fundamental rights reported in 2019 that 57% of 237 migrant workers surveyed did not report their case of severe labour exploitation to the police for fear of losing their jobs, being arrested or removed from the country. Contrast this with Belgium where over 300 undocumented workers have reported cases of unpaid wages to labour inspectors without suffering immigration consequences since 2010 under the concept of “professional secrecy”, which removes the labour inspectorate’s duty to report undocumented migrants to immigration authorities. Such a system does not exist for victims of crime in Belgium, where the police retain a duty to report.

By recognising that being undocumented itself can reinforce victimisation, the Strategy on Victims’ Rights is a critical step towards recognising – and therefore being able to address – the systematic factors that contribute to victimisation and that create barriers to safety, protection and access to justice.

 

2. Advancing implementation of EU legislation that equally protects undocumented victims of crime

The EU’s flagship legislation on victims’ rights, the EU Victims’ Directive, calls for non-discriminatory implementation for the benefit all victims, regardless of their residence status. The report of the Special Adviser Joelle Milquet to the President of the European Commission on compensation for victims of crime includes a specific recommendation that addresses the situation of undocumented victims, recognising that “access to redress mechanisms for all victims of crime must be guaranteed in practice as it is in law”, and “acknowledging the particular vulnerability of migrants” due to systemic obstacles they face in reporting crime and in accessing services without risk of facing immigration consequences.

While the law, therefore, is clear, implementation in a way that ensures the rights of victims with insecure status remains elusive.

One way to improve implementation is to improve understanding about policies and practices that work. In 2014, the European Commission published guidance to accompany the Directive, which includes examples of practice to assist member states.

The new strategy goes further, providing a shared reference for and conceptualisation of the nature of the vulnerability facing undocumented victims, and their rights under the Directive. It also spells out specific actions for the EU and member states to ensure that undocumented victims can safely report crime. The strategy specifically references a recent series of studies by the University of Oxford looking at safe reporting for undocumented victims of crime in four EU member states (Belgium, Italy, the Netherlands and Spain) and in the United States, analysing local and national policies and practices in a way that can feed transnational dialogue and learning, and improved implementation.

And the strategy creates a framework, with the establishment of a Victims’ Rights Coordinator and a new Victims’ Rights Platform, for ongoing engagement with different stakeholders – including member states, NGOs, equality bodies, the EU’s agencies for fundamental rights (FRA), law enforcement training (CEPOL), and gender equality (EIGE), among others – that can support a sharing of practice and experiences about what non-discriminatory implementation looks like in practice.

Both the Platform and the Victims’ Rights Coordinator role must be premised on fostering meaningful participation with relevant stakeholders, including NGOs, to facilitate input on implementation of the strategy and contribute to monitoring and evaluating efforts to achieve its goals. We urge a fair and transparent process for selecting the Coordinator, and outreach to civil society to hear their experiences with similar EU frameworks and learn what has worked well and what has been less effective in fostering participation and engagement.

 

3. Addressing systemic factors that undermine rights, safety and protection

Supporting victims is important. So is preventing their victimisation.

This requires addressing the systematic factors that increase someone’s risk of becoming a victim. Critical in this discussion is the role of policing as central to individual and community safety, in terms of the police’s role as a first contact for many victims; and in fostering trust of the system. Too often this trust is compromised by law enforcement’s reinforcement of stereotypes, tendency to approach some individuals and groups as likely offenders because of their background or their migration status, failure to act against perpetrators of some crimes, and in some cases their role as perpetrators of violence and discrimination themselves.

The strategy recognises that lack of trust in some communities towards law enforcement is a driver of under-reporting and cites the need for greater cooperation between the authorities and those communities, as well as training on non-discrimination to overcome this problem. But this must be accompanied by systemic changes. The close relationship between the police and the immigration authorities in many countries is what fundamentally undermines faith that local police are committed to the safety of communities. Given the overlap between migration status and being a member of a racial, ethnic or religious minority, this adds an additional layer of policing to the experience of communities of colour, who feel over-policed and under-protected.

In this context, the Victims’ Strategy’s clear prioritization of safety and rights is more important than ever.

The Strategy on Victims’ Rights acknowledges the tension in law enforcement’s position with respect to undocumented victims – and commits to working to restores the equilibrium in favour of rights and protection. This, of course, does not improve the situation today for an undocumented person who is victimised. And it does not undo policies promoted by other branches of the European Commission that further criminalise people who are undocumented. But it is an important recognition of a major source of their vulnerability and what can be done to remedy it.

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