An open letter to negotiators in the European Commission, the Spanish Presidency of the Council of the European Union, and the European Parliament ahead of the final negotiations on the EU Pact on Migration

We are writing as concerned human rights defenders, and as people who see and work with the stark consequences of political choices.

The EU Pact on Migration and Asylum will mirror the failed approaches of the past and worsen their consequences. There is currently a major risk that the Pact results in an ill-functioning, costly, and cruel system that falls apart on implementation and leaves critical issues unaddressed. 

If adopted in its current format, it will normalise the arbitrary use of immigration detention, including for children and families, increase racial profiling, use “crisis” procedures to enable pushbacks, and return individuals to so called “safe third countries” where they  are at risk of violence, torture, and arbitrary imprisonment.

It also betrays the spirit of existing EU work, such as the EU Action Plan on Integration and the EU Action Plan Against Racism which recognises the intersectional impacts of racism and the specific vulnerability of migrants and refugees. The Pact, as it stands, risks perpetuating discriminatory practices within the very structures meant to uphold justice and protection for all. 

We are acutely aware that politics is often about compromise. But there are exceptions, and human rights cannot be compromised. When they are weakened, there are consequences for all of us.  

Rather than channelling funding towards more camps, walls, and surveillance, resources should go towards providing effective solutions, based on protection and assistance, of the kind offered to people fleeing Ukraine. Europe’s solidarity and commitment to human rights cannot be defined by place of origin, race, ethnicity, or immigration status.

We should strengthen, not weaken, our reception and asylum systems and provide mechanisms to fairly share responsibility between European states. We need support for – not restrictions on – rescuing people at sea. We need more, not less, access to legal aid, asylum, medical and social support for people in need. We need real accountability for  border forces that violate our laws. And we need more safe routes for people to move, work and settle in safety and dignity. 

We have recently witnessed a dignified and compassionate response to displacement with the activation of the Temporary Protection Directive. This stands as a testament to the principles of human rights and protection that should guide our collective approach to these reforms. The New Pact must reflect and build upon this dignified response rather than leading Europe in the opposite direction.

There are times when political choices can make a profound difference, for better or for worse, to people’s lives. Today is one such time. We’re asking you to show leadership for the just and compassionate Europe we all want to live in.

Sincerely,

• ActionAid International
• Amnesty International
• Association for Juridical Studies on Immigration (ASGI)
• Balkanbrücke
• Be Aware And Share (BAAS)
• Birlikte Yaşamak İstiyoruz İnisiyatifi / We Want to Live Together Initiative
• The Border Violence Monitoring Network (BVMN)
• Caritas Europa
• Centre for Legal Aid “Voice in Bulgaria“
• Civil initiative Infokolpa
• CNCD – 11.11.11.
• Collective Aid
• Churches´ Commission for Migrants in Europe (CCME)
• Divest Borders
• Dokustelle
• Equal Legal Aid
• Equinox Initiative for Racial Justice
• EuroMed Rights
• Europe Cares
• European Anti-Poverty Network (EAPN)
• European Lawyers for Democracy and Human Rights (ELDH)
• European Network Against Racism (ENAR)
• European Network on Religion and Belief (ENORB)
• Generation for Change CY
• Greek Forum of Migrants (GFM)
• Grenzenlose Wärme – Refugee Relief Work e.V.
• Habibi.Works (Soup and Socks, e.V.)
• I Have Rights
• Intereuropean Human Aid Association Germany e.V.
• International Rescue Committee
• Ivorian Community of Greece
• JRS Europe
• KISA – Action for Equality, Support, Antiracism
• La Cimade
• Legal Centre Lesvos
• Ligue des Droits de l’Homme (LDH)
• Love Without Borders
• Media and Migration Association (MMA)
• Mobile Info Team
• NLA (Northern Lights Aid)
• Oxfam
• Pikett Asyl
• Platform for International Cooperation on Undocumented Migrants (PICUM)
• ReFOCUS Media Labs
• Refugee Legal Support (RLS)
• Refugees in Libya
• Revibra Europe
• Samos Volunteers
• Save the Children
• SIEMPRE Belgium
• SOLIDAR
• S.P.E.A.K (Muslim Women Collective NL)
• Voices of International Students (VOIS Cyprus)
• Women’s Healthcare on the Move
• Yoga and Sport with Refugees

European legislators are considering new policies that could see children as young as six subjected to immigration detention and accelerated border procedures, multiple sources close to negotiations have said. Human rights organisations including Save the Children, PICUM, EuroMed Rights and Border Violence Monitoring Network have strongly criticised the proposals. The revelations were made by negotiators representing the Spanish Presidency of the EU Council during trilogues on Tuesday 5 December. 

This would mark a dramatic break with current proposals, which already allowed for children from the age of twelve to be placed in border procedures, and follow linked plans to fingerprint children aged six and over through Eurodac. The original proposal already failed to comply with the internationally recognised definition of children, which does not allow any discrimination between persons under eighteen in the enjoyment of their fundamental rights and procedural guarantees.

It comes as a paper leaked on Wednesday night revealed a no-compromises mood from the Spanish Presidency as it revealed its position on the controversial New Pact on Migration and Asylum. The Presidency hopes to seal political deals on the Pact by Christmas. 

The new document: 

• Resolves to ignore parliamentary and human rights monitors’ concerns about widespread racial profiling and screening across the EU (not just at borders). The leaked paper states: “Despite the Parliament’s strong opposition, mainly due to concerns on potential discrimination based on race, the Presidency remains firm on maintaining this provision that is a strong priority for the Council.”
• Resolves to preserve a principle called the “legal fiction of non-entry”, whereby individuals who set foot in a processing facility– which can be anywhere in the EU – aren’t automatically regarded as being on EU soil, even though they technically are, because their presence has not been authorised. This allows the lowering of standards, such as more swift border procedures. 
• Preserved the principle of accepting relocated refugees and providing funding to third countries for border externalisation as measures “of equal value.”

Legislators and civil society organisations say that the effects of these policies, combined with proposals being discussed on the immigration detention of children, would give a green light to six-year olds being detained and deported into danger, and continue to call for an unconditional exclusion of children from border procedures.

Willy Bergogné, Europe Director at Save the Children, said: 

“European leaders are debating the age at which children should be locked up at EU borders. Their alleged crime: seeking protection in a region that prides itself on exporting human rights to the world. Europe should stand as a haven, protecting and welcoming children instead of detaining and deporting them.”

“Our asylum system must work to safeguard children with a Migration Pact that ensures, not threatens, children’s rights. This means no child detention or deportation, swift family reunions, and all migration decisions made in children’s best interests.”

Michele LeVoy, Director of the Platform for International Cooperation on Undocumented Migrants (PICUM), said:

“The new move to detain and deport children as young as six is the product of a series of rushed last-minute deals. This is a low blow to internationally-recognised child rights which stipulate that no child should be put in immigration detention. Countries around the world have made a commitment to work towards ending immigration detention of children. This cannot be how Europe is governed.”

Hope Barker, Senior Policy Analyst at Border Violence Monitoring Network, said: 

“This new dystopian proposal to lock up six year olds, announced at the eleventh hour, is the iceberg tip of a humanitarian disaster.”

“The New Pact strips down rights and liberties for people across Europe regardless of their migration status. It’s ill-considered, won’t work, and flies in the face of Europe’s professed values. Negotiators should take it back to the drawing board.”

Nineteen human rights organisations across Europe, alongside aid workers and survivors of human rights abuses, say that a crunch summit in Brussels on December 7th risks “opening the door to abuses across Europe” including racial profiling and pushbacks, in a “potentially irreversible attack” on the international system of refugee protection and the rule of law.

The organisations, which include Amnesty International, Border Violence Monitoring Network, EuroMed Rights, Jesuit Refugee Service Europe, Platform for International Cooperation on Undocumented Migrants,  and Save the Children, have sounded the alarm on wide-ranging issues in the EU Migration and Asylum Pact. This comes following the Justice and Home Affairs Council on 4-5 December and ahead of a “Jumbo Trilogue” on the key legislative files of the Pact on 7 December.

Campaigners’ principal concerns relate to: 

• The further entrenchment of “pushbacks” at borders, which have been linked to hundreds of people’s deaths, injuries, and rights violations at the hands of EU Member State border forces. 
• The increase in the use of detention across Europe, including of children and families, in a model which has led to people remaining incarcerated, in legal limbo and in dire physical conditions. 
• The risk of racial profiling of people who live in and come to Europe, whatever their citizenship or residence status, as surveillance-backed screening procedures are rolled out across the bloc. 
• The deepening of “externalisation” policies where European migration control is outsourced to third countries without scope for accountability, which has in turn been linked to deaths at sea, widespread torture and inhuman conditions.
• The focus on deportations while lowering procedural safeguards, despite the risk of serious harm if people are returned to a third country.  This combined with the use of a dangerous “safe third country” enables Member States to evade their responsibility to provide reception and protection. 
• The mandatory use of asylum border procedures, which forces people into de facto detention with limited access to legal assistance, representing a severe blow to the right to asylum in international law. These standards could be lowered even further in an unacceptably broad and vague range of so-called ‘crisis’ situations.
• The failure of the Pact to address the substantive issues it claims to, such as the distribution of asylum claims across member states. 

The Spanish Presidency of the Council of the EU aims to close all political deals on the Pact on 7th December. Rights defenders are warning that “complex decisions with huge consequences are being rushed through.” 

The organisations involved in this release, besides PICUM, are: AMERA International, Amnesty International, Associazione Ricreativa e Culturale Italiana, Border Violence Monitoring Network, Cairo Institute for Human Rights Studies, Centre for Peace Studies Croatia, CNCD-11.11.11, Comisión Española de Ayuda al Refugiado, European Network Against Racism, EuroMed Rights, Greek Refugee Council, Irídia, Jesuit Refugee Service Europe, KISA Cyprus, La Cimade, Ligue Algérienne pour la Défense des Droits Humains, Ligue des Droits Humains, and Save the Children.

Quote pack 

Michele LeVoy, director at PICUM, said: 

“The Migration Pact in its current form opens the door to human rights abuses, providing implicit and explicit EU backing for the arbitrary deprivation of liberty and severe human rights violations that have become commonplace at or near EU borders.” 

“This Pact reflects Europe’s obsession with deportations, based on the assumption that if you don’t qualify for international protection, then you have no right to stay in the EU. What this approach blatantly overlooks is that people move for many different reasons and may have a right to access residence permits other than those linked to asylum.”

Parvin A, a woman who was severely beaten, detained and pushed back from Greece six times and later filed a complaint at the UN Human Rights Committee, said: 

“It is unbelievable that they want to use ‘safe third countries’ even more. Turkey is not a safe third country in my experience – I am a person who had status from UNHCR, that was then taken away by the Turkish authorities.” 

“If they really pursue this New Pact, it will be against any kind of human or refugee rights. They are playing with the lives of people who are vulnerable and in danger.” 

Willy Bergogné, Europe Director at Save the Children, said: 

“Our asylum system must work to keep children safe with a Migration Pact that safeguards, not threatens, children’s rights. This means no child detention or deportation, swift family reunions, and migration decisions made in children’s best interests.” 

“One in every four people arriving in Europe is a child – and those people arriving should be protected and supported, not face chaos and abuse.”

Hope Barker, Senior Policy Analyst at BVMN, said: 

“The Migration Pact in its current form opens the way for a new archipelago of detention camps where people – including children – are arbitrarily locked up, held in legal limbo, mistreated, and denied access to their basic rights.”

“And through a system of racial profiling and surveillance across the bloc, it widens the net of who could find themselves detained.” 

“We need to look no further than the Greek islands where this process is already underway. EU legislators must break with a failed model which benefits only those who profit from spending our resources on harmful and costly prisons and surveillance systems – and put people first instead.”

Sara Prestianni, Advocacy Director at EuroMed Rights, said: 

“The Migration Pact was supposed to reach a common European position on how people who need protection are cared for across the bloc.”

“It has done nothing of the sort. Instead, states can simply dodge their responsibilities by paying for weapons, walls, and detention camps in border states or non-EU countries with grim human rights records. It doesn’t achieve what it sets out to, raises dangerous risks, and should be urgently reformed or scrapped.” 

“European legislators must instead find a vision for genuine solidarity, for safe migration routes for people who need them, and for a system with the care and investment to ensure that both people on the move and host communities experience the benefits of migration.” 

Alberto Ares SJ, Regional Director, Jesuit Refugee Service Europe: 

“We fear that the Migration Pact in its current form will compromise human rights and EU values under pressure to reach an agreement before the end of this legislature. The EU should abandon this plan that would not only fall short in providing any real operational solutions for the shortcomings of the existing system but would also be harmful for migrants and refugees.”

“The Jesuit Refugee Service has a long tradition of visiting and accompanying people in Migration Detention in Europe going back decades. We see first hand how limited the access to legal assistance and justice in this context is at the moment. The current proposal will only make it worse”.

“We call on legislators to make a U-Turn and abandon this pact. There is still time to put energy and efforts into strengthening reception and asylum systems on the territory and mechanisms for meaningful responsibility sharing among Member States.”

Fanélie Carrey-Conte, Secretary General at La Cimade, said: 

“The proposed measures represent a straight continuation of strategies that has already been tried and tested. They are based on a repressive, security-based approach that aims to curb migration and encourage deportations, solutions that have proved ineffective and, above all, cost human lives. Instead of calming fears and providing solutions, they legitimise xenophobic ideologies and lead to humanitarian disasters. It’s time for a genuine paradigm shift, for a Europe based on respect for human rights and international solidarity, to ensure that people are protected and not excluded”.

Eve Geddie, Director of Amnesty International’s EU Office, said:

“For years the EU has been trying to agree on a new system to respond to people moving or fleeing to Europe. The agreement now on the table would in many ways worsen existing legislation, and risks increasing suffering at European borders. It could increase de facto detention across the EU, reduce safeguards for asylum seekers, and normalise exceptions to the right to asylum at European borders.”

“European policymakers have a responsibility to ensure a future-proof, evidence based, human rights compliant final agreement in these last days of political negotiations.”

Tendayi Achiume, former UN Special Representative on Contemporary Forms of Racism

“Across Europe, police and border forces already disproportionately stop and search racialised communities. Enabling border forces to surveil, stop and detain anyone anywhere in the bloc who they believe looks like a migrant opens the way to systemic racial profiling across Europe.”

“European legislators must act to safeguard human rights and civil liberties in the new Migration Pact.”

In new transnational research on the living and working conditions of non-EU workers in the EU, the Université Libre de Bruxelles documents exploitation of migrant workers working in the EU under a combined residence and work permit (“single permit”).

Workers interviewed in Belgium, Czech Republic and Spain reported wage theft, illicit wage deductions, long working hours, and discrimination at the workplace and in accessing private housing.

In one case, a Brazilian dental assistant in Belgium paid around 40,000€ over three years to their employer, for taxes the employer should have paid themselves. In another case from the Czech Republic, a Filipino massage therapist reported that their employer retained the income support provided by the government during the COVID-19 pandemic and had the gall to offer loans to meet basic subsistence needs, that would have to be paid back, even though salaries were still owed.

The study shows how migrant workers are often made dependent on their employers by the application process and conditions of their permits. The short duration of the permit, complex procedures, and reliance on employers for applications, renewals and information were key issues in all countries.

Where the three countries differed – with different outcomes for workers – was on possibilities to change employer on the same permit. Where this is not possible, in Belgium, some workers endured exploitation and abuse for fear of losing their right to work in the EU.

In one case from Belgium, a medical secretary from Madagascar did not report the harassment she endured by her employer as she knew that it would affect the validity of her permit.

In Spain, on the other hand, permits are issued to workers on the basis of a particular job offer or contract, but the permit itself is not tied to any particular employer. Workers just have to show a minimum level of employment or income when they renew their permits. The research found some dependence on employers remained, but overall, the system enabled labour market mobility.

Lilana Keith, Senior Advocacy Officer at PICUM, said: “This research is part of a growing body of evidence that shows how the very design of work permit policies is contributing to appalling exploitation and dependency on employers of migrant workers. The revision of the EU Single Permit Directive is a crucial opportunity to address this across the whole region. EU policy makers are currently discussing this issue, and must grant a meaningful right for these workers to change employer on their existing permit : this is one of the most important tools we have to break the chain of dependency”. 

The author of the study makes several recommendations to address the exploitation and abuse of non-EU workers. Those most at stake in the current political negotiations on the EU’s Single Permit directive include: 

• Improve application and renewal procedures, in particular, reduce processing times and administrative requirements and costs;
• Reduce dependence on employers by allowing workers to make applications and renewals directly, and establishing direct communication channels between authorities and migrant workers;
• Facilitate the ability to change employer or seek alternative employment by:
  • granting a realistic period of time to be unemployed and look for a new job. Three months was found to be greatly insufficient;
  • providing an unimpeded right to change employer on the existing permit;
• Improve monitoring, inspection and complaints mechanisms, and guarantee that migrant workers can maintain their permit, or access a transitional permit, when their employer violates their rights.

Today’s vote by the European Parliament’s civil liberties and internal market committees on the AI Act overwhelmingly endorsed important protections against harmful uses of AI in migration. PICUM and the Border Violence Monitoring Network (BVMN) – representing close to 180 organisations across Europe – welcome the Parliament’s strong stand on these issues but are concerned about gaps that remain in the legislation.

The AI Act will be the world’s first binding legislation to regulate the use of artificial intelligence, including in the migration field. The text voted for on 11 May bans harmful uses of AI and subjects “high-risk” uses to enhanced safeguards.

Bans on harmful uses of AI

Among the bans that were voted, we welcome the prohibition, under Article 5, of:

• emotion recognition technologies, which explicitly extends to the EU’s borders. Emotion recognition technologies claim to detect people’s emotions based on assumptions about how someone acts when feeling a certain way, including to assess their credibility. Immigration authorities in some Member States already tested the use of these types of systems to inform decisions about who qualifies for protection, and does not.
• biometric categorisation systems that use personal characteristics to classify people and to inform inferences based on those characteristics. This kind of software is used to determine whether someone’s dialect matched the region they say they are from.
• predictive policing systems, which use preconceived notions about who is risky to make decisions about the policing of certain groups and spaces.

All these technologies are based on unscientific and often biassed, discriminatory assumptions, which then inform real-world decision-making that has a real and detrimental impact on people’s lives. While we welcome the predictive policing ban, which encompassess some forms of algorithmic profiling used in the migration context, it does not fully capture the several uses and implications that automated risk assessment and profiling systems have in that context. The Committees also missed the chance to prohibit predictive analytics systems used to curtail migration movements and that can lead to push-backs.

Hope Barker, Senior Policy Analyst for BVMN says, “We call for all algorithmic profiling systems used in migration to be regulated separately, with a migration specific ban to address the many uses and practices that have been found to cause direct or indirect discrimination.”

“We are Black and border guards hate us. Their computers hate us too.” – Adissu

(Taken from the Technological Testing Grounds Report)

Enhanced safeguards on “high-risk” uses of AI

The text voted by the Parliament categorises certain uses of AI as “high-risk” and subjects them to enhanced safeguards. For instance the requirement of both manufacturers and deployers to assess impact on and risks of violation of fundamental rights prior to putting systems into use.

We welcome the categorisation as “high-risk” of:

• forecasting tools that claim to predict people’s movements at borders. Alyna Smith, Deputy Director of PICUM, said: “Forecasting tools are often based on unreliable data, and – even if it is not the original intention – often used to enable operations to push people back from the border, preventing them from reaching safety and putting them in harm’s way. It’s good news that these tools have been categorised as “high-risk”. But forecasting tools that could be used to facilitate pushbacks must be subject to bans without exceptions.”
• surveillance technologies such as drones, thermal imaging cameras, radar sensors, and others that are used to detect and locate transit groups for the sole purpose of subjecting them to violence and pushing them back.

Since 2018, the BVMN and its members have collected 38 testimonies, impacting 1,076 people, that recount the presence of a drone prior to their illegal pushback. (see this testimony collected by Collective Aid)

“Drones are not inherently harmful, they can and should be used to identify vulnerable groups and organise search and rescue operations. However, they are currently used to locate groups and illegally push them back, often after subjecting them to high levels of violence” said Barker. “We welcome the obligations introduced to users of border surveillance technologies and hope that this will result in further safeguards around how they are used to target people on the move”.

• non-remote biometric identification systems that include hand-held devices that scan faces, fingerprints or palms, and voice or iris identification technology used by police to identify a person and check their residence status. Smith said “It’s incredibly important that these uses are included among high-risk under the Act. Police in a growing number of member states are being equipped with high-tech handheld devices that can scan faces and fingerprints to identify on the spot a person’s migration status. There’s already evidence these tools drive more discriminatory profiling by police against anyone who looks like they might be undocumented – citizens and non-citizens alike.”

The EU’s large-scale migration databases

The EU has been collecting millions of records, including biographic and biometric data, about third-country nationals in large-scale databases that are being interconnected for immigration enforcement purposes. This interconnectedness not only refers to EU Member States but also to third countries which the Commission is seeking to entrench and strengthen security-related information sharing mechanisms with. Without sufficient fundamental rights impact assessments, safeguards and guarantees, this practice throws up considerable data and privacy rights concerns.

We welcome the European Parliament’s decision to ensure that the AI Act’s protections and safeguards apply to these databases. However, the Parliament position should have gone much further: the Parliament is proposing a 4 year period for EU migration databases to comply with the AI Act.

Smith said: “The EU’s migration databases already present risks in terms of data protection and increased discrimination, since they’re built on the assumption that all non-citizens are potential threats. Explicitly including these systems within the scope of the AI Act is certainly positive, but we’re concerned that legislators might use the four-year grace period to dampen safeguards.”

NOTES TO THE EDITORS

• PICUM (Platform for International Cooperation on Undocumented Migrants) is a network of NGOs primarily based in Europe that work to advance the rights of undocumented people. The Border Violence Monitoring Network is an independent network of NGOs, associations, and collectives that monitor human rights violations at and within Europe’s borders and advocates to stop structural and actual violence against people on the move.
• Links to resources on:

• 1. the AI Act and AI uses in migration: www.protectnotsurveil.eu
  2. digital technologies used in policing and immigration enforcement in PICUM’s briefing “Digital technology, policing and migration: what does it mean for undocumented migrants?”
  3. the EU’s migration databases, their interconnections and impact on people’s lives in PICUM and Statewatch’s report “Data Protection, Immigration Enforcement and Fundamental Rights: What the EU’s Regulations on Interoperability Mean for People with Irregular Status”
  4. the use of border surveillance technology to facilitate fundamental rights violations in BVMN’s submission to the OHCHR on the role of technology in illegal pushbacks from Croatia to Bosnia-Herzegovina and Serbia and to the Committee on Enforced Disappearances.
  5. For media enquiries, please contact PICUM’s Communications Officer Gianluca Cesaro on gianluca@picum.org or BVMN on advocacy@borderviolence.eu

Cover image: ryzhi – Adobe Stock

Ahead of an EU Justice and Home Affairs Ministers meeting on 9-10 June to discuss the reform of the Schengen Borders Code, a coalition of almost 40 NGOs, in a joint statement, denounces the risk of more racial profiling and other fundamental rights violations under the proposed new rules.

The Schengen Borders Code regulates border controls at the internal and external borders of the Schengen area, and essentially prohibits internal checks as a rule, with some limited exceptions. The reform – proposed by the Commission in December 2021 and currently being discussed by the EU Council and the Parliament – maintains this general prohibition on internal checks on paper, but at the same time allows police to carry out checks at internal border areas to “prevent irregular migration” (Recitals 18 and 21 and Article 23).

Since systematic checks are prohibited, it is clear that “random” document checks will depend on police’s decisions about who “looks like” a person without valid papers. Research (see Notes) has already shown that police tend to stop people for checks based on racial, ethnic, or religious characteristics: the new Schengen Borders Code will exacerbate this trend of racial profiling.

The new Code also introduces the possibility for joint police patrols to apprehend people caught without a valid document at internal borders, detain them for up to 24 hours and transfer them to the EU state they think the person came from, without any individual assessment. This “internal pushback” and the ensuing detention would also apply to children, even though this has been deemed illegal by courts and despite international consensus that child detention constitutes a human rights violation.

The proposal escalates the use of monitoring and surveillance technologies like biometric identification technologies and AI-based automated decision-making systems that do not apply relevant safeguards and would be at odds with existing EU data protection legislation and the currently debated Artificial Intelligence Act.

Lastly, the new Code introduces measures that would limit the possibility for people to seek asylum in the EU in situations of “instrumentalisation of migration”. In particular, the reform steps up Frontex’s involvement and allows member states to limit the number of border crossing points and their opening hours, and to intensify border surveillance including through drones, motion sensors and border patrols.

According to Marta Gionco, Advocacy Officer at the Platform for International Cooperation on Undocumented Migrants (PICUM), “As it stands now, the new Schengen Borders Code would turn the Schengen area into a tech-controlled space where racial profiling gets de facto legitimised, access to asylum is curtailed and freedom of movement is undermined”.

Stephanie Pope, EU Migration Policy Advisor, Oxfam International: “For years, European leaders have shut their eyes to pushbacks. Now the EU is going one step further with an attempt to legalise and legitimise them and other human rights violations happening at Europe’s borders. Where is the condemnation? Where is the commitment to human rights? Pushbacks cannot be accepted as the norm and cannot be legalised.”

Hope Barker, Senior Policy Analyst from the Border Violence Monitoring Network: “In conjunction with other legislative documents of the New Pact, such as provisions for pre-screening procedures that rely heavily on the arbitrary detention of POM and the failed attempts at implementing an IBMM in Croatia and Greece, the SBC reform contributes to the emergent paradigm in European migration policy that frames movement as a security concern in order to justify disregard for fundamental human rights provisions”.

NOTES TO THE EDITORS:

• EU Justice and Home Affairs Ministers are meeting on 9-10 June to discuss various issues related to their portfolios, including the new Schengen Borders Code. The provisional agenda can be read here.
• The full civil society joint statement, including key recommendations, can be read here.
• 2021 research from the EU Fundamental Rights Agency shows that people from an ethnic minority are disproportionately affected by police stops, both when they are walking and when in a vehicle. 2014 research also from the EU Fundamental Rights Agency showed that 79% of surveyed border guards at airports rate ethnicity as a helpful indicator to identify people attempting to enter the country in an irregular manner before speaking to them.
• PICUM is a Brussels-based network of over 160 NGOs working to advance the rights of undocumented people.
• For interviews and other media requests, please contact PICUM’s Communications Officer Gianluca Cesaro at gianluca.cesaro@picum.org

Cover: Alexander Lupin – Adobe Stock

On 3 September, the Council of Europe’s Committee of Ministers has decided to close a 2013 case that saw migrant field workers being shot at in Neo Manolada, Greece, with no further scrutiny. In 2017, Greece was condemned by the European Court of Human Rights for failing to protect the workers, and ordered remedial measures to help prevent further abuse. Advocates denounce no real change has happened to protect migrant workers since.

In April 2013, about 150 undocumented Bangladeshi strawberry pickers were shot, and 30 severely injured, by their employer’s guards as they demanded their unpaid wages. With no papers, the men worked twelve-hour days under the watch of armed guards, often without rest. They were not paid even the promised wages, amounting to about 22€ per working day, which was already well below legal wage limits.

In 2017, the European Court of Human Rights ruled that Greece had failed in its duty to protect migrant workers from labour exploitation, and to properly investigate their abuse and punish those responsible. In its judgement, the court underlined how various changes in policy and practice would be needed to prevent this kind of abuse from happening again and better protect future potential victims.

Three years on, the Committee of Ministers, which oversees the execution of the Court’s judgments under enhanced supervision, has decided to close the case with no further scrutiny.

The Platform for International Cooperation on Undocumented Migrants (PICUM) and the AIRE Centre (Advice on Individual Rights in Europe), and HIAS Greece, have submitted written interventions to the Committee.

While remedial measures have been implemented for the specific workers concerned, and some steps taken to improve anti-trafficking policies, the situation on Greek farms remains essentially the same and is affecting a wider range of migrant workers, including asylum seekers. To meaningfully address ongoing labour exploitation in Greek agriculture, the organisations highlight the need for changes, in particular, in how labour standards are enforced in the fields, in policies around work permits and access to the labour market that currently block migrant workers from working regularly, and in proactive investigations on the part of authorities.

Michele LeVoy, Director of PICUM, said: “In this case our strawberries were being picked literally at gunpoint. In others, the gun might not be there but similar coercion is felt by workers – if standing up for your rights might lead to your arrest… and nothing else – minimal chance of actually getting the wages you are owed or the person being held to account. What we need is for labour rights to mean something in the fields – that they are actually enforced, and enforceable for all workers, without any risk of denunciation or deportation.”

Vassilis Kerasiotis, Director of HIAS Greece, said: In times of COVID crisis it is even more important to address the harsh working conditions of essential agricultural workers across Greece, regardless of their residence status. The new EU Pact on Asylum and Migration should reflect the need for regular migration pathways. Compliance with this landmark judgment should include reforms to Greek immigration laws on residence and work permits for agricultural workers, as a factor to prevent forced labour.”

Morshed (not his real name), a migrant worker, said: “When you work, they insult you for no reason. They do not respect working time or break time. I work 3 hours for 5 euros, and have to use chemicals that are dangerous. They give us food that’s already out of date. There is a great deal of discrimination, we are treated differently from other European or Greek workers. They are exploiting us. I’m ready to testify if there would be a way.”

NOTES TO THE EDITORS:

• The final decision of the Committee of Ministers can be found here.
• Details about the 2013 incident and about the case before the ECtHR can also be found on the website of the Open Society Justice Initiative, which acted as co-counsel to the claimants before the ECtHR. Ongoing monitoring of the situation in Manolada is carried out by Generation 2.0 with the initiative Manolada Watch.
• PICUM had intervened in the Chowdury case with the AIRE Centre in 2017.
• Submissions to the Committee of Ministers have been made under Rule 9.2 in the context of the enhanced supervision of the execution of the judgment of the European Court of  Human Rights (ECtHR) in the case of Chowdury and Others v. Greece (App. No. 16643/09, judgment of  30 March 2017).
• The written submission to the Committee of Ministers from PICUM and AIRE Centre can be found here, and from HIAS Greece here. Submissions have also been made by the Greek National Commission for Human Rights and the Greek Helsinki Monitor.
• Media requests can be sent to PICUM’s Communications Officer Gianluca Cesaro on gianluca.cesaro@picum.org

A new study by the Platform for International Cooperation on Undocumented Migrants (PICUM) of 10 European countries shows that half do not grant protection through secure residence permits to undocumented victims of domestic violence. In these countries, undocumented people risk detention and deportation if they report domestic violence to the police.

Countries failing to provide secure residence permits for victims of domestic violence include Belgium, Germany, Poland, Switzerland and the UK. In the UK, undocumented victims of crime can only get a special residence permit if they were on spouse-dependent visas before becoming undocumented.

The study considers EU and international legal frameworks that provide for residence permits for certain victims of crime, and looks at national legislation in 10 European countries (Belgium, France, Germany, Greece, Italy, the Netherlands, Poland, Spain, Switzerland and the UK) implementing such measures.

Alyna Smith, Advocacy Officer at PICUM, said “Incidents of domestic violence during confinement measures are on the rise, as highlighted by the United Nations, the Council of Europe and the European Parliament. Undocumented women facing abuse at home have even less recourse to protection because they fear detention and deportation if they seek help. Countries that offer residence permits for survivors of domestic violence have decided to prioritise safety in these cases, and to create measures that encourage people to report their mistreatment. They recognize that everyone benefits when all victims of crime are protected and abusers are held accountable.”

France, Greece, Italy, the Netherlands and Spain foresee some form of residence permits for undocumented victims of domestic violence, although many practical barriers exist, including high standards of proof, and the broad discretion authorities enjoy in granting these special permits. Indeed, these schemes exist in national contexts where undocumented victims who come forward still face a significant risk of detention and deportation.

The study is released as the EU adopted its Victims’ Rights Strategy, which recognises for the first time that undocumented victims are among those most vulnerable to victimisation.

Besides domestic violence, the report considers residence permits available for victims of labour exploitation and human trafficking.

NOTES TO THE EDITORS

• The Platform for International Cooperation on Undocumented Migrants (PICUM) is a network of organisations working to ensure social justice and human rights for undocumented migrants.
• The report Insecure justice? Residence permits for victims of crime in Europe can be found here. The table below offers an overview of the availability of residence permits for victims of domestic violence, labour exploitation and trafficking.

• The 2020 EU Strategy on Victims’ Rights sets out priorities for the next five years to reinforce the rights and protections of victims of crime in the EU.

• Media inquiries can be addressed to PICUM’s Communications Officer Gianluca Cesaro on gianluca.cesaro@picum.org

Cover image credit: Adobe Stock: marjan4782

Over 100 independent organisations are calling the new European Commission to stop the criminalisation of solidarity with migrants in Europe in a joint statement published today.

The organisations are calling the European Commission and its newly elected head Ursula Von der Leyen to reform the EU Facilitation Directive, which currently allows Member States to criminalise humanitarian aid.

In particular, the signatories wrote:“Most investigations and formal prosecutions are related to the vague definition of crime in the EU Facilitation Directive which fails to properly distinguish between human smuggling and humanitarian work. But the European Commission has been reluctant to consider the links between the EU Facilitation Directive and the criminalisation of solidarity”The statement also refers to a recent study by the European research platform ReSOMA which found at least 158 Europeans have been criminalised for their help towards migrants since 2015.

The signatories wrote:“The targets include volunteers, activists, NGOs, crew members of rescue ships, migrants’ family members, and also journalists, mayors and priests. The recent arrest of the Sea Watch 3 captain, Carola Rackete, is just the latest example of how people are being blamed for saving migrants’ lives and providing the humanitarian assistance which Member States are unwilling or unable to provide, despite being obliged to according to international and EU law.”

ENDS

Notes to the editors:

• The signatories to the joint statement include organisations working for human rights and humanitarian aid.
• The full statement and list of signatories is available here.

Press contacts:

• For information about the joint statement and the history of criminalisation of solidarity in Europe, please get in touch with Gianluca Cesaro at gianluca.cesaro@picum.org or at +32 488 60 76 21.
• For information about the joint statement and the ReSOMA research, please get in touch with Hind Sharif at hsharif@migpolgroup.com or at 02 230 59 30 and Lina Vosyliūtė at lina.vosyliute@ceps.eu.

The Platform for International Cooperation on Undocumented Migrants (PICUM) has filed a formal complaint to the European Commission against the UK for flouting the EU’s regulation on data protection (General Data Protection Regulation, GDPR) by including a broad immigration control exemption in its new Data Protection Act. The complaint has been joined by several migrant and digital rights organisations.

The 2018 UK Data Protection Act includes a section that allows the government and others to ignore the EU’s data protection rules when those rules get in the way of “the maintenance of effective immigration control” or “the investigation or detection of activities that would undermine the maintenance of immigration control.”

Alyna Smith, Advocacy Officer at PICUM, said:

“The UK Data Protection Act’s “immigration control exemption” runs exactly counter to the EU’s efforts to reinforce individuals’ right to the protection of their personal data. It carves out a space where public and private actors have wide discretion to access, use, share, and gather personal data, without the knowledge of affected individuals and with virtually no accountability. All this for immigration enforcement goals which are worringly vague and broad”.

The exemption does not include safeguards for sensitive data or for vulnerable groups like children. Smith added: “This exemption risks worsening existing violations of fundamental rights and freedoms, under the UK’s “hostile environment” policy”.”

The UK, even as a non-EU country post-Brexit, cannot trade with the EU if its data protection laws are not up the EU’s standards.

Gracie Bradley, Policy & Campaigns Manager at Liberty, said: “The immigration exemption will make it even easier for the Home Office to hoover up people’s data from schools, hospitals and other vital services without their knowledge, further entrenching the hostile environment. It’s oppressive, unnecessary, and strips people of the rights the Government said the Data Protection Act would uphold. The UK cannot call itself a world leader on human rights while its data laws fall far short of the European standard.”

Nazek Ramadan, Director of Migrant Voice, a UK-based and migrant-led charity advocating for the rights of migrants, said: “This exemption disproportionately interferes with fundamental rights of privacy, data protection, equality and non-discrimination of millions of UK foreign residents.”

ENDS

 

Notes to the editors:

• The complaint is brought to the European Commission by the Platform for International Cooperation on Undocumented Migrants and has been co-signed by:
  • EU Rights Clinic
  • Campaign to Close Down Campsfield and End of All Immigration Detention in the UK
  • Joint Council for the Welfare of Immigrants (JCWI)
  • Latin America Women’s Rights Service (LAWRS)
  • Liberty
  • Migrant Rights Network (MRN)
  • Migrant Voice
  • Maternity Action
  • Privacy International
  • Praxis
• The UK’s Data Protection Act entered into force on 25 May 2018. The immigration exemption clause is included in Schedule 2, Part 1, paragraph 4 of the law.
• The GDPR is the EU set of rules on data protection, which apply to all EU Member States. It entered into force on 25 May 2018.
• The European Commission has a process that allows individuals and organisations to submit a complaint about any measure (law, regulation or administrative action) or practice by a country of the European Union that they think is against European Union Law.

Press contact

Gianluca Cesaro, Communications Officer, PICUM, gianluca.cesaro@picum.org.

A new EU-funded study shows a rise sharp in citizens being criminalised for helping migrants and refugees across Europe, including by offering shelter and food.

The report provides the most in-depth list of cases of criminalisation of solidarity to date. It finds that between 2015 and 2019, at least 158 individuals have been investigated or formally prosecuted for offering humanitarian assistance to migrants and refugees across 11 European countries. The vast majority of cases occurred in France, Italy and Greece.

Despite a drop in migrant arrivals, the number of cases increased dramatically in 2018, with 104 individuals reported – twice as many as 2017. The criminalisation of solidarity does not only affect human rights defenders, volunteers and crew members rescuing people at sea, but also ordinary citizens, doctors, journalists, mayors and religious leaders.
Seán Binder, who spent 106 days in pre-trial detention for his humanitarian work as a coordinator of civilian rescue operations in Greece in 2018, added:
“Humanitarian response and asylum seeking are enshrined in the EU charter of fundamental rights and international law – humanitarians are engaged in both legitimate and legal activities. In fact, civilian humanitarianism is a highly skilled operation that works to complement the lifesaving of the authorities, instead of hampering them. For instance, in my case, we were the only actors who provided immediate medical services and interpreters where the authorities had none.”

“Beyond the legal proceedings highlighted in the report, Caritas Europa is also deeply concerned by all the other means used to deter acts of solidarity. This includes examples of violence and harassment by the police towards volunteers and obstacles to food distribution to migrants”, says Maria Nyman, Secretary General of Caritas Europa.

The report calls the EU institutions to tackle the rising criminalisation of solidarity and uphold human rights within our Union, as sanctioned in the Charter of Fundamental Rights, protect human rights defenders in the EU and reform the EU’s Facilitation Directive to avoid it being used to criminalise solidarity by EU member states.

Michele LeVoy, the Director of the Platform for International Cooperation on Undocumented Migrants (PICUM), emphasised:“All these cases can be related to one EU law—the 2002 Facilitation Directive—which fails to distinguish between human smuggling and humanitarian assistance. We—European civil society organisations and humanitarian actors— are concerned by the EU’s lack of action. The new Members of the European Parliament must hold the next set of European Commissioners to account when screening their policy positions on the criminalisation of solidarity.”

ENDS

NOTES TO THE EDITORS
• The report Crackdown on NGOs and Volunteers Helping Refugees and Other Migrants can be found here.
• The co-authors of the study are Lina Vosyliūtė (Centre for European Policy Studies) and Carmine Conte (Migration Policy Group) on behalf of the Research Social Platform on Migration and Asylum (ReSOMA), a platform to mobilise European researchers, experts and key stakeholders in migration, asylum and integration. ReSOMA partners include Centre for European Policy Studies (CEPS), Migration Policy Group (MPG) The Platform for International Cooperation on Undocumented Migrants (PICUM), The Social Platform…To learn more about ReSOMA, visit http://www.resoma.eu/…
• The criminalisation of solidarity is often legislated in terms of facilitating the entry or transit of migrants in the Member States, while a few cases are related to the facilitation of stay or residence and other grounds.
• The data collection confirms that since the emergence of the “refugee crisis”, there has been an escalation of judicial prosecutions and investigations against individuals on grounds related to the EU’s Facilitation Directive in the Member States.
• Ambiguity in the EU’s Facilitation Directive on the distinction between smuggling and humanitarian assistance, enables EU Member States to criminalise humanitarians. A revision of the Facilitators’ Package is thus needed in light of EU citizens right to good administration, protection of human rights defenders and protection of humanitarian actors from criminalisation.
• In the evening of 20 June (21:00-01:00), Caritas Europa will project pictures of volunteers who have been unduly criminalised on the building of the Info Station of the European Parliament in Brussels (Place du Luxembourg). For journalists wanting to attend or take pictures, contact Leticia Lozano at LLozano@caritas.eu.
• For further information on the report, contact Hind Sharif from at hsharif@migpolgroup.com or at +32 2 230 59 30.
• For further information on the history of the criminalisation of solidarity in Europe and on criminalisation cases before 2015, contact Gianluca Cesaro at gianluca.cesaro@picum.org.

Image credits: Alisdare Hickson

As the European Parliament is to adopt the European Labour Authority on 16 April 2019, the Platform for International Cooperation on Undocumented Migrants (PICUM) is calling on the new labour agency to address the labour exploitation of undocumented migrant workers. It is not possible to meaningfully address exploitation, social dumping and undeclared work without enforcing standards for all workers, regardless of their migration status.

In many EU countries, undocumented workers cannot safely address labour authorities without being reported to immigration enforcement and risking arrests, detention and ultimately deportation. This places them at risk.

 

PICUM’s Director Michele LeVoy said, “If the European Labour Authority is to promote fair working conditions for cross-border workers across the EU, it will need to address the barriers undocumented workers face to report abusive employers.”

PICUM calls on the European Labour Authority to encourage discussions about the development of safe complaints mechanisms for undocumented migrant workers. In particular, the Authority should address policies aiming at establishing a “firewall” between labour justice and immigration enforcement, which allows undocumented workers to safely file a complaint against abusive employers without fear of being detained and deported.

ENDS

NOTES TO THE EDITORS:

• The European Labour Authority is meant to support national authorities to correctly apply EU rules on free movement of workers, posting of workers and social security coordination, including by facilitating cooperation and exchange of information between national labour authorities.
• The ILO Labour Inspection Convention states that labour inspectors should not be required to take on any task that would undermine their main role to enforce conditions of work and protection of workers. Checking on immigration status is one such task. They should also treat the source of any complaint as confidential.
• More information on the firewall and how it works in labour justice can be found in PICUM’s new visual explainer.
• The Employers’ Sanctions Directive requires governments to put in place effective mechanisms for undocumented workers to file complaints against their employers. More information on how complaints mechanisms can be effective for undocumented workers can be found in PICUM’s Guidelines for developing an effective complaints mechanism in cases of labour exploitation or abuse.
• PICUM acknowledges the importance of engaging and joining forces with the trade union movements in improving rights for undocumented workers. PICUM has partnered with the European Trade Unions Confederation (ETUC) to foster discussions among national trade unions on how to integrate undocumented workers in their advocacy for labour rights. These recommendations have been published in a leaflet which was disseminated to European national trade unions.

ABOUT PICUM

The Platform for International Cooperation on Undocumented Migrants, PICUM, is a network of organisations working to ensure social justice and human rights for undocumented migrants. With nearly two decades of evidence, experience and expertise on undocumented migrants, PICUM promotes recognition of their human rights and provides an essential link between local realities and the debates taking place at policy level.

Based in Brussels, Belgium, PICUM provides regular recommendations and expertise to policymakers and institutions within the United Nations, the Council of Europe, the European Union as well as on national and local level.

CONTACT DETAILS

Gianluca Cesaro, Communications Officer, gianluca.cesaro@picum.org.