On 29 May, international and Swedish NGOs, trade unions, academics and faith-based organisations will be heard in the Swedish Parliament about the government’s proposal to oblige public sector workers to report undocumented people they come in contact with to immigration enforcement and/or police.

The proposal was included in the coalition programme of the government in 2022, (the Tidö Agreement, p.33) and is currently being studied in a public inquiry before concrete legislation is tabled.

The proposal has been heavily and widely criticised by a number of actors, including university teachers, welfare professionals, health care workers, teachers, municipal workers and library staff.

All denounce that mandatory reporting would lead to discrimination and stigmatisation, and fuel growing racism. Many undocumented children would no longer be able to attend school, while undocumented patients would find it difficult to access health care. Teachers, doctors and other public workers would have to act as border guards and compromise their professional independence and integrity.

The proposal would also have a detrimental effect on access to justice and protection for undocumented victims of crime and is likely to further prevent such victims and witnesses from reporting abuse to the police or agreeing to give evidence in criminal proceedings.

The Swedish government also instructed (p.16) the public investigator to consider “consequences” for those who do not comply with the obligation to report.

Over 4000 health care workers already pledged to commit civil disobedience and refuse to report their patients should the measure be implemented in the healthcare sector. Several directors of Swedish regional health care authorities voiced criticism towards the proposal.

The Swedish Teachers’ Council on Professional Ethics also strongly criticised the proposal and encouraged teachers to commit civil disobedience should the proposal become law. Nine out of ten librarians contest the proposal.

The Tidö agreement foresees to investigate the possibility of introducing limited exemptions from the obligation to denounce undocumented people, without promising that such exemptions would later be applied. But no exemption, whatever its extent, can mitigate the harm of this proposal: any reporting obligation is harmful and discriminatory, and should be rejected.

The results of the public inquiry should be made public by 30 September 2024.

QUOTES:

Michele LeVoy, Director of the Platform for International Cooperation on Undocumented Migrants:

“This proposal is utterly inhumane. This is part of a growing trend that criminalises solidarity with undocumented people across Europe, which exacerbates their marginalisation and segregation. Everywhere where obligations to denounce undocumented people have been applied, the result has been more discrimination, suffering and fear. Clear safeguards are urgently needed against data sharing between public services and immigration authorities. The Swedish government should withdraw this proposal and ensure all people can access public services safely, without risking detention and deportation”.

Jacob Lind, Postdoctoral researcher in international migration at Malmö University:

“This proposal is a paradigm shift in the position of human rights in Sweden, a country that for a long time has been perceived by others as a role model on the international stage when it comes to promoting human rights.”

Hannah Laustiola, Executive Director of Doctors of the World Sweden:

“The proposal of a duty to report irregular migrants in Sweden is not only counter-productive, but also seriously harmful for individuals, the professionals bound by such a duty, as well as for society at large. With over 30 years of experience in working with irregular migrants, Doctors of the World Sweden can safely conclude that such a law would lead to even more people refraining from seeking health care, resulting in worsened health conditions at best, and premature death at worst.”

Anna Troberg, Chair of cultural sector trade union DIK:

“A vast majority — more than nine out of ten — of Swedish librarians are strongly opposed to reporting undocumented migrants to the police, and rightly so. They are librarians, not border patrol. Many say they would rather lose their jobs than report those in need. If the Swedish government advances this law, the librarians will come out on the right side of history. Ultimately, this is a question of trust, humanity and democracy.”

Heike Erkers, Chair of the Union for Social Sciences, ASSR:

“This measure would be disastrous not least for social services. We need to ensure that social services continue to be a safe space for all in our country to ensure that people in need will get help and support.”

It’s also about the potential breach of confidentiality and erosion of trust to society that our members are working so hard to ensure. This potential law would result in a growing number of people hiding and being exploited in appalling conditions.”

Bishop Andreas Holmberg, Church of Sweden, Stockholm diocese:

“I share a concern with many within the Church of Sweden, not least among my deacon sisters and brothers, about how a reporting obligation can affect the vulnerable people we meet. We are really concerned that our close cooperation with the public sector and civil society may be obstructed if a reporting obligation becomes a reality. I am particularly concerned about how such a law will affect children who are already living in great vulnerability.”

MEP Malin Björk, Swedish Left Party:

“Forcing public servants to denounce undocumented migrants to the police would be a breach of the Convention of the Human Rights, the Convention of the Rights of Children and the European Union’s Charter of Fundamental Rights. The current Swedish government depends on extreme right wing party Sweden Democrats, which would like to make it mandatory for all citizens to denounce undocumented persons. This kind of law has no place in modern, democratic societies”.

Between January and December 2023, at least 117 people faced judicial proceedings in the EU for acting in solidarity with migrants. The majority were charged with facilitation of entry, stay or transit or migrant smuggling (depending on how the crime is defined in the national legislation). The figures stem from media monitoring of different national news outlets conducted by the Platform for International Cooperation on Undocumented Migrants (PICUM) throughout 2023.

This is most likely an undercount, as statistical and official data concerning those who are being accused, charged, or convicted for smuggling and related offences is often lacking. Many cases go unreported by the media or because people fear retaliation, especially migrants themselves. In addition, some cases reported by the media might not have been detected by our alert system.

Nonetheless, this data confirm a concerning, ongoing trend observed in previous reports. At least 102 people were criminalised in the EU in 2022. At least 89 people were criminalised between January 2021 and March 2022, and at least 158 were accused of smuggling between 2015 and 2019.

Michele LeVoy, Director of PICUM, said: “These numbers are only the tip of the iceberg of what is actually happening in the European Union. Current trends are likely to worsen as EU proposals to fight migrant smuggling fail to include a binding exemption of humanitarian acts from potential criminalisation.”

Our media monitoring found that the majority of people criminalized were in southern Europe: 74 people were criminalised in Italy and 31 people in Greece. People were also reported criminalized in other countries: six in Poland, three in Malta; two in Latvia and one in Cyprus (there may also be cases in other countries that went undetected in our alert system).  Nearly 60% of people were criminalized for solidarity with migrants on land, and roughly 40% at sea.

Among those criminalised, forty-six people were criminalised for rescuing or helping migrants in distress at sea. Nineteen were criminalised for providing shelter to migrants; 18 for promoting inclusive policies at local level; 17 for trying to stop a deportation, and eight people were criminalized for providing migrants with food, water, and clothes. For example, In one case from Latvia, two citizens were charged with facilitating irregular entry simply because they gave food and water to migrants stranded at the border with Belarus.

The average length of the proceedings is 3.5 years, but many last even longer. In one case from Italy, former Riace mayor Mimmo Lucano, with international renown for the projects on the inclusion of migrants in his village, spent five years in house arrest and under investigation. In another case from Greece, 24 human rights activists, including volunteer lifeguards Sean Binder and Sarah Mardini, have been undergoing legal proceedings for more than four years for charges brought against them for rescuing asylum-seekers at sea. While part of the charges were finally dropped in 2023, the felony charges are still unresolved.   

Among the 42 individuals whose trials were closed in 2023, 40 people received an acquittal. Even if they end in an acquittal, trials still have heavy consequences on people’s finances, personal life, and psychological wellbeing.

People criminalised for crossing borders irregularly

Not only solidarity with migrants is being criminalised under counter-smuggling legislation, but also the very act of migrating. According to our monitoring, between January 2023 and December 2023, at least 76 migrants in Italy, Greece and Spain were criminalised for the sole act of crossing borders irregularly.

At least seven of the people criminalised in 2023 were children at the time of the facts.

LeVoy said: “The criminalisation of solidarity with migrants is deeply tied with the criminalisation of migration itself. These are not two separate issues but are in fact a continuum of restrictive migration policies that make border crossing unsafe and create a hostile environment against those who are considered to have entered in an irregular manner.”

Fifty-three migrants were charged with facilitation of irregular entry for actions including driving a boat, being on boat (12 people charged), and resisting a pushback at sea (9 people charged). The accusations fail to capture the underlying motivations behind these actions, which often include reuniting with family members, covering the cost of the passage, seeking livelihoods, and supporting others. In one case from Greece, a 45-year-old Egyptian man was sentenced to 280 years in prison under the accusation of human trafficking, smuggling, and belonging to a criminal organisation simply because he helped steer the vessel he was in with other 476 migrants, including his son.

Administrative sanctions and non-judicial harassment of NGOs

Our media monitoring also recorded at least 15 cases of non-judicial harassment, concerning 17 individuals and 12 NGOs. These cases are in addition to the 117 described above.

In one third of the cases, the person or the organisation concerned was issued an administrative fine for their actions in support to migrants. Other non-judicial forms of harassment included confiscation of material, police harassment or detention, threats by private groups, restrictions of access to certain locations and to people of concern, and defamation.

In one case from France, three members of the NGO Bidasoa Etorkinekin were taken into police custody in the city of Urrugne for one day after sheltering migrants in a local reception centre. In Italy, search and rescue ships Geo Barents, Humanity 1, Sea Watch Aurora, and Open Arms were all impounded and their crews fined several thousand euros for violating the Italian Legislative Decree 15/2023 that prohibits multiple rescues at sea in one trip. In Cyprus, equality NGO KISA has been facing harassment and attacks for years, including a bombing attack in their offices in January 2024.

We, the undersigned organisations, express our deep concern regarding the continuing and escalating harassment and attacks against KISA, a leading non-governmental organisation fighting for human rights and equality for all in Cyprus. KISA’s work promotes a society free of racism and discrimination, also by defending the rights of migrants, refugees and victims of human trafficking.

During the early morning of 5 January 2024, KISA experienced a targeted bombing attack. An explosive device was planted outside its offices, destroying all windows and causing extensive damage to the photocopier, computers, and part of the organisation’s archives. The organisation suspects that the bombing was carried out by individuals within racist and nationalist circles, considering that KISA and its members have been the object of repeated threats. Despite the seriousness of the bombing, the Cypriot authorities have yet to issue an official response. While the police are investigating, they did not issue an information note, contrary to the standard practice in case of such incidents.

The lack of official and public communication regarding the assault and the investigation, and support for KISA and civil society organisations in general, indicates a worrying disregard by the authorities. Indeed, we are deeply concerned about the reported failure of the authorities and police to take any steps to protect KISA as well as the inadequate response to the numerous threats, and actual acts of physical and verbal violence, harassment and smear campaigns formally reported to the police.

Furthermore, this attack is not an isolated incident, but the result of a long campaign to discredit and silence independent voices in Cyprus, in particular KISA. In 2021, 38 organisations denounced the ongoing harassment against KISA, and the restrictions imposed on the organisation including its de-registration as a non-governmental organisation. Although KISA has since then a new formal legal status as a non-profit company and the deregistration is under appeal, the government – in particular the Ministry of the Interior – continues to block several of KISA’s essential activities in support of migrants and refugees.

The undersigned organisations are also deeply concerned that KISA members and volunteers, in particular former Executive Director Doros Polykarpou, continue to face criminalisation that appears to be linked with their activities as human rights defenders. Mr. Polykarpou was convicted on 21 December 2023 and, just ten days after the bomb attack, sentenced to pay a fine for supposedly ‘interfering’ with police work in 2019, after exercising his right to observe a police officer’s interaction with a young motorcyclist (a minor, stopped for possible traffic offences) and to provide basic information to the child regarding his rights.

Another trial related to the criminalisation of Mr Polykarpou in his work as a human rights defender is on-going and concerns a visit to the Pournara reception centre to investigate claims of inhuman conditions by unaccompanied children. Mr Polykarpou reported his physical assault by private security guards in March 2022 but was later prosecuted for various charges (case 16767/22). These cases follow decades of criminal charges levelled against Mr Polykarpou which according to KISA are part of a pattern of cases aiming to intimidate, discredit and interfere with the work of KISA as a human rights defender. Before this latest ruling, Mr Polykarpou had been acquitted in all legal cases against him.

Our concerns extend beyond the immediate impact on KISA to encompass broader issues of civic space in Cyprus. In particular, the rise of anti-migrant, racist rhetoric and racist violence in the country is alarming and requires attention and action to change.

In order to promote an enabling environment for independent civil society and solidarity with migrants and refugees and remove restrictions to civil society’s space in Cyprus and in Europe as a whole, the undersigned organisations call upon the following authorities to:

The Cypriot authorities:

• Publicly condemn the recent bombing attack against KISA, and ensure a thorough, independent, impartial and prompt investigation into and appropriate response to the January 5th bombing including the prioritizing of the hypothesis that the attack was related to KISA’s human rights and anti-racist work.
• Ensure a thorough, independent, impartial and prompt investigation of previous complaints presented by KISA and its members regarding harassment, attacks, smear campaigns, and threats. Implement effective measures to ensure the safety of KISA’s employees, members and service users.
• Protect KISA’s freedom of association and end the criminalisation of KISA and its members.
• Take steps to enable KISA to continue its activities, including granting KISA full access to reception and detention centres where migrants and refugees are held.
• Take concrete measures to end any legislation or policy which encourages racism, hate speech, xenophobia and intolerance against migrants, refugees and racialised people in Cyprus. Take action to combat extremist narratives and racist rhetoric in the media and public discourse.
• Comply with international and regional standards on the right to freedom of association and the protection of human rights defenders, and in particular the joint OSCE/ODIHR and Venice Commission Guidelines on Freedom of Association, the OSCE Guidelines on the Protection of Human Rights Defenders , the UN Declaration on Human Rights Defenders and the recommendations of the Council of Europe NGO Expert Group.

The European Union:

• Condemn the attack that took place on 5 January 2024 and other pending complaints, and call on the Cypriot authorities to ensure an adequate response and to end the ongoing harassment against KISA and interference in its work, in line with the 2023 European Commission recommendations on promoting the engagement and effective participation of citizens and civil society organisations in public policy-making processes and the Council conclusions on civic space.
• Closely monitor the situation in Cyprus, especially the climate of violence and xenophobia, addressing the hostility against migrants, refugees and anti-racist and migrants’ rights organisations.
• Address these attacks against human rights defenders and their organisations in the Annual Rule of Law Cycle and make a targeted recommendation to Cyprus to ensure a safe space for rights defenders and put an end to the ongoing attacks and to the restrictions on KISA’s freedom of association and the criminalisation of KISA and its members.
• Call on the Cypriot authorities to respect and uphold the European Union Charter of Fundamental Rights, the rule of law principles, and the right to freedom of association.
• Develop an early warning system to detect harassment of individuals and civic organizations, including those advocating for migrant rights and racial justice, to prevent their criminalisation. This system should prompt swift EU-level responses such as recommendations, dialogue, sanctions, and emergency funding. Additionally, collaborate with civil society to establish a ‘Rapid Response System’ (building on the existing EU’s external human rights defenders mechanism) offering helplines, legal aid, and temporary relocation to protect civil society since the first signs of attacks.

Signatories:

International and European organisations:

• AMERA International
• Amnesty International
• Borderline-europe Human Rights without Borders
• European Civic Forum
• European Network Against Racism (ENAR)
• EuroMed Rights
• FIDH (International Federation for Human Rights), in the framework of the Observatory for the Protection of Human Rights Defenders
• Front Line Defenders
• Greek Helsinki Monitor
• Human Rights Cities Network            
• Institute of Race Relations
• International Service for Human Rights (ISHR)
• La Strada International
• Migreurop
• Minority Rights Group
• Netherlands Helsinki Committee
• Platform for International Cooperation on Undocumented Migrants (PICUM)
• PRO ASYL
• Protection International
• Statewatch
• World Organisation Against Torture (OMCT), in the framework of the Observatory for the Protection of Human Rights Defenders

National organisations:

• Aditus Foundation, Malta
• ASGI, Italy
• Association Tunisienne des Femmes Démocrates (ATFD), Tunisia
• Associazione Ricreativa e Culturale Italiana (ARCI), Italy
• Cairo Institute for Human Rights (CIHRS), Egypt
• Center for Peace Studies, Croatia
• Center for Public Innovation, Romania
• Damascus Center for Human Rights Studies (DCHRS), Syria
• Finnish League for Human Rights, Finland
• Focus on Labour Exploitation (FLEX), UK
• Gentium, Spain
• Greek Council for Refugees (GCR), Greece
• Hellenic League for Human Rights, Greece
• Human Rights Association (IHD), Turkey
• Hungarian Helsinki Committee, Hungary
• Irídia, Spain
• Irish Council for Civil Liberties, Ireland
• Legal Center for the Protection of Human Rights and the Environment – PIC, Slovenia
• Ligue des droits de l’Homme (LDH), France
• Network for Children’s Rights, Greece
• PA International Center “LA STRADA”, Moldova
• Tamkeen for Legal Aid and Human Rights, Jordan
• Vatra Psycho Social Center, Albania

This blog was written by Jacob Lind, Postdoctoral researcher in international migration at Malmö University; Anna Lundberg, Professor of Sociology of Law at Lund University; Hanna Scott, Doctoral student at Lunköpig University; and Karin Åberg, Doctoral student at the University of Gothenburg.

The Tidö agreement

Following the 2022 Swedish general elections, the majority parties (Sweden Democrats, Moderate Party, Christian Democrats and Liberals) presented a cooperation agreement (the Tidö Agreement) that aims to limit the rights of asylum seekers and undocumented people in Sweden. We see this as a “paradigm shift” in the position of human rights in Sweden, a country that for a long time has been perceived by others as a role model on the international stage when it comes to promoting human rights.

The Tidö Agreement contains an extensive list of proposals which, if implemented, would have severe impacts on undocumented inhabitants, professionals and the whole of society.

The Tidö Agreement proposes to oblige municipalities and other authorities that come into contact with undocumented people to inform the Swedish Migration Agency and/or the police. In practice, public authorities would be responsible for checking the person’s right to reside in Sweden. The proposal recognises that there may be situations where reporting would conflict with humanitarian values. However, neither the migration minister, nor the health care minister, have been willing to give more detail as to potential exceptions. They merely stated that a state inquiry will investigate in detail “possible exceptions, such as in the health care sector” where the duty to report is likely to be limited or exempted.

What will a reporting obligation mean in practice?

Mandatory reporting would make it more difficult to live in the country without a permit and strengthen a “hostile environment” against undocumented people in Sweden. This obligation would also lead to discrimination and stigmatisation, and fuel growing racism.

There would be serious consequences for children’s access to school and education. Many undocumented children would no longer be able to attend school. Teachers would have to act as border guards. Children’s trust in authority and their belief in everyone’s equal value and treatment would be undermined by witnessing how their friends are turned in by the adults who are supposed to care for them. Mandatory reporting would also stand in stark contrast to the principle of equal rights for children under international law.

Access to health care would also be impacted. All children, including those staying in Sweden without a residence permit, are entitled to medical care. Adults in an undocumented situation have the right to health care ”that cannot be deferred”. Yet, it is likely that access to health care for all undocumented individuals would be hindered by fear that contact with health care providers would mean being reported to police or migration authorities. 

The proposal would also have a detrimental effect on access to justice and protection for undocumented victims of crime and is likely to further prevent such crime victims and witnesses from reporting abuse to the police, or agreeing to give evidence in criminal proceedings.

Professional independence and integrity are undermined when service providers (e.g. health professionals, social workers, child protection workers, educators, etc.) have, or are perceived to have, priorities (such as reporting persons in an irregular situation) that supersede, and indeed conflict with, their primary concern for the best interests of the person (student, child, patient, etc.) they serve. It would damage their relationship with the service user, and their broader role within society. In the case of health care, delayed treatment of health conditions also means higher costs for both the individual and society.

Conflicts with national law

Since 1 July 2013, undocumented children in Sweden have the right to attend preschool and primary education. If they start studying before the age of 18, they additionally have the right to attend upper secondary school.

An earlier obligation for municipal school boards to report undocumented students to the police was withdrawn in 2013 as this right to education was introduced. According to the then government, such a reporting obligation would have prevent undocumented children and their parents from exercising their right to education. In 2018 the idea of an obligation to report was proposed again by the Sweden Democrats and the Moderates (centre-right) at the time had opposed it.

The Public Access to Information and Secrecy Act also protects children’s right to education. As a general principle, information about an individual’s personal circumstances is confidential, unless it is clear that the information can be disclosed without harm to the individual or someone close to him or her.

Conflicts with international laws and standards

Article 28 of the UN Convention on the Rights of the Child (CRC) protects the unconditional right to education for all children, regardless of status. According to the Committee on the Rights of the Child, states should prohibit the sharing of students’ personal data and should develop firewalls between educational institutions and immigration authorities. The CRC has been transposed into national law in Sweden since 1 January 2020.

In 2016, the Council of Europe’s European Commission against Racism and Intolerance (ECRI) found that

“the application of immigration rules must not interfere with the correct application of the human rights obligations of states in respect of all persons in their jurisdiction. … There must be clear firewalls which separate the activities of state authorities which provide social services and, where applicable, the private sector, from immigration control and enforcement obligations.”

Imposing the duty to report is a departure from this international recommendation. It also risks violating EU law, such as the Charter of Fundamental Rights and the General Data Protection Regulation.

The European Commission’s 2020 proposal for a Directive on violence against women and domestic violence and the 2023 proposal to revise the Victims’ Rights Directive both include a provision that would prohibit competent authorities coming in contact with a victim reporting a crime from transferring personal data pertaining to the residence status of the victim to competent migration authorities, at least until completion of the first individual assessment.

The European Parliament – in its position on the Directive on violence against women and domestic violence adopted in July – deleted the exception introduced by the Commission which allows reporting after the completion of the individual needs assessment.

Both directives are currently under negotiations, and have the potential to considerably enhance the rights of undocumented victims.

How was the proposal received?

As in previous attempts to introduce similar provisions, the proposal has been heavily and widely criticized by a number of actors, including university teachers, welfare professionals, health care workers, teachers, municipal workers and library staff. Representatives from trade unions representing all these sectors argue that the proposal goes against their professional ethics, would be contrary to the UN Children’s Rights Convention and will have an overall negative impact on social trust.

A medical doctor working at a health care clinic for undocumented migrants suggested that “if people do not dare to seek or are denied care, there are consequences for all of us”. Several directors of the regional boards who are responsible for the healthcare system politically in each region have also voiced criticism towards the proposal. In an article signed by 4008 health care workers, the signatories state: “If the measures proposed by the Tidö Agreement are implemented in the healthcare sector, we will commit civil disobedience and refuse to report our patients”.

Similarly, in a survey conducted by the teachers’ union among their members, more than half of the respondents answered that they would never report a student. The Swedish Teachers’ Council on Professional Ethics also strongly criticised the proposal and encouraged teachers to commit civil disobedience should the proposal become law. Nine out of ten librarians contest the proposal.

We, the authors of this text, teach future social workers and human rights professionals. Since the proposal was made public last year, we have been talking to students who worry that the duty to report violates the social work profession’s professional and ethical guidelines.

What’s next?

At the time of writing, the government has announced an inquiry into how this proposal should be legally designed and implemented.

We hope that raising awareness of the proposed duty to report beyond the Swedish context will lead to international scrutiny and criticism and that, together with individuals, professional organisations, civil society actors and politicians, this proposal can be stopped before it is implemented.

On this website, you can read a simple summary of the Tidö agreement in: Svenska, العربية (Arabic), English, Castellano (Spanish).