Last September, the European Commission published the new European Pact on Migration and Asylum to reform the EU migration and asylum system. The Pact, which consists of five legislative proposals and four recommendations, heavily focuses on restricting access to Europe and on stepping up returns of people who are unable to get international protection.

To achieve these goals, the proposals reduce safeguards, set unrealistic timeframes to have fair procedures, and increase detention, including for children – with little or no consideration for human rights, well-being or inclusion. We believe Europe can do better – both for our societies and for the children and adults who are migrating – and have identified key issues that need to change in the different Pact proposals.

The ‘Screening Regulation’ introduces a ‘pre-entry’ procedure to identify people who crossed an external border without authorisation or who disembarked after a search and rescue operation. In short, this means detaining everyone, including children of any age, unaccompanied or with their families, for up to five days (ten in situations of crisis), during which the border personnel (read Frontex or national border guards) will decide whether people should undergo a vulnerability and health screening or not. What’s more, undocumented people who are already on the EU territory could also be apprehended and detained for three days while they undergo the screening procedure – independent of how long they have been living on the territory and with no right to see a lawyer, appeal their detention or even inform their families.

The ‘Asylum Procedures Regulation’ introduces mandatory asylum and return procedures at borders – despite broad evidence of the harmful impact of these procedures and that they lead to de facto detention. As border procedures will also apply to children, the proposal stands at odds with global commitments and repeated calls by the European Parliament (in 2018, 2019, 2020 and 2021) to end child detention in light of the extremely harmful impact it has on children health and development. Moreover, the Regulation proposes to link the asylum and return procedures – a controversial reform already proposed, but not agreed yet, in the context of the ongoing negotiations on the Recast Return Directive. If adopted, this would narrow or even close access to residence procedures on other grounds under national and EU legislation.The ‘Asylum and Migration Management Regulation (RAMM)’ sets out a common framework for the management of asylum and migration in the European Union, clarifies which Member State is responsible for reviewing an asylum application, and proposes a complex and inadequate solidarity mechanism. A key tenet of this mechanism is the controversial possibility for Member States to contribute to returning people, rather than relocating them. In case the return isn’t carried out within 4 to 8 months from the Member State of departure, people will be transferred to the sponsoring Member State. Through this mechanism, people, including families and children, will be uprooted from the country in which they have been living potentially for years. This is in clear contrast with the Regulation’s claim that the best interests of the child will always be a primary consideration.

The ‘Crisis Regulation’ provides specific derogations to the timelines and safeguards set by the other three instruments in situations of crisis, risk of crisis or force majeure. Amongst others, people will be detained for longer periods of time, creating grave concerns around well-being and safeguards.

Although the Pact touts being child-rights-compliant, children will suffer if the proposals are adopted as they are now. It is difficult to see when and how children will have their best interests assessed or their well-being safeguarded when they may not have access to legal assistance, unaccompanied children may not be appointed a guardian, when children will automatically be detained at the border, and will not have access to a documented best interests procedure before a return decision is issued. For each instrument, we identified changes that are necessary to safeguard children.In addition, the proposals contribute to dividing people between those who are deserving of stay and those who are not; between those who may be able to receive international protection and those whose cases are not so clear and are automatically turned down and forced away. This strict division erases any possibility for accessing residence procedures based on children’s rghts, as workers, on medical grounds or as victims of trafficking or crime, to name a few. It also removes important safeguards related to non-refoulement, child rights, the protection of family and private life and the right to fair trial.

Lastly, if these proposals are adopted without change, the space for civil society to provide key services to migrants and asylum seekers will continue to shrink, creating a situation in which migrants and asylum seekers alike are misinformed, risk having their fundamental rights violated without oversight, and a Europe in which solidarity is increasingly criminalised and policed. We can do better.

For an overview of our concerns, read More detention, fewer safeguards: How the new EU Pact on Migration and Asylum creates new loopholes to ignore human rights obligations.

Cover: methaphum – Adobe Stock

This blog is the second in a two-part series looking at the intersection between racism and migration policy, and was authored by Abigail Cárdenas Mena, former Advocacy Trainee at PICUM.

On 25 May 2020, George Floyd, an African-American man, was killed by police in the US. The recording of his last moments and words travelled the world, sparking mass protests against police brutality and racial injustice around the globe. Four months later, on 18 September, the European Commission presented the EU’s first Anti-Racism Action Plan as a response to the ever-growing demands for racial equality and justice in Europe.

EU’s commitment to anti-racism: ambitious but still fragile

The new EU Anti-Racism Action Plan is meant to be the strategy for the next five years to step up action to counter racial discrimination and racism within the EU. It sets a clear goal: ensuring equal treatment and rights for all to “make a racism-free EU a reality”. The plan is ambitious in its scope and has been welcomed by anti-racist organisations in Europe. It is the first time structural, institutional and historical racism have been acknowledged by the EU. This is a key step towards recognising, understanding and tackling the different ways in which racism operates. Colonialism, slavery and the Holocaust are explicitly mentioned in the Action Plan when addressing the need to acknowledge and teach the historical roots of racism, as is the need to mainstream racial equality and anti-racism in EU and national policies, from digital technologies to migration. Consistent with the motivation behind its publication, the Commission specifically addresses discriminatory policing towards racialised communities in Europe, including racial or ethnic profiling, recognised as unlawful and damaging for reporting of crimes.

“Progress on fighting racism and hate is fragile – it is hard won but very easily lost”, said president Ursula von der Leyen during the State of the Union Address when announcing the Anti-Racism Action Plan. Unfortunately, she could not be more right. Only a few days later, the Commission released a new Pact on Migration and Asylum that has a strong focus on increasing the number of migrants to be returned and setting border procedures that will increase their detention. This document shows the EU’s focus on increasing its protection of borders as the key component of its new migration strategy.

The end of 2020 saw political reactions from European governments and the EU targeting migrants and the Muslim community in the wake of the attacks that took place between October and November 2020 in Austria and France. As highlighted by Statewatch, the statement adopted by the EU Justice and Home Affairs ministers on 13 November “single out migrants (explicitly) and Muslims (implicitly) as a problem”. Measures proposed to fight terrorism linked extremism to the failure of migrants to integrate, and to the need to strengthen protection of the EU’s external borders and increase policing, security and surveillance. Despite NGOs’ concerns about the conflation of counter-terrorism and integration, prevention of radicalisation and extremism finally made its way into the Action Plan on Integration and Inclusion of migrants and EU citizens with a migrant background, published on 24 November. Two weeks later, the EU Counter-Terrorism Agenda was published following the same narrative on Muslims and migrants. Human rights organisations have warned about the discriminatory impact of these policies and discourses and underlined that “Europe’s top-down counter-terrorism measures are reminiscent of a colonial approach to ‘managing’ Muslims often perceived as a problem in Europe, including through migration.”

The EU Migration and Asylum Pact: losing progress on fighting racism

“It’s very painful for me that in the 21st century, we the Black people are just like nothing. to matter, like seriously, it has to be in the Central Mediterranean, it has to matter in Libya. (…) For me, Europe has to do more to prove that Black life really matters”. These are the words of Souleman, a man from Cameroon rescued from the Central Mediterranean last summer after a long and harsh journey to Europe. The testimony of Souleman is a powerful cry for anti-racist demands to reach migrants, especially black Africans, and migration issues.

The Pact on Migration and Asylum came with five legislative proposals and four recommendations to be discussed by the European Parliament and the Council. The results of their agreements will have an immense impact on migrants trying to reach Europe and already present in Europe. Although the Pact stresses the need for a comprehensive European framework on migration that provides “decent conditions for the men, women and children arriving in the EU” and that “allow Europeans to trust that migration is managed in an effective and humane way”, it does not honour its own words. Instead, another sentence better summarises the Pact’s main motivation: “EU migration rules can be credible only if those who do not have the right to stay in the EU are effectively returned”. Around this idea, the Pact builds a whole system intended to identify who has the right to stay and who does not, and increase the deportation of those left without the right.

Furthering the race-making impact of migration policies

Bordering is always a way of race-making. It determines who is eligible for citizenship and political membership, maintaining historical hierarchies of belonging, but also creating new ones. “As people concerned with challenging racism and defending people’s right to move around, we have to be alert to how movement and controls on movement produce and reconfigure racial distinctions and hierarchies in the present (even if they are not named in racial terms)”, says researcher de Noronha.

The Pact is predominantly about preventing irregular migration, the type of migration that is left for people who cannot access regular pathways to Europe. Access to permits and regular pathways are not available for all migrants  and depend to a large extent on their country of origin. The racial impact is clarified by the UN Special Rapporteur (UNSR) on Contemporary forms of Racism: “States regularly engage in racial discrimination in access to citizenship, nationality or immigration status through policies and rhetoric that make no reference to race, ethnicity or national origin, and that are wrongly presumed to apply equally to all”. In Europe this is clear: “especially in former colonial territories, long-standing citizenship and nationality laws often discriminate against indigenous peoples or persons belonging to racial and ethnic minorities, in ways that reinforce ethno-nationalist conceptions of political membership.” The border procedures proposed in the Pact apply only to those who cross borders irregularly, setting the first filter and (racial) distinction. A further distinction based on nationality is also included here, as the border procedures only apply to people coming from a country with a rate of positive asylum decisions below 20%, which will lead to discrimination on the grounds of nationality.

After a pre-entry screening procedure where these migrants will be automatically detained, the Pact introduces a binary approach where everyone who does not apply for asylum should be forcefully returned, thus leaving no room for other pathways to regularisation and access to permits. The decision on asylum then determines the right to stay. But the asylum system is poorly adapted for addressing the many reasons people might seek protection, leaving some people outside, not to mention all the people who are not seeking protection but just decent labour opportunities.

People who are considered to pose a threat to national security or public order will be sent to the asylum border procedure – an accelerated procedure where people are likely to be returned and could be detained for up to three months. The construction of certain communities as a threat – to which counter-terrorism narratives have contributed – raises questions about the risk of discriminatory targeting of racialised communities.

Exacerbating discriminatory policing, racial profiling and police violence

The Pact foresees the pre-entry screening procedure to be applied also to people already in the EU when “there is no indication” that they crossed the border regularly. Thus, undocumented people will be apprehended inside the European countries where they are residing and might be detained for up to three days to be “screened” – identification, registration in databases, security checks and that will determine their status and their fate.

This poses serious concerns about increased discriminatory policing and racial profiling targeting communities of colour in Europe. Racial profiling is a widespread reality in Europe and works under the ethnonationalist conception that equates belonging to racial or ethnic minorities with being a foreigner. A FRA study from 2014 showed that 79% of surveyed border guards at airports rated ethnicity as a helpful indicator – alongside the way people behave when approaching a checkpoint and during the check (96% and 98%), destination (85%) and nationality (90%) – to identify people attempting to enter the country in an irregular manner before speaking to them. There is ever-growing evidence that discriminatory policing is accompanied by the excessive use of force and violence against racialised – including undocumented – people, including incidents leading to death.  The Pact’s proposed return sponsorship creates the possibility for EU member states to provide mutual support for the deportation of migrants, rather than for relocating them. To do so, member states can “choose the nationality of people to be supported for return, based on the readmission agreements signed and the highest possibility of expulsion”. Besides the inequalities this will create based on origin, this will contribute to discriminatory stops and searches and racial profiling according to nationality and will exacerbate existing practices of raids based on racial and ethnic criteria to fill charter flights for deportation to those countries.

Unequal external relations to ensure forced returns

At the time Spain was removing the razor wires from its fences with Morocco to make them more “humane”, Morocco was adding razor-wired fence on its side of the border with EU funds. The externalisation of borders has moved responsibility and accountability for the consequences of the EU’s own migration control policies away from the EU, culminating in the impunity of the system. “We have been crying over years that Libya is not a ground for people, but Europe pretends as if it’s not hearing”, said Souleman. “Tackling the issues we see today – the loss of life first and foremost, but also shortcomings in migration management – means working together so that everyone assumes their responsibilities”, states the Pact. It is hard to see how the EU is assuming its own.

And yet one area where there seems to be major consensus within the Commission and the Council is the external dimension of the Pact. The proposal gives a strong push to bilateral agreements and partnerships with third countries (though the main focus is on African countries, underlined over and over by different EU leaders) to cooperate on migration control, forced returns and readmission of migrants. These countries often have to be coerced or pressured into accepting “double win for Europe” partnerships where their interests on regularisation or mobility are excluded from the discussion, says the European Council on Refugees and Exiles. As a way to pressure them, the EU subordinates policy priorities related to visas, development aid, financial support, regular pathways and others, on collaboration on readmission – indispensable for the EU’s goal to enforce returns. Such conditionalities do not speak to the “mutually beneficial” relations that the Pact claims to pursue, but instead confirms once again that “EU migration policy is a one-way affair”.

International relations with the global South (former colonies) and its inhabitants are central to the fight for racial justice globally and to overcoming historical relationships of dominance. The EU’s insistence on setting top-down agendas with predefined objectives raises questions about the expansion of EU sovereignty over other territories, attempting to manage the mobility of people not only within its territory but far beyond. This has been evidenced by the expansion of the EU’s borders in Africa, which comes with a high cost for human rights and the lives of African people. Impediments to the free movement of Africans can only remind us of their forced mobility during slavery. Similarities like these are not unique to the African continent. How Europe controls the migration of people from the global South today is very much rooted in its colonial past. Not only the EU’s commitment to global justice and reparation is missing in the Pact, but solidarity is invoked between EU countries (to enforce deportations) and not with the global South and its people.

How to ensure rights for all, including migrants: building on the Anti-Racism Action Plan

Migration and (the fight against) racism cannot be compartmentalised. To live up to its commitments on racial justice, the EU cannot carry out two parallel agendas on migration and anti-racism, respectively; instead, it should bring both policy areas into dialogue so that decisions about migration contribute to the fight for racial justice and actions on anti-racism contribute to a fair system of migration for all. There are several steps that the EU can take, building on the new Anti-Racism Action Plan.

1. Mainstream anti-racism in migration policies, integrating the racial equality dimension throughout the legal and policy EU framework on migration. This will also involve looking at the specific ways structural, institutional and individual racism are faced by migrants in Europe (including at the borders) and devising concrete measures to fight against it.
2. Counter discriminatory policing and racial profiling. The EU must tackle police brutality and racist abuses by law enforcement to protect those who are most likely to experience it, regardless of migration status. “Everyone should feel safe in Europe” and migration and border controls cannot be put before the safety, rights and lives of people. Strong accountability measures and access to justice are key to address this problem and the EU should make them available within the EU, at its borders and beyond – wherever its migration policies are implemented.
3. Ensure “real mutually beneficial” partnerships with third countries. Moving forward, the EU’s relationship with the global South cannot replicate the unequal arrangements rooted in past colonial ties to impose its own agenda and goals – an agenda that harms the very people concerned. To avoid perpetuating neo-colonial dominance, the EU must mainstream anti-racism in its foreign policy (across all areas), instead of mainstreaming migration control, and work on global justice and reparation measures. Further recommendations on how to ensure “real mutually beneficial” partnerships with third countries have been put forward by migrant rights advocates.
4. Teach the past to understand the present. Acknowledge and teach the historical roots of racism to foster a better understanding of migration in the present and counter ahistorical and race-blind approaches to migration policies.
5. Promote narratives consistent with the dignity of all. In addition to combatting disinformation and racist and xenophobic messages in the media, EU institutions should promote the same regarding political discourse targeting migrant and racialised communities. This will help to fight against ethnonationalist rhetoric that fosters discrimination of such groups.

A real commitment to anti-racism implies ensuring rights for the whole community: from EU citizens from racial or ethnic minorities to migrants from the same minorities, regardless of their status and the way they cross borders. As stressed in the Anti-Racism Action Plan, “everyone in the EU should be able to enjoy their fundamental rights and freedoms”. But citizenship, nationality and immigration status remain the first formal – and racialised – barrier to the full enjoyment of human rights that states have at their disposal. For this reason, it is essential to understand how the EU is shaping irregularity, who is made “irregular” and the racial impact of this, and to continue to demand rights for all, irrespective of status, and regular and accessible pathways to Europe.

The statement was published three days after a mini-summit with key EU leaders to respond to the attacks where Islam was directly targeted. It also underwent several modifications to remove references to Islam and Muslims before the final version, but there is still a strong focus on religious extremism and the explicit mention of the so-called “islamist” attack in France.

People who do not apply for asylum are immediately deported or denied entry, while those who apply are sent to asylum (border or normal) procedures where, if their application is refused, will also be forcefully returned.

Cover image: Amy Elting- Unsplash

After the launch of the New Pact on on Migration and Asylum, the European Commission has announced a new Action Plan on Integration and Inclusion for 2021 – 2024, to be published in the last quarter of this year.

The document, which follows the previous Action Plan on the Integration of Third Country Nationals (2016) is meant to provide strategic guidance and set concrete actions to foster inclusion of refugees, migrants and their families. It will draw on all relevant policies and tools in key areas such as social inclusion, employment, education, health, equality, culture and sport, setting out how migrant integration should be part of efforts to achieve the EU’s goals on each one of these areas.

The forthcoming Action Plan is a significant opportunity to develop a coordinated integration policy, ensuring that all people arriving and residing in the EU have the opportunity to build a dignified life and to actively participate in society. Its focus on both integration and inclusion strengthens the understanding of integration as a “two-way process”, which remains to be adequately reflected in current policy approaches.

Ahead of its release, we have taken stock of existing analyses on the social inclusion of migrants and refugees, as carried out by ECRE, PICUM and their member organisations. We’ve also provided specific policy recommendations on coordinated governance, on coherence with existing EU funds, and on mainstreaming integration outcomes across migration and asylum policies.

Click below to find out more in our policy paper.Cover image credit: Copyright – End Child Detention, Artwork by Monann De Jong

The new European Pact on Migration and Asylum, published on 23 September 2020, begins with the recognition that “migration has been a constant feature of human history” and that “with a well-managed system, migration can contribute to growth, innovation and social dynamism”. While these statements would indeed define a coherent migration policy, the Commission has not translated them into the real contents of the policy.

Instead, with its five legislative proposals and four recommendations, the Pact proposes to build a system where deterring all unauthorised mobility and increasing deportations are the defining features of the EU’s migration policy in the coming years. This would be carried out by reducing safeguards, setting unrealistic timeframes to have fair procedures, and increasing detention – with little or no consideration for human rights, welcoming or inclusion. The investment of resources and political attention in preventing access to the territory and removing people from the EU far outweighs all other aspects of the policy, despite the text acknowledging that the vast majority of migration is regular.

Hardly definable as “a fresh start”, this system rather builds on and expands previous reforms and proposals, such as the massive reinforcement of the European Border and Coast Guard, the proliferation of “hotspots”, the adoption of the interoperability regulations creating and expanding biometric databases and access to data on third country nationals, and the proposed Recast Return Directive.

PICUM would like to underline the following six concerns about the proposed Migration and Asylum Pact:

1.      Rather than closing “loopholes,” the Pact proposes to create them to avoid legal safeguards and to deny access to other residence procedures.

One of the key objectives of the Pact is to “close the loophole between asylum and returns”, a phrase already heard on several occasions in the past months. To this end, the Commission proposes the large-scale application of “seamless” asylum and return border procedures. The “seams” in this case seem to be human rights and legal safeguards to uphold them. The legislative proposals actually set out to create legal loopholes that can be used to deny people access to fair procedures and create more ‘grey zones’ where different laws and procedures apply.

This binary approach, which implies that everyone who is denied asylum should be immediately returned, deprives people of the possibility of accessing pathways for regularisation under other grounds according to Member States’ national legislation, and removes important safeguards related to non-refoulement, best interests of the child and protection of family and private life.

The proposals are built on the legal fiction that people in the border procedures will not be formally “authorised to enter the Member State’s territory”, despite already being physically present on the territory. This raises concerns on how access to these procedures will be regulated and how to ensure accountability in case of human rights violations.

2.      The new border procedures will lead to increased and longer detention.

During the pre-entry screening, everyone crossing an external border irregularly, or disembarked  after search and rescue (SAR) operations, will be automatically detained in designated facilities for up to ten days. During this time, access to information and to medical care will be severely curtailed. After this period, people will be channelled into the return or asylum procedures, which, for the majority of people, will take place in the same border facilities. The same screening procedures will also apply to people already on the EU territory, independent of how long they have been living in Europe, if there is no indication that they have entered regularly. In this case, people can be detained in specialised facilities for up to three days.

For the whole duration of the asylum and return border procedures, which can last up to six or even ten months in cases of ”exceptional mass influx” or risk of it, detention will be the norm. In clear violation of international principles of necessity and proportionality, the Pact permits continued detention for the whole duration of the asylum and return border procedures, with no reference to the obligation to prioritise alternatives to detention.

The idea of applying the pre-entry screening procedures to people arrested within the territory is a shameless attempt to extend these legal “loopholes” to deny fundamental rights to resident individuals and groups. People and communities of colour that already face discriminatory policing and police harassment now risk further checks and imprisonment of up to three days without judicial review or access to a lawyer during the screening procedure. It is hard to understand how this can be in line with recent EU commitments in the newly released EU Action Plan Against Racism to “countering discrimination by law enforcement authorities” and avoiding “profiling that results in discrimination”.

3.      The EU mantra to increase returns is reinforced with more tools and fewer safeguards.

Deportation is an extreme and harmful measure that often breaks economic, social and family ties. Civil society and researchers have pointed to the concerning lack of evidence and knowledge of what happens to people after they are deported, and how the experience of deportation has an impact on the lives of parents and children, as well as future choices and opportunities.

Yet increasing returns, including to deter irregular migration, is presented as the overriding objective of the common framework. The term “return” appears more than 100 times in the Commission Communication on the Pact alone – while the term “rights” only 14.

The increase in returns is pushed through several measures and initiatives:

• the reduction of procedural safeguards, such as the lack of legal aid and accessible information in the pre-entry screening procedures, and limitations to the right to appeal against negative decisions;
• the creation of the “return sponsorship” scheme as a form of “solidarity” among member states, under which a state will be able to organise the deportation of an undocumented person living in another member state, rather than relocating them;
• new structures with dubious roles and unclear mandates: a Return Coordinator within the Commission, supported by a new High Level Network for Return; and a Frontex Deputy Executive Director on Returns;
• the renewed push towards prioritising readmission agreements in all relations with third countries with the exception of humanitarian aid.

These measures will likely lead to increased risks of human rights violations and reduced safeguards during return procedures, with increased challenges in ensuring accountability.

4.      Contrary to the global definition of children until they are 18, the Pact suggests that only children younger than 12 years old should be protected from some harmful procedures.

The provision that “the best interests of the child shall be a primary consideration for Member States with respect to all procedures” is welcome, as are the increased resources for guardians for unaccompanied children, the increased emphasis on alternatives to detention for children and the provision of non-discriminatory access to education.

In addition, the Commission steps back from imposing one of its most harmful innovations – the obligatory border procedures – on young children. Those who are under 12 are exempt from these procedures, as well as children who are unaccompanied. However, children aged 12-18 who are accompanied by their parents or other caregivers are required to undertake the border procedures, which translate into almost automatic detention and lack of access to regular pathways beyond asylum.

Despite the internationally recognized definition of children being every person until the age of eighteen, the proposal draws a new line in the middle of adolescence, imposing the new regime on children above the age of 11, and allowing their detention – for potentially up to 10 months, as far as they are with their family.

This provision, as well as the possibility to still detain younger children and unaccompanied children for national security reasons, infringes international and regional standards that clearly consider child immigration detention as a violation of the rights of the child.

5.      Civil society will now be at an even greater risk of harassment, criminalisation and restricted access to border areas.

The Commission Guidance on the implementation of EU rules on the definition and prevention of the facilitation of unauthorised entry, transit and residence only invites member states not to criminalise acts that are “mandated by law”, which are very different from acts “permitted by law”. Activities like providing food, shelter, car lifts or information, all remain excluded, in particular when they’re not carried out by an official NGO which is “mandated” to carry out such activities. The almost exclusive focus on search and rescue also risks leaving out activities on the territory and activities that are not directly life-saving.

Search and rescue operations are only considered legitimate when they “observe the instructions received from the coordinating authority” and while “complying with the relevant legal framework”, which leaves the door open to prosecution of NGOs under (often trumped-up) accusations of breaching national legislation or instructions on disembarkation.

The Pact does indicate that EU member states “may” authorise relevant NGOs to provide information and monitor fundamental rights at borders. Yet there is no clear obligation to grant NGOs access to border facilities, and some member states have already criminalized civil society organisations for providing life-saving information. There is a concern that the right to provide information is no longer a priority. The collective impact of these measures likely legitimises and expands practices of criminalisation of NGO operations at external borders, as already happening for instance in Hungary and Croatia.

6.      There are some promising elements towards inclusion, but the Pact sidelines the importance of labour migration for European economies and societies.

The significance of labour migration for European economies and societies is not reflected in the Pact, whether we look at the political messaging, resources, proposals, actions, or word count. On balance, the plans in the area of labour migration are relatively timid and over-shadowed by the focus on return.

Nevertheless, the recognition of the need to better protect labour migrants from exploitation and to facilitate more labour migration across skills levels is very welcome. The main idea to increase labour migration, at least in the short term, is to launch so-called “Talent Partnerships” in the EU’s Neighbourhood, the Western Balkans, and in Africa. We are keen to see how the new measures might have the potential to increase decent labour migration pathways across sectors and skill levels, including in those sectors currently characterised by low wages, where many migrant workers are carrying out essential work and unable to access permits.

The public consultation that the Commission has opened on regular migration builds on the conclusions of the extensive review of the regular migration framework completed in 2019. Therefore, we hope that the ideas already put forward in this context will be seriously considered, and that the consultation will represent another step towards concrete actions, rather than being a rerun of the discussions of previous years.

We hope the emphasis on integration and inclusion will also bear fruit, with an ambitious and inclusive action plan. Integration and inclusion necessarily involve various different sectors and policy areas of national and local competence. The common EU framework should avoid unnecessary and bureaucratic limitations which might impede, rather than support, local initiatives which are adapted to the needs and realities of communities. To be responsive to the local level, where integration is carried out, the new EU framework on integration should include all third country nationals, regardless of status, who are continually and effectively residing and participating in local life.

Next Steps

In its Roadmap to implement the Pact, the Commission proposes a very ambitious workplan, urging the European Parliament and the Council to adopt the proposed regulations by mid-2021 at the latest.

This short timeline ignores the detrimental – and potentially irreversible – impact of these proposals on the fundamental rights of those with few other options but to arrive in Europe in an irregular manner, as well as those who are currently undocumented in the EU. If the proposals were to be adopted in their current form, little would distinguish the European Union, self-declared champion of fundamental rights at the global level, from countries regularly detaining people and families in inhumane camps at their external borders, in view of their rapid deportation.

In these months of hard work ahead, we urge the European Parliament and the Council to consider the impact these proposals will have on migrants’ lives, civic space in the EU and the rule of law more broadly.

For instance, more than half of EU member states provide a temporary residence permit on medical grounds; at least five countries have legislation granting special permits for undocumented victims of domestic violence; and at least eight countries have regularisation mechanisms for children, young people or families.

If the deportation will not take place within eight months, the state will have to relocate the undocumented person in their country, raising concerns on their living conditions in the state of relocation as well as their risk to end up in a legal limbo.

Cover image: MoiraM – Adobe Stock

As announced by Commissioner for Home Affairs Ylva Johansson and Vice-President for Promoting our European Way of Life Margaritis Schinas in Autumn 2019, and included in the European
Commission work programme for 2020, an EU Pact on Asylum and Migration is expected to be launched in the coming month. Published at a critical juncture in the history of EU migration and socio-economic policies, the Pact has the potential to signal a turning point in how Europe addresses migration. The COVID-19 pandemic has exposed the ambivalence of the existing system, which strongly relies on workers in low-wage occupations – the hospital orderlies, supermarket staff, food delivery personnel, agricultural workers and countless others – while at the same time excluding many of these same people from social protection and health care systems. In this moment of crisis, some countries are having the courage to step up and review their migration policies.

Extension of residence permits

In March 2020 Portugal announced plans to grant residence status to everyone with a pending residence application on any ground until 1 July 2020. Individuals who are granted permits on this basis will be able to access health care and all other public services on equal terms as any other permanent resident in Portugal. Other countries, including Greece, Ireland, Italy, France, Luxembourg, Poland and Slovakia, have automatically extended the validity of all residence permits expiring during the lock-down. In Slovenia, migrants in return procedures have been released and granted a temporary permit valid up to six months.

Regularisation

In Italy the government has adopted a measure that can potentially regularise hundreds of thousands migrant workers working in the agricultural and caregiving sectors to address likely labour shortages due to the lockdown measures. Workers in these sectors may be able to access a work permit, if they are in work or have an offer of work, or a temporary permit to look for work. In Belgium, advocates are calling the authorities to regularise undocumented people to grant them access to social support during the COVID-19 pandemic, as did several MPs in France. Calls for regularisation are growing in Spain too, where the Barcelona city council asked the national government to take action on residence permits to tackle the pandemic.

Release from immigration detention

In Spain, almost all immigration detainees have been released and provided accommodation in state-funded reception programmes run by NGOs. Hundreds of individuals have also been released in the UK, Belgium, Netherlands and Italy. In Romania, the government asked NGOs to provide accommodation to migrants released from detention centres. Forced returns were suspended or significantly reduced in ten Member States (Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Lithuania, Malta, Slovakia).

Social protection measures

In, Ireland undocumented migrants have been granted full access to social welfare and health care, and authorities have confirmed that there will be no data sharing between service providers and immigration officers, in compliance with the firewall principle. Moreover, undocumented workers who have lost their job due to COVID-19 are eligible to apply for the Pandemic Unemployment Payment.

At a time in which undocumented migrants are particularly at risk of marginalisation and scapegoating, the European Commission has an important role to play in supporting and encouraging these promising practices.

While building on the critical lessons we learn in this challenging and unprecedented period, the Pact will have to propose a five-year, forward-looking strategy. PICUM recommends the Pact to address the following issues:

1. Expanding and improving regular migration pathways

While the majority of migration happens for work and family reasons, this reality is completely overshadowed by the EU’s focus on asylum, border controls and return. Promoting reforms in regular migration pathways has to be a priority. Migrants are not simply an economic value to be capitalised upon, but actors in the social, economic and cultural development of the communities they support and live in, and human beings with rights and ambitions.

The Pact should commit to meaningfully promote the expansion and improvement of regular migration pathways, including for family and work across different skills levels.

This should include improving work and residence permits to promote rights, full inclusion and participation, and family life. Allowing for jobs and permits to be changed, and for in country applications, are some of the reforms needed both to reflect reality. As people change jobs, and families are formed, the new Pact should demonstrate a moving away from policies and practices that create the conditions for exploitation, violence and loss of status.

2. Promoting comprehensive residence permit schemes

In real life there is no clear-cut distinction between “those who have a right to stay and those who do not”. Residence status is a matter of policy choices as much as individuals’ choices.

The Pact should recognize that people arriving irregularly or identified as undocumented migrants on the territory should have meaningful access to various residence permits and status determination procedures, as already existing in many member states.

In the past, many member states have adopted regularisation measures, recognizing the importance of regularising individuals on a number of different grounds, including residence and work criteria. In April 2020, the Commission itself underlined that “Member States enjoy broad discretion to grant a residence permit or another authorisation offering a right to stay to irregular migrants for compassionate, humanitarian or other reasons, as provided for by Article 6(4) of Directive 2008/115/EC (hereafter “the Return Directive”)”.

The Pact should move away from the focus on channelling people either into international protection or return procedures, and avoid directly linking the two.

Some people may not be – or have been recognised as – in need of international protection, but still have grounds to stay, including because of family life, health concerns, statelessness, respecting the principle of non-refoulement or because their return is blocked by factors beyond their control. They should be entitled to appropriate forms of residence permits and protection.

3. Promoting case management as a migration management tool

Case management is a structured social work approach to migration management centred on individuals’ engagement with migration procedures. By building trust in the system, providing stability and facilitating people’s sense of agency, case management increases engagement and participation in migration procedures, providing an effective approach to reducing irregularity while avoiding immigration detention.

Across the European Union, more than 100,000 people are detained each year solely because of their migration status. The COVID-19 pandemic has shown that promoting and implementing effective alternatives to immigration detention is now more urgent than ever.

The Pact should promote the implementation of case management as a clear and effective alternative to immigration detention.

The evaluation of ongoing case management projects has shown extremely positive results in terms of compliance, at significantly lower costs than detention. For instance, in three pilot projects run between 2017 and 2019 in Bulgaria, Cyprus and Poland, 97 per cent of the participants remained engaged or achieved case resolution.

4. Protecting child rights

Children make up an important part of migrant populations, both those living in European countries and those on migration routes. It is crucial that the Pact reflects Europe’s respect of child rights and regard for the needs of children in migration, both those on the territory and at the borders. The recent coordination efforts between the European Commission and several EU member states on the relocation of unaccompanied children from Greece to nearly a dozen EU member states demonstrate that, when there is political will, actions follow.

The Pact should ensure that the principle of the best interests of the child are central to asylum, return, and border procedures.

The Pact should build upon existing evidence around children in migration and aim to find durable solutions that are in the best interests of the child, so no child grows up in uncertainty.

5. Ending the criminalisation of solidarity

In the past years, hundreds of individuals have been criminalised for rescuing migrants at sea, giving food and water to people in distress, providing shelter or rental accommodation, and informing migrants about their rights.

The Pact should include, but not be limited to, clear guidelines ensuring that people working on the rights of migrants and providing assistance in the EU are protected from judicial and other forms of harassment.

The EU should support and encourage individuals defending and supporting the rights of migrants.

6. Supporting social inclusion and community well-being

Social inclusion fosters cohesion in our societies and is a bulwark against discrimination and marginalisation. Europe’s efforts to promote and ensure social inclusion must be based on the recognition that our society is made up of – and enriched by – diverse communities composed of individuals with different origins and migration backgrounds. Their work, ingenuity, art and culture contribute to Europe’s prosperity.

To foster community wellbeing means ensuring that everyone can access the services they need – including health and social services, decent housing and work, and is equally protected under the law through access to justice – without risking immigration enforcement because they may have irregular migration status.

The Pact should underscore Europe’s commitment to social inclusion, and to fostering inclusive societies where community wellbeing, safety, health, workers’ rights and justice are prioritised over narrow immigration enforcement concerns.

This should include recognition of the important role of cities and other local and regional authorities in promoting inclusion, and of civil society as a bridge to reaching and engaging with communities that have long experience of systemic and intersecting forms of discrimination and exclusion.

7. Ensuring coherence with other relevant EU strategies and priorities, including promoting gender equality and victims’ rights

The Pact should ensure coherence and promote the implementation of other relevant EU strategies and priorities.

For instance, the EU’s much anticipated Gender Equality Strategy for 2020-2025, released on 5 March 2020, is an important step up for the EU on gender equality and must be reflected in the Pact.

Women represented 51.4% of migrants in Europe in 2019. While there may be no formal differentiation based on gender in criteria for residence and work permits in Europe, in reality women are less likely to have access to the support and resources to travel regularly and safely, to get the jobs that would grant them stable work permits and the incomes to bring to their families. Women who migrate for work are often confined to occupations that are under-regulated, with few rights and protections. A survey of 400 migrant women carrying out domestic work in the Czech Republic revealed that 53% did not have any employment contract. This exposes them to economic hardship, unsafe working conditions and exploitation, with limited options for redress, particularly if they are undocumented.

 

During the COVID-19 pandemic, women and girls have been particularly at risk. The UN Population Fund (UNFPA) has predicted a 20% increase in gender-based violence in all 193 UN member states. Even outside the pandemic period, undocumented women do not systematically report their aggressors to the police or often do not seek help in shelters or hospitals because they are afraid of being reported to immigration authorities.

It is essential that undocumented migrant women have full access to services to ensure the eradication of gender-based violence, which is one of the key objectives of the EU Gender Equality Strategy.

The Gender Equality Strategy commits to include a gender perspective in all EU policies and processes. For the Pact to uphold this commitment, it will have to meaningfully address how migration policies are perpetuating and reinforcing structural discrimination based on gender identity and other characteristics like race, nationality, and sexual orientation. 

The EU’s upcoming Strategy on Victims’ Rights will include a focus on improving access to justice for people facing particular vulnerability, including child victims and survivors of violence; and address the rights of third country nationals who are victimised in Europe. The EU Victims’ Directive itself guarantees access to protection, services and justice for all victims of crimes without discrimination, including based on residence status, and recognises that victims who are not nationals of the country where they are victimised are “particularly vulnerable” and at “particularly high risk of harm”.

The Pact should also reflect the priorities and concerns of the Strategy on Victims’ Rights, recognising and addressing the forms of victimisation experienced by migrants across a range of contexts, including at home, in the workplace and in detention – and reaffirming the rights of victims to protection and justice.

Copyright photo: Jose Sena Goulao – Lusa