On 8 and 9 June 2023, PICUM brought together migrant and human rights advocates, from both inside and outside our membership, at our General Assembly, to reflect on the participation of people with lived experience of precarious status in our work. This blog shares some highlights of our discussions.

PICUM’s 2023 General Assembly showcased the work of our rich and varied membership, and the ways undocumented people can be active in resisting and shaping the policies and practices that affect them.

A diverse and active network

In the opening plenary, we heard from Afrique Culture Maroc, an organisation founded and led by migrants and refugees in Morocco. In 2014, they were instrumental in securing the regularisation of some 27,000 undocumented people living in Morocco, drawing inspiration from regularisation campaigns run by PICUM members in Ireland, Belgium and other countries.

We also heard from Maisha, which was founded by and for African women in Germany in 1996 and successfully advocated towards the city of Frankfurt for support in meeting the needs of migrant women. While it originally focused on access to health care, Maisha now also works on labour and inclusion and runs a variety of programs to empower African women in Germany, and those who have been returned to their country of origin.

The Latin American Women’s Rights Service (LAWRS) is an intersectional feminist organisation for Latin American migrant women living in the United Kingdom. They have had success in leading a broad advocacy campaign in the UK centring migrant women’s voices and experience concerning undocumented women and gender-based violence, offer a helpline and support thousands of women every year who are exposed to violence, labour exploitation, trafficking and poverty.

PICUM member HIAS Israel underscored the importance of the network as a vital source of inspiration in a difficult political context and expressed appreciation for opportunities to do PICUM-supported mutual-learning exchanges with other members.

Stichting LOS, based in Utrecht, Netherlands, is one of PICUM’s oldest members. Their work has benefited from PICUM’s support and analysis – including a successful effort to resist a law that would have criminalised support to undocumented people. They also played a key part in developing a movement of young undocumented people who call for secure residence permits after they turn 18.

ASGI, the Italian Association for Juridical Studies on Migration, uses advocacy and strategic litigation to counter hostile legislation and policies in Italy, where various governments have been restricting the rights of migrants and asylum-seekers. ASGI is active in various working groups of PICUM’s network, where it appreciates the possibility to exchange information with other human rights organisations.

This year, PICUM also welcomed four new member organisations that are all led by people with lived experience of migration and provide direct support to undocumented people and people facing marginalisation: Siempre, a grassroots organisation providing support to the Latin American women’s diaspora in Belgium; Generation for Change, a migrant-led organisation working on community-building, awareness raising and service provision for people in migration in Cyprus; the Communauté Ivoirienne de la Grèce, an association that promotes the participation of people from the Ivoirian community in Greece in decision-making processes that affect them; and Uniao de Refugiados em Portugal, an organisation that provides various forms of support and assistance to migrants and refugees, including undocumented people.

Participation and empowerment

The General Assembly also featured dedicated discussions and workshops on participation and empowerment of people with lived experience.Irene Jagoba and Chanasi Potso spoke about their involvement in Justice for the Undocumented (JFU), the largest movement of undocumented people in Ireland, with over 2,500 members. After mobilizing for several years through marches, vigils, banner drops, selfies, press conferences and even parliamentary debates, they secured a nation-wide regularisation programme in 2022. Both Irene and Chanasi highlighted how important it is that the movement is led and organised by people with lived experience, and that relationships of trust are built with affected communities.While their participation was driven by the personal impact of policies and systems on their living and working conditions, both shared the conviction that change can only come through collective action and that they felt empowered having a role in pushing for that change.

Eva Maria Jimenez Lamas of the Brussels section of Belgian trade union CSC led a workshop on the union’s work with undocumented domestic workers who have been organising for the past few years within the League of Domestic Workers, and have been campaigning for decent work permits and working conditions, and for the regularisation of undocumented workers more broadly. She spoke of the importance of songs in building solidarity and connection, and the role of artistry, storytelling and theatre in expressing their vision for change and making their case to the public and to politicians. The work takes time: the women built their demands together.

Henriette Essami-Khaullot of the Office for the spokesperson of undocumented people (Belgium) shared her experience as an active member of the movement for change of undocumented people in Brussels. Prior to her activism, she hadn’t realised undocumented people could be organised; she was touched by the commitment of the people the met and the power of the actions they made together, which helped build her political consciousness and moved her to stand up for her rights. She reflected on the need to ensure diversity in movements to address specific challenges faced by different members of the community. For instance, she shared that in Belgium, the regularisation movement is primarily led and coordinated by men: this has meant that certain actions, such as occupations of buildings, have sometimes been organised without considering specific needs and facilities for women.

Allied spaces and groups can support the struggle of undocumented people, by providing safe spaces – and sometimes by stepping aside so that they can take the lead. Jonathan McCully of Systemic Justice, which partners with communities working on racial, social, and economic justice to bring about change through strategic litigation, explained the importance, in this setting, of  decentring the role of lawyers and prioritising the perspectives and priorities of communities.

Challenges and opportunities moving forward

The closing panel discussed future challenges and opportunities for change for human rights movements. Myriam Douo of Friends of the Earth Europe and Steering Group member of Equinox (an initiative that aims to mainstream racial justice in conversations around various topics, including climate change), spoke of how undocumented people are at the forefront of the climate crisis due to their living and working conditions. Natacha Kazatchkine of the Open Society Foundations discussed the democratic backsliding and shrinking space for civil society in much of Europe, and opportunities for building bridges between human rights defenders and migrants’ rights organisations. Riccardo Rossella of Civil Society Europe discussed the rise of the far right across the EU and its impact on the 2024 EU elections, which will likely result in a new European Parliament that is more fragmented and polarised than ever.

As the number of people fleeing Ukraine continues to increase, PICUM, the Platform for International Cooperation on Undocumented Migrants, wishes to express its solidarity with all people who are affected by this situation.

The swift adoption of the EU Temporary Protection Directive is a positive measure and a first in history, which will hopefully contribute to setting new standards for a more humane response to international crises. However, we regret the limited scope of this instrument and underline that everyone who is affected by the conflict should be able to access protection, independent of their nationality and administrative status.

According to IOM estimates, before the conflict there were between 37,700 to 60,900 undocumented people living in Ukraine. It is essential that Ukraine and EU member states ensure that they are able to safely leave Ukraine and, once in the EU, have access to protection and a residence permit if they wish to remain.

In addition, non-Ukrainians and stateless people who had to leave Ukraine are having difficulties accessing temporary residence permits, for instance in Belgium, putting them at risk of becoming undocumented in the EU. Everyone who cannot safely return to their country of origin should have access to rights and protection. This is a general rule and the only way to ensure the respect of international law including the principle of non-refoulement.  Europe should protect and help all the people who were living in Ukraine at the beginning of the war, independent of whether they had a residence permit.

Many Ukrainian people have been living in the European Union since before the outbreak of the conflict – some for a short time, and some for years. They have worked in different professions, done essential work including during the pandemic, and are crucial to many sectors of our economies. Nonetheless, many Ukrainians in the EU have a precarious or irregular migration status, and despite the direct impact of the conflict on their lives, are excluded from the Temporary Protection Directive’s scope. Access to secure residence permits is fundamental when one’s country is affected by war. PICUM welcomes Spain’s commitment to extend the EU’s temporary protection status both to undocumented Ukrainians living in Spain before the Russian invasion of Ukraine, as well as to foreigners who had been living in Ukraine with short-term visas who are not covered by the EU’s temporary protection directive. We hope that more countries will follow this example. As EU member states can decide to enact higher protection standards than the Temporary Protection Directive (either by granting the temporary protection status to those not covered by it or by granting other national permits), it is essential to ensure that people who would be able to benefit from these permits can move safely from EU countries bordering Ukraine to other EU member states to reach the protection they need.

Some people left Ukraine shortly before the outbreak, either for personal or work reasons, or to flee from a rapidly degenerating conflict. There is no reason why they should be excluded from the scope of the Temporary Protection Directive, and we encourage EU Member States to make use of this possibility as foreseen by recital 14.

We strongly condemn all instances of racism at the borders and in the EU territory, which once again shows that the EU still has a lot to do to fulfil its commitments under the recent Anti-Racism Action Plan. PICUM calls for a full and independent investigation into all reports of racial discrimination, antigypsyism and discrimination based on administrative status, accountability for those acts and reparation.

Over the past weeks, people from all countries bravely stood in solidarity with people fleeing the conflict in Ukraine, providing shelter, lifts, support, and doing essential humanitarian work. While these actions have been rightly celebrated, similar actions of solidarity to migrants from other countries are still being penalized and criminalized across the EU – further showing the contradiction and racist biases of the current approach to migration. PICUM calls for policy makers to uphold the universal value of solidarity – as is currently being extended across the EU to migrants of different origins and nationalities – and to abolish any acts or policies which criminalise migration and assistance to migrants.

PICUM will continue monitoring the developments related to the crisis in Ukraine, with a specific focus on:

• Undocumented Ukrainians in the EU;
• People who were living with irregular migration status in Ukraine before the conflict;
• Non-Ukrainians who fled and risk becoming undocumented within the EU;
• Advocating for smooth status transition – if it may at some point become necessary – for people currently benefitting from the Temporary Protection Directive who may lose this protection, in order to prevent people from becoming undocumented.

Cover: Mathias P.R. Reding – Pexels

38 organisations denounce the ongoing harassment against KISA and call on the Cypriot authorities to reinstate their official registration as a non-governmental organisation (NGO)

19 February 2021

On 3 March, KISA, a leading non-governmental organisation fighting for equality in Cyprus, will have a hearing that has implications for their very survival.

In December 2020, the Cypriot Minister of Interior abruptly removed KISA, and many other civil society organisations, from the Register of Associations. He did so using his new, self-attributed powers to start a dissolution process for NGOs if certain regulatory requirements were not met within a two-month notice period. In KISA’s case, they informed the authorities of a delay in organising their general assembly due to the COVID-19 pandemic. Despite KISA indicating that all formal requirements would be met within a short time period, and appealing against the Minister’s decision, they were nonetheless deleted from the Register of Associations.

This is just the latest move in a long campaign to discredit and silence independent voices in Cyprus, in particular KISA, and ultimately attack the foundations of democratic pluralism. The trend of shrinking civic space seems to be dangerously spreading all across the region. For example, in November 2019, Greece proposed worrying amendments to the Greek legislation on NGO registration engaged in activities related to asylum, migration, and social inclusion. On 27 December 2020, the Turkish Parliament approved legislation further restricting NGOs and civil society activities under the guise of countering terrorism.

On 3 March 2021, the Cypriot administrative court will review KISA’s appeal against the decision to remove the organisation from the Register of Associations, through an expedited procedure. If the removal of KISA from the register is confirmed and the procedure for dissolution completed, people in extreme situations of vulnerability will stop receiving crucial help, and Cypriot democracy will lose one of its leading independent voices.

KISA has in the meantime submitted to the Registrar of Associations all formal requirements of the Law, namely its audited accounts for 2019, the amended statutes and the names of the new Steering Committee, with their positions and contact details.

As KISA is fighting this decision before the national courts, civil society organisations from across Europe have raised their voices in solidarity. This is not the first attempt to silence the organisation: over its 22 years of existence, KISA has been the target of defamation campaigns, intimidation, and even criminal prosecutions against its Executive Director, Doros Polykarpou.

In order to promote a conducive environment for independent civil society and solidarity with migrants and refugees and remove restrictions to civil society’s space, the undersigned organisations call upon the following authorities to:

The Cypriot government and President of the Parliament to:

• Re-insert KISA in the Register of Associations;
• Put an end to the ongoing judicial harassment against KISA and its members.
• Repeal the Amendment 118 (I)/2020 of the 2017 Law on Associations and Foundations and Other Related Issues, which grants the Ministry of Interior of Cyprus executive powers to remove NGOs from the Register of Associations and prohibits un-registered NGOs from continuing their actions;
• Comply with international 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 to:

• Condemn the ongoing judicial harassment against KISA;
• 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;
• Monitor early signs of harrassment of individuals and organisations working with migrants, before it escalates into the criminalisation of human rights defenders and civil society organisations.

Undersigned organisations:

International and European organisations:

• Cairo Institute for Human Rights Studies (CIHRS)
• EuroMed Rights
• European Civic Forum
• European Network Against Racism
• Fair Trials
• FIDH – International Federation for Human Rights, in the framework of the Observatory for the Protection of Human Rights Defenders
• Front Line Defenders
• Institute of Race Relations
• International Service for Human Rights (ISHR)
• La Strada International
• Platform for International Cooperation on Undocumented Migrants (PICUM)
• Statewatch
• World Organisation Against Torture (OMCT), in the framework of the Observatory for the Protection of Human Rights Defenders

National organisations:

• All Included (the Netherlands)
• AMERA International (UK)
• Asociación Rumiñahui (Spain)
• Association for Integration and Migration (Czech Republic)
• Ban Ying e.V (Germany)
• Centre for Peace Studies (Croatia)
• Centre for Youths Integrated Development (UK)
• CLA Voice (Bulgaria)
• FairWork (The Netherlands)
• FAIRWORK Belgium (Belgium)
• Federación SOS Racismo (Spain)
• Greek Council for Refugees (Greece)
• Greek Helsinki Monitor (Greece)
• Human Rights League (Slovakia)
• İnsan Hakları Derneği / Human Rights Association (Turkey)
• INTEGRIM LAB (Belgium)
• Maisha e.v. – African women (Germany)
• Migrant Rights Centre Ireland (Ireland)
• Mujeres supervivientes de violencias de género (Spain)
• Network for Children’s Rights (Greece)
• Progress Lawyers Network (Belgium)
• SNAPAP CGATA Algerie (Algeria)
• Tamkeen for legal aid and human rights (Jordan)
• The Hotline for Refugees and Migrants (Israel)
• UTSOPI (Belgium)

Amendment 118 (I)/2020 of the 2017 Law on Associations and Foundations and Other Related Issues

http://www.migreurop.org/article3024.html?lang=en; https://www.omct.org/en/resources/urgent-interventions/cyprus-deregistration-of-the-ngo-kisa; https://twitter.com/PICUM_post/status/1351516834596585472

https://kisa.org.cy/wp-content/uploads/2020/12/Report-on-KISA-Attacks-EN-21122020.pdf

Recommendation CM/Rec(2007)14 of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe; Guidelines on Protecting NGO work in Support of refugees and other migrants; Recommendation CM/Rec(2018)11 of the Committee of Ministers to member States on the need to strengthen the protection and promotion of civil society space in Europe; Parliamentary Assembly Recommendation 2086 (2016) ““How can inappropriate restrictions on NGO activities in Europe be prevented?”Cover image: Adobe Stock – Bits and Splits

This blog was written by Matthew Rice, Scotland Director of the Open Rights Group, a charity that protects the digital rights of people in the UK including privacy and free speech online. Open Rights Group is challenging the “immigration exemption” in the UK 2018 Data Protection Act before the national courts, which prevents people from accessing and checking their personal data when collected for vague immigration purposes.

Context: the “hostile environment”

The United Kingdom’s hostile environment policy towards migrants is a set of administrative and legislative measures designed to make staying in the country as difficult as possible for people without leave to remain. It has been a pernicious issue, seeping into areas of housing, education, and healthcare. Immigration enforcement has been gathering data from all these areas, in sometimes undeclared data sharing agreements.

In this climate, the right of access to data is a crucial, essential right. Any mistake could have drastic effects on an individual’s right to remain in the country. In a context where data from multiple sources are used to make important decisions, the immigration exemption in the UK’s 2018 Data Protection Act is yet another blow to the fundamental rights of migrants.

Hollowing out fundamental rights

The immigration exemption allows an entity with the power to process data (known as a “data controller”) to circumvent the right of an individual to access data held about them if it would “prejudice effective immigration control”.

The inclusion in the 2018 Data Protection Act of an immigration exemption is unprecedented in the UK’s history of legislating in this field. No such provision existed in the previous Data Protection Acts (1984 and 1998 ones). It was debated during the 1983 Bill negotiations but never made it further, and was described by the then-chair of the Data Protection Committee as “a palpable fraud upon the public if … allowed to become law.”

The exemption restricts other data rights, such as the right to:

– object to the processing of one’s data

– restrict the processing of one’s data

– have one’s personal data deleted.

In addition, the exemption frees data controllers from their responsibility to provide information to the person concerned when their data is collected, or to inform them when information is collected from other sources, like a school, employer, or local authority.

Open Rights Group, a human rights campaigning organisation focused on the protection of privacy in the digital age, and the3million, a grassroots campaign representing the interests of EU citizens living in the United Kingdom, have very real concerns that the breadth and opacity of the immigration exemption represent a threat to the rights of foreigners living in the country. In an immigration environment that is both hostile and error-prone, the fundamental right to data protection, contained in the EU Charter of Fundamental Rights, needs to be safeguarded. This exemption strikes directly at the essence of this fundamental right. That is why our organisations are challenging the Data Protection Act before the High Court of Justice in England and Wales, under a judicial review procedure.

This exemption is not the type of exemption contemplated by the EU General Data Protection Regulation (GDPR). It is a derogation that the UK Government has chosen to exercise and formulate themselves. While derogations are possible under the General Data Protection Regulation, they must satisfy a series of strict tests.

Under Article 23(1) of the GDPR, national law may restrict the scope of obligations and rights when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society.

Further, under Article 23(2), the measures must contain specific provisions, where relevant as to:

• The purposes of the processing or categories of processing
• The categories of personal data
• The scope of the restrictions introduced
• The safeguards to prevent abuse or unlawful access or transfer
• The specification of the controller or categories of controller
• The storage periods
• The risks to the rights and freedoms of data subjects; and
• The right of data subjects to be informed about the restriction, unless that may be prejudicial to the purpose of the restriction.

The Essence of the Right to Data Protection

There is growing consensus among scholars about the “essence” of a fundamental right. Tuomas Ojanen, Professor of Constitutional law at the University of Helsinki, refers to three crucial components. First, the essence of a fundamental right cannot be determined based on the text of the Charter alone. Instead, the identification of the essence is a matter of contextual interpretation. Second, the same fundamental right can give rise to more than one legal norm: for instance, the right to privacy includes at the same time the responsibility to refrain from interfering with an individual’s privacy, and the right to access one’s data. Third, all fundamental rights, including those that allow for derogations, such as the right to privacy, possess an inviolable essence that cannot be restricted.

Taking the immigration exemption and its effect on the right to data protection under Article 8 of the Charter of Fundamental Rights, we can peel away to try and understand what is the essence of the right to data protection.

Article 8(2) explains that the right to data protection includes the right of access to data that has been collected, and the right to have it corrected. When considering immigration enforcement, it is worth remembering that mistakes happen, and happen often. The Home Office has incorrectly sent letters to EU nationals informing them that they were to be deported from the UK. In addition, back in 2017 the Independent Chief Inspector of Borders and Immigration found error rates of 10%, where the Home Office were denying individuals bank loans after immigration checks.

No system is foolproof; that is why access to information, and the ability to rectify inaccuracies are all the more important. By removing the right of access to data, the immigration exemption risks undermining the very goal it is trying to achieve: effective immigration control. Effective control should allow individuals to correct inaccurate information and thus prove their right to remain.

Another legal norm that may flow from that fundamental right is the right to good administration. While the right to data protection has permissible limitations, a right of access to data is at the essence of this fundamental right. The importance of access to data held about you – and, in the immigration context in particular, access to data that is used to make decisions about you – is one of the overarching arguments in the challenge against the exemption.

The exemption also fails to satisfy the Article 23(2) tests under the GDPR. The test of “prejudice” requires assessing whether a measure has clear boundaries. The UK Government, however, have been reluctant throughout to explain what it aims to achieve, concretely, with the exemption. Add to this the fact that there is no limitation on the type of data that entities, public or private, that can rely on the immigration exemption and the scope of the exemption is suddenly as wide as the broader hostile environment – touching on areas like health, social care, education, or private actors involved in immigration services.

Open Rights Group and the3million are seeking to have the exemption removed from the Data Protection Act by demonstrating that it is unlawful and plainly incompatible with fundamental rights.

This exemption is a blunt instrument serving a policy that has tainted Britain’s reputation as a tolerant and welcoming country. It is an intolerable departure from the essence of fundamental rights, and has none of the clear limitations that are required by the General Data Protection Regulation.

Challenging this exemption is a matter of resisting the erosion of protections that are fundamental to our democracy and to our privacy in an increasingly digital world.