Joint Statement on the Revision of the EU Victims’ Rights Directive

The European Union (EU) has long recognised the need to protect all victims of crime without discrimination.

The EU Victim Rights Directive (VRD)¹ articulates this commitment in law, stating that victim rights cannot be denied based on residence status (Article 1). It applies to criminal offences within the Union and extraterritorial offences, including those occurring in immigration detention and at the EU’s borders.² The EU Strategy on Victims’ Rights (2020-2025) further recognises undocumented people among the categories of “vulnerable victims”.³

However, a paradox emerges when victim rights are juxtaposed with the EU’s migration policy: immigration control is prioritised over a person’s rights and needs.

Being undocumented, or having an insecure residence status, makes people susceptible to mistreatment, abuse and severe forms of exploitation, including human trafficking and forced labour.

When migration status intersects with other forms of discrimination, including gender, ethnic or social origin, sexual orientation or gender identity and disability, abuse is exacerbated. The abuse may also result from actions from public authorities (e.g. police, border guards, staff in immigration detention centres).

Migrants with irregular status face potential abuse not only when arriving at the EU’s borders (e.g. pushbacks⁴) but also when living within the EU. This abuse may occur in the workplace, in personal relationships, but also in other settings (e.g. immigration detention).

The EU Pact on Migration and Asylum⁵, coupled with other initiatives seeking to further criminalise migration across the EU⁶, raises alarming concerns for the future.⁷ Far from upholding justice and protection, these policies are expected to escalate human rights violations and perpetuate discriminatory practices within the very structures meant to safeguard all individuals.

The EU must reinforce its legal tools to ensure universal access to justice, unconditional support, and protection without discrimination.

The ongoing revision of the VRD⁸ is a pivotal opportunity to strengthen the rights and protection granted to victims, irrespective of their residence status.

However, there exist significant obstacles and ambiguities in the proposed revision, potentially obstructing the full realisation of rights for marginalised victims of crime, in particular those with an insecure residence status or that are undocumented victims.⁹

In response, the undersigned organisations call on the EU negotiators to incorporate the following recommendations:

Safe reporting of crime

Undocumented victims rarely report abuse, as they fear engaging with authorities, due to the risk of detention and deportation: this means that they are not identified as victims of crime and do not receive the support and protection they need and are entitled to.¹⁰ This distrust is compounded by the increased policing and surveillance of migrant and marginalised communities, worsening feelings of insecurity and concerns about discriminatory profiling.

Safe reporting mechanisms for undocumented migrants are generally lacking all over Europe. They are almost non-existent for victims of abuse in immigration detention, with only few reports ever reaching the criminal justice system.¹¹

It is essential that Article 5a(1) of the revised VRD requires Member States to offer a variety of complaints/reporting mechanisms, accessible free of charge¹², to cater to the multiple needs and circumstances of victims, including those in immigration detention. This should include third-party reporting, crucial for victims that do not trust law enforcement.¹³

Article 5a(2) should also create safe environments for victims, third parties, and people who suspect that criminal offences have been committed, or are expected, to be able to report a crime without any reprisals, including in relation to their migration status. This concept of non-punishment, embedded in the EU’s Anti-Trafficking Directive¹⁴ and Anti-Trafficking Strategy¹⁵, should be streamlined across the EU VRD, notably under Article 5a.

Moreover, we call on negotiators to ensure safe and confidential mechanisms in place for criminal offences committed by public officials (e.g. violence by police and border guards) to be reported to the appropriate independent competent authorities.

Data protection

Protection of personal data is necessary to ensure that safe reporting is a reality for every victim of crime, regardless of residence status. It is a precondition to the enjoyment of rights under the Victims’ Directive, essential to promoting trust in public institutions, and the basic democratic principle that everyone is equally protected under the law.

While welcoming the Commission’s effort to limit personal information transfer to migration authorities when crimes are reported, this safeguard should not apply only temporarily until the first individual needs assessment has been completed.

We urge negotiators to ensure under Article 5a(5) of the revised VRD that a victim’s residence status is not shared with migration authorities. It is essential that the Victim Rights Directive introduces this strong safeguard, particularly given failure of EU negotiators to include it in the new Directive on violence against women and domestic violence despite the EU’s¹⁶ obligations to uphold privacy rights laid out in the EU Charter of Fundamental Rights and General Data Protection Regulation (GDPR).¹⁷

Unconditional access to support services

Victims of crime should have access to available support services, regardless of their residence status or willingness to participate in criminal proceedings. Yet, for many undocumented victims of crime, justice and support remain elusory.

We support Article 9(1)(c) of the revised VRD, which would ensure access to psychological support. We further support targeted and integrated support for victims with specific needs, as articulated under amended Article 9(3)(b). These services should include comprehensive medical care services, including sexual and reproductive healthcare services.

Shelters are also an essential service in offering safety and refuge, free from harm. However, there are serious shortages of shelters across the EU and undocumented migrants, in particular women, may face even greater hurdles in accessing these services. It follows that the revised VRD should ensure access to shelters and other appropriate forms of accommodation.

Although not formally considered a victim support service, legal aid is also a precondition for victims to assert their rights effectively and promptly. We recommend that Article 13¹⁸ is revised to ensure victims have access to free legal aid.

All support should be provided without delay. We thus further support Article 8(2) of the revised VRD which notably requires that victims are contacted by the relevant generic or specialised support services.

Undocumented children

Children are particularly vulnerable and require adequate responses. We support Article 9a of the revised VRD making available support services for children who are victims of crime in dedicated, safe and child-friendly locations, and Article 9a(2) which sets out the list of services which this should include.

Children in migration are particularly vulnerable to exploitation, violence, crime, and of going missing, because of their social isolation, being undocumented and/or having a precarious residence status. Having specialists on their side to understand and navigate the legal and administrative aspects, including residence procedures if applicable, is both part of the government’s duty of care and basic children’s safeguards. We therefore recommend that Article 9a(2) also includes administrative and legal (free and specialised) support under the list of services.

Individual assessment of victims to identify specific support and protection needs

We generally welcome the proposal to strengthen the individual needs assessments as articulated in Article 22 of the revised VRD, including proposals to ensure the individual needs assessment is carried out on a regular basis and lasts as long as necessary based on each victim’s needs.

We are concerned that the current draft suggests that only police authorities will be relied on to carry out a single support needs assessment to determine whether victims are referred to support services. Requiring police authorities, rather than organisations specialised in supporting victims, to carry out such assessments not only risks overburdening them but may result in inadequate assessments. We suggest including language to engage generic and specialised support services in this assessment.

It is crucial to ensure that the official duration of the assessment does not violate fundamental rights to assistance, support, and information, nor be linked to return procedures.

Additionally, we urge negotiators to include residence status and nationality among the personal characteristics of the victim that should be taken into account in the needs assessment (Article 22(2)(a)) and that undocumented and stateless victims should be considered as a group that would require particular attention (Article 22(3)).

Immigration detention

Immigration detention is the deprivation of liberty for reasons related to a person’s residence status.¹⁹ When crimes occur in detention centres people are already placed in a situation of vulnerability and dependency.²⁰

Article 26a should therefore require member states to clearly set out the responsibilities of detention staff and detention administration in securing the rights of victims of violent crimes, as well as ensuring that victims in detention receive access to free legal support.

Residence permits

One important way to ensure undocumented victims can access justice and support, and prevent further victimisation, is to issue residence permits to victims.²¹ This solution already exists in different EU member states, which have permits for individuals who have been trafficked, who have been victims of racist violence, domestic violence and labour exploitation.²² Moreover, several EU directives make provision for residence permits for certain victims of crime.²³ In fact, the Return Directive leaves member states free to grant a residence permit “at any moment” to someone in an irregular situation for compassionate or humanitarian reasons.²⁴

We urge negotiators to ensure the revised VRD includes a provision on the issuance of residence permits on personal or humanitarian grounds, not requiring their cooperation in criminal proceedings, and not conditioned on the start or outcome of criminal procedures.

Compensation

Compensation serves as a crucial tool for restorative and preventive purposes, particularly for victims who have endured physical, mental, economic, or sexual abuse. We support proposed revisions of the VRD under Article 16 seeking to enhance access to compensation by strengthening victims’ rights during criminal proceedings, making state payment of the offender’s compensation binding and timely, with the possibility for the state to recover it from the offender later.

We urge negotiators to ensure under Article 16 that a lack of residence status does not impede the right to compensation. It follows that undocumented victims should not be denied compensation based on their irregular immigration status but are instead encouraged and (legally) supported to introduce their claims for remedies and given the possibility to participate in legal proceedings.

Now, more than ever, the EU must stand firmly against discrimination, ensuring justice, support, and protection for all victims of crime.

We stand ready to collaborate with the EU institutions to create a future where victim rights are inviolable, no matter who they are or whatever residence status they have.

Signatories

International and European organisations

• Access Now
• Amnesty International
• Centre for Youths Integrated Development
• Dynamo International
• European Anti-Poverty Network (EAPN)
• European Digital Rights Network (EDRi)
• European Network Against Racism (ENAR)
• European Network Against Statelessness (ENS)
• European Sex Workers Rights Alliance (ESWA)
• Global Alliance against Traffic in Women (GAATW)
• International Planned Parenthood Federation European Network (IPPF EN)
• La Strada International – European NGO Platform Against Trafficking in Human Beings
• Kids in Need of Defense (KIND)
• Methoria
• Missing Children Europe
• Platform for International Cooperation on Undocumented Migrants (PICUM)
• Quaker Council for European Affairs
• Revibra Europe
• Social Platform
• Transgender Europe (TGEU)
• The Africa Human Trafficking Taskforce (AHTTF)
• The European region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA-Europe)
• The Women Against Violence Europe (WAVE) Network
• Victim Support Europe

National organisations

• ADPARE, Romania
• Andalucia Acoge, Spain
• Animus Association Foundation, Bulgaria
• ARSIS Association for the Social Support of Youth, Greece
• Association for Integration and Migration, SIMI, Czech Republic
• Asociacion en Prevencion y Asistencia de la Violencia (APAV), Spain
• ASTRA-Anti trafficking action, Serbia
• Ban Ying, Germany
• CoMensha, Netherlands
• CSC ACV Brussels, Belgium
• Fairwork, Belgium
• FairWork, Netherlands
• Fundación Cepaim, Spain
• Fundación de Solidaridad Amaranta, Spain
• Greek Council for Refugees (GCR), Greece
• Group 484, Serbia
• HIAS Greece, Greece
• HopeNow, Denmark
• KOK – German NGO Network against Trafficking in Human Beings, Germany
• Latin American Women’s Rights Service (LAWRS), United Kingdom
• Migrant Voice, United Kingdom
• Mission d’intervention et de sensibilisation contre la traite des êtres humains (Mist), France
• On the Road Società Cooperativa Sociale, Italy
• Open Gate/La Strada, North Macedonia
• PA International Center “LA STRADA” Moldova, Republic of Moldova
• Payoke, Belgium
• Plateforme Sans-Papiers Suisse, Switzerland
• Red Acoge, Spain
• Sans-Papiers Anlaufstelle Zürich SPAZ, Switzerland
• Siempre, Belgium
• S.P.E.A.K, Netherlands
• Stichting LOS, Netherlands
• Stowarzyszenie Interwencji Prawnej (Association for Legal Intervention), Poland
• UEE-Union des étudiants exiles, France
• UTSOPI, Belgium
• Vatra psycho social center, Albania

Total signatories: 60

Contact

• Louise Bonneau, PICUM (louise.bonneau@picum.org)
• Suzanne Hoff, La Strada International (sh@lastradainternational.org)

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Footnotes

1. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA ↩︎
2. See PICUM, 2015, Guide to the EU Victims’ Directive: advancing access to protection, services and justice for undocumented migrants ↩︎
3. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: EU Strategy on victims’ rights (2020-2025) ↩︎
4. In the absence of an internationally agreed upon definition of “pushbacks”, the Special Rapporteur on Migrants has described “pushbacks” as “various measures taken by States which result in migrants, including asylum seekers, being summarily forced back to the country from where they attempted to cross or have crossed an international border without access to international protection or asylum procedures or denied of any individual assessment on their protection needs which may lead to a violation of the principle of non-refoulement.” ↩︎
5. For a brief assessment, see the editorial of PICUM’s December 2023 newsletter ‘EU Migration Pact: a historic deal against human rights’. ↩︎
6. On 28 November 2023, the European Commission announced a series of initiatives to ‘Counter migrant smuggling’, including a revision of the Facilitators Package. ↩︎
7. Prior to the final negotiations of the EU Pact on Migration, PICUM joined 18 other leading human rights organisations in calling on EU lawmakers to reject this Pact and submitted an open letter calling out the human rights risks in the Migration Pact. ↩︎
8. European Commission, 2023, Proposal for a Directive amending Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA ↩︎
9. PICUM, 2023, First assessment of the proposed revisions to the Victim Rights Directive ↩︎
10. PICUM, 2021, Preventing harm, promoting rights: achieving safety, protection and justice for people with insecure residence status in the EU; PICUM, 2022, Unconditional access to services for undocumented victims of crime ↩︎
11. Fair Trials, 2019, Rights behind bars Access to justice for victims of violent crime suffered in pre-trial or immigration detention ↩︎
12. Greece’s on-going revision of the draft law amending the Criminal Code and Code of Criminal Procedure includes provisions which would see victims have to pay a fee in order to report a crime and to make appeals. ↩︎
13. Fundamental Rights Agency, 2023, Underpinning victims’ rights: support services, reporting and protection ↩︎
14. Directive 2011 combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA ↩︎
15. Communication from the commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions on the EU strategy on combatting trafficking in human beings 2021- 2025, COM/2021/171 final ↩︎
16. In the political agreement reached on 6 February 2024 on the new Directive on violence against women and domestic violence, negotiators failed to sufficiently protect undocumented women from immigration enforcement should they report violence and abuse to police. ↩︎
17. PICUM, 2020, Data protection and the firewall: advancing safe reporting for people in an irregular situation ↩︎
18. The provisions in article 13 (not opened for revision by the European Commission) are insufficient, as they do not include administrative support and limit legal aid to victims who are a party in criminal proceedings. ↩︎
19. PICUM, 2022, Immigration detention and de facto detention: What does the law say? ↩︎
20. Fair Trials, 2019, Rights behind bars Access to justice for victims of violent crime suffered in pre-trial or immigration detention ↩︎
21. PICUM, 2022, Unconditional access to services for undocumented victims of crime ↩︎
22. PICUM, 2020, Insecure Justice? Residence Permits for victims of crime in Europe; PICUM, 2022, Labour migration policies Case study series Finland ↩︎
23. PICUM, 2020, Insecure Justice? Residence Permits for victims of crime in Europe ↩︎
24. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals ↩︎

EU lawmakers have reached a political agreement on a new EU Directive on violence against women that prioritises migration control over women’s rights and needs, according to leaked documents seen by the Platform for International Cooperation on Undocumented Migrants (PICUM).

The draft Directive, whose final text will need to be voted by the European Parliament and the EU Council in the coming weeks, fails to protect undocumented women from immigration enforcement should they report violence and abuse to police.

In particular, the deal would delete Article 16(5), which was central to the European Commission’s initial proposal and strengthened by the Parliament to ensure that no personal data about victims of abuse, including residence status, would be shared by police with immigration authorities. This would have shielded undocumented women from risks of being detained and deported as a result of reporting abuse.

Instead, that article would be replaced with a non-binding recital 26(a) that invites member states to ensure that non-EU victims “are not discouraged from reporting and are treated in a non-discriminatory manner”.

Such exclusion of a whole group of women from protection and justice is in clear contradiction with the Istanbul Convention, which the EU is bound by since October 2023 and mandates its signatories to ensure all women are treated equally, regardless of their residence status.

This deal would also contradict the EU’s very own rules on victims’ rights (Victims’ Rights Directive) and on data protection (General Data Protection Regulation), both of which provide for rights and safeguards that apply to everyone without discrimination.

Louise Bonneau, Advocacy Officer at PICUM, said: “Who would report violence and abuse if they risked being locked up and deported instead of getting support and protection? This deal exemplifies the EU’s fixation on migration control, at the cost of leaving out a whole group of women who are undocumented or have precarious residence status, and who are more likely to experience violence and abuse precisely because their status puts them in a situation of vulnerability.”

On 29 and 30 November 2023, PICUM jointly organised with Equinox a legal seminar on racial profiling, policing and migration control, bringing together advocates, community organisers and legal practitioners working on racial justice, migrant justice, prison abolition and related movements. This blog shares some highlights of our discussions.

“Migration frameworks all over the world are mechanisms through which racial subordination is achieved.”

These words from former UN Special Rapporteur on Contemporary Forms of Racism, Tendayi Achiume, who opened our legal seminar, were a  reminder of how migration and racism are deeply interlinked.

Across Europe, policing and immigration enforcement are increasingly interconnected, disproportionately harming communities of colour. The growing use of technology and AI as a tool for border management compounds existing discriminatory practices against people with an irregular migration status and communities of colour. Racialised communities on either side of border crossings and within our communities bear the brunt of these trends.

Racism and migration in the EU

Moderated by Emmanuel Achiri, European Network Against Racism

We heard from Karin de Vries, Associate Professor of Constitutional Law at Utrecht University, about how racism plays a critical role in the EU migration policy. This includes visa policy, conditions for long term residence, state discretion in treating people with different countries of origin differently, and the very inequality underlying many of the choices, opportunities and experiences of migration. Alyna Smith, Deputy Director at PICUM, further highlighted how race and racism are embedded in the very language of EU laws about “deterrence” and the “fight against irregular migration”, in criminalisation frameworks, in counter-smuggling measures that tend to make crossings and journeys more dangerous for people.

Vida Beresneviciute, Equality Project Officer at the Fundamental Rights Agency, shared key findings from the Agency’s recent research on the discrimination experience of black people in Europe. Racial discrimination increased in key areas of life, with 45% of respondents reporting racial discrimination in 2022 – marking a significant increase from 39% in 2016. Police stops continue to be particularly problematic, as 58% of them are characterised as racial profiling by people who experienced them.

The EU equality frameworks largely fail to address these realities, and the various manifestations of racism more broadly. For instance, the 2000 Racial Equality Directive does not apply to law enforcement. The 2020 Anti-Racism Action Plan, quickly adopted in response to the murder of George Floyd in the US and the ensuing Black Lives Matter protests across the world, fails to address racism in EU migration policies. In fact, within days of adoping the Anti-Racism Action Plan the European Commission released a ‘New Pact on Migration and Asylum’ that further criminalises and targets undocumented people, leading to discrimination, violence against migrants and racialised people, whether at the borders or already living in the EU.

Blurring the line between criminal law and immigration law

Moderated by Laurence Meyer, Digital Freedom Fund, and Laure Baudrihaye, Independent expert

On the contrary, many EU migration policies, including recent and ongoing reforms, perpetuate systemic racism through measures that blur the lines between immigration and criminal law.

Ulrich Stege, a lawyer collaborating with the Italian Association for Juridical Studies on Immigration (ASGI), illustrated key trends in this conflation between immigration and criminal law – denoted as “crimmigration”. These include the use of administrative detention for security-related purposes, the use of criminal law as a deterrent against migration, the criminalisation of irregular entry and of solidarity with people in an irregular situation, as well as the use of technology to enhance immigration enforcement. On this latter point, Chloë Berthelemy, Senior Policy Advisor at European Digital Rights (EDRi), discussed the expansion of the Eurodac database to collect more personal data of asylum seekers, including children, and cooperation between Frontex and Europol in collecting and sharing personal data.

Silvia Carta, Advocacy Officer at PICUM, outlined how current EU migration reforms, such as the revision of the Schengen Borders Code and the Migration Pact, would likely lead to more racial profiling as border guards and police are encouraged to stop and search anyone who looks ‘foreign’ to detect people in an irregular situation.

At the national level, such trends and policies are already having dramatic effects on racialised people and people in an irregular situation. In particular, we heard about the criminalisation of people steering boats with migrants in Italy (Sara Traylor, Alarm Phone), violent police operations that led to the murder of a two-year old in Belgium (Selma Benkhelifa, Progress Lawyers), and border control technology in Greece in the form of biometric police gadgets, surveillance systems and social media monitoring apps (Lamprini Gyftokosta, Homodigitalis).

Racial profiling for immigration control across borders and within Europe

Moderated by Adla Shashati, Greek Forum of Migrants

Racial profiling in the name of migration control has long been present at Europe’s borders. As Parvin Abkhoudarestani, a refugee from Iran who experienced multiple violent pushbacks at the Greek-Turkish border, said: “Who can move depends on your skin colour, it’s decided by your race. My movement is illegalised”. Laure Palun of French NGO Anafé, discussed how racial profiling in border checks and migration and visa policy in France is leading to pushbacks, refusals of entry, detention of children, police violence, the militarisation of borders with Italy and Spain, and the criminalisation of those who help people in an irregular situation.

Racial profiling has already quickly moved beyond the confines of border crossings and transit hubs into mainstream policing and broader civil administration. Ting Chen, coordinator of Roses d’Acier, a group that provides support to undocumented Chinese sex workers, spoke of the police targeting Chinese women in Paris with repeated identity checks in specific districts.

Monish Bhatia, Lecturer in Sociology at the University of York, discussed his research on immigration raids in the UK and described them as racist state violence and kidnappings that exist to instill fear among impacted communities. Raids are sometimes triggered by citizens’ calls to the police, which are grounded on racist assumptions as to the potential presence of people in an irregular situation.

The way forward – How can we challenge racial profiling in the immigration context?

Moderated by Sarah Chander, European Digital Rights

Different strategies are needed to challenge these trends, and to anchor them in a shared frame of racial and migrant justice. In our last panel, we heard from Jennifer Kamau from International Women Space about the need for Europe to recognise its historical responsibilities around colonialism, conflict, climate change, and ongoing colonialist approaches, which all have an impact on global migration today and driving harmful policies and practices. She also invited everyone to recognise the power of words in shaping reality and to change the way we talk about this reality to fight against systemic oppression.

Saskia Bricmont, Member of the European Parliament, addressed the political struggle in the European Parliament and between EU institutions in resisting harmful migration policies, such as the EU Migration Pact, as well as in promoting fairer trade deals with third countries.

Sarah Chander, co-founder of Equinox, encouraged groups who share transformative goals to connect our different strategies and struggles, from grassroots to political levels. In closing, Alyna Smith invited social change actors to reflect on how we can work across movements, how we are perpetuating structures of oppression through our language and work, and how we can dismantle systemic oppression while reimagining a different world.

Watch the recordings of the legal seminar on our YouTube channel:

In final negotiations around the EU Migration Pact, EU lawmakers are considering a provision that would increase the risk of racial profiling in Europe.

The provision is Article 5 of the Screening Regulation, an instrument that regulates security and identity checks (screening procedures) of third country nationals at the EU’s external borders.

Article 5 would extend the application of these checks not only to people apprehended at the borders, but to everyone who cannot prove to have entered the territory of the member states with a valid travel document. This means that police or other officials would be able to stop people on the street and bring them to designated locations. There, people would likely be detained while they undergo security and identity checks, to establish if they can apply for asylum.

Widespread discriminatory profiling

The very action of stopping anyone who is suspected of being undocumented carries with it enormous risks of racial profiling, as law and immigration enforcement are already found to rely on racial, ethnic, national, or religious characteristics in their operations.

Research published in October 2023 by the EU Fundamental Rights Agency shows that it is already often the case that people of colour and of African descent are subject to discriminatory and arbitrary checks, regardless of citizenship or residence status. In fact, over half of people of African descent surveyed felt that their most recent police stop was a result of racial profiling.

Article 5 raises concerns around other potential human rights violations too.

Arbitrary apprehension

Expanding the scope of the screening outside border areas could justify the arbitrary apprehension of anyone perceived by the police as having entered the country in an irregular manner, in any place and at any time.

This provision is very broad and does not clarify how nor whether an individual assessment will be conducted to determine if the person in question has crossed external borders in an authorised manner, especially in cases where the crossing took place a long time before or where people entered through another member state.

Arbitrary deprivation of liberty (de facto detention)

Undocumented people, including families and children, could be apprehended in any place and at any time and potentially detained for up to five days in designated facilities within the territory of the member states. The mandatory nature of the screening at external borders combined with the lack of safeguards in terms of judicial review, access to a lawyer and reception conditions will likely entail arbitrary deprivation of liberty (de facto detention). This is particularly problematic as de facto detention does not meet the same basic safeguards underlying formally recognised immigration detention. De facto detention is already used in some member states and the proposed regulation could trigger a wide increase across the EU.

Non-refoulement and other human rights grounds

Under the proposed regulation, people who do not apply for international protection should be subject to return or refusal of entry once the screening procedures are over. But screening procedures do not assess reasons why people may not be subject to deportation, such as the principle of non-refoulement, health, protection of family and private life, or the best interests of the child. These are all valid reasons that could apply to many undocumented people who have been living in the EU, sometimes for years.

Proportionality

Whether Article 5 would be proportional to serve the objectives of the Screening Regulation is also questionable. This is evident in the opinion issued by the European Parliament legal service, which found that this measure would not serve the objective of better managing the external border, as the geographical and temporal links between the people intercepted and the checks would be too weak. At PICUM, together with leading European civil society networks and national organisations, we call on EU lawmakers to remove Article 5 from the draft Screening Regulation, and uphold human rights and equality throughout the Pact.

Read our joint statement here.

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).