In many countries undocumented migrants face arrest, detention and deportation if they make contact with the police or official authorities to report violence or abuse. Due to their irregular status, authorities frequently deny their rights to protection and enforce – or threaten to enforce – punitive measures instead.
Undocumented migrants are also denied the right to free legal aid and often prevented from being party to proceedings as they are deported to their countries of origin before legal action is taken. Undocumented children face additional barriers to access justice, as children’s rights are inadequately considered in decision-making, there are very few mechanisms for children to be heard in proceedings, and it is very difficult for them to secure appropriate or ‘child friendly’ information and legal representation.
The barriers facing undocumented migrants to access protection and redress for abuses in the workplace, on the streets, at the border or at home, increase their vulnerability and experiences of violence. The structural barriers that prevent them from pursuing legal remedies and bringing their perpetrators to justice contribute to a culture of impunity for exploitation of undocumented migrants (see below for PICUM’s Case Law Tool). Respect and protection of human rights can only be guaranteed if there are effective remedies against violence, crimes and labour exploitation, so legal rights can be asserted and enforced.
PICUM is working collaboratively – with a range of organisations and institutions involved in human rights, migrants’ rights, children’s rights, health, education and social inclusion – to call on the European Union and its member states to promote access to justice for undocumented migrants.
The use of legal avenues is vital in upholding the rights of individual undocumented migrants and families. It is also a key means to advance the respect and protection of these human rights for all undocumented migrants, by developing the legal standards. PICUM explores opportunities to engage with legal systems on both national and international levels. It also monitors legal developments and supports its members in their use of legal strategies as tools to enforce undocumented migrants’ rights. PICUM’s report on “Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights” is available here.
By monitoring news and other resources, and with the support of the Legal Strategies Task Force, PICUM gathers and reviews relevant case law relating to the fundamental rights of undocumented migrants. A number of courts, including the Court of Justice of the EU (CJEU), the European Court of Human Rights (ECHR), European Committee on Social Rights (ECSR) and several national courts, have issued key decisions on the rights of undocumented migrants. A review of the jurisprudence of the ECSR relating to undocumented migrants is available here.
PICUM is working to improve the respect and protection of undocumented migrants’ rights by advocating and supporting the adoption of effective remedies that guarantee access to justice for undocumented migrant victims of violence, crimes and labour exploitation. Manolada
PICUM is coordinating activities at EU and national level to ensure a full transposition and correct implementation of the safeguards included in the EU Victims’ Directive. The directive has the potential to significantly improve undocumented migrants’ access to justice and victim support services. In its Article 1, the Directive affirms that the rights and minimum standards set out apply to all victims of crime irrespective of their residence status. PICUM’s Info sheet on “EU Victims’ Directive” http://picum.org/picum.org/uploads/file_/Victims%20Directive%20Info%20Sheet-%20FINAL.pdf PICUM’s Overview of EU Victims’ Directive http://picum.org/picum.org/uploads/publication/PICUM_EU%20Victims_DirectiveInfoSheet_EN_2.pdf PICUM’s EU Victims’ Directive Transposition Checklist http://picum.org/picum.org/uploads/publication/chart_countries_Full_MGM_Nov2014.pdf PICUM Blog “An in depth-discussion about the Victims’ Directive” http://picum.org/en/news/blog/42677/
The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (‘Istanbul Convention’) has great potential to become an effective tool for ending violence against women and girls in Europe. The Convention sets out, and calls for the implementation of, legally binding standards to prevent violence against women, protect survivors and punish perpetrators. PICUM coordinates joint actions with project partners to continue coordination for joint action beyond the project’s time frame to follow up on the recommendations identified. PICUM Blog “‘Istanbul Convention’ – How Civil Society Can Engage in the Monitoring Process” http://picum.org/en/news/blog/46200/ PICUM, ENoMW, WAVE, Joint Statement on “Entry into Force of “Istanbul Convention”: Vital Opportunity to End Violence Against Migrant Women” http://www.coe.int/t/dghl/standardsetting/convention-violence/Press/JOINT%20PRESS%20RELEASE%20-%20ENTRY%20INTO%20FORCE%20OF%20ISTANBUL%20CONVENTION%20-%20%201%20August%202014.pdf
- Access to protection and redress mechanisms for migrants who have suffered exploitation, violence or other crime should be ensured, regardless of migration or residence status. All legal, administrative and practical obstacles for undocumented migrants to report abuse and seek protection and redress for violations of rights must be removed.
- Undocumented migrants should be granted a temporary residence permit for the duration of proceedings when seeking access to labour or criminal justice courts. It should be possible to transition from this status to a longer term status on relevant grounds.
- Access to legal aid should not be limited according to migration or residence status. Undocumented migrants should be entitled to legal aid and assistance under the same conditions as nationals.
- Access to victim support services, such as secure accommodation and psychological and social support should be granted to all victims who have suffered abuse and exploitation, irrespective of residence status.
- A clear firewall should be established between service provision and immigration enforcement. The sharing of personal data between service providers and immigration authorities should be prohibited, including in the context of access to justice and redress. This must include ensuring that undocumented migrants are able to safely report violence, exploitation or other crime to the police or other authorities, as victims or witnesses, without any enforcement actions being launched as a result.
- Decriminalise irregular migration. Laws and policies criminalising irregular entry or stay, or criminalising organisations and individuals providing legal, humanitarian and social assistance to undocumented migrants should be abolished.
Contact: Alyna Smith – email@example.com
PICUM’s “Case Law Tool” compiles relevant case-law and jurisprudence at national, European and international level concerning undocumented migrants’ fundamental rights. It provides brief overviews of procedures and rulings as well as links to the full judgements of the cases. PICUM and its partners monitor how law and legislation is applied and regularly update the tool.
Users can quickly navigate through the case law compilation, searching by date, country, name of the case, issuing body or specific keywords or broader thematic areas.
PICUM’s Case Law Tool is available here.
Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights
PICUM’s Report “Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights” http://picum.org/picum.org/uploads/publication/Using%20Legal%20Strategies%20to%20Enforce%20Undocumented%20Migrants%E2%80%99Human%20Rights.pdf PICUM’s Report “Strategies to End Double Violence Against Undocumented Women Protecting Rights and Ensuring Justice” http://www.undocumentary.org/assets/women/publications/Reports/Strategies%20to%20end%20double%20violence%20agains%20women_EN.pdf PICUM Blog “PICUM Working Group Explores Legal Strategies in Advocating for Undocumented Migrants” http://picum.org/en/news/blog/42592/
PICUM’s case law review “The collective complaint mechanism under the European Social Charter and the jurisprudence of the European Committee on Social Rights”, 12 December 2013
Access to Justice
PICUM’s Submissions to the 54th Session of the Committee on the Elimination of Discrimination against Women General Discussion on “Access to Justice”, 18 February 2013 http://www.ohchr.org/Documents/HRBodies/CEDAW/AccesstoJustice/PlatformForInternationalCooperationOnUndocumentedMigrants.pdf
EU Victims’ Directive
PICUM’s Info sheet on “EU Victims’ Directive” http://picum.org/picum.org/uploads/file_/Victims%20Directive%20Info%20Sheet-%20FINAL.pdf PICUM’s Overview of EU Victims’ Directive http://picum.org/picum.org/uploads/publication/PICUM_EU%20Victims_DirectiveInfoSheet_EN_2.pdf PICUM’s EU Victims’ Directive Transposition Checklist http://picum.org/picum.org/uploads/publication/chart_countries_Full_MGM_Nov2014.pdf PICUM Blog “An in depth-discussion about the Victims’ Directive” http://picum.org/en/news/blog/42677/
PICUM Blog “‘Istanbul Convention’ – How Civil Society Can Engage in the Monitoring Process” http://picum.org/en/news/blog/46200/ PICUM, ENoMW, WAVE, Joint Statement on “Entry into Force of “Istanbul Convention”: Vital Opportunity to End Violence Against Migrant Women” http://www.coe.int/t/dghl/standardsetting/convention-violence/Press/JOINT%20PRESS%20RELEASE%20-%20ENTRY%20INTO%20FORCE%20OF%20ISTANBUL%20CONVENTION%20-%20%201%20August%202014.pdf