Access to Justice
In many countries, people who are undocumented face arrest, detention, and deportation if they approach the police to report violence or abuse. Rather than offering help, authorities frequently deny the right to protection and assistance of people without residence status, and enforce – or threaten to enforce – punitive measures instead.
People who are undocumented are also frequently prevented from seeking justice or compensation because they are deported before they can defend their rights.
Being undocumented, or having a visa that depends on a spouse or an employer, puts people at particular risk of abuse. Abusers use a person’s insecure status as a way to control and manipulate them, to convince them that they have no right to help and to threaten deportation or separation from their children if they dare to report their mistreatment.
Because women’s residence status is often dependent, and because they often work in highly informal sectors, migrant women are especially susceptible to mistreatment.
The rights of undocumented children 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 right to services, protection and justice
The Victims’ Directive 2012/29/EU guarantees minimum rights for all victims of crime in the European Union, whatever their visa or residence status. This means that undocumented victims of crime have the same right to services, protection and justice as anyone else who has been victimised.
The Council of Europe Istanbul Convention is an international treaty that addresses violence and discrimination against women. It guarantees all women who have experienced, or who are at risk of, violence certain protections and support, including undocumented women.
The Convention on the Elimination of All Forms of Violence against Women (CEDAW) also protects every woman from violence and discrimination. Nearly every country in the world is party to this treaty, which recognises that to end violence against women, every woman should feel safe going to the authorities to report abuse and to seek assistance.
How change can happen?
- Anyone who has witnessed or experienced a crime or other form of discrimination or abuse – at home, in the workplace or on the street – should be able to report the incident and receive support, protection and redress.
- Steps should be taken to build understanding among law enforcement and criminal justice officials about the needs and realities of diverse communities, and to build trust among migrant communities to foster the reporting of crimes and access to justice.
- People who are undocumented should be granted a temporary residence permit, at least for the duration of the legal proceeding, in criminal court or before the labour or discrimination tribunal, and have the possibility to obtain longer term status thereafter.
- Access to quality legal aid should be available to all victims of crime, abuse or discrimination, to understand and, where possible, defend their rights.
- All victims of crime should have access to support services, including a safe place to stay, and psychological, medical and social support.
- The sharing of personal data, including immigration status, between services (such as law enforcement, labour inspectors, social workers, health care professionals, child protection services) and immigration enforcement authorities should be expressly forbidden.
- Laws and policies criminalising irregular entry or stay, or creating criminal penalties for organisations and individuals that give legal, humanitarian and social assistance to undocumented migrants should be reformed.
Contact: Alyna Smith
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