This blog provides an overview of specific national labour migration and work permit policies in Germany, based on this detailed case study. We also track how single provisions match policy recommendations we developed in our 2021 report on labour migration.

Skilled Immigration Act

The ‘Skilled Immigration Act’, which came into effect on 1 March 2020, allows qualified professionals from non-EU countries to apply – from outside Germany – for a combined residence and work permit on the basis of an offer of employment (track 1), for a job-seeking permit (track 2) or to get recognition and equivalence of professional training (track 3).

This Act covers all jobs that require at least two years of professional experience, training or academic studies. Track 2 and track 3 are currently limited until 1 March 2025. All three tracks entail cumbersome application procedures, and high costs for the workers. Most importantly, the related work permits only concern so-called “skilled employment”, although track 3 allows for broader access to work.

Track 1: Work

Through this track, workers need an offer of employment or employment contract to come to work in Germany. Once in Germany, the person can start to work, but needs to apply for a combined residence and work permit for skilled work before the entry visa expires. The permit issued is for the duration of the job contract, up to a maximum of four years, and can be renewed.

It is possible to change employer on the same permit. During the first two years, it is necessary to stay within the same profession and receive consent from the Federal Employment Agency. After two years no consent is required, the person just needs to notify the authorities of the change. After four years, the person can apply for a long-term residence permit.

Workers switching jobs do not need to apply for a new permit, nor are they required to have an offer for their next job; people can be unemployed for up to six months while looking for work. They can access unemployment benefits on the same terms as nationals.

Track 2: Job-seeking

Through this track, people who have a recognition certificate, but not an offer of employment, can also apply for a 6-month visa to look for work in their occupation. Job-seekers need to demonstrate adequate subsistence for the time they search for work, and the job-seeking visa only allows for visa holders to work for 10 hours per week, in the job they are qualified for.

Once the worker finds a job in their area of specialisation in Germany, there is no labour market test; they can apply for a combined residence and work permit based on their labour contract.

The visa cannot be extended. People can apply for it again only after they have spent the same duration abroad that was spent in Germany searching for employment.

Track 3: Education and training

Through this track, partially qualified workers can apply to enter Germany to complete their professional training and be recognised as equivalent. If the permit is granted, these workers will have 18-36 months to achieve full equivalence in skills through on-the-job training or relevant education.

Similar to the job-seeking visa, the permit for completion of professional training can be converted into a work permit; the person can apply for a combined residence and work permit from within the country based on a labour contract, without being subject to a labour market test.

Western Balkan Immigration Regulation

The West Balkan Immigration regulation is currently the only pathway for migration to work in jobs that are not considered skilled as per the Skilled Immigration Act. The regulation allows nationals of Albania, Bosnia and Herzegovina, Kosovo, North Macedonia, Montenegro and Serbia to enter Germany under a combined residence and work permit, irrespective of their qualifications. This regulation was introduced in 2015 and initially intended to expire in 2020, but was extended until the end of 2023, with a new annual quota of 25,000 permits. This pathway is largely used to fill labour shortages in sectors such as construction, hospitality and cleaning.

Employment can be in any job and sector. The worker must have an employment contract or binding job offer. The position is also subject to a labour market test; the Federal Employment Agency assesses both if the job offer meets standards on working conditions and if there are employees available locally to fill the position.

Applications for this permit are made by the prospective employee, and must be submitted to the German embassy in the Balkan country. There have been significant issues with long waiting times for visa appointments.

Permits are issued for the duration of the job offer/ employment contract, and may be renewed. The worker can change employer but needs approval from the Federal Employment Agency in order to do so. People can apply for family reunification on the basis of this residence and work permit.

Many undocumented migrants work in so-called “platform work”, that is work managed by companies through digital platforms like websites and apps, in domains including taxi services, mailing services, and food delivery.

To do “platform work”, in practice, an undocumented person may either register an account in their own name, using an identity document (a passport might be sufficient), or use someone else’s account, as if they were being effectively subcontracted.

Platform work has come under the spotlight of migrants’ rights organisations, trade unions, media, courts and EU policy-makers as a striking example of many of the shortcomings of 21^st century gig economy, especially in terms of poor working conditions and job insecurity.

Many of those whose employment is managed through an online platform today face issues such as unpredictable working conditions, low wages and job rates. Many workers are excluded from labour protections and social security associated with being an ‘employee’, because they are officially registered as self-employed, despite the relationship with the online platform being an employment relationship.

Those who are undocumented face additional risks and challenges, while having fewer alternative employment options and resources to counter and remedy abuse, precisely because they are denied a residence and work permit in the first place.

In 2020, in France, 24 undocumented people working for the Stuart delivery platform were dismissed overnight and had their account disactivated without notice, after they had been working there for months. Throughout the COVID-19 pandemic, they delivered food and medications across France, which was hailed by many as “essential work”.

According to French law, the platform could have applied for their regularisation, as having a job is a key criterion for getting a residence permit. Instead, the workers lost the limited revenue overnight, and found themselves with no options to bring their employer to justice nor find regular work.

When someone is working using another person’s account, they often “rent” the account, meaning they pay a fixed monthly sum or percentage of their earnings to the owner of the account. This not only reduces the person’s income, but can expose them to exploitation and additional risks. The account holder can wield control over the worker, for example, by withholding wages and work. Undocumented workers can also be threatened with immigration enforcement, including if they try to complain about pay and conditions.

In the UK, the workers’ rights NGO FLEX conducted participatory action research involving three app-based couriers who were renting someone else’s account. Two of them had had their pay withheld as the money they earned was transferred into the account holder’s bank account. One had also been threatened with immigration enforcement and had their identity document confiscated by the account owner.

In Belgium, the migrant workers’ rights NGO Fairwork Belgium reports that an undocumented rider for the food delivery company Uber Eats broke his leg while working with someone else’s account. Undocumented workers in Belgium can access work accident insurance, and there is a state fund if the employer does not have insurance, but it remains challenging to prove that an employment relationship existed and ultimately that the injury was caused by a work accident. In such a case, where the worker is using someone else’s account and within a context where delivery platform riders are often misclassified as self-employed, proving the labour accident and accessing remedy is a major challenge.

When undocumented platform workers are able to get remedy and, in some cases, access residence and work permits, it is often thanks to their own collective mobilisation, and support by NGOs and trade unions.

In December 2021, the European Commission released a draft directive that builds on the existing EU legal framework, and seeks to improve the working conditions of all platform workers. The most promising aspect of this proposal is the legal clarity it brings to the definition of what can be considered an employment relationship between digital platforms and their workers. Far from being a mere technicality, this clarification has the potential to help workers, including when undocumented, prove that they are effectively employed by the platform, and that they should therefore enjoy the labour rights granted to any other employee.

The Employment Committee of the European Parliament has approved a draft report which promotes an employment classification based on the actual working conditions of platform workers. This text will become the official negotiating position of the Parliament once approved by all MEPs in the Plenary. The Council is still in the process of agreeing its position, and the proposal for the directive will still undergo negotiations before being officially adopted as a legally binding instrument. It will be crucial that the directive improves the working conditions of all platform workers, including when they are precarious or undocumented migrant workers.

The Jesuit Refugee Service Belgium recently released a new comprehensive report on the state of immigration detention in Belgium in 2021. This blog is based on an interview with Nicolas Wéry, Advocacy Officer at JRS Belgium, and author of the report.

Today, Belgium counts six immigration detention centres (centres fermés) that hold on average 6,000 to 8,000 people every year. The immigration detention system also includes five “return houses” (maisons de retour) for families with children. In both cases, the detention is intended to lead to the deportation of people in an irregular situation, and people stopped at the border, to a third country. But data show a different picture.

A punishment tool

Rather than being a tool to deport people, many in the civil society space see immigration detention as a punishment against people who are unable to get a residence permit . In this regard, JRS Belgium registers a certain proximity between immigration and criminal detention: a significant proportion of people who are held in immigration detention centres served a prison sentence, and were transferred to a closed centre at the end of it, de facto prolonging their detention. The punishment aspect becomes all the more visible when one considers that the immigration office can in principle return these people six months before their prison sentence ends: it is therefore doubtful that if the return did not happen within that period, it will happen while in immigration detention, in the absence of new elements.

“Effectiveness”

Despite the authorities touting detention as an effective tool to remove people from Belgium, data from the Immigration Office (Office des Etrangers) shows that it is not, as only just over a half of people in detention were actually deported in 2021. On the contrary, data shows that the longer people are held in detention, the lower the chances they will be deported.

In this framework, it is interesting to note who gets deported and for what reasons. Most of the returns concern Albanian nationals, who are more easily deported because Albania did not require negative COVID-19 tests to admit people to its territory, and the country easily accepts such returns arguably as a tool to ease its accession to the EU. Undocumented Albanians also appear to have less recourse to appeal procedures to counter detention and deportation. The data suggests that authorities target Albanian nationals precisely to ramp up deportation figures and strengthen their claim that immigration detention is a useful tool in migration management.

COVID-19

Despite leading to a reduced capacity of immigration detention centres in 2021, the COVID-19 pandemic made detention centres less accessible. JRS Belgium’s weekly visits were heavily disrupted throughout 2020, when they could not visit for four months, before regaining partial visiting access (one visitor instead of two). Throughout 2021, JRS Belgium did not have access to common spaces, which made it difficult to meet with new people in detention. Crucially, families and friends of people in detention also saw their visits restricted.Photo: (c) Kristien Vliegen, Immigration detention centre in Bruges, Belgium.

COVID-19 also meant that legal principles that underlie immigration detention were stretched to their limits.

This was first visible for the legality of detention itself. In principle, a person can be held in immigration detention if there is a realistic possibility that they can be returned to a third country. If not, the person should be released. This was not the case, for instance, for many Moroccan nationals, who were kept in detention despite their return to Morocco was practically impossible since the country had closed its borders.

Another challenge concerned the length of the detention. As many countries required negative tests to enter their territory, some detainees refused to get tested for personal convictions or for fears over leaving their life behind. In such cases, the authorities considered the day of the refusal to get tested as the first day of detention, effectively resetting the counter to zero. With this practice, a person could be detained for multiple periods of time, up to 18 months, which is the maximum length set by the EU Returns Directive.

More immigration detention

The current government coalition reached a political agreement in April 2022 to build three new immigration detention centres, leading to some 500 more places. Long a part of past governments’ agendas, the project is expected to be realised in the next years.

JRS Belgium understands that this expansion of immigration detention is motivated by the authorities’ belief that more centres will lead to more removals. This discourse is present in many other EU countries, and is being promoted at the EU level by the 2020 EU Migration Pact’s focus on detention as a migration management tool.Photo: (c) Kristien Vliegen, Immigration detention centre in Merksplas, Belgium.

JRS Belgium has been monitoring immigration detention in the country for years, including through teams who visit the detention centres and talk to people in detention every week. Their latest report is based on material gathered during such visits, and includes official data from the  Immigration Office (Office des Etrangers). A monitoring report of immigration detention in Belgium will be published every year.

JRS Belgium also runs the Plan Together pilot project on alternatives to detention, through which they assist undocumented people through their migration procedures. 

Immigration detention is understood as the deprivation of liberty of a person because of their migration status. In the EU, states typically apply immigration detention to prevent entry to their territory, to carry out return/deportation procedures, during asylum procedures, and in the context of Dublin transfer procedures.

Currently, immigration detention mostly happens in prison-like centres that are located in the territory of the state. But in certain cases, people may be detained in so-called “transit zones” at the state borders or in airport terminals. At land state borders, people have been detained, for instance, in buildings similar to detention centres or in prefabricated housing; in airports, people are generally detained in lounges, airport police cells, or in buildings next to the airport itself.

Often, states do not officially consider detention in transit zones as immigration detention, or deprivation of liberty. This means that this type of detention is less regulated than the one that happens in “traditional” immigration detention centres, and often comes with less safeguards. But European courts, such as the European Court of Human Rights and the EU Court of Justice, have indicated how this practice should be controlled.

In different cases, the European Court of Human Rights (ECtHR) stated that holding persons at airport transit zones, beyond short-term restrictions at entry points to check identity or verify the right to enter the country, would amount to deprivation of liberty. In these cases, the ECtHR was not satisfied with the claim advanced by states that applicants could leave the transit zone by leaving the country, as this would typically involve practical and legal difficulties.

With regard to land border transit zones, the ECtHR did not exclude such possibility, however, it also clarified that several conditions need to be met, including that the neighbouring country from which the person entered should be a party to the European Convention on Human Rights (ECHR) and Geneva Refugee Convention and that there is no immediate danger for the person’s life and health (in the specific case, this was demonstrated by the fact that the person spent a few months in the previous country before crossing the border).

In contrast, the Court of Justice of the European Union (CJEU) does not consider that the applicants have a possibility to leave the transit zone by leaving the country if the entry to the neighbouring country would be irregular and could lead to penalties.

Even if the ECtHR considers that the above conditions are met in the specific case and the person could leave the land border transit zone by going to the neighbouring country, this does not mean that the person is not subject to detention. The Court assesses also other elements, in particular the length of the stay in the transit zone.

In one case, the Court found that the applicants’ stay in the transit zone amounted to de facto detention because of the lack of any domestic legal provisions fixing the maximum duration of the applicants’ stay, the “excessive duration” of that stay (almost four months) and the considerable delays in the domestic examination of the applicants’ asylum claims. The Court also pointed at the conditions in which the applicants were held during the relevant period, notably severe restriction on freedom of movement within the transit zone and one-and-half-month stay in the isolation section of the transit zone where the conditions violated Art.3 of the ECHR.

In one case, the Grand Chamber of the ECtHR found that a 23-day confinement in a land transit zone during the examination of the applicants’ asylum claim with due diligence and in a situation considered a “mass influx of asylum-seekers and migrants,” and subject to domestic provisions limiting stay in transit zone to four weeks, did not violate article 5 ECHR.  Conversely, such measure is to be considered detention under EU law. Assessing the same transit zone, the CJEU ruled that the obligation imposed on a person to remain permanently in a transit zone the perimeter of which is restricted and closed, within which the person’s movements are limited and monitored, and which they cannot legally leave, should be considered detention under EU law. The Court relied on the definition of immigration detention under relevant pieces of EU legislation, as confinement of an applicant by a Member State within a particular place, where the applicant is deprived of their freedom of movement. Regardless of the circumstances, detaining someone because they do not have the right papers to live in the country they are in should never be an option. Detention is always harmful, disproportionate and ineffective.

At PICUM, we are against the use of immigration detention in all circumstances, and we call on Member States and the European Union to put an end to it. An increasing number of international bodies have also stated that detention for immigration control purposes should be progressively ended.

A lot of confusion surrounds the term “detention” in the context of migration. We developed a briefing where we reply to frequently asked questions on the existing legal framework and case law on immigration detention and de facto detention, drawing from the evolving and recent jurisprudence from EU and international bodies. This briefing is addressed to policy-makers working on legal reforms, and civil society organisations advocating for migrants’ rights.

Detaining someone because they do not have the right papers to live in the country they are in should never be an option. Detention is always harmful, disproportionate and ineffective.

At PICUM, we are against the use of immigration detention in all circumstances, and we call on Member States and the European Union to put an end to it. An increasing number of international bodies have also stated that detention for immigration control purposes should be progressively ended.

A lot of confusion surrounds the term “detention” in the context of migration. We developed a briefing where we reply to frequently asked questions on the existing legal framework and case law on immigration detention and de facto detention, drawing from the evolving and recent jurisprudence from EU and international bodies. This briefing is addressed to policy-makers working on legal reforms, and civil society organisations advocating for migrants’ rights.

The text below is an abridged version of the full briefing that can be found here.

What is immigration detention?

Immigration detention is understood as the deprivation of liberty for reasons related to a person’s migration status.

In the EU, states typically apply immigration detention in four contexts:

• to prevent entry to their territory,
• to carry out return/deportation procedures,
• during asylum procedures, and
• in the context of Dublin transfer procedures

Whatever the circumstances, immigration detention interferes with one of the most fundamental human rights – the right to personal liberty. This right is protected under Art. 5 of the European Convention on Human Rights (ECHR), Art. 6 of the EU Charter of Fundamental Rights, and Art. 9 of the International Covenant on Civil and Political Rights (ICCPR).

What is de facto detention?

When states decide to place a person in immigration detention, they need to comply with a number of requirements and safeguards. To avoid these, states sometimes refuse to acknowledge that a person is detained. Rather, they argue that the measure is merely a restriction on the person’s freedom of movement. They may even argue that the person is not being detained because they could leave the country instead, even though this often means moving to a place where their life and security would be at risk.

De facto detention can be understood as a measure which in practice amounts to deprivation of liberty but which states do not formally qualify as such. De facto detention is not based on a detention order nor is it usually subject to a judicial review. It also tends to be carried out in places which are not recognized as places of deprivation of liberty, for instance at border premises, reception or registration centres, and even boats.

Irrespective of terminology used by states, any placement of a person in custodial settings which that person is not permitted to leave at their will is considered as deprivation of liberty under the Optional Protocol to the Convention Against Torture. The key element of this definition, which is the impossibility to leave the facility, was also included in the definition of immigration detention by the UNHCR and the UN Migrant Workers Committee. The European Court of Human Rights (ECtHR) and Court of Justice of the European Union (CJEU) also place an emphasis on whether the persons are allowed to leave the premises and on the level of restrictions on movement within the facility.

In one case, the ECtHR found that keeping persons for nine days at a centre which was formally denominated by the Italian government as an “identification and registration centre” amounted to detention because their freedom of movement was limited inside the facility and they were not allowed to leave it.In our briefing, we further explore the following questions:

• When are transit zones “detention”?
• When is it “detention” and when is it “restriction of movement”?
• When is immigration detention arbitrary?
• Which procedural safeguards apply?
• Can children be detained for immigration purposes?
• What are alternatives to detention and when can they be applied?
• Is immigration detention part of criminal law?
• Does EU law allow for immigration detention?

We also discuss how the proposed EU Pact on Asylum and Migration considers detention for immigration purposes. Our in-focus on detention in the Pact can be downloaded here.

Earlier this year, the UK’s Immigration Rules were changed to facilitate access to a secure residence permit for non-British children and young people living in the UK. We spoke with Chrisann Jarrett from We Belong, a youth-led organisation that has been campaigning for this change, to know more.

What does this reform do?

In essence, this reform halves the time of the procedure to grant indefinite leave to remain to young people who came to the UK as children, who don’t have British citizenship, as long as they’ve lived half of their life in the UK. The process – also called a route to settlement – now takes 5 years, which is exactly half of what it used to take. The previous ‘ten-year route’ was the longest route to settlement in the whole UK migration system.

Young people who are already on the ten-year route can also switch to the five-year route if they meet the new rules of eligibility.

The reform came about as a government’s “concession” – a temporary measure – in October 2021, following strategic litigation, and was transposed into law in June 2022.

Why is five years better than ten?

First, it makes the whole procedure less costly. When you’re on the route to settlement, you get a temporary residence permit that you have to renew – and pay for – every two and a half years. On the ten-year route, this meant that you had to renew your temporary residence permit five times, paying over 2,500£ (around 2,930 €) per application per person – so a total of over 12,500£ (around 14,650 €). Now, in the five-year route, you save over 4,000£ (around 4,685 €). This is hugely important for families too, who often had to choose which child they could pay for in the longer route to settlement.

Second, it reduces the uncertainty that came with being in a limbo for ten years. Many young people who had grown up in the UK ended up on the ten-year-route because of lack of awareness about their immigration status, absence of legal aid and the complex and costly immigration system. If they entered the ten-year route at 18, they’d be nearly 30 before they could apply for indefinite leave to remain. Plus, people would have no certainty – and still won’t have – that they would receive that indefinite leave to remain. This has a massive impact on one’s identity and sense of belonging.

Third, it reduces the time spent with limited leave to remain (a temporary residence permit), which often means facing widespread suspicion by public authorities and services. For example, a young person’s limited leave to remain status is often questioned by employers who do not understand this type of immigration status. Because employers must check whether the person has the right to work, they are often reluctant to employ young people with this temporary residence permit despite this permit being issued due to strong ties to the UK.

What do you make of this reform?

It’s a great win for thousands of children, teenagers, and young adults across the UK. We’re very aware that this is not the silver bullet solution to all the problems with the British immigration system, but it’s a huge first step in the recognition of these children and young adults as part of British society.

Can you tell us about the work of We Belong in securing this win?

Our work started as soon as We Belong was founded in 2019, as a spin-off of a previous campaign to challenge barriers in education called Let Us Learn. That campaign had made us realise that challenges with access to education were only a symptom of broader issues with the UK migration system. In 2017 we launched the campaign ‘Chasing status’ to call for shorter, more accessible routes to residency. We’ve been working on three key tracks: direct advocacy, public communications, and cooperation with barristers in strategic litigation. For instance, in addition to our campaigning, we provided witness statements in the case that eventually prompted the UK Home Office to grant the five-year route concession.

Are you already looking at next steps as regards routes to settlement?

We’ll start with looking at the implementation of this shorter route to settlement, since implementation of positive changes has often been tricky in the past. We’ve also been working on another key problem of these routes to settlement, that is application fees, which are among the highest in Europe.

For more on challenges facing young people in accessing a secure residence permit, including an overview of the situation in the UK, read our report Turning 18 and undocumented: Supporting children in their transition into adulthood.

Cover image: © Marco – Adobe Stock

Common narratives describe migrant smugglers as ruthless “criminals who take advantage of people’s vulnerability and naïveté”. Counter-smuggling policies – often based on limited empirical data and several misconceptions – focus on cracking down on smuggling through more policing and criminal sanctions. While they often refer to the violence that migrants suffer from the hands of smugglers, very little attention is paid to the major harm done by counter-smuggling policies themselves. More importantly, little attention is paid to the reasons why people decide to turn to smugglers – notably, the lack of any opportunities for many people to move and cross borders in a regular manner. As a consequence, several of these policies end up harming migrant communities and those who support them.

This can happen in three main ways.

1.  Counter-smuggling legislation is often used against migrants themselves

More and more people trying to cross to Europe are unfairly accused of being “smugglers”, and risk long periods of arbitrary detention and exclusion from accessing asylum and other regularisation procedures. This is in violation of articles 5 and 16 of the UN Protocol on Migrant Smuggling, which forbid the use of counter-smuggling legislation against migrant themselves, and article 31 of the Convention relating to the Status of Refugees, according to which asylum seekers should not be penalised for crossing borders without authorisation.

Often, the mere fact of having touched the wheel of the boat, or having turned on a GPS, is enough to be considered a smuggler. Testimonies from other people on the boat asserting that the person was only trying to save everyone’s lives, or the fact of having one own’s children or other family members on the boat, are not considered as sufficient counter-evidence to smuggling accusations. As a consequence, migrants often face decades of imprisonment. In many cases, asylum seekers have been charged of smuggling just after being rescued from a shipwreck.

Far from being isolated incidents, the criminalisation of boat drivers is a widespread phenomenon in several EU countries. Criminal proceedings, including when they end in acquittals, can have a life-long impact on migrants’ ability to live regularly in the EU. A first instance conviction, or even just reliable proof for suspicion, can lead to people being effectively prevented from applying for asylum and other residence permits. Even if acquitted, migrants who have been accused of smuggling often have difficulties accessing asylum procedures, and they are often excluded from official reception centres.

2.  Counter-smuggling policies make crossings more unsafe

Counter-smuggling policies are often justified by policy-makers with the need to protect migrants’ lives and safety. But this narrative contributes to hide the real harm that people are suffering as a direct consequence of counter-smuggling policies.Almost a decade ago, academic Hein de Haas highlighted that “smuggling is a reaction to border controls, not the cause of migration”. As counter-smuggling policies lead to the increased militarisation of borders, crossing becomes more and more unsafe, pushing more people into taking dangerous and expensive routes and having to rely on smugglers, increasing risks of extortion, debt bondage and other abuses. History could not be clearer: because of the progressive increase in border surveillance in the Mediterranean since the nineties, people have had no choice but to take increasingly risky routes. More recently, the militarisation of the English Channel led to the creation of “an infrastructure that completely revolves around smuggling”.

The frequent criminalisation of migrants who steer the boat before or during shipwrecks make crossings more unsafe because migrants fear taking the helm of the boat; they might also move away from the motor when the boat is intercepted by the authorities so not to be identified, which leads to even more imbalance on board. In other cases, migrants have thrown their satellite phone overboard when the authorities were approaching, so not to be convicted as “smugglers”, thus interrupting contact with the rescue mission.

Over 30,000 people have died trying to reach Europe between 2000 and 2015. Increased counter-smuggling efforts seem to have led to even more deaths: in only six years, between 2014 and 2022, nearly 24,000 migrants have died in the Mediterranean.

3.  Counter-smuggling policies are used to create a hostile environment and deter solidarity with migrants

The EU Facilitation Directive requires Member States to impose “effective, proportionate and dissuasive” sanctions on any person who facilitates someone’s irregular entry or transit across a Member State, even if they did not obtain any financial gain. Article 1(2) of the Directive permits Member States not to criminalise actions “where the aim of the behaviour is to provide humanitarian assistance to the person concerned”. Only eight Member States (Belgium, Greece, Spain, Finland, Italy, Malta, Croatia and France) have introduced this exemption clause.

As a consequence, people helping migrants risk being accused of “facilitating their irregular entry, transit or stay” even if they did not receive any financial or material benefit. Even where the “humanitarian exemption” was introduced, people have still been criminalised for acting in solidarity with migrants.

Between 2015 and 2019, at least 171 human rights defenders were investigated or convicted on grounds related to the EU Facilitation Directive in 13 EU Member States, including volunteers and search and rescue NGOs. This trend continues unabated: between January 2021 and March 2022, at least 89 human rights defenders were criminalised in the EU. In 88% of the cases, they were charged with facilitation of entry, transit or stay or migrant smuggling.

Migrants who help other migrants are disproportionally hit by criminalisation policies. Any involvement in criminal proceedings, including when it does not lead to a conviction, can have very harmful consequences on migrants’ life, including their ability to receive asylum or another residence permit in the EU. Migrants also often face harsher treatment during investigations, including lengthy pre-trial detention.

Besides having a chilling effect on solidarity with migrants, the excessively broad definition of smuggling also makes it hard or even impossible for service providers to cater services like housing or transport to undocumented people. In fact, under these provisions, service providers such as taxi drivers, landlords, and Airbnb owners are forced to verify their clients’ documents, as they are at risk of being considered “smugglers” if they provide services to undocumented people.

For instance, in nearly two thirds of EU member states, landlords who rent to undocumented migrants risk a fine or imprisonment. Provisions criminalising renting to undocumented migrants exclude people, including families with children, from the regular housing market. This pushes them into precarious, over-crowded and unsuitable housing, often at exploitative rent prices, where they face eviction, abuse and theft of rent and deposits.

This blog is based on the executive summary of our new report Resilience and Resistance: the Criminalisation of Solidarity across Europe, where we investigate the state of the criminalisation of solidarity with migrants in Europe in 2021-2022. The report was made possible thanks to the support of The Greens/EFA group in the European Parliament and was written by Marta Gionco, PICUM’s advocacy officer, and Jyothi Kanics, independent researcher.

The European Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. Yet, in recent years, these values have been under threat within the EU, as many Member States’ policies and actions have led to a “shrinking space” for civil society. Perhaps this trend is nowhere more evident than in the treatment of migrants in Europe and the human rights defenders working to assist them. The “criminalisation of solidarity” strikes at the heart of European values and contributes to the erosion of rule of law and democracy, while seriously impacting the rights and welfare of the most vulnerable in our societies and those who seek to protect and assist them.

The criminalisation of solidarity with migrants remains a widespread phenomenon across the EU. According to our media monitoring, at least 89 people were criminalised in the EU between January 2021 and March 2022. Out of them, 18 people faced new charges, while the other 71 were ongoing cases from previous years. Of the 89 individuals who were criminalized, four were migrants. Of all of those criminalized, three were convicted and 15 were acquitted. The remaining cases are still pending. People have been criminalised for actions including providing food, shelter, medical assistance, transportation and other humanitarian aid to migrants in dire conditions; assisting with asylum applications; and rescuing migrants at sea.

In the vast majority of the cases (88%), human rights defenders were charged with facilitation of entry, transit or stay, or migrant smuggling (depending on how the crime is defined in the national legislation). It is also notable that the criminalisation of solidarity has continued, and in certain cases even soared, during periods in which many countries adopted COVID-19 restrictions, at a time when human rights defenders risked their own personal safety and health to leave their homes to help others. Emergency measures adopted to address the COVID-19 pandemic have been used to limit access to reception facilities and detention centres, to impose fines on organisations providing services during lock-downs or after the curfew, and to limit the right to freedom of assembly.

National data further contributes to give an idea of the magnitude of the criminalisation of solidarity in the EU. For example, according to the Polish civil society network Grupa Granica, nearly 330 people were detained for helping people crossing borders irregularly between Belarus and Poland between August and November 2021. Those detained include EU nationals as well as migrants and their family members, many of whom had residence permits in Belgium, Germany and Poland. Many are likely to have been motivated by humanitarian reasons, including helping family members. In another example, a total of 972 people were convicted in Switzerland in 2018 on grounds of facilitation of irregular entry or stay. The vast majority, almost 900 people, acted out of solidarity or family reasons.

These numbers are likely to only represent a very minimal percentage of the people who are criminalised in the EU for solidarity towards migrants. On the one hand, our media monitoring has no claim of comprehensiveness, as some news may not be detected by our alert system. On the other hand, the majority of the cases are likely to go unreported because of fears that media attention could further endanger the relations with the authorities and limit access to border areas or reception centres; to preserve volunteers’ right to private life and not to put them and their families at risk; or because some human right defenders might prefer not to speak out while trials are ongoing. Many cases of harassment which do not amount to criminal prosecution might also not be picked up by the media. The criminalisation of human rights defenders who are migrants themselves is even more underreported because of the particularly vulnerable situation of individuals who might risk deportation, pushbacks, arbitrary detention and loss of status as well as harsh financial, social and economic consequences.

A range of elements contribute to creating a “hostile environment” for those engaged in humanitarian action and solidarity efforts towards migrants in the EU:

• The “criminalisation of migration” itself leads to migrants being treated as criminals and even viewed as a threat to national security. It follows then that those who seek to assist them can also be perceived and labelled as engaging in “illicit” activity and causing harm to society. Negative attitudes towards migrants greatly influence how official policies and practices are shaped. The legal and policy framework appears in many cases to be underpinned by xenophobic narratives and a lack of implementation of human rights obligations.
• In many EU Member States, there are administrative and criminal laws which constrain and prosecute civil society actors providing humanitarian assistance to migrants or denouncing human rights abuses.
• Limitations to freedom of expression, assembly and association contribute to a shrinking civic space which can make it very challenging for human rights defenders to respond to judicial and other forms of harassments. When civic space is eroded, this further undermines civic dialogue, transparency and accountability.
• Additionally, a lack of independent human rights monitoring contributes to impunity following attacks on human rights defenders and increases the risk of human rights violations.
• Finally, decisions on resource allocation further minimise the space for civil society and their capacity to engage and to respond.

Nevertheless, despite all these challenges, human rights defenders continue to make valiant efforts to assist migrants and to demonstrate solidarity with migrants in vulnerable situations. Their resilience, persistence and resistance is demonstrated by the actions they have taken in the face of intimidation, harassment and violence, which they have often confronted alone on the frontline at EU borders and in communities across Europe.

In order to support them, the EU has a range of avenues for engagement through which it can strengthen protection of migrants’ rights as well as address the key elements of the “hostile environment” outlined above. While many of these developments, such as proposed legislative changes to the EU Facilitation Directive, are goals to be achieved in the longer term, there are other actions that the EU can take in the short-term to nurture and support an enabling environment for those working for solidarity and justice within the EU.

This report proposes five overarching recommendations for EU action:

1. Prevent the criminalisation of humanitarian assistance
2. Cultivate the civic space and better protect human rights defenders
3. Adequately fund humanitarian assistance and human rights monitoring
4. Promote and advance a more balanced EU migration policy in line with European values
5. Strengthen human rights monitoring and solidify the evidence base on criminalisation of migration and solidarity

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On 2 and 3 June 2022, PICUM brought together migrant and human rights advocates, from both inside and outside our membership, at our General Assembly, to reflect on current challenges and ways forward in advancing the rights of undocumented people. This short blog is a summary of key discussions.

A lot has happened in the last few years, with important consequences for individuals and for our movement.

The COVID-19 pandemic, to start with, has exposed and exacerbated inequalities that run deep in our societies, especially around who is able to access health care, work in safe and decent jobs, and be protected from financial shocks. On the flipside, the pandemic has also shown some promising openings, with national and local efforts across Europe to give access to the vaccines to undocumented people too. The challenge now is to turn such promising measures into a steppingstone to open up access to health care and public services permanently and to everyone, regardless of their residence status.

At the same time, EU migration policies continue to go in the direction of more exclusion. The EU Migration Pact, a set of legislative proposals and policy recommendations put forward by the European Commission in September 2020, and currently under negotiation, will result in an increase in detention and lack of due process for people, including children, trying to reach or already living in Europe. In 2021, new plans to step up returns and border control, sometimes in the name of “fighting” against smuggling, have only increased the risk of harm to undocumented people.

Adopted at the same time as the Pact, the 2021 EU Action Plan Against Anti-Racism is a welcome development. Prompted by the public outcry over the killing of George Floyd in the US, the Action Plan recognises that racism – not just in individuals, but in our systems and structures – is alive and well in Europe and commits to taking steps to address it. But its failure to call out the systemic racism that is so pervasive to EU migration policies is a glaring omission that is itself a call to action.More recently, the war in Ukraine has forced millions to flee, to neighbouring countries and beyond. Civil society organisations across Europe, including many PICUM members, are at the forefront of the response to the resulting humanitarian crisis. Many organisations in Eastern Europe were already overwhelmed with assisting people left stranded at the border with Belarus, as Minsk and Brussels wrangled politically over their lives in the summer of 2021 – and where Europe’s response continues to focus on politics and security, ignoring the human tragedy the continues to unfold.Quite contrary to its standard approach to migration, the EU has been quick to welcome and grant protection to people impacted by the war. Shortly after the invasion, it managed to activate for the first time the 2001 Temporary Protection Directive that grants automatic and immediate status to people who left Ukraine after the Russian invasion. But many non-Ukrainians, especially black and brown people equally trying to escape the war, were met with detention instead. While those who welcome Ukrainian families in their homes are – rightly – celebrated, those who help people coming from African or Asian countries in some cases face long proceedings in court, fines, and imprisonment for “facilitating irregular entry”.

Such differential treatment shows discrepancies between those moving across borders and how they are treated even in the context of war, which often depends on factors like race, class, and gender.This year, at our General Assembly, our focus was on building intersectional movements for change. In addition to discussing double standards in the treatment of migrants based on systemic discrimination, we heard from people working on criminal justice, on racial justice, on sex work and sex workers’ rights, digital rights, and the fight against poverty about opportunity to strengthen our work together. Our efforts to achieve social justice for undocumented people and those with insecure residence status is not separate from efforts to dismantle racism, sexism, classism. All of these efforts must be viewed within a common struggle for a more just society.It can be hard to disentangle the various systems of oppression that affect so many of the people who try to come to Europe and the daily lives of those who have the potential for experiencing discrimination because they may be of color, a woman, trans, poor, a sex worker, Muslim – all of these identities and experiences are variously oppressed and – directly or indirectly – criminalised. Working in silos cannot achieve lasting change, but joining forces across movements can.

While every movement has its own specificities, the realisation of an equal society requires us to work together against oppression and towards a common vision of a more just society.

On 16 June, International Domestic Workers’ Day, a delegation of undocumented domestic workers led their first-ever strike in Brussels, Belgium, to protest the exploitation they endure daily, and demand decent working conditions and regularisation.

Domestic workers, mostly women, work for families that are not their own, they look after children, grandparents and others in need of care, and make homes clean. They sometimes ensure food is in the fridge, and even ready to eat. Their jobs, despite being essential to many households and the care sector overall, are difficult, devalued, and underpaid. Domestic and care work is also structured around stereotypes of who is supposed to carry out such devalued work: this results in women, migrant women and women of colour bearing the brunt of the failures to properly regulate and ensure decent work in the sector.In Belgium, it is estimated that around 80.000 domestic workers live and work in an irregular situation. Without a declared contract and with almost no possibility to regularise their status, they are particularly exposed to abuse and exploitation from their employers. Many have to be available 24 hours a day and are paid between 3 and 10 euros an hour. Their employers don’t pay their due social contributions, so undocumented domestic workers have no access to social protection.

Determined to defend their rights, several dozen undocumented domestic workers have been organising for the past four years within the League of Domestic Workers of the Belgian trade union Confédération des Syndicats chrétiens (CSC), with the support of the Mouvement Ouvrier Chrétien. As part of this self-organising, they have organised exhibitions, produced a documentary, mobilised other care workers, and met with politicians.Through this strike, undocumented domestic workers demand the recognition of their work, and the right to live and work in dignity, both for them and their documented colleagues. For themselves and other people in precarious situations, in particular, they demand a decent work permit and the regularisation of their status, so they can access a salary, stable working hours and social protection like any other worker. In addition, they ask that they be protected in case they wish to report abuse at work to the authorities, and have access to training.One of the coordinators of the strike, Eva Maria Jimenez Lamas of trade union CSC, also highlighted that in many cases undocumented domestic workers have spearheaded the fight for the regularisation – and clear and inclusive regularisation criteria – for all undocumented people.

Messages of solidarity came in during the strike from various groups and movements from countries as diverse as France, India, Spain and Switzerland. Despite the different contexts and experiences, all groups underlined how it is necessary to join forces to fight exploitation across sectors and countries. This point was very much highlighted by the strikers too: despite them working in the domestic work and care sectors, they recognise that other workers – for instance in cleaning, hospitality (hotels, restaurants and cafes, and catering), documented or not – face very similar struggles for decent working conditions and that only by building coalitions can change be achieved.

This blog provides a brief analysis of some key EU legal texts on undocumented workers’ rights at work, focusing on labour rights and employment law. It is not meant to be an exhaustive overview of all relevant provisions – for a full overview, including international standards and the European Convention on Human Rights, check out our Guide to Undocumented Workers’ Rights at Work under International and EU Law available in English, Italian, Greek, French and Spanish.

Many key sectors of Europe’s economy rely on undocumented migrant workers. More often than not, workers’ precarious or irregular status is leveraged by employers to reduce their labour costs, by imposing particularly poor working conditions, such as extremely long hours without rest periods, and withholding or stealing workers’ wages.

But undocumented workers do have a range of rights at work that are enshrined in both international and EU legal frameworks. In the EU, several laws on fundamental rights, non-discrimination and equality, employment and health and safety, migration, anti-trafficking and victims’ rights provide for specific protections that also apply to undocumented workers.

To begin with, labour rights are human rights, so included in the EU Charter on Fundamental Rights. There are several provisions which are crucial for workers’ rights, in particular rights to freedom of assembly and association; information, collective bargaining and action; non-discrimination; effective remedy and fair trial; the protection against unjustified dismissal, and the right to fair and just working conditions. The latter is elaborated as working conditions which respect health, safety and dignity, and the rights to limitations of working hours, daily and weekly rest periods and a period of paid annual leave. These fundamental rights apply to all workers in the European Union, including when undocumented. For some aspects, specific EU directives go further in specifying minimum standards for these rights. We divide the EU directives between those that definitely apply to undocumented workers and those that should apply to them.

1.    Directives that definitely apply to undocumented workers

These are directives that refer to ‘people’, ‘any person employed’, or the legal text or related case law explicitly refers to ‘workers’ or ‘victims’ with irregular migration or residence status. In short, the law makes it clear that undocumented workers are covered too.

One of the most important EU instruments for undocumented workers is the 2009 Employers’ Sanctions Directive. While prohibiting the employment of undocumented people, the directive explicitly reiterates that undocumented workers have a right to be paid their wages, at least at the level of the statutory minimum wage or as agreed in collective bargaining agreements.

The burden of proving the existence of a working relationship still largely falls on workers. However, the directive introduces a presumption that employment relationships are at least 3 months and requires employers to prove if the person worked for them for less time. It also requires governments to ensure effective and accessible complaints mechanisms and legal procedures for undocumented workers to reclaim their wages from an employer. This Directive also provides for residence permits to be issued to workers who experienced serious exploitation, though drastically underused.

Beyond this specific instrument, undocumented workers are also covered by several laws setting minimum labour rights across the EU. In particular, undocumented workers also have the following rights under EU law:

• Specific health and safety protections (see the ‘Framework Directive on Health and Safety at Work’ as well as the EU Charter on Fundamental Rights);
• Maternity leave, paid at least to the level of national sick pay if the person has been in employment for 12 months or more before the onset of labour, and other specific protections for workers who are pregnant, have recently given birth and/or are breastfeeding (see the ‘Pregnant Workers Directive’);
• Payment of due wages and salaries, including limited coverage by state guarantee mechanisms in cases of employer insolvency (see the ‘Employers Insolvency Directive’, as well as the ‘Employers’ Sanctions Directive’);
• Non-discrimination in opportunities and conditions at work, at least on grounds of gender, racial or ethnicity, sexual orientation, religion or belief, age, or disability (see the ‘Racial Equality Directive’ and ‘Employment Equality Directive’ as well as the EU Charter on Fundamental Rights). .

Undocumented workers also have rights when they are victims of labour abuses that amount to a crime, under EU laws on victims’ rights and anti-trafficking.

2.    Directives that should apply to undocumented workers

There are also a number of directives that refer to a “worker” without any definition or apply to anyone in an employment relationship according to national law. Newer directives also refer to relevant case law from the EU Court of Justice (CJEU).

In one particularly significant case related to the EU ‘Employers Insolvency Directive’ (Tümer), the CJEU held that Member States could not define “employee” in a way that would exclude people based on their migration or residence status, as it would undermine the purpose of the directive, to establish minimum protections across the EU in the case of employer insolvency. In short, the Court found that all the protections provided for in the Directive apply equally to undocumented workers too.

This ruling concerned the ‘Employers Insolvency Directive’, and there is not yet specific CJEU case law confirming the application of other EU employment law directives that defer to national definitions of a “worker” or “employee”.

Nonetheless, considering the case law from the CJEU concerning employment relationships, the legal reasoning in the Tümer judgement and other labour and human rights standards, it seems clear that several other directives should also apply to undocumented workers.

Based on this analysis, undocumented workers should also have rights to, in particular:

• Specific limitations on working time and the right to daily and weekly rest periods (see 2003 ‘Working Time Directive’, as well as the EU Charter on Fundamental Rights)
• Specific provisions on paid holiday leave and parental leave (see 2003 ‘Working Time Directive’, ‘Parental Leave Directive’ until 2 August 2022 and from then the ‘Work-Life Balance Directive’, as well as the ‘EU Charter on Fundamental Rights’);
• Transparent and predictable working conditions, in particular advance information from employers about essential aspects of work, including tasks, renumeration and working hours, and limits to on-call work (see ‘Written Statement Directive’ until 1 August 2022 and from then the ‘Transparent and Predictable Working Conditions Directive’)
• Specific protections for children in employment (see ‘Young People at Work Directive’)
• Equal treatment in employment conditions when in part-time employment or employed by a temporary employment agency, and in health and safety protections when in fixed term and temporary employment (see the ‘Temporary Agency Workers’ Directive and the ‘Part-Time Work Directive’).

Limits of EU protections and key developments

The EU legislation is far from comprehensive. It currently does not cover minimum standards for key labour rights that apply to all workers according to human rights law and international labour standards, such as protection from unfair dismissal or payment of compensation and disability benefits in case of labour accidents. Some gaps are in the process of being addressed, for example through EC proposals on setting minimum wages and to improve the rights of platform workers. These should apply to undocumented workers.

At the same time, the greatest challenge for labour rights is enforcement, particularly when it comes to workers whose residence status is dependent on a particular job and employer or who is working irregularly. While several instruments have provisions on effective access to complaints mechanisms and remedy, there are enormous barriers to precarious and undocumented workers actually exercising their rights. In particular, in most EU member states there is a lack of legal clarity and safeguards to ensure migrant workers are not exposed to detention and deportation if they attempt to access labour justice and claim their rights in practice.

Nonetheless, there are undocumented workers who have individually or collectively managed to claim their rights through formal complaints mechanisms. NGOs, including migrant worker-led organisations, and trade unions are tirelessly organising and working with labour inspectorates, to attain remedy for workers and achieve structural change on national level, sometimes using EU provisions.

For example, in Belgium, the ‘effective complaints mechanism’ provision in the ‘Employers’ Sanctions Directive’ has been implemented using the professional confidentiality of labour inspectors to shield workers against direct immigration consequences if they file a complaint to the inspectorate. As a result, this complaints mechanism is regularly and increasingly used by undocumented workers to recover unpaid wages from former employers.

Strategic litigation can also play a key role in advancing the understanding and implementation of undocumented workers’ rights. For instance, in 2017 in France, the Confédération Générale du Travail supported a group of undocumented workers to claim unpaid wages and their regularisation before the labour tribunal in Paris. Evidence submitted during the case led to the recognition by the labour tribunal of “systemic and racial discrimination” against the workers who were assigned difficult and dangerous tasks, based on their origin.

There are also key developments in other areas of EU law which could have important impacts on how businesses respect their employee’s labour rights. For example, the 2023-2027 Common Agricultural Policy introduces ‘social conditionality’ from 2025, which will mean farms may face their EU subsidies being cut if they violate provisions in the EU directives on transparent and predictable working conditions and health and safety. Work at EU level is also underway to strengthen companies’ human rights due diligence obligations and explore potential import controls on products made with forced labour. Again, the crux will be the details of the legal texts on EU and national level and the practical measures in place so that all workers can actually signal violations and exercise their rights, including when undocumented, without any risk of immigration enforcement as a result.

Some of the protections outlined in this blog were discussed with labour and migration experts at a legal seminar webinar series on the rights of undocumented migrant workers in Europe, which was held in October 2021 together with the ETUC and ILO. You can find the presentations and recordings here. If you are a legal professional in some capacity and would like to be involved in our work to advance the rights of undocumented workers, please get in touch.

This blog was written by former PICUM’s Advocacy Trainee Alyona Samar.

Since the outset of the war in Ukraine, nearly 6 million people have fled violence perpetrated by the Russian army. The majority have crossed borders to the EU. While many have been welcomed in neighbouring countries, a number of reports have emerged of differential treatment towards non-Ukrainian nationals escaping the war.

Investigations conducted by Lighthouse Reports with The Independent, Der Spiegel, Radio France, and Médiapart, revealed that African nationals were detained in Poland and Estonia after fleeing Ukraine. While the total number is unknown, Polish police confirmed on March 15 that at least 52 third-country nationals were detained after crossing the border from Ukraine to Poland.

People apprehended at the border were denied legal aid and interpreters, and were left with no information on the circumstances of their detention. For instance, the Polish Border Guard detained a Nigerian student who was forced to sign a document written in Polish, without any appropriate translation, under the threat of five months in jail should he refuse to sign. When the student went to court, he wasn’t provided with an interpreter, and eventually found himself in an immigration detention center.

Many other students from Cameroon, Ghana, the Ivory Coast, and other African nations also ended up in detention centres. None of them had access to information, they all had their phones confiscated and very limited access to the Internet.

A student from Nigeria experienced similar treatment in Estonia. The officers claimed that he did not have the right to enter the country and threatened him with a five-year entry ban to the whole Schengen territory.

Lighthouse Reports estimated that up to 45 people were still held in the Zhuravychi immigration detention centre in Ukraine as of March 21. Many of them had been intercepted by the Polish border guards when they were trying to enter Poland, and handed to the Ukrainian authorities. After 24 February, they were all moved to a part of the centre that has no windows nor functioning power sockets: with no access to information, they were left to listen to the shelling and explosions without knowing how near they were. Mid-April reports suggest that some of the people who were released form the detention center in Zhuravychi were later re-detained in Poland.

Such discriminatory practices expose the double standards and systemic racism that is inherent within the EU and national migration policies.

These practices also stand in direct contradiction to Recital 13 of the Council Implementing Decision (EU) 2022/382 on temporary protection, which states that third country nationals working or studying in Ukraine “should in any event be admitted into the Union on humanitarian grounds without requiring, in particular, possession of a valid visa or sufficient means of subsistence or valid travel documents, to ensure safe passage with a view to returning to their country or region of origin.”

Third-country nationals escaping the horrors of war should be given care and protection instead of being discriminated, threatened, and detained. Immigration detention is always a harmful and disproportionate measure which leads to severe violations of fundamental rights. Detention has extremely harmful consequences on mental health and can exacerbate people’s vulnerability. Detaining people fleeing from war and violence can additionally trigger past trauma and constitute ill-treatment.

Rather than continuing the harmful practice of detaining people, and applying double standards to people fleeing from persecution, the European Union should ensure equal access to safety for all people regardless of their place of origin, race, ethnicity, or immigration status.