As the European Union amends the Artificial Intelligence Act (AI Act), understanding the impact of AI systems on marginalised communities is vital. AI systems are increasingly developed, tested and deployed to judge and control migrants and people on the move in harmful ways. How can the AI Act prevent this?

From AI lie-detectors, AI risk profiling systems used to assess the likelihood of movements outside the limited scope of regular pathways, to the rapidly expanding tech-surveillance at Europe’s borders, AI systems are increasingly a feature of the EU’s approach to migration.

On the ‘sharp-edge’ of innovation

While the uptake of AI is promoted as a policy goal by EU institutions, for migrants and people on the move, AI technologies fit into a wider system of over-surveillance, discrimination and violence. As highlighted by Petra Molnar in Technological Testing Grounds: Migration Management Experiments and Reflections from the Ground Up, AI systems are increasingly used in efforts to restrict migration, affecting millions of people on the move. In this context, more and more ‘innovation’ means a ‘human laboratory’ of tech experiments, with people in already dangerous, vulnerable situations as the subjects.

How do these systems affect people? AI is used to make predictions, assessments and evaluations about people in the context of their migration claims. Especially worrying is the systematic use of AI to assess whether people who want to come to or enter Europe present a ‘risk’ of unlawful activity or security threats. These systems tend to pre-judge people based on factors outside of their control, relying on discriminatory assumptions and associations. Along with AI lie detectors, polygraphs and emotion recognition, we see how AI is being used and developed within a broader framework of racialised suspicion against migrants.

Not only do AI systems create these severe harms against individuals; they are also part of a broader – and growing – surveillance eco-system developed at and within Europe’s borders. Increasingly, racialised people and migrants are over-surveilled, targeted, detained and criminalised through EU and national policies. Technological systems form part of those infrastructures of control.

Specifically, many AI systems are being tested and used to shape the way governments and institutions respond to migration. This includes AI for generalised surveillance at the border, such as ‘heterogenous robot systems’ at coastal areas, and predictive analytic systems to forecast migration trends. There is a significant concern that predictive analytics will be used to facilitate push-backs, pull-backs and other ways to prevent people from exercising their right to seek asylum, and leading to the use of more dangerous routes. This concern is especially acute in a climate of ever-increasing criminalisation of migration, and of people helping migrants.  While these systems don’t always make decisions directly about people, they dramatically affect the experience of borders and the migration process, shifting even further toward surveillance, control, and violence throughout the migration experience.

Regulating Migration Technology: What has happened so far?

In April 2021, the European Commission launched its legislative proposal to regulate AI in the European Union. The proposal categorises some uses of AI in the context of migration as ‘high-risk’ – but fails to address how AI systems exacerbate violence and discrimination against people in migration processes and at borders.

Crucially, the proposal does not prohibit some of the sharpest and most harmful uses of AI in migration control, despite the context of significant power imbalances in which these systems operate. The proposal also includes a carve-out for AI systems that form part of large scale EU IT systems, such as EURODAC. This is a harmful development, and means that the EU itself will largely not be scrutinised for its use of AI in the context of its migration databases.

In many ways, the minimal technical checks required under the proposal of (a limited set of) high-risk systems in migration control could be seen as enabling, rather than providing meaningful safeguards for people subject to, these opaque, discriminatory, surveillance systems.

The proposal does not include any reference to predictive analytic systems in the migration context, or to the generalised surveillance technologies at borders, in particular those that do not make decisions about, or identify, natural persons. Therefore, systems that pose harm in the migration context in more systemic ways seem to have been completely overlooked.

In its first steps to amend the proposal, the IMCO-LIBE committee did not make any specific amendments in the migration field. There are major steps to be taken to improve this from a fundamental rights perspective.

Amendments: How can the EU AI act better protect people on the move?

Civil society have been working to develop amendments to the AI act to better protect against these harms in the migration context.  EU institutions still have a long way to go to make the AI Act a vehicle for genuine protection of peoples’ fundamental rights, especially for people experiencing marginalisation. The AI act must be updated in three main ways to address AI-related harms in the migration context:

1. Update the AI act’s prohibited AI practices (Article 5) to include ‘unacceptable uses’ of AI systems in the context of migration. This should include prohibitions on: AI-based individual risk assessment and profiling systems in the migration context that draw on personal and sensitive data; AI polygraphs in the migration context; predictive analytic systems when used to interdict, curtail and prevent migration; and a full prohibition of remote biometric identification and categorisation in public spaces, including in border and migration control settings.
2. Include within ‘high-risk’ use cases AI systems in migration control that require clear oversight and accountability measures, including, namely, all other AI-based risk assessments; predictive analytic systems used in migration, asylum and border control management; biometric identification systems; and AI systems used for monitoring and surveillance in border control.
3. Amend Article 83 to ensure AI as part of large-scale EU IT databases are within the scope of the AI Act and that the necessary safeguards apply for uses of AI in the EU migration context.

The amendment recommendations on AI and migration were developed in coalition, reflecting the broad scope of harms and disciplines this issue covers. Special thanks to Petra Molnar, Access Now, European Digital Rights (EDRI), the Platform for International Cooperation for Undocumented Migrants (PICUM), Statewatch, Migration and Technology Monitor, European Disability Forum, Privacy International, Jan Tobias Muehlberg, and the European Centre for non-profit Law (ECNL). The original writing for this blog was kindly provided by Sarah Chander, Senior Policy Advisor at EDRI.

This blog is based on information kindly provided by our member Migrant Rights Centre Ireland, one of the key civil society organisations advocating for the Irish regularisation programme.

At the end of January, the Irish government launched a new regularisation programme that is expected to secure residence status for thousands of undocumented people living in the country.

According to the programme, which will run for six months, residence permits may be granted to people having lived at least four years in Ireland without a residence permit, or at least three years if they have children up to 18 years old. People with pending residence applications and deportation orders can apply. Spouses, children over 18 and de facto partners can be included with the main applicant if they have two years undocumented residence and can prove the relationship. People who have been in the asylum process for at least two years have a separate track to apply.

Those who are granted a permit will have unlimited access to the labour market, without the need of a separate work permit.

This regularisation programme is a significant step forward in the recognition and protection of thousands (some estimates say between 15,000 and 17,000) of undocumented people in Ireland. Its adoption is seen as a historic win for undocumented people after eleven years of campaigning and will change thousands of people’s lives for the better.

The largest movement of undocumented people in Ireland, Justice for the Undocumented (JFU), counts over 2,500 members. Over the years, many of them bravely came forward and showed their faces in marches, vigils, banner drops, selfies, press conferences and even parliamentary debates calling for better treatment and routes to settlement. Justice For Undocumented (JFU) group with the support of Migrant Rights Centre Ireland (MRCI) and other civil society organisations, were also a driving force behind two previous, more limited, regularisation programmes.

This time, JFU managed to secure political support for a scheme thanks to intensive campaigning in the lead up to the Irish national elections in 2020, including securing vital support from business leaders,  trade unions and wider civil society.  JFU and MRCI’s pioneering research into the realities of undocumented people living in Ireland helped show how much undocumented people are part of Irish society. The campaigning and broad political support culminated in the regularisation programme being included in the government coalition agreement (Programme for Government)  between centre-right and green parties championed by Minister of Justice Helen McEntee TD.

The programme is not without shortcomings, starting with the fact that only irregular residence counts towards the residence criterion, which will leave out those who have had a temporary residence permit in recent years. However, Ireland’s adoption of the scheme is a clear signal towards undocumented people and other EU Member States that truly inclusive policies are possible.

*If you are undocumented and living in Ireland, and you wish to apply for a residence permit, we strongly recommend that you please get in touch with Migrant Rights Centre Ireland first, as they continue to clarify criteria and can provide you with accurate information.

Regularisation is any process through which someone can obtain a residence permit to stay in the country they already live in. People can apply for these procedures from inside the country, in contrast to residence and work permits which have to be applied for from another country.

Countries throughout the world, including in the EU, have regularised people living irregularly on their territory, either through temporary programmes or through ongoing mechanisms. Among the most recent regularisation measures adopted in the EU, we can cite programmes in Italy (2020), Portugal (2020) and Ireland (2022). Most EU member states have regularisation mechanisms for victims of crime, children or young people, seriously ill people or for people who cannot return to their country of origin.

Regularisation is a key policy tool to address the harm experienced by people when they are undocumented. But for regularisation to work effectively and fairly, it must meet several criteria.

1.   Undocumented people themselves are able to apply, including children.

People should be able to apply independently. Regularisation mechanisms and programmes that are driven by or depend on employers or life partners can lead to exploitation. It often happens that employers charge their employees for sponsoring the application, or workers accept exploitative conditions because their application depends on their employer.

2.   Civil society is involved from design, through implementation and evaluation.

Civil society organisations, including migrants’ associations, are crucial partners for effective regularisations, and should be involved as such from the outset, in the design, implementation and evaluation of measures. This helps make sure regularisation schemes are effective, feasible and adapted to the local context.

3.   The procedure is accessible.

Procedures need to be accessible and not too bureaucratic, burdensome or expensive. Administrative fees, for instance, are an important barrier because most undocumented people live in poverty. The proof and documentation required should also be reasonable considering the living experience of undocumented people.

4.   Decisions are based on clear, objective criteria.

Eligibility criteria should be clear, not arbitrary or too onerous to prove. A number of years of residence should be sufficient grounds to regularise people, at least in cases of children and young people.

Decisions should be made on the basis of these clear, objective criteria.[

5.   Decisions are made independently and impartially.

Decisions should be taken in an independent and impartial way, and be informed by experts relevant to the criteria to be assessed.

For instance, doctors with the relevant specialisation should be involved in decisions on regularisation claims based on medical grounds, while country of origin experts should be involved in the assessment of whether the person runs the risk of human rights violations in the country of return. Child protection specialists and psychologists should be involved in decisions concerning children

6. Reasons for refusal are documented and argued.

Reasons for refusal should be documented and argued. Applicants should be able to appeal against such refusals.

7.   Procedural guarantees are in place.

People should be informed throughout the process, have access to free legal aid and have a right of appeal in case their application is rejected.

8.   A temporary permit is issued during the application process.

Residence procedures can be very long, and without a permit, people’s vulnerability to exploitation, poverty, isolation, and mental ill-health will continue. The temporary residence permit must grant access to services, justice and regular work, to promote the inclusion of the undocumented person during the process, and ensures governments respect fundamental right

9.   The resulting residence permit is secure and long-term.

Regularisation applications should result in independent, secure, and long-term residence permits that give access to the labour market.

10.  The regularisation prevents further irregular stay and work, and is accompanied by support measures.

Temporary regularisation programmes should be flanked by ongoing regularisation mechanisms. Both should be accompanied by measures that support the applicants and/or address the root causes of irregular stay and work. For instance, support measures could include language classes when some language competence is required for the regularisation.

Webinar

In April 2023, we organised a webinar to talk about « Achieving fair and effective regularisation measures in Europe« . Watch it here.

Find out more about regularisation schemes below:

• PICUM, FAQ: Regularisation and access to a secure residence permit
• OSCE, Regularization of Migrants in an Irregular Situation in the OSCE Region
• PICUM, Insecure Justice? Residence permits for victims of crime in Europe
• PICUM, Undocumented and seriously ill: Residence permits for medical reasons in Europe
• PICUM, Manual on Regularisations for children, young people and families
• PICUM, Talking points to argue for the regularisation of children, young people and families
• PICUM, Barriers to return: Protection in international, EU and national frameworks

For thousands of migrant children and young people in Europe, turning 18 means transitioning into an uncertain future, with too few resources to navigate this phase of their life.

The safeguards that international and EU law guarantee to children, regardless of their residence status, no longer apply once they turn 18. Children lose, for example, preferential access to essential support and services like health care, specialised social workers, schooling and training, or a guardian.

This loss of child rights, called ‘ageing out’, is a fact for all children who turn 18. But for hundreds of thousands of children with a precarious residence status, ageing out not only means losing the fundamental rights they held as children, but also becoming undocumented on their 18th birthday. And, without a secure residence permit, undocumented young people, whether unaccompanied or in families, are prevented from doing most of the things that their peers do, like studying, working, or getting a driver’s license. Often, they must leave wherever they were living, and risk becoming homeless.

Unaccompanied children also lose the little protection they had from deportation. Most (16 of 27) EU member states protect unaccompanied children from deportation, either by issuing a temporary residence permit until they turn 18 or by not implementing return orders while they are underage. But, unless the child has secured a residence permit that lasts into adulthood, these protections fall away when they turn 18.

Crucially, too few countries have policies and procedures that prevent children from ageing out into undocumented adulthood. Too few provide access to longer term residence permits to children and young people transitioning into adulthood. Even when residence procedures do exist, they may be incredibly hard to access in practice. For instance, undocumented young people may not be able to meet the conditions for a long-term residence permit, like working full-time (Sweden) or proving that they spent at least half of their life in the country (UK). Procedures to apply for long-term residence permits may also be too expensive for children and young people to afford.Positive initiatives supporting children and young people ageing out do exist, but most are local and small-scale, and they often focus on (former) unaccompanied children who are either seeking asylum or have been granted asylum. These limitations mean that many children and young people do not receive the support they need.

In our new report Turning 18 and undocumented: Supporting children in their transition into adulthood, we provide an overview of how European countries (with a focus on Belgium, Germany, Greece, Spain, Sweden, and the UK) facilitate or hinder access to secure residence status for children and young people ageing out. In addition, we highlight promising policies and practices in Belgium, Germany, Ireland, and The Netherlands, and recommend ways forward.

In particular, we find it crucial that EU institutions, national and local governments:

1. Improve residence procedures and facilitate access to them to prevent children from ageing out into undocumented adulthood. This includes developing guidance on how to support a safe and smooth transition into adulthood, regardless of residence status; clarifying and strengthening in law the requirement to assess whether return is in the best interests of a child before issuing and implementing a return decision; and designing migration law and residence procedures that safeguard children from harm, including mental ill-health.
2. Build an evidence base to better understand the reality faced by children transitioning into undocumented adulthood. This includes fostering connections between all actors working with children and young people transitioning into adulthood, and funding research.
3. Provide support, services, and funding to enable a smooth transition, irrespective of residence status. This includes developing and providing tailored support to migrant children and young people who require it, irrespective of residence status and starting well before the 18^th birthday; and ensuring undocumented young people can access support and services, including housing, mental health care and specialised support services, based on need.

More detailed recommendations are included in the report and executive summary. The report also exists in French and Spanish, and the executive summary also exists in French and Spanish.

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

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

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

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

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

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

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

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

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

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

Cover: Mathias P.R. Reding – Pexels

Having no, or precarious, residence status often increases a person’s risk of experiencing abuse or exploitation. At the same time, it means having fewer options to get support and protection.

Through our members and partners, we got in touch and spoke with people who have experienced mistreatment while being undocumented. They told us what they went through, how they reacted, and what safety means to them.

We spoke to people from Brazil, Ivory Coast, Mexico, Senegal. Some spoke under conditions of anonymity, for fear of repercussions on their lives, while others chose to show their face while sharing their stories. For many, living without a residence permit is an important, but by no means the only, piece of the puzzle in their experience of discrimination and safety, as well as belonging: being black, being poor, being a woman, being a trans woman, being perceived as a foreigner but also being far away from family are all factors that affect how they are treated.

Everyone’s experience is different. But all agree that protection and safety are not a reality for all yet.

Living without a residence permit means being at constant risk of being detained and deported to another country. Exploitative employers and abusive partners know this all too well, and can take advantage of this insecurity to continue mistreating them. They know that people with no, or precarious, residence permits are very unlikely to seek help, especially from the authorities.

“He used to tell me that I was nothing, that even if I’d report him they wouldn’t believe me” – Aya

Going to the police is often not an option at all.

“You don’t go and report robbery or something worse, because you are afraid that in the end, it goes against you” – Sabrina

The people we spoke to know that law enforcement authorities are likely to report them to immigration enforcement if they come forward, because of how irregular stay is criminalised or regarded with suspicion.

“You are afraid to go to the police because it’s like going to get arrested” – Solo

Far from getting support and protection, people with no or precarious residence permits are likely to be punished twice, first through the violence and abuse they endure from others, and then through detention and deportation from immigration enforcement.

Institutional racism, in particular in the criminal justice system, is another factor that keeps many black and brown undocumented people away from law enforcement.

“The lawyer told me very clearly: the judge will not believe what you are going to say’” – Daouda

Social support services may also be unavailable to people without residence permits. For instance, public-funded shelters for women experiencing domestic violence are sometimes unable to open their doors to undocumented women, because expenses they’d incur wouldn’t be covered.

“Without papers, they treat you differently. I’ve seen it with the social services, and with the police as well” – Adriana

Barriers to safety are many, but there are solutions.

The people we talked to spoke about regularisation, specialised  and inclusive support for those who are victims of domestic violence, and the possibility of filing complaints without facing deportation. Most of all, they spoke of equality.

“It’s the only thing we ask for, to have rights like everybody else” – Aya

At PICUM, we recognise that many things are needed to ensure everyone is safe and protected. When it comes to risks linked to immigration enforcement, “safe reporting” refers to a holistic set of measures that prioritise the safety and rights of all victims above the enforcement of immigration rules.

Everyone deserves to be safe. Let’s make access to support and protection a reality for all, with or without papers.

In recent years, EU migration policies have consistently focused on increasing the rate of returns. Yet such an approach rests on the mistaken belief that for undocumented people, the only option is to return – either by force or “voluntarily”.

In reality, people continue to reside irregularly for a wide range of reasons, and may indeed have other grounds for residence than an asylum application. According to official estimates, every year 300,000 people cannot return from the EU for different reasons, including human rights and factual considerations.

This report analyses the main human rights reasons for which people who do not qualify for asylum cannot be deported, as well as the external circumstances that can make deportation or return impossible. It concludes by advocating for the need to abandon the exclusive focus on return procedures in favour of a more holistic, comprehensive approach which takes into consideration a broader range of solutions. To do so, it analyses different policies adopted by EU member states to provide rights and protection for people with barriers to return, through the comparison of ten national level case studies from eight different countries (Cyprus, France, Germany, Greece, Italy, the Netherlands, Spain, Poland).

Human rights and other barriers to return

Under international and EU law, there are several human rights reasons for which people who do not qualify for international protection cannot be deported, such as the principle of non-refoulement, protection of family and private life, the best interests of the child, the prohibition of arbitrary detention and protection on the grounds of statelessness. In most countries, these considerations fall outside of the scope of the asylum procedure.

In addition, there can be practical reasons, outside of individual control, for which return and deportation might be practically impossible. For instance, people might not be able to obtain a valid passport, or they might be unable to travel due to medical reasons.

Residence permits for people with barriers to return

Policies which focus on deportation and return as the only possible outcome for people in an irregular administrative situation are bound to create situations of socio-economic exclusion, discrimination and human rights violations, whether in the country of origin, when people are forcibly returned, or in the country of residence, when people are excluded from accessing pathways to regularise their situation and are forced into living in irregularity, often for years.

For this reason, it is key to work towards a paradigm shift in the EU migration policies, from considering return, or deportation, as the primary – or often only – option for people in an irregular administrative situation, to considering different options for case resolution, including pathways to obtain a permanent or temporary residence status.

Permits and statuses available to people with barriers to return vary greatly from country to country, and can range from full-fledged residence permits (e.g., Italy, Spain, Poland) to temporary suspensions of deportation orders (e.g. Greece, Germany). However, the dividing line between the two sub-groups is often very thin, and the categories are far from being homogeneous or well-defined. Permits and statuses can be better described as being placed along a continuum which ranges from residence permits granting full access to labour and social rights, stability and protection from deportation; to mere suspensions of deportation with no rights nor security attached.

This report identifies four key elements which need to be fulfilled in order to ensure that people with barriers to return are granted rights and protection:

• Initiation of the procedure: permits and statuses accessible to people with barriers to return should be evaluated automatically by the authorities (ex officio) on an individual basis, before the issuance of a return decision or a refusal of entry. This is the case, at least for certain permits, in Italy, Spain, Poland, the Netherlands and Germany. In addition, individuals should be able to apply independently as well, as the authorities might not be aware of their specific barriers to return. In the countries examined in this report, individuals can apply independently to certain permits or statuses in Italy, Spain, Cyprus, the Netherlands and France.
• Right to work and access to social services: access to the labour market and to social services should be automatic for any of these permit holders or statuses. Currently, the right to work is granted automatically only in five out of the ten case studies (Italy, Spain, Poland, France, the Netherlands), and full access to social services in four (Italy, Spain, France, the Netherlands).
• Pathways to more secure status: as barriers to return are often continuous, it does not make sense to limit access to secure, long-term permits. Secure permits allow people to acquire more certainty over their future, plan their lives and gain full access to social and labour rights. All countries except two (Greece and Cyprus) analysed in this report grant the possibility to apply to more secure, long-term permits.
• Protection from deportation for the whole duration of the permit / status. This is the case for all of the case studies considered, with the exception of the “no-fault” permit in the Netherlands and the “Duldung” in Germany.

Preventing limbo situations

Despite different national-level policies which provide rights and protection for people with barriers to return, in practice many people still fall through the cracks. This can happen, for instance, because the criteria to apply are too stringent or completely arbitrary; and because of administrative or legal barriers to access these permits. In addition, several states still fail to grant any kind of permit to people who cannot be deported or return, and many others even fail to provide an official acknowledgement that the person cannot be deported, which is in breach of the EU Return Directive.

When this happens, undocumented people with barriers to return find themselves in a limbo, often for years, unable to access healthcare, housing, education, and justice, and are often pushed into undeclared work and exploitation.

To prevent this, it is essential for the European Union and member states to set an obligation to comprehensively assess fundamental rights considerations (including the right to health, private and family ties, best interests of the child, non-refoulement and the protection of stateless people) and whether third country nationals have the possibility to access an autonomous residence permit or other authorisation granting a right to stay before a return decision is issued.

In December 2021, the European Commission proposed new rules on internal borders, codified as a reform of the Schengen Borders Code, that aim to further increase surveillance and controls over non-EU citizens crossing internal and external borders. These proposals would increase the use of technology and would practically legitimise ethnic and racial profiling. More broadly, the proposals reinforce the narrative that irregular migration is a threat to the EU and that it needs to be fought with more policing.

The Schengen Borders Code regulates border controls at the internal and external borders of the Schengen area. The amended Code proposed by the Commission expands EU member states’ powers to carry out checks at the internal borders to prevent undocumented migrants from crossing them, and escalates the use of monitoring and surveillance technologies at the internal and external borders-1-.

The proposed revisions to the Schengen Borders Code set a new procedure to “transfer people apprehended at the internal borders” . According to the proposed new rules, if a third country national crosses the internal borders in an irregular way (e.g. from Germany to Belgium, or from Italy to France), if the police manages to apprehend them “in the vicinity of the border area,” they could be directly transferred back to the competent authorities in the EU country where it is assumed they just came from without undergoing any individual assessment (Article 23a and Annex XII). This provision is very broad and can potentially include people apprehended at train or bus stations, or even in cities close to the internal borders, if there is an indication that they have just crossed the border (for instance through documents they may carry on themselves, their own statements, or information taken from migration or other databases).

Practically speaking, people “transferred” from one EU member state to another would be handed to the police in the receiving member state. The only requirement to carry out this procedure is to for the authorities of the “transferring” state to fill out a simple form which states  the person’s identity, the way the person’s identity was established, the grounds for refusal and the date of the transfer. If the undocumented person refuses to sign, it will be enough for the authorities to indicate this in the comments section.  The undocumented migrant will be then deported back within 24 hours (during which they can be detained without any safeguards). They would have the right to appeal the decision, but without suspensive effect, which means that they would only be able to appeal from another country, with all the difficulties this entails. The receiving Member State must then issue a return decision to deport them to their country of origin or a third country.

In practice, these procedures would legalise an extremely problematic practice of “internal pushbacks” which has been broadly criticised by civil society organisations across the EU and even sanctioned by higher courts. The new procedures would also apply to children, even though this has been deemed illegal by courts.

Even though the new Schengen Borders Code reiterates that internal border controls are prohibited in the Schengen area, it nonetheless clarifies that police and other powers can lawfully carry out checks in the internal border areas to prevent irregular migration (Recitals 18 and 21 and Article 23).  Such provisions will in practice legalise systematic border controls which target people only based on their racial, ethnic, national, or religious characteristics, all of which is in clear violation of European and international anti-discrimination law. In fact, it is clear that the new procedure allowing for internal transfers of people crossing borders irregularly will depend, for its implementation, on the borders police’s practice of deciding who will be subject to document checks based on racial, ethnic, national, or religious characteristics instead of individual behaviour or objective evidence.

2021 research from the EU Fundamental Rights Agency shows that people from an ethnic minority are disproportionately affected by police stops, both when they are walking and when in a vehicle. In addition, another study from 2014 showed that 79% of surveyed border guards at airports rated ethnicity as a helpful indicator to identify people attempting to enter the country in an irregular manner before speaking to them. The new provisions introduced in the amended Schengen Borders Code are likely to further increase the discriminatory and illegal practice of ethnic and racial profiling, which stands at odds with the European Commission’s commitments under the recent Anti-Racism Action Plan.

While the new Schengen Borders Code indicates that internal border controls are prohibited in the Schengen area, it also foresees a provision (Article 25) for a member state to temporarily introduce border controls at all or specific parts of its internal border if it faces “serious threats”. Problematically, the code introduces a definition of “serious threat” which includes, alongside terrorism or organised crime, “a situation characterised by large scale unauthorised movements of third country nationals between member states, putting at risk the overall functioning of the area without internal border control” (Article 25). Even though the Schengen Borders Code (both in the 2016 and the amended versions) foresees that the temporary reintroduction of internal border controls should only be a measure of “last resort”, this has been done in more than 300 cases since 2006.

Furthermore, the new Code introduces measures which member states can apply in case of “instrumentalisation of migrants”, which is defined as “a situation where a third country instigates irregular migratory flows into the Union by actively encouraging or facilitating the movement of third country nationals to the external borders” (Article 2). In such cases, member states can limit the number of entries and the opening hours of crossing points, and intensify border surveillance including through drones, motion sensors and border patrols (Articles 5(4) and 13(5)).

The proposal also expands the use of monitoring and surveillance technologies to prevent irregular migration including when states have not formally reintroduced internal border controls (Article 2 and 23), despite broad criticism over the lack of transparency and the risks of technologies replicating biases against specific communities.

In short, the new Code would turn the Schengen area into a tech-controlled space in which ethnic and racial profiling is likely to be further exacerbated to identify potentially undocumented people and facilitate their immediate deportation to another member state, in complete absence of any safeguards.

-1- Besides the amendments analysed in this blog, the amended proposal introduces further provisions on health-related challenges, amends the procedure for the unilateral reintroduction of internal border controls and introduces the possibility or the Council to reintroduce temporary border controls, on initiative of the Commission.

This post was written by Jamie Slater, former Advocacy Trainee, and Alyna Smith, Deputy Director.*

Since the EU Digital COVID Certificate Regulation went into effect on 1 July 2021, several Member States have used vaccine certificates to determine access to services and civic spaces. While many see this as a way to boost uptake of the vaccine among those hesitating, this is not true for everyone. For those already facing barriers to the vaccine, like undocumented migrants, requiring vaccination certificates to access public services and civic spaces compounds pre-existing exclusion. It also raises concerns about the increased policing of these spaces to the detriment of fundamental rights, particularly for groups already facing criminalisation.

In many European countries, registering for the vaccines is itself a challenge for undocumented people who cannot produce a social security number, national identity document or, in some cases, proof of a home address – common requirements to get the Covid-19 vaccine. Even if undocumented migrants can register, countries often have no specific policy safeguarding their personal data from being transmitted to immigration authorities. These barriers occur against a backdrop of extremely limited access to health care in Europe for undocumented people, and the pervasive risk of exposure to deportation, including by accessing services.

Undocumented people who do manage to get vaccinated cannot always get a digital COVID certificate. One barrier is due to limited access to the technology needed to obtain or display a digital certificate by some.  Another is that health databases themselves may not allow undocumented migrants to obtain digital certificates. In Italy, the code issued for “Temporarily Present Foreigners”, used by undocumented migrants to get health care, is not always recognised by the health ministry as valid for obtaining the country’s “Green Pass”, which is needed to access a panoply of public spaces and services, including workplaces and public transit.

On 9 June 2021, France became one of the first countries in Europe to implement its COVID-19 certificate system, requiring people to present a pass sanitaire (“health pass”) to use public transportation, enter restaurants, cafes and indoor public spaces, and for employees who work in these public spaces. While people from the age of 12 are required to present the pass sanitaire, unaccompanied children seeking recognition of their status as minors cannot request vaccinations without a legal representative’s authorisation, leaving children between 12 and 18 without a legal representative effectively excluded from civic and other public spaces. Both the French Ombudsperson and the French national medical association expressed concerns around the risks of further exclusion of marginalised and poorer populations.

Concerns over data protection and immigration checks may also deter undocumented people from registering for the certificate. In the Czech Republic, it is unclear – even more than half a year after the implementation of the policy – if data submitted when applying for the certificate would be transmitted to immigration authorities. Even when there are clear safeguards in place, data security breaches – such as in Germany recently – may nourish existing fears and dissuade people from getting the certificate.

There are also worries about the increased policing of certain spaces and the risk of more exclusion and discrimination. One advocate in Austria noted that virtually every kind of document check can foster fears of immigration consequences, and expressing concerns over increased random certificate checks by police in public spaces, which could equally increase the risk of ID checks and of immigration consequences. Advocates in Hamburg, Germany, have reported high levels of stress and exclusion from public services (including public transportation) among undocumented migrants because of the so-called “3G rule” that requires a person to certify they have been vaccinated, cured of COVID-19, or have tested negatively. These certifications are accompanied by ID checks. Because undocumented people often cannot provide identification and may not be able to provide the needed proof (including because they cannot obtain a vaccine certificate), they are effectively excluded from public services.

While in some countries vaccine updates increased after the imposition of vaccine certificates among certain segments of the population, this is not the case for everyone. Pre-existing inequalities disparately affecting ethnic minorities and people with lower incomes have an impact on vaccine uptake. A recent study conducted in the UK shows that vaccine certificates are predicted to cause certain groups, including black British ethnicities and non-English speakers, to be less likely to get vaccinated. For undocumented people, this is compounded by barriers to vaccine registration, distrust of authorities and risks of immigration enforcement – not to mention, in most countries, longstanding exclusion from national health systems due to their immigration status.

In the case of undocumented people, vaccination certificates are ill-suited to addressing vaccine inequities and restrict fundamental rights in ways that may not be necessary or proportional to achieving our public health goals.

We’ve seen that the way to boost access to and uptake of COVID-19 vaccines for undocumented people is to partner with local organisations to develop and implement programs that reach people where they are, and proactively address the systemic barriers they face. Public health overall would be strengthened by enabling undocumented migrants to receive reliable, clear information about the pandemic, the vaccines and their rights, from sources they trust – and our collective resilience to health emergencies improved by removing the systemic barriers they face to the health system.

* The content of this post was further adapted into an op-ed that was published on Al Jazeera under the title COVID-19 policies need to be inclusive of undocumented people. For the past year, PICUM has been working with national organisations to document COVID-19 vaccination programmes and their inclusiveness of undocumented people – including examples of promising practices. For more information and resources, visit COVID-19 and undocumented migrants in Europe.

Cover image: ROMUL014 – Adobe Stock 

As part of our efforts to monitor access to the COVID-19 vaccines for undocumented migrants in Europe, we’re speaking with national-level advocates about the situation in their countries. This interview was conducted in November 2021 with Meri Korniloff, Programme Coordinator at Physicians for Social Responsibility in Helsinki, to discuss the situation in Finland. It is not meant to offer an exhaustive picture of the legal and practical context in Finland. Please get in touch at info@picum.org if you have information you’d like to share, and follow our Twitter page @PICUM_post to get more recent updates

What does the Finnish vaccination strategy say about undocumented migrants?

The Finnish vaccination strategy does not specifically mention undocumented migrants. But the Ministry of Health addressed a recommendation to the municipalities to grant access to the vaccination to people whose residence is not officially registered in a given municipality, which includes undocumented people. At Physicians for Social Responsibility, we advocated at the local level to ensure meaningful implementation of this recommendation.

Can undocumented people access mainstream vaccination points?

They can, but it depends on the booking system. Booking online requires official identification, which is largely not available for an undocumented person in Finland. As a result, it is extremely difficult for undocumented migrants to access the mainstream online booking system. It is possible to book by phone, but then contact with the operator can be challenging if the patient doesn’t speak Finnish, Swedish or English and doesn’t know the health care system.

Are there other possible avenues?

Yes, there are two alternative avenues for undocumented migrants to access the vaccine.

The first one is drop-in vaccination points, where people can go and get their vaccine without the need to book an appointment. These vaccination points were opened at a later stage of the national vaccination strategy. People who go to these drop–in points can provide a temporary health number, which is given to undocumented patients by health care providers themselves at the first point of contact. Someone could also go to a drop-in centre without such a temporary health number and be able to get one on the spot. It’s still unclear if someone without any form of identification could be vaccinated at these drop-in points.

The second vaccination avenue is mobile teams composed of public health care professionals who administer the vaccines at sites operated by NGOs on specific dates. This was the result of significant cooperation between the various bodies involved. In Helsinki, for instance, the city administration organised and deployed mobile units to two specific sites where undocumented migrants are known to live; social workers informed them about this vaccination route and made sure people would come on a certain date and time; NGOs reached out to undocumented migrants too, and accompanied people through the vaccination process, including by allaying fears about the vaccines.

What about immigration risks as a result of people getting their vaccines?

In Finland, there is a strict firewall in place, which separates health care and immigration enforcement. Health care professionals are bound by strict confidentiality rules and can be trusted to not share personal data for purposes not related to health care.

Are there practical barriers for undocumented people to access vaccines?

There are three main practical barriers that hinder access to vaccines.

First, lack of information: people living in big cities, and who are in contact with NGOs, are generally informed about the various avenues to get the vaccines and about their rights. But not all undocumented migrants have social networks or access to information. For example, those who live in other parts of Finland, especially in small towns, may not have access to such information.

Second, there continue to be fears around contacts with public authorities, including the health care system, and around the vaccination itself.

Third, administrative barriers where there are no official guidelines for health care professionals about health care entitlements.

In Helsinki, undocumented people have largely good access to the vaccines because the system already includes undocumented patients and because there are many NGOs spreading the information about entitlements to the community.

Let’s talk about COVID-19 certificates. Are they required to access places and services? Are they accessible to undocumented people?

In Finland, several restrictions have been introduced with regards to accessing places without a COVID-19 certificate, especially in response to the spread of the Omicron variant. The situation keeps changing rapidly.

It is impossible for undocumented migrants to obtain an electronic certificate from a dedicated website. But they can get a paper certificate after their vaccination at the vaccination point.

Cover image: MISTERVLAD – Adobe Stock 

In May 2020, the Italian government adopted a scheme to regularise undocumented workers in the country. One year on, the results are difficult to see. We spoke to Giulia Capitani, Migration Policy Advisor at Oxfam Italia, and part of migration reform coalition Ero Straniero, to know more.

What did the Italian government introduce in 2020?

The Italian government introduced measures to regularise undeclared work in the agri-food and domestic work sectors. In particular, the scheme they adopted in May 2020 aimed to provide work and residence permits to undocumented migrants already present in Italy and working in the agri-food and domestic work sectors.

How did the scheme work?

The scheme followed two tracks. In the first one, employers could apply for a residence permit for work reasons for their employees. This is both for when the employee is yet to be hired, and those who are already working irregularly for the employer.

In the second track, undocumented people who had recently worked in one of these sectors could themselves apply for a six-month residence permit to look for new work.

Criteria for both tracks were extremely complicated and rigid. We feel that they were set more as a result of political negotiations, rather than to provide a clear legal framework. And people only had a couple of months to learn about the procedure and criteria and prepare and submit their applications, as the scheme came into force on 19 May and applications were only accepted from 1 June to 15 August.

Can you explain more about these criteria?

First of all, the regularisation measure only concerned agri-food and domestic workers, including domestic care workers. Other sectors that employ lots of undocumented people, like restaurants, tourism, cleaning, and construction, were left out. The workers needed to prove that they worked in one of those two sectors covered by the regularisation. If they worked in other sectors, then they wouldn’t be eligible.

There were also several other criteria for workers.

For instance, they needed to prove that they were in Italy before 8 March 2020, which is when the first national lockdown was imposed. The Ministry of Interior had clarified that several documents could be accepted as proof of this, such as certificates of attendance of Italian classes provided by civil society organisations, reports from visits to hospitals, or even phone contracts and bills. But whether they would be accepted in practice by the prefectures very much depended on the prefectures themselves, many of which have been very restrictive in their interpretation of the ministerial guidelines.

For the job-seeking permit, workers also needed to prove that they had had a valid residence permit, which then expired – but they were only eligible if the permit expired after 31 October 2019, not before. It’s frankly really hard to find any logic to these criteria, and it’s a headache to try and explain them to people.

One of the most absurd criteria was probably the need to prove that you live in suitable housing, which means that your place must be of a certain size, be equipped with utilities that comply with quite stringent regulations, etc. This is just crazy, because we all know that, for instance, undocumented field workers live in shacks without electricity or water. And they’re the ones who should be able to get a regularisation. This criterion by itself is the reason for many residence permits being denied.

Then there were criteria to be met by employers too. Here the biggest issue was probably the requirement to prove that they have enough financial resources to employ somebody regularly. Many employers have been scared by this requirement because they feared it would lead to fiscal checks and fines. As a result, many decided not to introduce applications for permits for their workers. This was problematic also for employers of domestic care workers because it wasn’t clear what could be counted as “employer income” when the employer is a family.

What about the procedures to apply?

Procedures too were fairly complicated and generally not always accessible to workers. First of all, the applications happened online, which means that the workers needed access to digital devices and the internet, and needed to know how to navigate them, which isn’t a reality for everyone. At the same time, the administrative processes to grant the permit happen in person: during the COVID-19 pandemic, this has meant that the whole process was slowed down because of various restrictions to movement and gathering. Chronic understaffing of the prefectures has also contributed to slowing down the process.

Applications also have to go through an approval procedure, which includes authorisations from both the police (questura) and the labour inspectorate. While we understand the need for controls, the procedure should have been simplified and more staff provided to the territorial offices, especially for the labour inspectorate local offices.

What have these criteria and procedures meant for the results of the regularisation scheme?

The latest data released by the Ministry of Interior in October – so a little more than one year after the introduction of the scheme – shows that some 38.000 residence permits have been issued, and 11.405 were rejected.

27.823 are residence and work permits under track 1.

10.088 are temporary job-seeking permits under track 2, 6.593 of which have been converted into work permits.

The vast majority of the applications remain to be processed, which is about 180.000 out of some 230.000 applications. 78.887 of these applications have almost reached the first step (summons at the Prefectures for the signature of the work contract), but the final one is still lacking (issue of the residence and work permit at the Police Office). In some municipalities, the situation is really dire and reflects all the limitations and delays we spoke about: in Rome, for instance, out of 17.371 applications, only 1.242 residence permits were requested after the convocation at the Prefecture; in Milan, only 2.551 out of 25.900 applications; in Naples, 1.780 out of 19.268 applications.

What do you make of this measure?

Well, it is obviously good news when any person can regularise their stay in Italy. But the criteria for the two tracks were so rigid and complex that we have very little hope it will result in a meaningful improvement in the living and working conditions of the majority of undocumented workers in Italy. We also don’t like how Italian governments have been using short-term regularisation programmes over the years – some twenty since 2000! – as a patch to alleviate structural issues, without actually addressing those structural issues.

This latest regularisation measure, for instance, was largely adopted to stem labour shortages in the agri-food sector, since restrictions to international travel linked to the pandemic were preventing the arrival of seasonal workers from abroad. Maybe even more importantly, the lockdown restrictions inside Italy meant that police would stop people on the street and prevent them from reaching their workplaces.

So, this measure attempted to respond to those fears, to keep the agri-food production chain alive. It does nothing to address the lack of regular labour migration pathways, or the lack of decent work permits.

What’s worse, this scheme has also created new vulnerabilities.

What are those vulnerabilities?

Well, we’ve heard of several cases where the employer was actually using the prospect of regularisation to blackmail the worker, for instance, to require extra work. In other cases, employers made workers pay the 500€ forfeit (application fee set in consideration that the employer has not been paying all their taxes) which they should pay instead when they apply to regularise workers.

What would you have liked to see instead?

First of all, we’d have liked to see a regularisation scheme that applies to all sectors, not just agri-food and domestic work. Then, fewer and more flexible criteria to apply, including regarding the need to prove one’s presence in Italy before 8 March, or the need to provide suitable housing certificates. As for the application process, workers should have had more ownership of the process rather than depending so much on employers, to reduce risks of exploitation. Plus, the whole process should have been simplified, to facilitate both access to the regularisation procedure for the potential applicants, and the public administration.

More generally, we’d like to see structural reforms of our migration policies, including establishing more decent labour migration pathways for all sectors and long-term regularisation mechanisms, instead of narrow and temporary regularisation programmes like this one.

Cover Photo: Miravision – Adobe Stock

This blog post was authored by Francesca Pierigh, project coordinator of Vaccinating Europe’s Undocumented: A Policy Scorecard, at Lighthouse Reports.

Since March 2021, investigative nonprofit newsroom Lighthouse Reports has been working with PICUM to assess European vaccination policies and strategies, in terms of how inclusive they are of undocumented people. We embarked on a joint data journalism project to try and answer one apparently simple question: are undocumented people included in the vaccination efforts of European governments?

The answer is anything but straightforward. Policies are for the most part vague and open to interpretation. This can be a purposeful means of avoiding a charged political debate while still providing for this population, or it can be an exclusionary tactic to deny undocumented people access to the vaccines.

We collected all publicly available documentation related to the vaccination programmes (strategies, implementation plans, policies, but also statements from public health and national authorities) and assessed it through a questionnaire developed collaboratively by PICUM and Lighthouse Reports.

All answers we gathered were then cleaned, checked and validated by the team at Lighthouse Reports, where a data scientist turned them into scores. The results are 18 national Scorecards, one for each country we analysed.

The Scorecard is divided into five sections, each one attempting to assess a different aspect of vaccination policies and access for the undocumented:

• Policy Transparency evaluates government efforts to make national vaccine policies available to the public;
• Access for the Undocumented assesses whether language is inclusive or exclusionary and whether some of the practical barriers have been addressed;
• Identification and Residency Requirements identifies which requirements are needed to access the vaccines;
• Access for the Marginalised tries to understand how a country is accommodating the needs of other marginalized groups within its borders, which may or may not include undocumented people;
• Privacy Guarantees evaluates policies related to the collection, processing and sharing of data between health and other authorities.

The overall results, and each country’s results, can be consulted at this link, where more information on the project and its methodology is also available. Across the 18 countries in the sample, the best performers are the United Kingdom and Portugal. They are the only ones which received positive scores in all categories, earning the label “Open and Accessible”. At the other end of the scale are the “Closed Door” countries: Slovakia, Czech Republic and Poland, all of which are explicitly exclusionary.

Map from Lighthouse Reports

An important note here: the Scorecard only assesses written policies, documents and materials gathered online. That means that there may be a gap between policies and practices. We know, and have been documenting, that this is the case in many countries, even in the United Kingdom, which, despite scoring highest, has made trust in authorities very difficult for undocumented people with years of the “hostile environment”.

To provide a balance to the Scorecard results, many PICUM members in the countries analysed have been contacted and asked for their expert, on-the-ground opinions. Their quotes accompany the country results, where they are available, and balance the assessment of written policies. A number of case studies will also be published across European media outlets, and they will be linked from this page.

Some of the challenges undocumented people face in accessing the COVID-19 vaccines also reflect broader barriers they have faced for years in accessing health care. Unclear policies, vague languages, lack of national directives for how to include the undocumented are all too common in the lives of those who live among us, but are uncounted and often left out of our health and social care systems. At the same time, the development of some good practices is a promising sign, and, while they may apply only to vaccine access, there are hopes – and opportunities for civil society to advocate – to expand them to other health care.

Access to health care is a human right and a person’s residence status should not determine whether this right is granted or not. The pandemic has exacerbated existing inequalities across the board, including in health care. It has also shown examples of how governments and civil society can work together to ensure that health care is accessible for everyone. It can be a turning point in recognising that we all benefit from genuinely inclusive, responsive health systems, and in states’ efforts to make this a reality for undocumented people too.

Cover Photo: Kate Trifo – Unsplash