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.

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.