For undocumented migrants, justice is often illusory. The criminalisation of irregular migration makes people who are undocumented fearful of engaging with public authorities, and especially with the police, because they risk being detained and deported as a result.

This distrust is worsened by policing and surveillance of migrant and minority communities. The systematic failure of the state to acknowledge, investigate and remedy abuses committed against undocumented victims denies them recognition and accountability.

EU law does provide protections for undocumented people who have been victimised.

The 2012 EU Victims’ Rights Directive creates common standards across all EU member states for the rights of victims of crimes. The directive clearly places the priority on a person’s safety, security and protection ahead of enforcement measures based on residence status. While it doesn’t resolve the status of an undocumented person, it requires states to ensure that rights do not depend on the victim’s residence status or their citizenship or nationality. The directive entitles all victims to access free and confidential support services, even if they choose not to file a criminal complaint.

The EU’s Strategy on Victims’ Rights (2020-2025) encourages the creation of “safe environments for victims to report crime”. It recognises several categories of “vulnerable victims”, among them undocumented people who “may have difficulty to access justice” because of the risk of deportation if they report their mistreatment.

Examples of promising practices exist in Europe.

For instance, in Belgium, three sexual assault care centres were established in 2017 in the cities of Brussels, Ghent and Liege, to provide forensic, medical, and psychological care for survivors of sexual assault. In addition to providing necessary care, the centre personnel work with specialised police and judicial inspectors to assist victims who would like to file a complaint. However, the filing of a complaint is not required to be eligible for care, and services are provided regardless of the residence status of the victim.

Within the first year, the centres assisted 930 survivors, 41% of whom were referred by the police. While a number of migrant women reportedly used the service during the pilot, the absence of adequate protection measures for undocumented survivors, and assurances that they can safely report crime, hinder their ability to report abuse.

In 2016, the Netherlands adopted a policy known as “Free in, Free out”, which allows people in an irregular situation to enter a police station to report a crime and then to leave freely, without being arrested or facing possible expulsion, regardless of the type of crime reported. This policy, which started as an initiative of the Amsterdam police, became official national policy as part of the Netherland’s implementation of the Victims’ Directive.

Although a promising practice, Oxford University’s research found three important shortcomings: (1) the fragile nature of the firewall between police and immigration authorities, given systematic exchange of data about immigration status between police and immigration authorities; (2) the lack of access to services and protection for victims to accompany “free in, free out”; and (3) the inconsistent practice among local police and pervasive lack of trust. And the “free in, free out” does not cover other forms of victimisation that fall outside of criminal law (such as labour rights violations) or cases where it is not a victim entering police precinct but the police coming to an incident where it may be less clear who is a “victim”.

In Spain, the Civil Guard (“Guardia Civil”), one of the country’s two national police forces, has created a distinct team within its own ranks to serve the needs of migrants. These units (called “equipos de atención al inmigrante” or EDATI) were given the explicit mission of providing assistance to migrants, including undocumented migrants, by informing them of their rights, advising them on how to regularise their status and supporting them in lodging complaints against employers and others for mistreatment and exploitation. Unlike traditional Guardia Civil, these units don’t have the power to arrest or to issue deportation orders. In 2012, EDATI teams across Spain reportedly assisted 10,700 migrants, and took 12,000 actions.

While promising, these practices all come with their own shortcomings. In many other countries, no measure exists to support safe reporting and justice for undocumented victims. To achieve genuine safety, protection and justice for all, it is essential that authorities at the national and local levels take steps to:

1. Ensure that all undocumented victims of crime can access support services and protection, consistent with the Victims’ Directive’s definition of victim, and are not limited by additional conditions not foreseen by the directive, like having been the victim of a particular type of crime or being willing to cooperate with authorities in a criminal investigation;
2. Remove the risk ofundocumented victims facing deportation if theyinteract with law enforcement or other actorswithin the criminal justice system, including bycreating “firewalls” that restrict law enforcement’scollaboration with immigration enforcementauthorities in connection with victims, andpromoting ways for community-based nongovernmentalorganisations to act as mediators;
3. Adopt an overarching approach to access to justice that promotes accountability and recognition of harm, including through civil processes, equality bodies, restorative justice and community-based strategies that are centred on the interests of the person who has been victimised.

Our report is also available in French, Spanish, Dutch and Italian.

As well as our Executive Summary in French, Spanish, Dutch and Italian.

And our framework on safe reporting in French, Spanish, Dutch and Italian.

Last updated: July 2021

Are COVID-19 vaccines available for undocumented migrants in Europe? International and EU bodies have recommended addressing marginalised communities, including migrants in situations of vulnerability, in national vaccination strategies. In Europe, however, national approaches vary a lot.

For undocumented people, who are excluded from the health systems of most European countries, the pandemic and the lockdown measures have exacerbated pre-existing conditions of social exclusion and destitution. Several European countries, regions and cities adopted measures to support this population during the pandemic, including through targeted regularisation programmes. But what is being done with regards to the vaccination campaign, one of the most important tools we have to protect people against COVID-19?

We have been monitoring the news and exchanging with our members and followers, and we have compiled a map that looks at two critical factors affecting access to the COVID-19 vaccines in Europe for undocumented migrants: the absence of administrative barriers and protection from immigration control consequences of getting the vaccines.

As for administrative access, we consider in particular whether it is possible for undocumented migrants to register for or otherwise get their vaccination without the need to give proof of residence or identity or other documents that many undocumented people simply cannot provide (for instance, a social security number).

As for protection from immigration control, we consider whether there are clear safeguards (“firewalls”) against exposure to immigration control, through data protection and freedom from checks or arrest at vaccination centres.

This map focuses on delivery of the COVID-19 vaccines and doesn’t provide information about the accessibility of other health care more generally in a country, which in most parts of the EU remains very restricted for undocumented people. This map is a living document, which we’re updating as national policies and practices evolve, and as more information becomes available.This map is based on information we’ve been able to gather so far, and we’ll keep updating it as we know more. Here’s a quick rundown of what we’ve learned:

Belgium

In early January, Brussels health minister Alain Maron said that “It’s out of question to exclude undocumented people from the vaccination process”. After this very welcome statement from a regional (Brussels) leader, the federal health minister confirmed before the Parliament that the vaccines would be available to undocumented migrants too. The Minister discussed the possibility of vaccinating this group via mobile medical teams, who would also ensure the vaccination for homeless people.

Finland

At the start of March, the Finnish Ministry of Social Affairs and Health recommended municipalities to grant access to the COVID-19 vaccines to undocumented migrants, free of charge. Questions remain as to the practical implementation of this recommendation.

France

The French health ministry has declared that the vaccines will be available to all people living in France, regardless of residence status. In practice, the vaccines will be free for all and no health insurance card will be required.

Germany

Although some German states have shown a willingness in principle to include undocumented migrants in their vaccination plans, no federal plan has stated explicitly that this group would be included. Moreover, federal regulations exist which require proof of residence in Germany in order to receive the vaccine.

See our blog post for more information on access to the vaccines for undocumented migrants in Germany.

Hungary

The Hungarian vaccination strategy does not mention undocumented migrants. The vaccination booking system requires both a valid social security number, which is not available for undocumented people, and a registered home address, which can be very difficult for them to prove. Furthermore, civil society has warned of indications that the registration data will be checked against data held by the immigration authorities.

See our blog on the situation in Hungary for more detailed information.

Italy

The Italian vaccination strategy doesn’t mention undocumented migrants explicitly. But the Italian Immigration Act (Testo Unico sull’Immigrazione) explicitly guarantees access to the vaccines as part of preventive public health care campaigns to all people living in Italy, including irregular migrants, besides any other urgent or essential health care. And the Italian Medicines Agency (Agenzia Italiana del Farmaco, AIFA) released guidelines which make clear that undocumented people are entitled to the COVID-19 vaccines.

However, challenges remain with practical access to the online booking systems, which are managed by Italy’s 20 regions.

See our blog on the situation in Italy for more detailed information.

Netherlands

The Dutch strategy explicitly mentions undocumented migrants as a group to be vaccinated, but only after priority groups based on age and health conditions. Today, undocumented migrants can book a COVID-19 vaccine via the mainstream booking system, homeless shelters and, in some cases, GPs.

See our blog on the situation in the Netherlands for more detailed information.

Norway

Undocumented migrants are not mentioned explicitly in the Norwegian vaccination strategy. However, under the law on communicable diseases, all people regardless of residence status are entitled to vaccinations. In addition, in spring 2021, the Norwegian Directorate of Health addressed a letter to all local and regional health authorities calling on them to make the vaccines available for everyone. However, the letter does not detail how to organise access to the vaccines for undocumented migrants in practice. In fact, booking an appointment for the vaccine requires a valid personal identification number, and being registered with a GP. Both are broadly unavailable to undocumented migrants. In large part, the chance of undocumented migrants being vaccinated is determined by the local municipalities and their motivation to find ways around bureaucratic barriers. The risk of immigration consequences when accessing the vaccines is virtually non-existent, since it’s illegal for medical staff to report undocumented patients.

See our blog on the situation in Norway for more detailed information.

Poland

According to FAQs on the vaccines published on the Polish government’s website, “Foreigners with the right to stay are vaccinated on the same terms as Polish citizens”, which implies that people with irregular status wouldn’t be included. Polish officials have further confirmed this on TV interviews. However, the Ministry of Health later stated that access to the vaccines does not depend on health insurance, which would allow undocumented migrants to get their shot.

Read our blog on Poland to understand legal and practical barriers to the vaccines.

Portugal

The Portuguese government launched an online platform which undocumented people living in the country can use to register for their COVID-19 vaccination, without need of a social security number. Although a welcome development, grassroots organisations have denounced the delay in establishing such a platform and fear that the lack of trust towards public authorities will prevent many from registering.

See our blog on the situation in Portugal for more detailed information.

Spain

According to the Spanish strategy, undocumented people are guaranteed equal access to the vaccines. But questions remain as to how public authorities will be able to reach this population.

United Kingdom

Government guidance states that the vaccines will be available for free for undocumented migrants, and no immigration check will be carried out in the context of the vaccination. But migrants rights groups say that practical barriers remain, including fears over fees and data sharing with immigration enforcement, because of the UK’s longstanding “hostile environment” policy that has sown distrust and insecurity, as well as the refusal of some GPs to register patients because they can’t provide certain information like proof of address, which isn’t legally required.

See our blog on the situation in the UK for more detailed information.Including undocumented people in national vaccination campaigns is essential to ensuring their success, and ultimately getting the pandemic under control. But measures limited to opening up access to the vaccine are not enough. The underlying factors that exclude undocumented people from accessing primary health care must be addressed – like burdensome administrative procedures, ineligibility for free or covered care, and exposure to immigration consequences for trying to access services.

Undocumented people are members of our communities, they are our neighbours, our friends. The pandemic has shown more clearly than ever that many work in situations of high risk that are too often undervalued – in care work, cleaning, agriculture. They have an equal right to be protected from this devastating pandemic. Ensuring access to health care for all is not only public health common sense, it is also and foremost the right thing to do.

Cover image: Adobe Stock – daniilvolkov

This blog is the first in a two-part series looking at the intersection between racism and migration policy, and has been written by PICUM’s Advocacy Trainee Abigail Cárdenas Mena.

The Tarajal Massacre

Seven years ago, on the 6th February 2014, fourteen people died in the Mediterranean sea after the Guardia Civil (one of the Spanish police forces) shot rubber bullets, detonator blanks and smoke canisters (anti-riot materials) against them as they were trying to reach Spain. To understand how an incident like this could happen and how seven years after there has been no accountability and no justice for the victims, we should know who they were.

The victims were (at least) fourteen young black men from West and Central Africa, mainly from Cameroon, who were trying to cross the Moroccan-Spanish border by swimming through the Tarajal Beach, which is located in Ceuta. Ceuta together with Melilla are two Spanish cities on the African continent, separated from Morocco by fences. The brutal response of the Guardia Civil was intended to prevent them from crossing the border. Twenty-three other people who were able to reach the Spanish side were returned to Morocco as soon as they arrived at the beach but were not given any due process. Their return to Morocco is otherwise known as a pushback. Testimonies collected by the NGO Caminando Fronteras document, with pictures and medical reports, the use of violence by the police and the injuries caused to the survivors, who didn’t receive any assistance for their injuries.

Europe’s approach to managing borders perpetuates discrimination and violence

An incident like this, unfortunately, is not unique to the Spanish context. The EU’s aim to control irregular migration has led to a system of border management with few guarantees of human rights compliance for migrants. European borders – both external and internal – have been operating as spaces of impunity with little control and supervision over law enforcement agencies and their conduct, leading to situations of violence, mistreatment and abuse against migrants, asylum seekers and refugees. As the Danish Refugee Council has stated:

Tacitly accepting the trade-off between ensuring human rights compliance and limiting the number of irregular arrivals opens a wide space for multiple forms of abuse. (…) There is an ever-growing need to recognize that human rights violations are taking place at the borders, and particularly at the EU’s external (and internal) borders.

However, police violence against migrants not only happens at borders, but throughout the whole migration control system. This takes place in the context of identity checks, detention and deportations, on the EU territory and in other countries involved in protecting the EU’s borders through bilateral agreements and the externalisation of borders.

Episodes of police brutality against migrants in Europe have been extensively documented and denounced by different NGOs, activists and organisations. In 2018, an Afghan man who was being deported from Germany was restrained by six police officers who taped him to his seat in the plane and placed him in handcuffs, leg restraints and a helmet, and made him wear a mouth guard. One officer squeezed his genitals several times for prolonged periods and another choked him by pushing his arm against his neck to the point he struggled to breath. This happened during a charter flight monitored by the Committee for the Prevention of Torture of the Council of Europe, which reported the incident. Far from being isolated cases, violence against migrants is inherent to the migration enforcement system as a whole.

Spain’s migration enforcement especially targets people of colour  

The “accident of birth” – namely, where a person was born in the world – is a major factor in determining how freely they can travel to Europe. Citizens of 104 countries are required to obtain a visa before entering the EU. This includes every country on the African continent (only the islands Seychelles and Mauritius are exempted from this requirement). “Accessible and decent labour migration pathways across various occupations remain very limited, despite labour market demand”. As scholar Luke de Noronha wrote: “Race cannot be dispensed with so briskly when the principal target of immigration restrictions, the ‘global poor’, corresponds so closely with those ‘formerly colonised’ and those racialised as ‘non-white”. As analysed below, Spain provides an example of how racism underlies migration policies.

One year after the Tarajal massacre, Spain passed a law creating a special regime applicable in Ceuta and Melilla to allow the “rejection at borders” of people found crossing the border irregularly. The special rule aimed at legalising pushbacks. In doing so, Spain not only refused to acknowledge and redress the tragic consequences of Tarajal and pushbacks in general but furthered the exemption of rights and impunity in a place where the majority of migrants come from African countries without safe and regular pathways to come to Europe.

As a consequence of this law, Spain has the highest number of “refusal of entry” in Europe by far. Eurostat data shows that “in 2019, more than two thirds of the total number of non-EU citizens who were refused entry into the EU-27 were recorded in Spain“ with 493,500 refusals of entry (68.8% of the total). This was only followed by Poland with 65,400 and France with 56,600 refusals of entry, with a notable difference of more than 400,000 cases with Spain. According to the same source, “the overwhelming majority of non-EU citizens who were refused entry into Spain were Moroccan citizens (484,800; 98.3 % of all refusals in Spain)”.

While Moroccans are overwhelmingly refused at the border by the Spanish police, Sub-Saharan Africans are subjected to discriminatory and violent raids and forcibly displaced from the north to the south of the country by the Moroccan police in an attempt to prevent them from even approaching the border. This is part of Morocco’s agreement with Spain (Morocco has claimed to have stopped more than 70,000 people from crossing into Spain in 2019). This practice of forced displacement has been pointed out as one of the reasons behind the decrease in arrivals by sea to Spain in 2019 compared to 2018, as well as for the diversion of the route towards the Canary Islands in 2020, which led to the death of 1,851 people in what is known as the Atlantic route, currently the deadliest route in Europe.

Moroccan police has also been preventing black Africans from claiming asylum at the border crossing points, thus leaving no options for regular entry procedures, as proven by Forensic Architecture: “According to witness testimony, the consulate in Nador is not accessible to Black Sub-Saharan nationals and there were no applications by Sub-Saharan nationals at any Spanish embassies in Morocco between 2015 and 2018”. This reality was not taken into account in N.D. and N.T. v. Spain, a case concerning the pushback of two men from Mali and Ivory Coast, where the European Court of Human Rights recently found no violation of the prohibition against collective expulsion, placing the responsibility on the migrants for climbing the fences rather than using the allegedly available means to seek asylum. This judgement contrasts with the case M.K. and Others v. Poland where the same Court found a violation of the prohibition of collective expulsion of Chechens crossing from Belarus to Poland, suggesting racially discriminatory assumptions by the Court, depending on who is crossing the borders and how, to the detriment of African people. “The case of ND and NT reveals the mechanisms of structural racism embedded in Europe’s border policies.”

Once in Spain, migration enforcement continues to disproportionally target the African community, together with other racialised communities, who are more likely to be surveilled and feel the violence of the law enforcement. Incidents leading to the death of black Africans have occurred at every stage of the migration control system: Mame Mbaye (Senegal) in the context of an identity check, Samba Martine (Democratic Republic of Congo) in a detention centre, and Osamuyia Aikpitanyi (Nigeria) during deportation, are only some of the names representing the lethal effect of systematic violence targeting undocumented people originating from Africa. Each of them reveals one side of this system: the criminalisation and police harassment of manteros (street vendors from Senegal) and the constant fear and stress they live with for being undocumented; the lack of effective health care in detention centres and the neglect of the government through poor institutional reception and detection of vulnerability of people who just cross the borders; and police brutality to enforce a forced deportation by any means. Only in the case of Samba, the government (after nine years) acknowledged its responsibility, while there has been no accountability for Mame and Osamuyia.

Racial profiling plays a key role in the disproportionate impact of migration enforcement on such communities. For undocumented people, being subjected to an identity check for migration enforcement purposes (or, in fact, any other purpose) is one of the main gateways to detention and, eventually, to deportation. The fact that racial and ethnic profiling, although being illegal under European and international law, is a widespread practice in Europe, makes race an important factor correlated with the likelihood of ending up identified and detained.

This, consequently, leads to an overrepresentation of people of colour in immigration detention centres. One study revealed that, in 2016, 90% of the people in Spain’s detention centres (CIEs) were from Africa (55% from Sub-Saharan Africa, 35% from North Africa). According to the same study, this far exceeded the actual proportion of African people in the migrant population in Spain (Africans represented 20% of migrants and less than 10% of the estimated undocumented population in Spain). This share has been changing over the last years with a higher rate of detained people from North Africa, mainly Morocco and Algeria, representing up to 70% of total immigration detainees in 2018 and 2019. This can be explained to a large extent by the criminalisation of black and Arab men in particular, leading to racial profiling with a significant impact on this part of the population, as data show in Spain and across Europe.

The Tarajal massacre: What have we learned?

The Tarajal massacre led to a court challenge by civil society, without any success for the claimants. Although sixteen Guardia Civil officers were prosecuted, the case was filed and reopened three times in six years with different arguments and irregularities in the process, including the refusal to the parents’ victims to participate in the judicial process. The Minister for Home Affairs at the time never acknowledged any misconduct by law enforcement officers and instead defended their behaviour. The incident remains un-investigated and justice and reparation have not been granted for the victims and their families, pointing to the total impunity that operates at borders. To date, the families of the victims buried on the Spanish side of the border have not been able to identify their bodies because the Spanish government has not provided them with the required visas to enter Ceuta.

This year, as every year, “la Marcha por la Dignidad” (March for Dignity) took place in Ceuta and many other cities (in Spain and beyond) on the anniversary of the Tarajal tragedy to remember the victims and denounce the effects of a deadly migration policy that still does not offer safe and regular pathways for migration for many people.

Of the 2,170 people who died in the Euro-African Western Border while trying to reach Spain in 2020, 95,8% disappeared at sea and their bodies were never recovered. To achieve a “racism-free” and “united in diversity” Europe, the EU should take seriously and value equally all lives by ensuring the safety and access to justice for all people, regardless of racial or ethnic origin, religion, nationality, citizenship and migration status, including those on their journey to Europe. Effective measures must be taken to tackle racism in national and European migration systems and black lives should be at the centre of any action to reverse a system that systematically directs violence towards them and carries out a practice of laisser mourir (allowing people to die) at the borders.

Migrants, black and, more broadly, racialised voices must be heard. As Marra Junior, anti-racist and Pan-Africanist activist and one of the organisers of the Tarajal commemoration in Bilbao, says: “ça suffit” (it’s enough). Watch the video below to hear what the Tarajal massacre means for him as an African migrant in Spain.JTNDZGl2JTIwc3R5bGUlM0QlMjJiYWNrZ3JvdW5kLWNvbG9yJTNBJTIzZmZmZmZmJTNCJTIwcGFkZGluZyUzQTEwcHglM0IlMjIlMjBjbGFzcyUzRCUyMmNvb2tpZWNvbnNlbnQtb3B0b3V0LW1hcmtldGluZyUyMiUzRSUwQSUyMCUyMFBsZWFzZSUyMCUzQ2ElMjBocmVmJTNEJTIyamF2YXNjcmlwdCUzQUNvb2tpZWJvdC5yZW5ldyUyOCUyOSUyMiUzRWFjY2VwdCUyMG1hcmtldGluZy1jb29raWVzJTNDJTJGYSUzRSUyMHRvJTIwd2F0Y2glMjB0aGlzJTIwdmlkZW8uJTBBJTNDJTJGZGl2JTNF

The term pushback refers to the practice carried out by law enforcement “when a person is apprehended after an irregular border crossing and summarily returned to a neighbouring country without assessing their individual circumstances on a case-by-case basis.” Pushbacks are an increasing phenomenon at Europe’s borders and entails the violation of “the right to seek asylum and the protection against refoulement, which are at the core of international refugee and human rights law”.

PICUM (forthcoming), Designing labour migration policies to promote decent work.

The Euro-African Western Border includes the routes that migrants take from Africa to Spain, namely: Canary Islands or Atlantic route, “Estrecho” (the Strait of Gibraltar) route, Alboran route and Algeria route.

Cover image: MarcoAlla – Adobe Stock

PICUM is no longer a member of the Frontex Consultative Forum, a body which is meant for non-governmental, international organisations and EU agencies to assist the European Border and Coast Agency (Frontex) by providing independent advice in fundamental rights matters.

In May 2020, PICUM wrote a private letter to Frontex’s Executive Director Fabrice Leggeri to raise our concerns in relation to both media reports on the agency’s involvement in human rights violations, as well as concerning the Forum’s working methods.

After seven years of membership in the Consultative Forum (between 2012 and 2019), and after long discussions internally, PICUM came to the conclusion that the Consultative Forum’s working methods did not allow for our meaningful participation. As a membership organisation representing more than 160 NGOs, our ability to provide inputs within the Forum was strongly limited by a very strict confidentiality clause, which entailed risks of criminal liability if we shared sensitive or non-public information with our members. While the Consultative Forum has had some key achievements in the past years, we regret that the modalities of the Forum consultation often failed to provide us with the space for meaningful inputs. In some cases, the Consultative Forum was not consulted on human rights related matters, or was consulted only after key decisions were taken. We were often not given enough time to review and process information from the agency in a meaningful way. And Frontex often failed to acknowledge or consider the Consultative Forum’s comments.

We have also been increasingly concerned by increasing reports of Frontex’s involvement in illegal pushbacks, the lack of adequate investigation and follow-up, as well as the insufficiency of mechanisms to ensure accountability. In recent months, evidence of Frontex involvement in illegal pushbacks has been growing from the central Mediterranean to the Balkans and Greece. Another independent report published in July 2020 finds that Frontex still lacks an effective system for monitoring, investigating, addressing, and preventing fundamental rights violations at Europe’s external borders.

The new EU Pact on Migration and Asylum, which was proposed by the European Commission in September 2020, focuses on stepping up returns at all costs, while lowering fundamental safeguards for migrants, both adults and children. As the new EU Migration Pact foresees that Frontex will play a central role in stepping up returns, we fear that Frontex will engage in more activities which could lead to human rights violations at our borders in the coming years.

In July 2020, PICUM suddenly stopped receiving emails regarding the work of the Consultative Forum, and was removed from the list of Consultative Forum members on Frontex’s website. Frontex’s formal reply to our letter came in September 2020, and significantly fails to engage on the substance of our concerns, or mention why we were not receiving updates on the Consultative Forum work anymore.

We are concerned by the approach taken by Frontex to the role of civil society, including the recent harassment of two pro-transparency activists, and no longer see a role for our organisation in the Consultative Forum, from which we have formally withdrawn our membership. In the meantime, we will continue to advocate for truly humane European migration policies.

Image: IvanSemenovych – Adobe Stock

For undocumented people, the pandemic and related lockdown measures have exacerbated pre-existing conditions of social exclusion and deprivation.

Undocumented people are at high risk of getting COVID-19, especially if they are homeless or living in cramped, precarious conditions where physical distancing is hard to impossible. Some lost their jobs because of the pandemic, while many had to keep working – frequently in sectors that have become indispensable – often without adequate protection. Being undocumented means they are unlikely to qualify for non-emergency health care or for social or income protection schemes that are keeping others hit hard by the pandemic afloat.

As COVID-19 vaccination campaigns are starting to roll out across Europe, it is crucial that undocumented people are included.

In December 2020, the International Organisation on Migration issued a statement highlighting that, to be effective, COVID-19 vaccination plans must include migrants, and calling on governments to include all migrants present in their territories, regardless of their migration status, in their vaccine deployment plans.

At the end of 2020, the European Centre for Disease Prevention and Control also released two reports that consider migrants in relation to the COVID-19 vaccination campaigns. The first classifies “migrants and refugees” as potential target groups for the vaccination campaigns; the second advises that consideration should be given to settings with “little ability to physical distance” including migrant centres, crowded housing and homeless shelters.

In October 2020, the European Commission issued a Communication on vaccine preparedness, which includes “communities unable to physically distance” (such as “refugee camps”) and “vulnerable socioeconomic groups and other groups at higher risk” (such as “socially deprived communities to be defined according to national circumstances”) as “possible priority groups” for vaccines deployment. According to the communication:

”Member States will need to make decisions on which groups should have priority access to the COVID-19 vaccines so as to save as many lives as possible. These decisions should be driven by two criteria: to protect the most vulnerable groups and individuals, and to slow down and eventually stop the spread of the disease.”

Besides making the vaccines available to undocumented people on paper, countries need to make sure they get the vaccines in practice. What does this mean? As the IOM’s Director of Migrant Health has noted: ”As frontline health workers are prioritised, let’s not forget the countless migrant frontline health workers. As the elderly are prioritised, so should elderly migrants.” Similarly, efforts to reach people who are homeless or who are uninsured must reach, within these groups, people who are undocumented. Outreach plans need to account for the fact that for undocumented people, like others in situations of social vulnerability, financial hardship and administrative hurdles present real barriers to accessing mainstream care. More than that, the criminalisation of undocumented status means that many will avoid contact with government bodies, even if they are unwell or think they are sick.

It is, then, critical that the deployment of any COVID-19 vaccine to groups that include people who are undocumented or have insecure status has to be done in close cooperation with trusted community-based organisations that have a history of working with and providing services to them, and with the collaboration and direct involvement of individuals from these communities themselves. There must be clear assurances that any information informally or formally obtained about a person’s residence status in the course of providing care will not be used against them, to prompt immigration proceedings. And the absence of formal documentation cannot be a barrier to signing up for or getting a vaccine (or testing, for that matter).

Including undocumented people in national vaccination campaigns is not a luxury: it is necessary to ensure the success of vaccination programs, and ultimately getting the pandemic under control. But measures limited to opening up access to the vaccine are not enough. To ensure society’s resilience to similar shocks in the future, and to address the glaring cracks in our health and social welfare systems that have been exposed, governments need to adopt measures to remove systemic barriers to primary health care for all their residents, regardless of status, and ensure they are not forgotten and left to struggle alone when the next pandemic hits.

The European Commission has urged a recovery that builds resilience, that does not happen at the cost of ”the poorest people” – that ”will have to be inclusive and fair.” For this, Europe’s social policies must be disconnected from its restrictive migration policies so that all children, workers, families, individuals can get the services they need, without discrimination – in the context of this wretched pandemic, and beyond. The pandemic has shown us that this is the right thing to do, and the smart thing to do, for everyone.

If you have any information about national vaccination campaigns and undocumented people, please write to info@picum.org

On 5 March 2020, the EU adopted its long-awaited gender equality strategy 2020-2025. Less than one week later, the World Health Organisation declared COVID-19 a global pandemic.

The pandemic has revealed in stark terms the gender-related dimensions of inequality. It has exposed and worsened systemic inequalities linked to: under-regulated and under-protected forms of work in our economy, where women are often overrepresented; porous social safety nets that fail to protect all those in need; and structural racism that is driving disparate health outcomes for people of colour. It has underscored the need for an inclusive and intersectional approach to gender equality that reaches across policy domains to ensure and protect women’s safety, social and economic rights, while engaging with them as critical agents of change.

In the case of migrant women, the pandemic has exposed the profound undervaluing of their work in areas like health care, education, cleaning, food services, farm work, child and elder care. Confinement and physical distancing measures have cut off their access to vital sources of support and exposed some to a greater risk of violence in their homes or workplaces.

Underpinning this reality are migration systems that entrench structural asymmetries of power and opportunity. Access to decent work permits in Europe is largely restricted to highly qualified people who can secure high incomes, excluding people of all genders with lower socio-economic status. Racism – on personal, institutional and structural levels – is also a major barrier to access high-income employment. Women, transgender and gender non-binary also face gender-based discrimination throughout the migration process. This results in numerous barriers to getting the jobs that would grant them decent and stable work permits and the incomes needed to bring their families with them. They are at particular risk of high levels of sexual and other violence when they travel in an irregular manner. Women are also more likely to be on spouse-dependent visas than men. If the relationship on which their status depends breaks down – for instance, because of domestic violence – they risk becoming undocumented.

Once undocumented, measures aiming to reduce irregular migration through border, control, criminalisation, detention and deportation, have specific and discriminatory effects on safety, security and rights. Women, transgender and gender non-binary people face restrictions on services and justice when they are undocumented, which can have gender-specific impacts, and heighten their risk of living in situations of economic and social precarity. As they are often women of colour with a low income, undocumented women experience specific, intersecting forms of discrimination.

PICUM welcomes the EU’s commitment to developing and implementing a gender strategy and urges the implementation of a forward-thinking and inclusive program of work that strives to achieve real change in the lives of all women, without discrimination.

Part of this must include specific and concrete efforts to develop a gender-responsive approach to EU migration and asylum, so that policies integrate and address the rights and interests of women and girls, particularly in areas of regular migration, international protection, detention and return. EU migration and asylum policies should be re-oriented towards sustainable, humane, non-criminalising approaches to both regular and irregular migration.Cover: jhudel baguio on Unsplash

Children enjoy special rights under the UN Convention on the Rights of the Child, regardless of their residence status. However, the transition of undocumented children into adulthood often comes abruptly: rights and basic services are no longer guaranteed and measures are not taken to support undocumented young adults in their new reality.

The European Commission is currently developing the EU Child Rights Strategy as part of its agenda for 2019-2024. The strategy aims to protect and promote children’s rights in the EU and to mainstream child rights in all relevant EU policy areas. It will serve as a policy framework that will cover all existing and future child rights policies under one umbrella. As President of the European Commission Ursula von der Leyen emphasized in her mission letter to Vice-President Šuica: “We need to invest more in the future of our children. ensuring that children have access to the services they need and are supported through to their adult lives”.

One of the policies proposed to reach this goal, which will receive funding as part of the EU Multiannual Financial Framework (MFF) for 2021-2027, is the Child Guarantee. This instrument is led by the Commission and backed by the Parliament, and will result in a non-binding Council Recommendation asking Member States to ensure “affordability, accessibility and availability of inclusive quality services for children in need.” By urging Member States to provide children and their parents access to essential services, such as healthcare, education and housing, the Commission aims to tackle poverty among children in need and improve their wellbeing and development.

If the aim of both the Strategy and the Guarantee is to establish a solid foundation for children that will provide life-long benefits, they should also address children’s transition into adulthood.

This is necessary because a clear binary approach can be observed in and practice at EU and Member State level upon a child’s 18^th birthday, when they no longer receive the protection and assistance they received until that moment. This approach is especially detrimental to undocumented children, children in migration and other children who are particularly vulnerable to poverty and marginalization and who need additional support and care from birth to ensure their development and wellbeing.

This can be seen in Belgium, where unaccompanied children can obtain a residence permit if the authorities find that residence in Belgium is in their best interests. However, if the Immigration Office has not determined the durable solution before the child turns 18, the procedure stops. A durable solution can be either integration in the host country, transfer to a third country (for example for reasons of family reunification) or return to the country of origin. From the moment the child turns 18, the now-young adult needs to prove that they fulfill the requirements (art. 61/24) for one of the regular pathways to residence, while they also lose their right to essential services and assistance such as education, healthcare, housing and financial support. In practice, these regularization pathways are further limited due to complex and ambiguous procedures and high application fees and costs for legal assistance.

This precarious transitioning of migrant children into adulthood is also referred to as “ageing out.” The term comes from the child protection context and generally refers to the situation where children lose rights and protections when they turn 18.

The Commission rightly acknowledges in its 2017 Communication on the protection of children in migration that children in state care should receive support to prepare for the transition to adulthood (i.e. thereby having to leave the state care facilities). However, both unaccompanied children and children living with their families – whether they are living in state care or not – age out as they lose the various rights and protections they were granted as children, including access to certain residence procedures. A systematic coaching mechanism is therefore essential, to ensure that all children (whether accompanied or unaccompanied) are supported during a transitory period, to prepare them for adulthood.

To ensure that the Commission’s Strategy on the Rights of the Child supports undocumented children in a sustainable way, PICUM calls on the Commission to:

1. Guarantee that the Child Rights Strategy and related policies and actions will benefit all children irrespective of residence status, to enable them to have the best possible start in life. As with other children, this includes preparing them for their transition to adulthood.
2. Ensure that both the Child Guarantee and the Youth Guarantee allow undocumented children who are about to age out to have continued access to extended services, including education, housing, healthcare and psychosocial support. Ensuring continued access to essential services will facilitate further social inclusion and help prevent them from becoming marginalized and exploited. During a transitory period, which should start before and continue after a child reaches the age of majority, all undocumented children should receive coaching to support them during their transition into adulthood.
3. Use EU funding for projects that support and coach children with a temporary or irregular residence status during a transitory period, to prepare them for adulthood. An example of this is the current call for proposals from the Asylum, Migration and Integration Fund, which includes a specific line on “migrant children’s transition to adulthood”.

PICUM has joined 27 international child rights organisations and Unicef in signing a joint position and addressing key recommendations to EU institutions and member states for the upcoming Child Rights Strategy, focusing amongst others on children in migration. You can read the full position paper here.

Image: Adobe Stock – Jacob Lund

After the launch of the New Pact on on Migration and Asylum, the European Commission has announced a new Action Plan on Integration and Inclusion for 2021 – 2024, to be published in the last quarter of this year.

The document, which follows the previous Action Plan on the Integration of Third Country Nationals (2016) is meant to provide strategic guidance and set concrete actions to foster inclusion of refugees, migrants and their families. It will draw on all relevant policies and tools in key areas such as social inclusion, employment, education, health, equality, culture and sport, setting out how migrant integration should be part of efforts to achieve the EU’s goals on each one of these areas.

The forthcoming Action Plan is a significant opportunity to develop a coordinated integration policy, ensuring that all people arriving and residing in the EU have the opportunity to build a dignified life and to actively participate in society. Its focus on both integration and inclusion strengthens the understanding of integration as a “two-way process”, which remains to be adequately reflected in current policy approaches.

Ahead of its release, we have taken stock of existing analyses on the social inclusion of migrants and refugees, as carried out by ECRE, PICUM and their member organisations. We’ve also provided specific policy recommendations on coordinated governance, on coherence with existing EU funds, and on mainstreaming integration outcomes across migration and asylum policies.

Click below to find out more in our policy paper.Cover image credit: Copyright – End Child Detention, Artwork by Monann De Jong

The COVID-19 pandemic has affected all of us in our daily lives. However, different communities have been impacted in different ways. For undocumented people, one of the most marginalised communities in Europe, the pandemic and the lockdown measures have exacerbated pre-existing conditions of social exclusion and deprivation.

Some public authorities, at the national, regional and local levels, have adopted different measures, often temporary, to support undocumented people during these difficult times. These measures include regularisation, access to health care, financial assistance and more.

Click below to find out more in our non-exhaustive selection of such measures adopted between March and August 2020, inside and outside the European Union.

The new European Pact on Migration and Asylum, published on 23 September 2020, begins with the recognition that “migration has been a constant feature of human history” and that “with a well-managed system, migration can contribute to growth, innovation and social dynamism”. While these statements would indeed define a coherent migration policy, the Commission has not translated them into the real contents of the policy.

Instead, with its five legislative proposals and four recommendations, the Pact proposes to build a system where deterring all unauthorised mobility and increasing deportations are the defining features of the EU’s migration policy in the coming years. This would be carried out by reducing safeguards, setting unrealistic timeframes to have fair procedures, and increasing detention – with little or no consideration for human rights, welcoming or inclusion. The investment of resources and political attention in preventing access to the territory and removing people from the EU far outweighs all other aspects of the policy, despite the text acknowledging that the vast majority of migration is regular.

Hardly definable as “a fresh start”, this system rather builds on and expands previous reforms and proposals, such as the massive reinforcement of the European Border and Coast Guard, the proliferation of “hotspots”, the adoption of the interoperability regulations creating and expanding biometric databases and access to data on third country nationals, and the proposed Recast Return Directive.

PICUM would like to underline the following six concerns about the proposed Migration and Asylum Pact:

1.      Rather than closing “loopholes,” the Pact proposes to create them to avoid legal safeguards and to deny access to other residence procedures.

One of the key objectives of the Pact is to “close the loophole between asylum and returns”, a phrase already heard on several occasions in the past months. To this end, the Commission proposes the large-scale application of “seamless” asylum and return border procedures. The “seams” in this case seem to be human rights and legal safeguards to uphold them. The legislative proposals actually set out to create legal loopholes that can be used to deny people access to fair procedures and create more ‘grey zones’ where different laws and procedures apply.

This binary approach, which implies that everyone who is denied asylum should be immediately returned, deprives people of the possibility of accessing pathways for regularisation under other grounds according to Member States’ national legislation, and removes important safeguards related to non-refoulement, best interests of the child and protection of family and private life.

The proposals are built on the legal fiction that people in the border procedures will not be formally “authorised to enter the Member State’s territory”, despite already being physically present on the territory. This raises concerns on how access to these procedures will be regulated and how to ensure accountability in case of human rights violations.

2.      The new border procedures will lead to increased and longer detention.

During the pre-entry screening, everyone crossing an external border irregularly, or disembarked  after search and rescue (SAR) operations, will be automatically detained in designated facilities for up to ten days. During this time, access to information and to medical care will be severely curtailed. After this period, people will be channelled into the return or asylum procedures, which, for the majority of people, will take place in the same border facilities. The same screening procedures will also apply to people already on the EU territory, independent of how long they have been living in Europe, if there is no indication that they have entered regularly. In this case, people can be detained in specialised facilities for up to three days.

For the whole duration of the asylum and return border procedures, which can last up to six or even ten months in cases of ”exceptional mass influx” or risk of it, detention will be the norm. In clear violation of international principles of necessity and proportionality, the Pact permits continued detention for the whole duration of the asylum and return border procedures, with no reference to the obligation to prioritise alternatives to detention.

The idea of applying the pre-entry screening procedures to people arrested within the territory is a shameless attempt to extend these legal “loopholes” to deny fundamental rights to resident individuals and groups. People and communities of colour that already face discriminatory policing and police harassment now risk further checks and imprisonment of up to three days without judicial review or access to a lawyer during the screening procedure. It is hard to understand how this can be in line with recent EU commitments in the newly released EU Action Plan Against Racism to “countering discrimination by law enforcement authorities” and avoiding “profiling that results in discrimination”.

3.      The EU mantra to increase returns is reinforced with more tools and fewer safeguards.

Deportation is an extreme and harmful measure that often breaks economic, social and family ties. Civil society and researchers have pointed to the concerning lack of evidence and knowledge of what happens to people after they are deported, and how the experience of deportation has an impact on the lives of parents and children, as well as future choices and opportunities.

Yet increasing returns, including to deter irregular migration, is presented as the overriding objective of the common framework. The term “return” appears more than 100 times in the Commission Communication on the Pact alone – while the term “rights” only 14.

The increase in returns is pushed through several measures and initiatives:

• the reduction of procedural safeguards, such as the lack of legal aid and accessible information in the pre-entry screening procedures, and limitations to the right to appeal against negative decisions;
• the creation of the “return sponsorship” scheme as a form of “solidarity” among member states, under which a state will be able to organise the deportation of an undocumented person living in another member state, rather than relocating them;
• new structures with dubious roles and unclear mandates: a Return Coordinator within the Commission, supported by a new High Level Network for Return; and a Frontex Deputy Executive Director on Returns;
• the renewed push towards prioritising readmission agreements in all relations with third countries with the exception of humanitarian aid.

These measures will likely lead to increased risks of human rights violations and reduced safeguards during return procedures, with increased challenges in ensuring accountability.

4.      Contrary to the global definition of children until they are 18, the Pact suggests that only children younger than 12 years old should be protected from some harmful procedures.

The provision that “the best interests of the child shall be a primary consideration for Member States with respect to all procedures” is welcome, as are the increased resources for guardians for unaccompanied children, the increased emphasis on alternatives to detention for children and the provision of non-discriminatory access to education.

In addition, the Commission steps back from imposing one of its most harmful innovations – the obligatory border procedures – on young children. Those who are under 12 are exempt from these procedures, as well as children who are unaccompanied. However, children aged 12-18 who are accompanied by their parents or other caregivers are required to undertake the border procedures, which translate into almost automatic detention and lack of access to regular pathways beyond asylum.

Despite the internationally recognized definition of children being every person until the age of eighteen, the proposal draws a new line in the middle of adolescence, imposing the new regime on children above the age of 11, and allowing their detention – for potentially up to 10 months, as far as they are with their family.

This provision, as well as the possibility to still detain younger children and unaccompanied children for national security reasons, infringes international and regional standards that clearly consider child immigration detention as a violation of the rights of the child.

5.      Civil society will now be at an even greater risk of harassment, criminalisation and restricted access to border areas.

The Commission Guidance on the implementation of EU rules on the definition and prevention of the facilitation of unauthorised entry, transit and residence only invites member states not to criminalise acts that are “mandated by law”, which are very different from acts “permitted by law”. Activities like providing food, shelter, car lifts or information, all remain excluded, in particular when they’re not carried out by an official NGO which is “mandated” to carry out such activities. The almost exclusive focus on search and rescue also risks leaving out activities on the territory and activities that are not directly life-saving.

Search and rescue operations are only considered legitimate when they “observe the instructions received from the coordinating authority” and while “complying with the relevant legal framework”, which leaves the door open to prosecution of NGOs under (often trumped-up) accusations of breaching national legislation or instructions on disembarkation.

The Pact does indicate that EU member states “may” authorise relevant NGOs to provide information and monitor fundamental rights at borders. Yet there is no clear obligation to grant NGOs access to border facilities, and some member states have already criminalized civil society organisations for providing life-saving information. There is a concern that the right to provide information is no longer a priority. The collective impact of these measures likely legitimises and expands practices of criminalisation of NGO operations at external borders, as already happening for instance in Hungary and Croatia.

6.      There are some promising elements towards inclusion, but the Pact sidelines the importance of labour migration for European economies and societies.

The significance of labour migration for European economies and societies is not reflected in the Pact, whether we look at the political messaging, resources, proposals, actions, or word count. On balance, the plans in the area of labour migration are relatively timid and over-shadowed by the focus on return.

Nevertheless, the recognition of the need to better protect labour migrants from exploitation and to facilitate more labour migration across skills levels is very welcome. The main idea to increase labour migration, at least in the short term, is to launch so-called “Talent Partnerships” in the EU’s Neighbourhood, the Western Balkans, and in Africa. We are keen to see how the new measures might have the potential to increase decent labour migration pathways across sectors and skill levels, including in those sectors currently characterised by low wages, where many migrant workers are carrying out essential work and unable to access permits.

The public consultation that the Commission has opened on regular migration builds on the conclusions of the extensive review of the regular migration framework completed in 2019. Therefore, we hope that the ideas already put forward in this context will be seriously considered, and that the consultation will represent another step towards concrete actions, rather than being a rerun of the discussions of previous years.

We hope the emphasis on integration and inclusion will also bear fruit, with an ambitious and inclusive action plan. Integration and inclusion necessarily involve various different sectors and policy areas of national and local competence. The common EU framework should avoid unnecessary and bureaucratic limitations which might impede, rather than support, local initiatives which are adapted to the needs and realities of communities. To be responsive to the local level, where integration is carried out, the new EU framework on integration should include all third country nationals, regardless of status, who are continually and effectively residing and participating in local life.

Next Steps

In its Roadmap to implement the Pact, the Commission proposes a very ambitious workplan, urging the European Parliament and the Council to adopt the proposed regulations by mid-2021 at the latest.

This short timeline ignores the detrimental – and potentially irreversible – impact of these proposals on the fundamental rights of those with few other options but to arrive in Europe in an irregular manner, as well as those who are currently undocumented in the EU. If the proposals were to be adopted in their current form, little would distinguish the European Union, self-declared champion of fundamental rights at the global level, from countries regularly detaining people and families in inhumane camps at their external borders, in view of their rapid deportation.

In these months of hard work ahead, we urge the European Parliament and the Council to consider the impact these proposals will have on migrants’ lives, civic space in the EU and the rule of law more broadly.

For instance, more than half of EU member states provide a temporary residence permit on medical grounds; at least five countries have legislation granting special permits for undocumented victims of domestic violence; and at least eight countries have regularisation mechanisms for children, young people or families.

If the deportation will not take place within eight months, the state will have to relocate the undocumented person in their country, raising concerns on their living conditions in the state of relocation as well as their risk to end up in a legal limbo.

Cover image: MoiraM – Adobe Stock

This blog post was written by Maria Paraskeva, Legal Expert and Project Coordinator at HumanRights360, NGO that works to advance access to rights and justice for all in Greece.

During the outbreak of the Covid-19 pandemic and the related lockdown, the Greek government completely reformed the international protection system in Greece.

The reform was introduced in Law 4686/12.05.2020, which was adopted only a few months after the full implementation of Law 4636/01.11.2019 (repealed). This recent recast of the asylum legal framework has deteriorated the already poor situation of the immigration detention system, which is characterized by overcrowded detention centers, lack of individualized assessment for the persons in detention and limited or no consideration of alternatives before the imposition of detention.

The spirit of the new legal framework is punitive. It introduces procedural barriers and complex procedures while, at the same time, reducing the substantive and procedural safeguards both in the fields of asylum and detention in view of return. In particular, it makes administrative detention in view of return the rule and limits the application of alternatives to detention only on an exceptional basis and under restrictive conditions.

This violates the very exceptional nature of administrative detention, which, under EU and international law, should only be applied as a measure of last resort and only in cases where alternatives cannot be implemented. In particular, this provision is in clear contradiction with the spirit and the letter of Directive 2008/115/EC, which explicitly requires the authorities to examine less restrictive measures (alternatives) before the imposition of administrative detention.

In practice, detention facilities remain overcrowded, and the detention conditions are most of the times poor (including inadequate access to basic services, and poor provision of medical and psychosocial services) and even completely unsuitable, with many persons detained in police stations for long periods (even for months) under very challenging conditions.

According to the explanatory memorandum of this law, administrative detention in view of return is set as the rule to help authorities ensure an effective return process. This argument disregards broad evidence that longer periods of detention do not lead to higher rates of return, as well as the fact that returns often cannot be carried out for external reasons, including administrative obstacles, human rights considerations (including the principle of non refoulement) and, during the pandemic, public health limitations.

Furthermore, the new law introduces provisions that concern people in vulnerable situations: in particular, it abolishes, retroactively from 1 January 2020, the provision that allowed for residence permits based on humanitarian grounds. This disposition jeopardizes the rights of persons in particularly vulnerable situations such as children, persons with serious health problems, and others. The law also abolishes the provision for priority examination of requests for international protection of persons with vulnerabilities.

In addition, the new law removes the presumption of minority for those claiming to be minors, which was valid both during the age assessment procedure as well as in case of doubts after its completion, thus allowing their detention together with adults during the age assessment procedure.

Unaccompanied and separated minors in the Reception and Identification Center (RIC) of Fylakio-Orestiada remain under “protective custody” following the public prosecutor’s order, who acts as temporary guardian, for more than 6-8 months, awaiting to get accommodation in suitable sheltering structures. “Protective custody” is established as a precautionary administrative measure and not a criminal repressive measure. However, its conditions amount to a restriction of personal liberty equal to detention. The constitutionality of this provision is being challenged due to its opposition to Article 5 para. 4 of the Greek Constitution, but also its incompatibility with Article 5 of the ECHR. Persons who are detained under “protective custody”, on the one hand, cannot exercise the right to be heard before the measure is imposed on them, and on the other hand are deprived of legal remedies for challenging the administrative measure, which has no maximum time limit.

In that context and taking into consideration the strict measures adopted from the Greek state in order to prevent the spread of coronavirus, HumanRights360 and other NGOs have called the competent authorities to adopt vital measures to protect the migrant population. In particular, we recommend the authorities not to detain migrants under a return procedure during the COVID-19 outbreak, in line with UN recommendations. Instead, we recommend providing them with certificates of a temporary suspension of the removal valid for 30 or 60 days with possibility of renewal, in accordance with the provisions of article 24 of Law 3907/2011. We also recommend making use of alternatives to detention such as regular appearance before the police authorities or other appropriate measures, according to the provisions of articles 22 and 30 of Law 3907/2011. Community-based alternatives to detention, in particular case-management as implemented through our pilot, has shown positive im­pact on individuals’ ability and capacity to work towards case resolution and high engagement rates with the migration pro­cedures.

Considering the above, the new law risks to only increase the number of people in an irregular situation, as many will likely not be returned, and will be released from detention because maximum time limits have passed. The authorities should carry out individualized assessments that take into consideration the vulnerabilities and specific needs of each individual, as well as reinstate alternatives to detention as the first measure of resort, taking into account European and international law.

This article has been written by Michael Noone who is a correspondent for the Immigration Advice Service.

No Recourse to Public Funds (NRPF) is a condition attached to most UK migrants’ Leave to Remain immigration status and means that up until the applicant can meet the requirements for Indefinite Leave to Remain or British Citizenship (which can take as long as ten years), they are prohibited from accessing public funds. The benefits ban excludes them from all welfare schemes, including Universal Credit, child tax credits, carers’ allowance, social housing and free school meals for children.

At a parliamentary committee hearing on Wednesday 27 May, MP for East Ham Stephen Timms recounted the struggles of a migrant couple from his constituency. The husband had been stripped of his job due to COVID-19, and his wife’s income was less than their monthly rent. Timms informed the Prime Minister that, with ‘No Recourse to Public Funds’ (NRPF) stamped on their visas, the couple was on the brink of destitution and their two children, both born in the UK, were at high risk.

Astonishingly, the Prime Minister seemed to have no idea what NRPF really was. NRPF was a New Labour policy, extended by Theresa May in 2012, and has been discussed and debated hundreds of times during Johnson’s tenure as a serving MP, including over 80 times since he became Prime Minister. A policy which is already negatively impacting the lives of around 100,000 children, most of whom were born in the UK, should be one on which the PM has passing knowledge? After he was informed about the policy, Johnson promised to “find out how many there are in that position” and what the Government could do to help.

Johnson’s response elicited hopes of a swift reversal of the cruel measure. However, those hopes were quickly extinguished. When asked about the possibility of dropping the restrictions any time soon, Home Secretary Priti Patel said, “the answer is no”.

It’s estimated that this so-called ‘benefits ban’ impacts over a million adults in the UK, and around 143,000 children. And yet the Home Office fails to recognise the hardship facilitated by NRPF and its disproportionate impact on migrant women.

Impact of NRPF on single mothers

A 2019 study by the Unity Project examined the cost of the No Recourse to Public Funds policy. The findings showed that women are more likely to be single parents and, without access to free public childcare schemes afforded to disadvantaged families, are often unable to enter full-time employment. Women are therefore more likely than men to become trapped in underemployment, total unemployment, or low-paid work which pushes them to the brink of destitution. Pregnancy care and postnatal aid are among the services protected by the 2010 Equality Act, but NRPF means new mothers are affected disproportionately by the measures. Even those in receipt of Statutory Maternity Pay struggle to make ends meet; without welfare support, the study found pregnant migrant women are engaging in work for longer – both before and after giving birth – to avoid significant wage losses.

Domestic abuse survivors struggle for support

Troublingly, women impacted by NRPF restrictions find it difficult, often impossible, to access domestic abuse support services. Women are significantly more likely to suffer abuse in the home, and the study showed that women with NRPF are more likely to suffer violence than those with British citizenship. While the Office for National Statistics estimate that 7.5% of British women experienced domestic abuse in 2017, the Unity Project found 23% of women with NRPF are subjected to abuse and violence. Further studies by Southall Black Sisters and Women’s Aid find that migrant women are at an increased risk of all forms of abuse, including familial and honour-based violence, sexual violence, economic exploitation and harmful practices like female genital mutilation. The evidence suggests that migrant women are at a heightened risk due to a combination of structural factors such as a lack of supporting services, language barriers and reluctance to come forward because of their immigration.

Yet to flee violence and access temporary aid, migrant women must jump through hoops and provide a mountain of paperwork to the Home Office to prove that they have become victims. This stringent red tape has only resulted in survivors remaining with their abusive partners, trapped in a vicious cycle afraid of their partner yet equally afraid of deportation. And this escape route is only applicable to women in the UK with a Spouse or Partner Visa: undocumented women, students and women with UK work permits are prohibited from seeking support available under the Destitute Domestic Violence Concession.

The impact of domestic violence on any woman is devastating, but for migrant women, the dual oppression of violence and lack of access to help can be lethal. Language barriers and shattered confidence impair the ability of some to approach the limited help they have at their disposal. And without public funds, migrant women are often turned away from refuges where spaces are limited and often funded by the public purse. To add insult to injury, the most recent Domestic Abuse Bill fails to recognise the lack of support available to migrant victims.

Women at the mercy of the ‘postcode lottery’

Along similar lines, survivors of human trafficking and modern slavery find themselves with a mountain to climb to escape destitution while coping with the physical and emotional scars of their ordeal. Half of the trafficking survivors were refused asylum support in the UK between 2015 and 2017, perpetuating the cycle of exploitation. Instead of accessing public funds, trafficking and slavery survivors fall victim to the UK’s National Referral Mechanism (NRM) and, by extension, the ‘postcode lottery’ as many local councils simply lack the resources to properly provide aid.

In the eyes of many, NRPF feeds into the overtly “hostile environment” policy the Government has been creating in the past decade . The human touch is provided by the victims of such a harsh policy and is lacking in the implementors. This is possibly best reflected in the remarkable story of an eight-year-old boy who took his case to the high court, arguing that the Home Office’s NRPF policy increased the risk of families like his becoming destitute and heightened public health risks during COVID-19 by forcing people into overcrowded accommodation or on to the streets. The unnamed boy and his lawyers won the case, with the court ruling that the denial of families like his to the welfare state is unlawful.

New NRPF guidance notes

As a result of the case, the Home Office amended its guidance, lifting NRPF from vulnerable families who are ‘destitute’ or who are ‘at risk of imminent destitution without recourse to public funds.’

However, it still doesn’t go far enough to protect some of society’s most vulnerable people as only those with a Family Visa may apply for an exemption to NRPF – and there is little confidence that local authorities will take notice. Whenever access to financial aid falls in the hands of local councils, as exemplified by the National Referral Mechanism for trafficking victims and Section 17 – the latter of which obliges authorities to provide welfare for children in their jurisdiction, yet 6 in 10 families are turned away – it is evident that vulnerable people fall through the cracks. As such, this tweak to the NRPF condition in the immigration rules is not the revolutionary change campaigners have been hoping for.

It seems difficult to present an argument for keeping the current rules in place. Surely the most appropriate course of action for the government would be to abandon NRPF entirely and allow individuals and families with children who have settled in this country  to access public funding in the same was as other Britons do. By allowing women and children to teeter towards the brink of destitution, with all the perils that entails, before considering allowing them access to welfare aid is a cruel, Russian-roulette style policy which serves only to remind us that the government are creating a hostile environment which batters and bullies migrant women.