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.

So what has this meant concretely for undocumented people? We surveyed our members to learn more about the impact of the lockdown measures on them and on the communities they serve. Forty members responded, based across the EU as well as in neighbouring countries (Albania, Israel, Morocco, Norway, Switzerland and the United Kingdom).

Our survey shows that the main concern for undocumented people during the pandemic (80% of those surveyed) was the loss of income due to the interruption of work, and the impossibility for undocumented migrants to access state support, including unemployment benefits. Another prevalent concern (50% of those surveyed) was the impossibility to keep social distances, as many undocumented people live in crowded precarious settings, including detention centres and informal camps.

At the same time, many PICUM members (41% of those surveyed) told us they’re less able to support undocumented people, as restrictions during lockdowns made it hard to carry out community work. Yet more than one-third of PICUM members surveyed also indicated that requests for support are on the rise (38%).  Our members reported (41%) that it has become harder to advocate towards their governments for inclusive policies, as in person meetings were largely discontinued and because the management of the health emergency is trumping other priorities.

Civil society organisations noted that numerous restrictive measures were adopted under the pandemic. In ten of the countries included in the survey, access to asylum and immigration procedures was suspended. In four countries, people rescued when crossing borders, including when undocumented, were denied access to the national territory. In four countries, undocumented people were detained for not respecting physical distancing and (de)confinement measures, which are often impossible to follow for undocumented people who don’t have any accommodation.

Despite the numerous challenges, the portrait is not entirely bleak. In fact, the pandemic has opened windows of opportunity for the rights of undocumented people in quite unlikely ways. Pushed by considerations about public health, some European countries have adopted measures which aim at reducing the exclusion of undocumented people from public services. For instance, Portugal temporarily regularised the status of all people with a pending residence application, so they could have access to state support, including full access to health care. Ireland granted safe access to health care to undocumented people, ensuring no data is shared with immigration authorities. Some other countries passed laws with an impact on migration management for other reasons. Italy adopted a measure that opens the door to a major regularisation for undocumented workers in the domestic and care, and agri-food sectors, with a view to addressing labour shortages due to the closure of borders. Spain nearly emptied its immigration detention centres, while relying on civil society to provide alternative accommodation, to avoid uncontrolled COVID-19 outbreaks in the centres. Detaining migrants if return is impossible to carry out due to border closures is also prohibited by international human rights law and jurisprudence from the European Court of Justice.

Civil society also observed some small openings allowing undocumented migrants to access specific services during the pandemic. Overall, our members found that several countries allowed for undocumented to access some form of emergency assistance. In ten countries, undocumented people were able to access COVID-19-related health care; in seven countries, they could access food and nutrition schemes; while in eight they could access emergency shelter.

Although many of these measures are not perfect and have been presented as temporary, civil society should seize the opportunity to show policy makers that change is possible and that more inclusion benefits everyone. Governments and other donors should recognise that these are long term efforts and should devise schemes to support and partner with civil society in a sustainable way.

Austria, Belgium, Cyprus, Greece, Hungary, Israel, Italy, Malta, the Netherlands, and the United Kingdom.

Albania, Cyprus, Italy and Malta.

Albania, Greece, Morocco and the Netherlands.

Belgium, France, Germany (only in Berlin), Ireland, Israel, Malta, the Netherlands, Norway, Switzerland, and the United Kingdom.

Belgium, Finland, France, Luxembourg, the Netherlands, Spain and Switzerland.

Belgium, the Czech Republic, Finland, Malta, the Netherlands, Norway, Switzerland and the UK.

In March 2020, Italy’s Minister of Agriculture, Teresa Bellanova, called for the regularisation of undocumented workers – a step that many within and outside of the EU found surprising. A government official that calls for the regularisation of undocumented workers? Some found it unseemly. However, regularising undocumented people makes economic, social and political sense and European countries have been doing it for years.

A taboo that isn’t one?

The impression that regularisation is taboo in the EU was solidified in 2008, when France, which held the Presidency of the EU at the time, proposed a ban on large-scale regularisations. Countries such as Germany, France, Poland, The Netherlands, Denmark, Austria and Ireland were against one-off regularisations (although many had held them in the past), while Italy, Greece and Spain were in favour. To achieve compromise amongst differing views amongst EU member states, the European Council recommended  that Member States only do case-by-case regularisations “for humanitarian and economic reasons.”

While the decision to enact a regularisation programme or mechanism is ultimately implemented at the member state level, several EU directives foresee access to residence permits for particular groups, be it victims of domestic violence, people in return procedures or victims of trafficking or exploitative working conditions.

The most comprehensive study on regularisations to date shows that 24 of the 27 EU Member States implemented regularisation programmes or mechanisms between 1996 and 2008. PICUM’s own research shows that countries understand that they can meet their social and developmental objectives, as well as human rights obligations, by developing ways to regularise people – for instance, children and young people or victims of crime.

And why not? Developing ways for undocumented people to regularise offers countries tangible advantages. Countries receive economic benefits through increased tax revenues and social security payments, a better understanding of their resident population and labour market and the opportunity to better regulate working conditions, health and social services. Regularisation also can help increase migrant communities’ trust in governments and institutions, reduce inequality and social exclusion, empower migrants and their families and reduce their vulnerability to exploitation and abuse.

COVID-19 gives an additional reason to countries to grant secure, long-term residence statuses, as some scientists predict that societies around the world will have to live with COVID-19 for the next two years before everyone is vaccinated or immune. Protecting everyone makes sense.

Measures taken by countries in response to the pandemic

Protection is what Portugal had in mind when they decided to grant people with a pending residence application a temporary residence permit during the Covid-19 pandemic. The decision came after nineteen civil society organisations, mostly socio-cultural associations of Nepali, Pakistani, Brazilian and Bangladeshi people, had called out the need to safeguard the rights of workers who had started a regularisation process and of people with a residence permit that would expire during the lockdown.

The Portuguese measure is an important step forward: until 1 July 2020, tens of thousands of migrants are able to access health care, social services, unemployment benefits and the labour market on the same footing as Portuguese citizens. A simple “stub” proves that they submitted a residence permit request before the lockdown started and grants them access to their rights.

But not all can benefit. SOS Racismo has estimated that roughly 80,000 to 100,000 undocumented people cannot benefit from the measure, including tens of thousands of Sub-Saharan African workers who were not able to submit a residence permit application before the start of the lockdown.

Italy has gone another route. The regularisation programme that was adopted at the end of May as part of a broader 55 billion euro stimulus package reflects the government’s aim to address acute shortages in the Italian labour market that the COVID-19 pandemic caused. It focuses exclusively on the agricultural sector, domestic and care work and grants temporary residence permits along two tracks.

In the first track, employers can submit an application to conclude an employment contract with a foreign national on the territory or to declare an existing irregular employment relationship. In the second track, people whose residence permit expired after 31 October 2019 and was not renewed or converted into another permit can apply for a six-month permit to look for work. In both cases, the worker needs to have been in the country since before the start of the lockdown on 8 March 2020 and an administrative fee is due.

Italy’s approach does contain important measures to protect undocumented workers. For example, no one can be expelled from Italy during the application period from 1 June to 15 August 2020. And, if at any time in the future a worker loses the job they were regularised through, they can apply for a residence permit of up to one year to look for another job. Nonetheless Italy’s approach also reflects the economic rationale behind it, seeing undocumented workers as cogs of the economy.

Other countries have focussed on preventing people from becoming undocumented by extending residence permits during the lockdowns. These include Greece, Ireland, Italy, France, Luxembourg, Poland, Slovakia and Finland.

Necessary elements of regularisations

While the Italian and Portuguese measures will change the lives of many undocumented people, they also show that regularization programmes and mechanisms need at least the following six crucial elements to be effective and human rights compliant.

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

Secondly, they need to be accessible and not too bureaucratic, burdensome or expensive. Administrative fees are an important barrier because most undocumented people live in poverty. In Belgium, children are exempt from the administrative fee but adults pay 385 euro when applying for regularisation on humanitarian grounds.

Thirdly, 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, for instance.

Fourthly, decisions should be transparent and made on the basis of clear, objective criteria. People should be informed throughout the process, and processes should include a right of appeal.

Fifthly, they should result in independent, secure and long-term statuses, as people remain vulnerable to exploitation if they don’t. People should receive a temporary status that grants access to services while their regularisation application is processed.

Sixthly, civil society organisations are crucial partners for effective regularizations, and should be involved as such from the outset, in the design, implementation and evaluation of measures.

Alone, regularisation does not provide a solution to irregular migration. But it is a valid and effective policy that allows countries to recognize undocumented people living on their territories, contributing to their societies and economies and calling these communities home.

Kate Brick, 2011, Regularisations in the European Union: The Contentious Policy Tool, Migration Policy Institute Insight

“Programmes” regularise large(r) numbers of undocumented people who fulfil a specific set of critera, but is open for a limited period of time. A recent, non-EU, example is Operation Papyrus in Geneva, which ran from February 2017 to December 2018 and regularised 2,390 undocumented workers and their families by January 2020. “Mechanisms” are permanent ways to regularise one’s residence status, often on a case-by-case basis and with a varying degree of discretion by decision-makers. Examples are article 9bis and 9ter in the Belgian law, providing the possibility to obtain a residence status on humanitarian or medical grounds, respectively.

Martin Baldwin-Edwards and Albert Kraler (Eds.), 2008, REGINE: Regularisations in Europe, Pallas Publications

500 Euros in track one, payable by the employer; 130 Euros in track 2. Paragraph 7, see https://stranieriinitalia.it/attualita/regolarizzazione-ecco-il-testo-in-gazzetta-ufficiale/

Paragraph 17, see https://stranieriinitalia.it/attualita/regolarizzazione-ecco-il-testo-in-gazzetta-ufficiale/ and http://www.governo.it/node/14766?fbclid=IwAR3So3OAbJJv1aIRhRDy2tZhWWcZ0wxYlB3l7WvGbxAdTop-DcVyMYnY9Fk

Article 22, par. 11, of Decree Law 286/98

See also PICUM, 2018, Manual on Regularisations of Undocumented Children, Young People and Families

Cover image credit: Adobe Stock: Lakshmiprasad

As announced by Commissioner for Home Affairs Ylva Johansson and Vice-President for Promoting our European Way of Life Margaritis Schinas in Autumn 2019, and included in the European
Commission work programme for 2020, an EU Pact on Asylum and Migration is expected to be launched in the coming month. Published at a critical juncture in the history of EU migration and socio-economic policies, the Pact has the potential to signal a turning point in how Europe addresses migration. The COVID-19 pandemic has exposed the ambivalence of the existing system, which strongly relies on workers in low-wage occupations – the hospital orderlies, supermarket staff, food delivery personnel, agricultural workers and countless others – while at the same time excluding many of these same people from social protection and health care systems. In this moment of crisis, some countries are having the courage to step up and review their migration policies.

Extension of residence permits

In March 2020 Portugal announced plans to grant residence status to everyone with a pending residence application on any ground until 1 July 2020. Individuals who are granted permits on this basis will be able to access health care and all other public services on equal terms as any other permanent resident in Portugal. Other countries, including Greece, Ireland, Italy, France, Luxembourg, Poland and Slovakia, have automatically extended the validity of all residence permits expiring during the lock-down. In Slovenia, migrants in return procedures have been released and granted a temporary permit valid up to six months.

Regularisation

In Italy the government has adopted a measure that can potentially regularise hundreds of thousands migrant workers working in the agricultural and caregiving sectors to address likely labour shortages due to the lockdown measures. Workers in these sectors may be able to access a work permit, if they are in work or have an offer of work, or a temporary permit to look for work. In Belgium, advocates are calling the authorities to regularise undocumented people to grant them access to social support during the COVID-19 pandemic, as did several MPs in France. Calls for regularisation are growing in Spain too, where the Barcelona city council asked the national government to take action on residence permits to tackle the pandemic.

Release from immigration detention

In Spain, almost all immigration detainees have been released and provided accommodation in state-funded reception programmes run by NGOs. Hundreds of individuals have also been released in the UK, Belgium, Netherlands and Italy. In Romania, the government asked NGOs to provide accommodation to migrants released from detention centres. Forced returns were suspended or significantly reduced in ten Member States (Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Lithuania, Malta, Slovakia).

Social protection measures

In, Ireland undocumented migrants have been granted full access to social welfare and health care, and authorities have confirmed that there will be no data sharing between service providers and immigration officers, in compliance with the firewall principle. Moreover, undocumented workers who have lost their job due to COVID-19 are eligible to apply for the Pandemic Unemployment Payment.

At a time in which undocumented migrants are particularly at risk of marginalisation and scapegoating, the European Commission has an important role to play in supporting and encouraging these promising practices.

While building on the critical lessons we learn in this challenging and unprecedented period, the Pact will have to propose a five-year, forward-looking strategy. PICUM recommends the Pact to address the following issues:

1. Expanding and improving regular migration pathways

While the majority of migration happens for work and family reasons, this reality is completely overshadowed by the EU’s focus on asylum, border controls and return. Promoting reforms in regular migration pathways has to be a priority. Migrants are not simply an economic value to be capitalised upon, but actors in the social, economic and cultural development of the communities they support and live in, and human beings with rights and ambitions.

The Pact should commit to meaningfully promote the expansion and improvement of regular migration pathways, including for family and work across different skills levels.

This should include improving work and residence permits to promote rights, full inclusion and participation, and family life. Allowing for jobs and permits to be changed, and for in country applications, are some of the reforms needed both to reflect reality. As people change jobs, and families are formed, the new Pact should demonstrate a moving away from policies and practices that create the conditions for exploitation, violence and loss of status.

2. Promoting comprehensive residence permit schemes

In real life there is no clear-cut distinction between « those who have a right to stay and those who do not”. Residence status is a matter of policy choices as much as individuals’ choices.

The Pact should recognize that people arriving irregularly or identified as undocumented migrants on the territory should have meaningful access to various residence permits and status determination procedures, as already existing in many member states.

In the past, many member states have adopted regularisation measures, recognizing the importance of regularising individuals on a number of different grounds, including residence and work criteria. In April 2020, the Commission itself underlined that “Member States enjoy broad discretion to grant a residence permit or another authorisation offering a right to stay to irregular migrants for compassionate, humanitarian or other reasons, as provided for by Article 6(4) of Directive 2008/115/EC (hereafter “the Return Directive”)”.

The Pact should move away from the focus on channelling people either into international protection or return procedures, and avoid directly linking the two.

Some people may not be – or have been recognised as – in need of international protection, but still have grounds to stay, including because of family life, health concerns, statelessness, respecting the principle of non-refoulement or because their return is blocked by factors beyond their control. They should be entitled to appropriate forms of residence permits and protection.

3. Promoting case management as a migration management tool

Case management is a structured social work approach to migration management centred on individuals’ engagement with migration procedures. By building trust in the system, providing stability and facilitating people’s sense of agency, case management increases engagement and participation in migration procedures, providing an effective approach to reducing irregularity while avoiding immigration detention.

Across the European Union, more than 100,000 people are detained each year solely because of their migration status. The COVID-19 pandemic has shown that promoting and implementing effective alternatives to immigration detention is now more urgent than ever.

The Pact should promote the implementation of case management as a clear and effective alternative to immigration detention.

The evaluation of ongoing case management projects has shown extremely positive results in terms of compliance, at significantly lower costs than detention. For instance, in three pilot projects run between 2017 and 2019 in Bulgaria, Cyprus and Poland, 97 per cent of the participants remained engaged or achieved case resolution.

4. Protecting child rights

Children make up an important part of migrant populations, both those living in European countries and those on migration routes. It is crucial that the Pact reflects Europe’s respect of child rights and regard for the needs of children in migration, both those on the territory and at the borders. The recent coordination efforts between the European Commission and several EU member states on the relocation of unaccompanied children from Greece to nearly a dozen EU member states demonstrate that, when there is political will, actions follow.

The Pact should ensure that the principle of the best interests of the child are central to asylum, return, and border procedures.

The Pact should build upon existing evidence around children in migration and aim to find durable solutions that are in the best interests of the child, so no child grows up in uncertainty.

5. Ending the criminalisation of solidarity

In the past years, hundreds of individuals have been criminalised for rescuing migrants at sea, giving food and water to people in distress, providing shelter or rental accommodation, and informing migrants about their rights.

The Pact should include, but not be limited to, clear guidelines ensuring that people working on the rights of migrants and providing assistance in the EU are protected from judicial and other forms of harassment.

The EU should support and encourage individuals defending and supporting the rights of migrants.

6. Supporting social inclusion and community well-being

Social inclusion fosters cohesion in our societies and is a bulwark against discrimination and marginalisation. Europe’s efforts to promote and ensure social inclusion must be based on the recognition that our society is made up of – and enriched by – diverse communities composed of individuals with different origins and migration backgrounds. Their work, ingenuity, art and culture contribute to Europe’s prosperity.

To foster community wellbeing means ensuring that everyone can access the services they need – including health and social services, decent housing and work, and is equally protected under the law through access to justice – without risking immigration enforcement because they may have irregular migration status.

The Pact should underscore Europe’s commitment to social inclusion, and to fostering inclusive societies where community wellbeing, safety, health, workers’ rights and justice are prioritised over narrow immigration enforcement concerns.

This should include recognition of the important role of cities and other local and regional authorities in promoting inclusion, and of civil society as a bridge to reaching and engaging with communities that have long experience of systemic and intersecting forms of discrimination and exclusion.

7. Ensuring coherence with other relevant EU strategies and priorities, including promoting gender equality and victims’ rights

The Pact should ensure coherence and promote the implementation of other relevant EU strategies and priorities.

For instance, the EU’s much anticipated Gender Equality Strategy for 2020-2025, released on 5 March 2020, is an important step up for the EU on gender equality and must be reflected in the Pact.

Women represented 51.4% of migrants in Europe in 2019. While there may be no formal differentiation based on gender in criteria for residence and work permits in Europe, in reality women are less likely to have access to the support and resources to travel regularly and safely, to get the jobs that would grant them stable work permits and the incomes to bring to their families. Women who migrate for work are often confined to occupations that are under-regulated, with few rights and protections. A survey of 400 migrant women carrying out domestic work in the Czech Republic revealed that 53% did not have any employment contract. This exposes them to economic hardship, unsafe working conditions and exploitation, with limited options for redress, particularly if they are undocumented.

 

During the COVID-19 pandemic, women and girls have been particularly at risk. The UN Population Fund (UNFPA) has predicted a 20% increase in gender-based violence in all 193 UN member states. Even outside the pandemic period, undocumented women do not systematically report their aggressors to the police or often do not seek help in shelters or hospitals because they are afraid of being reported to immigration authorities.

It is essential that undocumented migrant women have full access to services to ensure the eradication of gender-based violence, which is one of the key objectives of the EU Gender Equality Strategy.

The Gender Equality Strategy commits to include a gender perspective in all EU policies and processes. For the Pact to uphold this commitment, it will have to meaningfully address how migration policies are perpetuating and reinforcing structural discrimination based on gender identity and other characteristics like race, nationality, and sexual orientation. 

The EU’s upcoming Strategy on Victims’ Rights will include a focus on improving access to justice for people facing particular vulnerability, including child victims and survivors of violence; and address the rights of third country nationals who are victimised in Europe. The EU Victims’ Directive itself guarantees access to protection, services and justice for all victims of crimes without discrimination, including based on residence status, and recognises that victims who are not nationals of the country where they are victimised are “particularly vulnerable” and at “particularly high risk of harm”.

The Pact should also reflect the priorities and concerns of the Strategy on Victims’ Rights, recognising and addressing the forms of victimisation experienced by migrants across a range of contexts, including at home, in the workplace and in detention – and reaffirming the rights of victims to protection and justice.

Copyright photo: Jose Sena Goulao – Lusa

This blog post was written by Nacho Hernández Moreno, lawyer at the International Affairs Department at Fundación Cepaim, Spain.

The world is currently facing one of the most dramatic and fast developing emergency situations since World War II. Mandatory lockdowns that seemed dystopian just some weeks ago are now widely in place to keep people safe and to slow the spread of COVID-19. Although we’re all affected by the confinement measures, we cannot ignore the already confined migrant detainees. Held in prison-like facilities, and with limited rights, these people face even more vulnerabilities when it comes to public health policies.

Spain is leading the way in releasing migrants from detention centres. The fact that only three persons remain detained and that all but one detention facilities have been closed has brought Spain into the international spotlight of migration detention. The work of non-governmental organisations has been of paramount importance and has confirmed remarks by the United Nations Special Rapporteur on extreme poverty and human rights about the Spanish third sector being “one of the most vibrant” he had ever encountered, following his recent visit to Spain earlier this year.

Immigration detention in Spain

There are eight detention facilities in Spain known as Centros de Internamiento de Extranjeros (CIE, by its Spanish acronym), which are designed to hold persons pending deportation. The law mandates that immigration detention orders can only be issued to ensure the removal of the person concerned, and that migrants can only be held in those centres for up to 60 days . If deportation cannot be enforced within that period, they must be released. They may still be expelled eventually, but they cannot be detained again.

Therefore, in principle, all third country nationals without a residence permit can be detained, except for unaccompanied minors pregnant women, and migrants receiving social or incapacity benefits as well as their spouses, minor or dependent children. Minors can also be detained if their father, mother or both parents are detained in order to maintain the family unit .

The CIE have spurred widespread criticism because of their poor conditions and obstacles faced by social organisations and individuals to monitor their functioning. For instance, the latest report by the Jesuit Migrant Service – Spain (SJM-E) exposed major structural deficiencies in the facilities, such as the lack of proper age assessment procedures (repeatedly highlighted by the United Nations Committee on the Rights of the Child -see Fundación Cepaim Journal XDS Vol. 10, pages 22-24), inadequate medical care, obstacles to seeking asylum, limited communication with the outside world, and difficulties for social organisations, social stakeholders and lawyers to visit the centres. The Spanish Ombudsman expressed similar views and even reported that 88 unaccompanied minors were held in detention facilities in 2018 (para. 80, page 70).

Current state of play

The Spanish government declared the state of emergency on 14 March in order to address the coronavirus pandemic. Initially foreseen for two weeks, it was later extended for another two weeks, and even farther until the end of April. As the country was hit by the virus outbreak, countries started rejecting people arriving from Spain. Once the state of emergency was declared, Spain reintroduced internal border controls. People were mandated to stay home and not to leave the country.

In light of the new circumstances, non-governmental organisations working in the field of detention asked the government and the competent judges to release all migrant detainees. If detention can only be ordered to execute deportations, the practical impossibility to remove people due to the closing of bordersmade detention unlawful. On 19 March, the Spanish Ombudsman stated that the state of emergency places migrant detainees in an even more vulnerable situation and that detention cannot work as a means to the end it is designed for. They cannot be removed, so they must be released. The response by the Spanish Ombudsman cannot be ignored, as it channels civil society organizations’ complaints and plays a major supportive role for those working for the improvement of human rights standards in the country.

The Spanish government has been slow to react, but some judges started releasing detainees soon. The CIE in Barcelona closed its doors on 19 March. When the one in Madrid was emptied on 2 April, the Spanish authorities claimed that all CIE were expected to be closed by 6 April. However, the CIE in Valencia and the one in Murcia continued holding migrants until 8 April and 9 April, respectively. In addition, the CIE in Algeciras remains open as of 16 April with three detainees, despite the fact that on 10 April a high-ranking official within the National Police Corps announced that those migrants would be transferred “within the next days” to “other places”.  

The release of detainees was carried out on a case-by-case basis. Persons with relatives who could host them were released first. In case migrant detainees had no family in Spain, they were sent to social organisations that implement reception programmes for undocumented migrants. People released from immigration detention do not have to report back to the authorities and will not be detained again once the state of emergency ends. The entry and stay at civil society facilities are also on a voluntary basis.

Our organisation, Fundación Cepaim, has received some of the people released from detention. We address social and residential exclusion, as well as migrants’ social integration through different projects. Apart from being one of the main organizations managing the national reception system for refugees, asylum seekers and stateless persons, Fundación Cepaim also focuses on the reception of undocumented migrants through its humanitarian assistance project. It is a 3-month long program designed for the social inclusion of undocumented migrants whose deportation cannot be enforced, mainly people from African countries who arrive on the Mediterranean coast. They are accommodated at private apartments and are provided monthly allowances and in-kind support to cover their nutrition and other basic needs. Their integration pathways are supported by a team that includes lawyers, psychologists, mediators, social workers and volunteers. They are provided with legal assistance and information on regularization schemes, as well as Spanish classes to improve their language skills.

Looking beyond the pandemic

Critically, the judge who monitors the CIE in Las Palmas, where two detainees tested positive for COVID-19, ordered the release of migrants on humanitarian grounds validating civil society’s claims about the poor conditions of the detention facilities and the vulnerabilities they create for detainees. In his reasoning, the judge seems to point out that detention in a CIE poses if not greater at least a similar risk to public health than potential homelessness (for those migrants refusing the accommodation provided by social organisations).

Spanish civil society successfully channelled its efforts to end immigration detention in a way that led the government and judges to order the release of people from immigration detention, based on public health concerns and the lack of legal basis for detention. It is now time to build on this momentum to effectively advocate for alternatives to detention that will eventually end migration detention.

Image credits: ID 173014886 © Phichet aelui | Dreamstime.com

This blog post was written by Marianne Halle from the Centre de Contact Suisses-Immigrés Genève (CCSI).

Operation Papyrus was a temporary regularisation scheme in the city-canton of Geneva that ran from February 2017 to December 2018, and was aimed at granting residence status to a large number of undocumented people and families who had been living and working in Geneva for many years. By January 2020, 2390 persons had obtained a one or two-year, renewable residence permit thanks to the project. With several hundred cases still pending, the final tally of regularisations is likely to be close to 3000. People who were regularised in the framework of Operation Papyrus can now serenely build their future in Geneva, with the same rights and duties as their fellow residents in the canton. With a permit, they can get out of exploitative situations at work and find more stable jobs, start professional training, sign a lease in their name and thus avoid precarious subletting and prohibitive rents, or defend their rights when they are victims of a crime without fear of being reported and deported. Following the positive independent evaluation of the pilot project published late February, it is time to establish the procedure as a permanent mechanism in Geneva, and see how to roll it out in other cantons. Because we now know that the experience was a success, it also provides important food for thought and lessons learnt for other cities, regions and countries.

It was already possible for some undocumented migrants to regularise their status in Geneva, but Operation Papyrus was a truly novel experiment, a type of regularisation scheme that had never been tried before.

Firstly, Operation Papyrus was the result of more than a decade of sustained advocacy work in favour of regularisation. From the onset, state authorities worked hand in hand with local migrant support NGOs – who brought their detailed knowledge of the issue and expertise from the grassroots level to the table – and throughout the process there was constant dialogue, collaboration and a constructive state of mind between administrations, political actors and local NGOs.

Secondly, in practical terms, the project redefined the procedure for regularisation. Prior to this project, the procedure was both long and uncertain for migrants who decided to risk requesting a permit: the authorities had a large margin of appreciation and discretion as they examined claims, which made it difficult for candidates (as well as for support NGOs) to predict outcomes with any degree of certainty. In Operation Papyrus, the procedure was simplified and made more transparent. Candidates had to meet five criteria in order to be eligible: continuous residence in Geneva of 5 years for families with school-aged children, or 10 years for others; being employed; being financially independent (no debts and no dependence on welfare); obtaining a certified A2 level in French (oral only); and being able to produce a clean criminal record. Although each case was reviewed individually, the fact that the procedure was somewhat standardised and based solely on objective criteria made it easier to process a large number of cases in a limited amount of time. For example, there was a list of documents that candidates knew would be approved in order to prove their years of residence in Geneva, reducing uncertainty for them and making the process less arbitrary.

Finally, the project was not limited to the regularisation process itself, but was more holistic, including measures designed to address the issue of undeclared work and support regularised individuals and families. For example, there were also public campaigns against irregular work, ramped-up labour market controls (particularly in the domestic work sector), as well as integration measures to ensure that those regularised would not remain isolated, would be able to find more work in case they lost hours in the process, and would be able to find affordable French classes. One of the key aspects of this project was that candidates could file a claim even if their employer(s) did not support them. They were required to “self-declare” their current working conditions. This data was then used by the state – but only once the permit had been granted and the person was thus safer from retaliation – to conduct labour market controls and ensure that employers complied with all the legal requirements (minimum wage, social contributions and leave paid, etc.).

The large scale of this project implied significant demands on organisations such as the one I work for. Several organisations that are members of the Collectif de soutien aux sans-papiers de Genève (Collective in Support of Undocumented Migrants in Geneva) – among which CCSI where I work – were involved from the earliest stages in the development of this pilot project and played a key role in its implementation. Relying on a system of walk-in counselling services set up specifically for the operation, support organisations and trade unions provided more than 2,230 hours of professional, confidential and free information and advice to people directly affected, and organised and carried out twenty public information sessions. The associative and union partners submitted 1,264 cases (corresponding to 1,931 people) between 17 February 2017 and 31 December 2018, equivalent to two-thirds of the requests filed under the project.

Three intense years after the pilot project was officially launched, here are the main positive elements we take away from the operation:

• The simplified procedure, based on objective and transparent criteria, allowed us to adequately advise the people who contacted us and to reassure them as to the outcome of their request. This element proved fundamental to building trust and guaranteeing legal certainty in the procedure. The very low number of refusals (less than 1% of requests filed by support organisations and trade unions) demonstrates that the procedure designed for this project was implemented successfully for all parties involved – the authorities received a majority of requests that fit the criteria, candidates knew what to expect when they file their claim, and support organisations had the tools to advise candidates on how to proceed.
• The possibility to file an application without having to depend on the support of one’s employer made it possible to include those who most needed access to a residence status in order to defend their rights. Indeed, without this provision (which did not exist beforehand), those who worked in situations of exploitation would never have obtained their employer’s support (or would’ve been too afraid to ask), and would therefore not have been able to file a claim. It also avoided increasing dependence on employers, a situation which can lead to increased exploitation.
• Operation Papyrus encouraged many people to approach support organisations and trade unions to discuss their situation. These people had sometimes never had contact with support networks before. This shed light on many situations of abuse – in the fields of work, housing, and other forms of exploitation. Even if some of them were unable to regularise their situation, they found support in the process of defending their rights.
• During the operation, we saw an increase in awareness on the part of employers in the domestic work sector as to their obligations as employers. This better understanding of their role as employers, together with the steps taken with the help of trade unions to recover (at times substantial) unpaid wages, led to improved working conditions for many domestic workers, whether or not they were regularised. The effects of the operation on the domestic work sector are also apparent in the sharp increase in social insurances contributions. Indeed Cheque-service, a private company that deals with all the administrative aspects of having a domestic employee (payment of social insurance contributions, establishing salary certificates, etc.) saw a 44% payroll increase and a CHF 5.7 million increase in social contributions between 2016 and 2019. The true increase is likely to be higher, as Cheque-service is only one of the ways employers can declare their domestic workers in Geneva.
• Concerns often voiced around potential negative consequences of implementing a large-scale regularisation project did not materialise. The two main fears raised by opponents to this project were that the operation would lead to an influx of new arrivals of undocumented workers, and that some of the regularised migrants would turn to welfare or social benefits and weigh heavily on the state’s finances. Both of these fears turned out to be unfounded, as the independent report on the operation clearly shows. The evaluation found that there has been no increase in arrivals of undocumented workers, and labour market controls in the domestic work sector were key to ensuring that regularisation would not lead to a high proportion of workers leaving or being laid off from their jobs, and thus being replaced by other – even more precarious – undocumented migrants. Controls in the domestic work sector helped protect workers’ rights (decent salaries, paid leave, declaration to social insurances, etc.), and thus provided incentives for regularised workers to remain in those jobs. As for employers, knowing that controls were being implemented discouraged them from firing their regularised employees and replacing them with undocumented workers who could be more easily exploited. Some regularised workers did lose their jobs due to their regularisation, but the additional support measures enabled some of them to find alternative employment.

The main difficulties we encountered were linked to the fact that some undocumented people, in spite of being very well integrated and having lived in Geneva for a long time, were unable to regularise their situation in the framework of this operation. Indeed, the criteria were strict, and the legal basis (art. 30 of the Law of foreigners) for the regularisation excluded migrants who had claimed asylum in the past. Therefore, we had to advise many people not to file a request. Disappointed, some of them turned to private agents or other intermediaries who shamelessly exploited this despair. Some of these private agents filed – often for a very high price – applications for people who did not meet the criteria, thus exposing them to the risk of deportation.

Overall, Operation Papyrus can be considered to be a success, a positive experience that demonstrates it is possible to implement a simple and fair regularisation policy which brings positive effects to the entire community. This project also made it possible to put an end to a certain hypocrisy, and to acknowledge the presence and the contribution of the undocumented population living and working in Geneva. It also demonstrated how a carefully planned regularisation and accompanying measures, including controls of working conditions, can serve to regulate and formalise employment is sectors such as domestic work with high levels of undeclared work.

Maintaining such a procedure as a permanent mechanism would allow us to take into account of the ongoing reality of undocumented migrant workers – particularly domestic workers – in Geneva and allow others to regularise their situation. We hope that the experience in Geneva gives other cantons and countries confidence to implement similar projects, so that undocumented workers there can also access residence status. We hope that efforts to promote decent and declared work across Europe, such as the #EUFairWork campaign, can also take inspiration from the project.

For support organisations and trade unions in Geneva, the work goes on. As we offer the experience we have gathered with this novel project to other organisations and regions, we will continue to defend the rights and improve the living and working conditions of all undocumented people who turn to our organisations, whether they have a chance to regularise their situation or not.

Image credits: @Robert Stokoe | Pexels 

This page gathers statements and resources about the COVID-19 pandemic and its impact on migrant communities and on civil society working with migrants.

Additional PICUM resources:

• PICUM: Non-exhaustive overview of European government measures impacting undocumented migrants taken in the context of COVID-19

PICUM members’ statements:

• Aditus (Malta): The ill-treatment aboard the Captain Morgan ships must be stopped at once!
• Aditus (Malta): The nation cannot quietly celebrate Easter whilst men, women and children are drowning on our doorstep.
• ADC Memorial – Anti Discrimination Centre Memorial (Belgium): Human rights defenders demand the release of immigration detainees during the pandemic
• ASGI (Italy): L’impatto sui diritti delle/dei cittadine/i straniere/i e le misure di tutela necessarie: una prima ricognizione
• ASGI (Italy): COVID-19: le Regioni tutelino chi vive negli insediamenti informali
• ASTI (Luxemburg), Le COVID-19 exige une solidarité sans conditions
• FLEX Focus on Labour Exploitation (UK): New Briefing: No Worker Left Behind – how might the COVID-19 pandemic impact worker exploitation?
• Funcación CEPAIM; Almeria Acoge,Médicos del Mundo y Cruz Roja (Spain), Protocolo conjunto para la intervención inmediata en los asentamientos de la provincia de Almería para la prevención y control del coronavirus
• Funcación CEPAIM (Spain), Por una regularización de personas migrantes indocumentadas, ante la pandemia del Covid 19
• Funcación CEPAIM, Almeria Acoge, Sevilla Acoge (Spain), El Escudo Social para las Personas Sin Hogar ante el Coronavirus debe proteger también a las personas que residen en asentamientos chabolistas junto a explotaciones agrarias
• CORAM (UK), Children’s legal centre, Coronavirus impact on EHC plans and children with special educational needs
• FGTB (Belgium), Protéger les travailleuses et travailleurs durant la crise du coronavirus
• FIZ (Switzerland), Les victimes de la traite des êtres humains ont besoin de protection -aussi en temps de crise!
• Generation 2.0 (Greece), Monitoring of working and living conditions of the migrant agricultural workers at Manolada in Ilia, Greece.
• GISTI (France), Face à la crise sanitaire, l’enfermement administratif des personnes étrangères doit immédiatement cesser
• Greek Forum of Refugees, AITIMA, 119 ORG (Greece), Protect the most vulnerable to ensure protection for everyone! 
• Human Rights 360° (Greece), Protect the Most Vulnerable to Ensure Protection…
• ICRSE, Sex workers in Europe set up emergency fundraisers to provide food and shelter for community impacted by COVID-19
• Jesuit Refugee Service Europe, Covid-19 and asylum: the right response is the same as ever – ensure protection, stop detention, invest in inclusion.
• The Joint Council for the Welfare of Immigrants (UK), Protecting migrants from Covid-19
• KISA (Cyprus), Protection of public health is not feasible amidst exclusion and discrimination!
• KISA (Cyprus), The government undermines legality and the rule of law under the pretext of coronavirus
• La Strada (The Netherlands), The impact of COVID-19 on the protection of rights of trafficked and exploited persons
• LAWRS, Step Up Migrant Women campaign (UK), COVID-19: Domestic Abuse Services Call for Urgent Support for Migrant Victims Blocked from Safety, Healthcare and Refuges.
• LEGIS (Macedonia), COVID-19: No one is safe until All are protected!
• Maternity Action, End unfair treatment of pregnant women and new mothers in Covid support schemes
• MRCI Migrants Rights Centre Ireland, Migrants Rights Centre Ireland calls for health and safety measures in the agri-food industry to be upheld
• MRN Migrants Rights Network (UK), Access to Healthcare, Housing & Food for All- ‘Status Now’!
• MRN Migrants Rights Nextwork (UK), Open letter to the chief executives of all local authorities in England
• NASC (Ireland), Nasc calls on Minister for Justice and Equality to ‘Move the Vulnerable Out’ 
• ORBIT (Belgium), Persbericht | Overheid zet mensen zonder papieren uit gesloten centra op straat | Hoezo #blijfinuwkot?
• Pax Christi International: Life in a time of a global pandemic crisis
• Por ti mujer (Spain), ¡¡No nos pueden dejar atrás!!
• Samen Levingsopbouw Brussel (Belgium): Voedselhulp cruciaal om coronacrisis in Brussel hoofd te bieden
• Servicio Jesuita a Migrantes (Spain): No retomar el internamiento en los CIE cuando acabe la pandemia
• Servicio Jesuita a Migrantes (Spain): Ante la situación de excepcionalidad, Interior debe liberar a las personas de los CIE
• Solidarité sans frontières (Switzerland): Appel aux autorités fédérales, cantonales et à toutes les collectivités publiques
• UNDOK (Austria): Arbeiten ohne Papiere in der Corona-Krise

Statements co-signed by PICUM:

• The Civil Society Action Committee: First, Save Lives: Solutions for the COVID-19 Pandemicand New Solidarity with Migrants and Refugees
• Joint Statement (28 organisations): Without Rights for Agri-food Workers, Europe’s Food Supplies Rest on Shaky Ground
• EU Alliance for Investing in Children: Joint statement on protecting children and their families during and after the COVID19 crisis
• FAR Feminist Alliance for Rights: Call for a Feminist COVID-19 Policy
• Hope and Homes for Children: COVID-19: Call to action to protect vulnerable families and children in alternative care across Europe
• NLO Nobody Left Outside: EU and national government COVID-19 responses must reach everyone–including marginalised people
• Social Platform: Statement on the COVID-19 pandemic
• Women in Migration Network: From Crisis to a New Social Compact: An inclusive, intersectional feminist approach is the only way out of the COVID crisis

Other statements or resources concerning migrants:

• Amnesty International (Europe and Central Asia): The COVID-19 pandemic can teach us compassion for migrants and refugees
• Caritas Europa: COVID-19 An opportunity to improve our welfare systems
• Center for Reproductive Rights: European governments must ensure safe and timely access to abortion care during the COVID-19 pandemic 
• CESI: Covid 19:Workers in precarious employment to be hit particularly hard
• The Committee on the Rights of the Child: Grave physical, emotional and psychological effect of the COVID-19 pandemic on children and calls on States to protect the rights of children
• Council of Europe: States should ensure rescue at sea and allow safe disembarkation during the COVID-19 crisis
• Council of Europe: Commissioner calls for release of immigration detainees while Covid-19 crisis continues
• EATG European AIDS Treatment Group: COVID-19 crisis’ Impact on PLHIV and on Communities Most Affected by HIV
• ECRE European Council on Refugees and Exiles: COVID-19 Measures Related to Asylum and Migration Across Europe 
• ECRE European Council on Refugees and Exiles: Open letter signed by 121 Organizations
• EFFAT – EFFE – EFSI – UNI –Europa Joint Statement on the COVID-19 Pandemic in Personal and Household Services (PHS)
• Eurochild: Protecting children now and in the future – Eurochild public statement on COVID-19 and in the future 
• Eurodiaconia: Protectingthe vulnerable –supporting our peoplePolicy recommendations to address the social and economic impact of COVID 19
• EFFAT European Federation of Food Agriculture and Tourism Trade Unions : COVID-19Outbreak,workers in agriculture and food production deserve better protection
• ENAR European Network Against Racism: COVIDIMPACT: Lifting Structural Barriers: A Priority in the Fight Against Racism
• ENAR European Network Against Racism: Leaving no one behind in the coronavirus crisis: ENAR calls for system change now to achieve real equality
• EUPHA European Public Health Alliance: Reducing the impact of the coronavirus crisis on those ‘left behind’ –Disadvantaged Migrants and Ethnic Minorities (MEM)
• ETUC European Trade Union Confedaration: Overlooked: migrant workers in the COVID-19 crisis
• EU Filipino network Migrante Europe: April 28 Coalition for Migrants’ and Refugees’ Rights and Welfare
• EWSI European Web Site on Integration: COVID-19’s impact on migrant communities
• Health Action International (HAI) and the European Alliance for Responsible R&D and Affordable Medicines coordinated a statement signed by 61 organisations.
• IDC International Detention Coalition: IDC Position on Covid-19
• Inter-Agency Standing Committee: Interim Guidance on Scaling-up COVID-19 Outbreak in Readiness and Response Operations in Camps and Camp-like Settings
• International Domestic Workers Federation: Statement on Protecting Domestic Workers Rights and Fighting the Coronavirus Pandemic
• IOM, UN Migration: IOM Responds to COVID-19
• The Lancet: Refugee and migrant health in the COVID-19 response
• The Lancet: Leaving no one behind in the COVID-19 Pandemic: a call for urgent global action to include migrants and refugees in the COVID-19 response.
• The New School – Zolberg Institute on Migration and Mobility: Human mobility and human rights in the COVID-19 pandemic: Principles of protection for migrants, refugees, and other displaced persons
• Migrant Forum in Asia: Uphold Migrant’s Rights in Times of Crisis Situations
• OHCHR United Nations Office of the High Commissioner Humanr Rights: COVID-19 Guidance
• Terra Onlus (Italy): Agire subito per tutelare la salute dei migranti costretti negli insediamentirurali informali e nei ghetti
• Terre des Hommes: Accelerate release of children from detention; Protect children from COVID-19
• UN AIDS: Sex workers must not be left behind in the response to COVID-19
• UNHCR: As COVID-19 pandemic continues, forcibly displaced children need more support than ever
• UN Human Rights: UN Human Rights Treaty Bodies call for human rights approach in fighting COVID-19
• UN Migration Network: COVID-19 Does Not Discriminate; Nor Should Our Response
• VICE: How Europe’s Pandemic Response Pushed Poor Migrant Workers Further Through the Cracks
• WHO, OHCHR, IOM, UNHCR joint press release: the rights and health of refugees, migrants and stateless must be protected in COVID-19 response

The EU’s much anticipated Gender Equality Strategy for 2020-2025, released on 5 March, is an important step up for the EU on gender equality. But without addressing parallel policy agendas that actively undermine migrants’ opportunities and safety, the strategy risks leaving out millions of people.

Women represented 51.4% of migrants in Europe in 2019. But too often migration policies either ignore women or reduce them to a “vulnerable group”. This ignores the systemic barriers that current migration policies create for women migrating to Europe. Barriers that intersect not only with their gender but also very often with their race, nationality and class.

On the face of it, there is no difference based on gender in criteria for residence and work permits in Europe. But in reality, women are less likely to have access to the support and resources to travel regularly and safely, to get the jobs that would grant them stable work permits and the incomes to bring to their families.

Women who migrate for work are often confined to occupations that are under-regulated, with few rights and protections. A survey of 400 migrant women carrying out domestic work in the Czech Republic revealed that 53% did not have any employment contract. This exposes them to economic hardship, unsafe working conditions and exploitation, with limited options for redress, particularly if they are undocumented.

The employment of migrant women as domestic workers shows how the fight for gender equality will only succeed when it is truly inclusive. It’s because domestic work continues to be undervalued and unpaid that labour protections and the provision of social services are lacking, and that work permit schemes for domestic and care workers are highly restrictive or non-existent. In this context, many migrant women are toiling in highly exploitative conditions and often undergo years of family separation as transnational breadwinners for their families.

Measures that promote autonomy, decent work and equality for migrant women will benefit all women.

When women migrate with their families, they often do so as dependants of spouses. This perpetuates patriarchal models of economic and administrative dependence. It also makes it possible for residence status to become a tool of coercion for an abusive partner, with the constant threat of deportation. This power imbalance is even more acute for undocumented women.

Reporting violence is difficult for any woman. For undocumented women, it is usually unthinkable because of the risk of deportation if they come forward. In many cases, women also risk being turned away from shelters because of their status. A 2012 Amnesty International report found that undocumented women in Belgium faced high barriers to accessing shelters because governmental funding for women’s shelters excluded women with irregular status. Even if local authorities tried to step in to provide shelter, they often did so from their own limited resources.

Gender-based stereotypes also hit migrant men. Many states decide to detain people in return procedures based on simplistic assumptions about who is – and who is not – vulnerable.

Reliable disaggregated data about people in immigration detention is hard to find, but the experience of NGOs shows that it is young men who are disproportionally detained and deported, precisely because they are not viewed as vulnerable, and are perhaps perceived as a threat. A study from 2010 showed that the average immigration detainee is a single, 30 year old man likely to be from West Africa, South Asia or the Middle East.

Authorities sometimes avoid detaining children by allowing them to be with their mothers in the community – while still detaining their fathers. There are also important blind spots in identifying men who are victims of sexual exploitation or trafficking.

In migration management, meaningful individual assessments more gender-responsive migration procedures and decisions, based on the needs and risks a person might face linked to their gender. And replacing immigration detention with community-based methods would itself be an enormous step towards reducing vulnerability, given the inherent harms of the practice.

All too often, a security-oriented agenda in migration policy has traditionally left little room for considerations of equality and rights, particularly for people made invisible by their race or nationality. Any gender strategy that aims at achieving genuine equality – whether at the EU or national level – must address how our migration policies are perpetuating and reinforcing structural discrimination based on gender identity and other characteristics like race, nationality, and sexual orientation.

*In this article, the words « women » and « men » are used as heterogeneous categories encompassing all diversities in relation to sex, gender identity, gender expression or sex characteristics.

Image credits: ID 138675684 © Artbyfranzi | Dreamstime.com

This blog post was written by former PICUM’s Advocacy Trainee Emer Connor.

The ability to open a bank account, and the financial autonomy that comes with that, is something that many people take for granted. Cash is becoming increasingly redundant in society as more and more transactions are made via bank card or online payments. Many brick-and-mortar businesses enforce card-only policies, with smaller businesses and street vendors increasingly embracing the cashless model. In a Swedish banking survey last year, 87% of those surveyed said they paid for their last purchase via card, while only 13% used cash. Alongside this trend, it is becoming progressively more difficult for people without documentation to access basic banking services, meaning many people are excluded not only from financial services, but all services that necessitate an online payment. Across Europe, people who cannot access banking as a result of being undocumented (or in the asylum system, or homeless) are unable to receive payment for work, labour compensation after cases of exploitation, transfer money, save securely, access money lending services, in some cases rent accommodation or make online payments. Often, visa or residency applications involve some kind of proof of finances, which is near impossible without a bank account.

In some countries this financial exclusion appears to be a by-product of the tightening of measures to prevent money laundering, in others it is a calculated policy to deter migration- as in the UK’s “hostile environment policy”. The frightening effectiveness of this policy in creating fear and mistrust was seen in the aftermath of the 2017 announcement by the British government of the proposed plan to search for and freeze the bank accounts of anyone residing in the UK without permission. The exclusion of certain groups from banking services can have detrimental social effects. In recent years the Chinese community in Paris has been targeted for muggings, according to some because they are perceived as likely to have large amounts of cash on their person, and are less likely to report the crime for risk of detection by immigration authorities. During the 2016 trial of three youths accused of 11 attacks in a three-month span in Aubervilliers, a Parisian hub of textile whole-sellers, the defendants reportedly admitted targeting Chinese people for muggings as they believed they were likely to be carrying a lot of cash. In the event of an unforeseen medical or emergency expense, people without restricted access to banking services may be forced to turn to predatory lenders or live without a safety net.

Barriers for undocumented people in the EU

Restrictive banking policies currently affect undocumented people in a number of ways. Different conditions are imposed from bank to bank. However, in general all European banks require a form of ID and proof of address to open a basic bank account. While these may sound like minimal requirements many undocumented people do not have an official ID for various reasons. They may be unable to contact their national authorities without risk of endangering themselves, have lost or had their ID seized by police, or be unable to travel to renew their passport. In a number of countries (including Belgium, Denmark, Finland, Germany, Greece, the Netherlands and Spain), PICUM members report high levels of confusion and discrepancies from banking staff around which documents can be accepted as proof of identification.  In Belgium, banks often add and change their list of required documents, sending people back and forth until they give up. In Ireland, most banks require proof of address and an identity document, but some may ask for a PPSN (social security number) for certain services, and people may be reported to immigration authorities when applying for a PPSN.  Such discrepancies and implied risks further dissuade people from using banking services.

In some member states, undocumented people face further administrative barriers.

Many Finnish banks request a personal identity number (which is linked to residence status) or proof of regular employment. While in Denmark, you will need a residence permit and a CPR (social security) number issued by the state as well as a registered address. As a migrant, you could be caught in a bureaucratic trap. An employer will ask for a bank account and a residence card, but you may not get the card and the account before you have a job contract approved by the state. Similar practices have been reported in Germany, where banks usually require a valid passport, a certificate of residency and, in many cases, a work permit. In Greece, a letter from an employer is requested to open a bank account. In Spain, some banks may require a ‘Certificado de Numero Residente’ or ‘non-resident certificate’ for basic non-resident accounts, which can be obtained from a police station. Undocumented people have a right to apply for this certificate, but must do so through the local police. This can deter people living without documentation, who may fear police contact could trigger arrest, detention or deportation. Minimum balance requirements are also enforced by some banks. These restrictive policies by banks act on top of multiple other barriers such language difficulties and issues around trust in institutions.

The implications of EU law on banking requirements

Requirements to open basic banking services in Europe are generally regulated by the customer due diligence procedures outlined in Article 13 of EU Directive 2015/849 and the previous Anti-Money Laundering (AML) regulatory instruments. EU law obliges banks to verify the customer’s identity on the basis of data or information obtained from a reliable and independent source. However, it does not specify what constitutes ‘reliable and independent sources’. Banks may often require official documents, like passports, national identity cards to verify a customer’s identity, but it is down to each individual bank, or national law to determine and clarify the spectrum of documents they can accept. EU law also enforces a risk management model which allows banks to adjust the documents required based on a risk assessment of the customer. In cases where clients cannot meet all criteria, banks may offer them a more limited product, i.e. a basic banking account. Banks thus have the option to offer a more limited service to customers who are unable to produce full identification requirements. It is up to each bank to clarify the forms of identification required for each risk level.

The  European Union Payment Accounts Directive (PAD) was adopted in 2014 with the main aim of improving the functioning of the EU internal market for payment accounts and facilitating an ease of cross border financial mobility. The provisions of the PAD apply to payment service providers and oblige them to ensure basic payment services are accessible without “discriminat against customers legally resident in the Union” (Article 15). Thus, the PAD neither obliges nor forbids states to allow access to undocumented persons. Article 16, nonetheless, adds that those with no fixed address, asylum seekers, and those who are without residency but “whose expulsion is impossible for legal or factual reasons” have the right to open and use a basic account. This protects the rights of access to basic banking services for people with asylum seeking status (special banking products are available for people with asylum status in the Netherlands and Finland, for example). However, the directive does not oblige banks to offer services to undocumented people, who often remain excluded.

For instance, in Belgium, the ‘Code of Economic Law’ requires banks to provide basic banking services to regular residents in Belgium , while the Anti-money Laundering Law 2017-10-06allows banks to determine a customer risk level and set their own bar for documentation. If a non-citizen client does not hold a passport or identity card, Belgian banks may accept a document issued to them by Belgian authorities that is listed in the annexes to the Royal Decree of 8 October 1981. In practice, this means that people with asylum or temporary statuses should be able to access banking services, but there are no provisions guaranteed for people living without any documentation. Banks in Belgium can terminate a basic banking service account if the customer is no longer regularly residing in a member state of the EEA. Increasingly in Belgium, individuals’ accounts are being automatically blocked when the residency card they used to open an account expires, despite having since obtained a new residence status. It is common for a person’s functioning bank account to be frozen after their asylum is rejected and they no longer receive benefits through CPAS (Public Centre for Social Action) or reception centre.

Many undocumented people make do without bank accounts. However, in recent years banks have been targeting this large pool of people excluded from standard banking services. Many American banks accept ITIN’s (individual taxpayer identification numbers) in lieu of social security numbers, and mortgage approval rates for undocumented people are on the rise. There are increasing numbers of financial institutions that incorporate ‘financial inclusion’ into their ethos, many of them being online banks that allow users set up an account online with a picture of their passport and a selfie. A 2017 Financial Action Task Force Report examines initiatives applied in various countries which demonstrate that solutions can be found to provide access to regulated financial services to unserved and underserved people, while complying with customer due diligence requirements. The report cites basic banking products offered in India, Mexico and South Africa. In Mexico for example, banks offer a low risk account with restricted services, for which identification criteria may be exempted and a lower risk account with more services, requiring only basic client data (name, place and date of birth and gender and address). Some South African banks make allowances for proof of address requirements, as many people live in informal settlements where there are no means to confirm physical addresses.

The gravity of the impact of the exclusion from banking services will depend to a large extent on the prevailing level of financial exclusion in a country. Across Europe, financialization is on the rise, and financial services become more and more a part of daily life. Rising financialization will lead to increased economic and social exclusion for those left unable to access basic services.  This will impact on undocumented workers’ ability to receive payment and make enforcement of compensation in cases of labour exploitation even more difficult. Banking should be considered an essential service and regulated for as such, so that no one is excluded on the basis of residence status.

Publications on financial exclusion:

Bayot, Bernard 2016, Working Paper: Social, Economical and Financial Consequences Of Financial Exclusion

Anderloni, Luisa & Vandone, Daniela (2006) Migrants and financial services

FATF Guidance, 2017 “Anti-Money Laundering and Terrorist Financing Measures and Financial Inclusion”

Mastercard, 2016, Survey on financial inclusion:

World bank, 2018, Statistics on financial inclusion;

BBC News, 2016, “A killing in Paris: Why French Chinese are in uproar”

Dubbed the ‘Walking ATM Phenomonen’ in: Barranco RE, Shihadeh ES, 2015 ‘Walking ATMs and the immigration spillover effect: The link between Latino immigration and robbery victimization.’, 52:440-50

Martin, Nathalie, Giving Credit Where Credit Is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants (2015). 2015 Michigan State Law Review 989; UNM School of Law Research Paper 2015-08. Available at SSRN: https://ssrn.com/abstract=2587436 or http://dx.doi.org/10.2139/ssrn.2587436

Based on feedback from PICUM members: Fairwork, Belgium; Maison du Peuple d’Europe, Belgium; Evangelical Church, Finland; Refugees, Welcome, Denmark; Fundamental Right Platform, Greece; Pro Igual, Spain, Fairwork NL, Platforme Mineurs in Exile, Belgium

See Finland guide to visas

See European Banking Authority, 2016 “Opinion of the European Banking Authority on the application of customer due diligence measures to customers who are asylum seekers from higher-risk third countries or territories:”; European Commission, 2019, “EU legal framework on anti-money laundering and counter terrorist financing”.

Article 13, EU Directive 2015/849

Art 16 “consumers  with no fixed address and asylum seekers, and consumers who are not granted a residence permit but whose expulsion is impossible for legal or factual reasons, have the right to open and use a payment account with basic features with credit institutions located in their territory. Such a right shall apply irrespective of the consumer’s place of residence” PAD Directive 2014/92/EU

  In the Netherlands a group of the largest Dutch consumer banks came together under a Covenant, recognising their social responsibility to offer as many people as possible easy access to (non-cash) payment transactions. Since 2001 they have offered a package of primary payment services to every adult with a fixed place of residence or residence in the Netherlands, or with a postal address at an assistance agency recognised under the Covenant (the reception and accommodation agencies for asylum seekers), and whose identity can be established and verified in accordance with the Money Laundering and Terrorist Financing Act (Wwft).

In Finland, asylum seekers have access to a prepaid card, which allows them to receive benefits but does not work for money transfer or online transactions. While it is possible to keep using it after an asylum application is refused, the account is often blocked.

Book VII, Title 3, Chapter 8

Law on the prevention of money laundering and the financing of terrorism and on the limitation of the use of cash 2017-10-06 http://www.ejustice.just.fgov.be/cgi/article_body.pl?language=fr&pub_date=2017-10-06&numac=2017013368&caller=summary

Royal Decree of 1981 on access to the territory, residence, settlement and removal of foreign nationals

  Information provided by Fairwork Belgium and Plate-forme Mineurs en exil – Platform Kinderen op de vlucht

https://www.self.inc/blog/can-undocumented-immigrants-build-credit; https://www.marketplace.org/2017/09/11/american-dream-how-undocumented-immigrants-buy-homes-us/

Fintech startup Monese for example was created with migrants in mind. Monese is regulated by the FCA in the UK and looks very much like a regular bank but does not have a bank license, being only regulated as electronic money. Users can open a bank account with just a photo of their passport and a video selfie. Monzo, another popular UK start up ebank focus on financial inclusion and plan on publishing guides to help refugees, recent immigrants and people with no fixed address get bank accounts with Monzo.

See annex 5; http://www.fatf-gafi.org/media/fatf/content/images/Updated-2017-FATF-2013-Guidance.pdf

For example http://finmark.org.za/the-mzansi-bank-account-initiative/

PICUM’s Director Michele LeVoy was heard last week by the French social affairs and finance inspectorates on the issue of access to health care for undocumented people. The hearing is part of an inquiry by the French Inspection générale des affaires sociales, IGAS (Inspectorate General for Social Affairs) and Inspection générale des finances, IGF (Inspectorate General for Finance) evaluating the financial sustainability of the Aide médicale d’Etat or AME, the French scheme that provides access to health care for undocumented people.

Civil society organisations in France fear that this exercise is likely to result in the tightening of the AME, restricting access to health care for people already facing significant precarity. Concerns about such plans have been growing over the last couple of months and have received increasing media coverage on national newspapers, with a major political debate approaching on France’s migration policy, to be co-chaired by the Minister of Health and the Minister of Interior.

For 20 years, France has had in place legislation that provides comprehensive health coverage for people in an irregular situation, making it one of a handful of European countries, such as Belgium, Italy, and Spain, where there has been a genuine effort to achieve universal health care, leaving no one behind.

In the country, health insurance is mandatory and over 90% people are covered by the public health insurance. Undocumented migrants, however, cannot benefit from health insurance – but those who have resided more than three months in France and whose monthly income is less than 720 € are entitled to AME.

AME provides free access to nearly all healthcare services available to French nationals, including care related to sexual and reproductive health such as pregnancy, delivery, family planning, contraception and abortion. A reported 300.000 people benefit from the AME, at a cost of just 0,3% of France’s total health budget.

The AME, like every system, has its shortcomings. For instance, each French administrative area (département) varies in how it applies the regulations around eligibility for AME and can decide which documents it will accept to prove the residence and financial eligibility requirements. And very little effort is made to promote awareness among target populations of the rights under the AME.

Still, the French model remains an important example in Europe of universal health coverage that does not discriminate, based on a person’s residence status. Public health strategies should not vary based on arbitrary categories. France joined other member states of the World Health Organisation which adopted a resolution on migrant health in 2008 and 2018, and a strategy and action plan in the European region on migrant health in 2017. It has also committed to achieving truly universal health care by 2030, under the Sustainable Development Goals. Restricting the AME would represent an alarming step backwards for a country with a long history of promoting human rights and equality.

PICUM has, since our very beginning, been campaigning for access to health care for everyone, regardless of residence status. Health is a human right, and we are all diminished when distinctions are made between people when it comes to accessing essential services. Inclusive policies are also good for public health, emphasising prevention and health promotion, improving outcomes for children, families and communities, and reducing the costs of treating health emergencies that could have been mitigated or avoided through early intervention. Restricting access to health care based on residence status violates medical ethics, forcing health professionals to prioritise administrative eligibility requirements over their duty to first do no harm.

The French inspectorate IGAS is expected to table its report on the AME in the course of October, when it will be discussed by the two chambers of the French parliament.

This blog was written by Matthew Rice, Scotland Director of the Open Rights Group, a charity that protects the digital rights of people in the UK including privacy and free speech online. Open Rights Group is challenging the “immigration exemption” in the UK 2018 Data Protection Act before the national courts, which prevents people from accessing and checking their personal data when collected for vague immigration purposes.

Context: the “hostile environment”

The United Kingdom’s hostile environment policy towards migrants is a set of administrative and legislative measures designed to make staying in the country as difficult as possible for people without leave to remain. It has been a pernicious issue, seeping into areas of housing, education, and healthcare. Immigration enforcement has been gathering data from all these areas, in sometimes undeclared data sharing agreements.

In this climate, the right of access to data is a crucial, essential right. Any mistake could have drastic effects on an individual’s right to remain in the country. In a context where data from multiple sources are used to make important decisions, the immigration exemption in the UK’s 2018 Data Protection Act is yet another blow to the fundamental rights of migrants.

Hollowing out fundamental rights

The immigration exemption allows an entity with the power to process data (known as a “data controller”) to circumvent the right of an individual to access data held about them if it would “prejudice effective immigration control”.

The inclusion in the 2018 Data Protection Act of an immigration exemption is unprecedented in the UK’s history of legislating in this field. No such provision existed in the previous Data Protection Acts (1984 and 1998 ones). It was debated during the 1983 Bill negotiations but never made it further, and was described by the then-chair of the Data Protection Committee as “a palpable fraud upon the public if … allowed to become law.”

The exemption restricts other data rights, such as the right to:

– object to the processing of one’s data

– restrict the processing of one’s data

– have one’s personal data deleted.

In addition, the exemption frees data controllers from their responsibility to provide information to the person concerned when their data is collected, or to inform them when information is collected from other sources, like a school, employer, or local authority.

 

Open Rights Group, a human rights campaigning organisation focused on the protection of privacy in the digital age, and the3million, a grassroots campaign representing the interests of EU citizens living in the United Kingdom, have very real concerns that the breadth and opacity of the immigration exemption represent a threat to the rights of foreigners living in the country. In an immigration environment that is both hostile and error-prone, the fundamental right to data protection, contained in the EU Charter of Fundamental Rights, needs to be safeguarded. This exemption strikes directly at the essence of this fundamental right. That is why our organisations are challenging the Data Protection Act before the High Court of Justice in England and Wales, under a judicial review procedure.

This exemption is not the type of exemption contemplated by the EU General Data Protection Regulation (GDPR). It is a derogation that the UK Government has chosen to exercise and formulate themselves. While derogations are possible under the General Data Protection Regulation, they must satisfy a series of strict tests.

Under Article 23(1) of the GDPR, national law may restrict the scope of obligations and rights when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society.

Further, under Article 23(2), the measures must contain specific provisions, where relevant as to:

• The purposes of the processing or categories of processing
• The categories of personal data
• The scope of the restrictions introduced
• The safeguards to prevent abuse or unlawful access or transfer
• The specification of the controller or categories of controller
• The storage periods
• The risks to the rights and freedoms of data subjects; and
• The right of data subjects to be informed about the restriction, unless that may be prejudicial to the purpose of the restriction.

The Essence of the Right to Data Protection

There is growing consensus among scholars about the “essence” of a fundamental right. Tuomas Ojanen, Professor of Constitutional law at the University of Helsinki, refers to three crucial components. First, the essence of a fundamental right cannot be determined based on the text of the Charter alone. Instead, the identification of the essence is a matter of contextual interpretation. Second, the same fundamental right can give rise to more than one legal norm: for instance, the right to privacy includes at the same time the responsibility to refrain from interfering with an individual’s privacy, and the right to access one’s data. Third, all fundamental rights, including those that allow for derogations, such as the right to privacy, possess an inviolable essence that cannot be restricted.

Taking the immigration exemption and its effect on the right to data protection under Article 8 of the Charter of Fundamental Rights, we can peel away to try and understand what is the essence of the right to data protection.

Article 8(2) explains that the right to data protection includes the right of access to data that has been collected, and the right to have it corrected. When considering immigration enforcement, it is worth remembering that mistakes happen, and happen often. The Home Office has incorrectly sent letters to EU nationals informing them that they were to be deported from the UK. In addition, back in 2017 the Independent Chief Inspector of Borders and Immigration found error rates of 10%, where the Home Office were denying individuals bank loans after immigration checks.

No system is foolproof; that is why access to information, and the ability to rectify inaccuracies are all the more important. By removing the right of access to data, the immigration exemption risks undermining the very goal it is trying to achieve: effective immigration control. Effective control should allow individuals to correct inaccurate information and thus prove their right to remain.

Another legal norm that may flow from that fundamental right is the right to good administration. While the right to data protection has permissible limitations, a right of access to data is at the essence of this fundamental right. The importance of access to data held about you – and, in the immigration context in particular, access to data that is used to make decisions about you – is one of the overarching arguments in the challenge against the exemption.

The exemption also fails to satisfy the Article 23(2) tests under the GDPR. The test of “prejudice” requires assessing whether a measure has clear boundaries. The UK Government, however, have been reluctant throughout to explain what it aims to achieve, concretely, with the exemption. Add to this the fact that there is no limitation on the type of data that entities, public or private, that can rely on the immigration exemption and the scope of the exemption is suddenly as wide as the broader hostile environment – touching on areas like health, social care, education, or private actors involved in immigration services.

Open Rights Group and the3million are seeking to have the exemption removed from the Data Protection Act by demonstrating that it is unlawful and plainly incompatible with fundamental rights.

This exemption is a blunt instrument serving a policy that has tainted Britain’s reputation as a tolerant and welcoming country. It is an intolerable departure from the essence of fundamental rights, and has none of the clear limitations that are required by the General Data Protection Regulation.

Challenging this exemption is a matter of resisting the erosion of protections that are fundamental to our democracy and to our privacy in an increasingly digital world.

This is a guest post from our Belgian member Rob Kaelen, Project Manager at Plateforme Mineurs en Exil/Platform Kinderen op de Vlucht. The Platform has been coordinating a national campaign against the detention of migrant children since 2017.

In October 2014, the Belgian Government coalition led by Charles Michel (centre-right) announced its plans to build a new detention centre next to the Brussels Airport to detain migrant children and their families. After two years of construction works and almost 2 million euros of expenses, Belgium effectively started locking up children in August 2018.

Since the announcement made by the Government, the Platform Minors in Exile has mobilised to try and convince the Government, opposition parties, civil society organisations and the larger population that detention of children constitutes a violation of their fundamental rights, that it is ineffective, and that it is not necessary, as alternative measures exist.

Before the new policy came into force, Belgium had stopped locking up children for 10 years and used alternatives instead. In fact, Belgium stopped detaining children in 2008 in anticipation of the condemnations by the European Court of Human Rights and developed the so-called “Return Houses” instead. Return Houses are apartments or houses where undocumented families are housed until their administrative situation is clarified. In these Houses, at least one parent must always be present, and the family is not allowed to spend the night elsewhere. On paper, families are still detained, but in practice, the children are allowed to move freely: they can go outside to play, go grocery shopping, or go to school. Even though the Return Houses must be improved in terms of social support and respect for fundamental rights, we still see them as a huge improvement over a closed centre. Unfortunately, the government felt that the Return Houses are not efficient enough and that detention is still needed, as a last resort, to return migrant families.

Since the opening of the closed centre, the authorities have detained a total of 22 children. The ages of these children ranged from a few months to 17 years, with 15 of them being 10 or younger. In the few months that the centre has been used, a doctor and the 2 Belgian children’s ombudsmen repeatedly asked the government to stop detaining children, citing the negative impact detention had on them.

https://www.facebook.com/pointpunt/videos/460379874733904/

The campaign

The campaign against the detention of children was launched by the Platform Minors in Exile and several of its members: Caritas International Belgium, CIRÉ, Jesuit Refugee Service Belgium, Vluchtelingenwerk Vlaanderen and Unicef Belgium (Amnesty International joined the campaign in August 2018). We wanted the campaign to have a simple message which could appeal to people’s core values. This is how we chose our campaign slogan “You don’t lock up a child. Period.”.

We developed a campaign website, www.youdontlockupachild.be, which provides information about child detention in Belgium and around the world, expert opinions, and our demands to the government. We launched our campaign in June 2017 with a clip, which has been viewed over 250.000 times.One of our aims was to show the huge consensus that exists on this issue among experts, civil society organisations and among the population itself. This is why we invited hundreds of organisations to join our campaign. As of May 2019, our campaign is supported by 325 Belgian organisations, which all agree on the fact that migrant children should never be deprived of their liberty. End of 2018, we also launched a petition, which has since gathered almost 50.000 signatures.

Belgian elections

The Belgian national context provides for interesting opportunities for advocacy work. At the Platform, we were able to meet most political parties to try and convince them that detention is a blatant violation of children’s rights and that there are many interesting opportunities for developing and improving alternatives to detention.

Detention of migrant children has become an important discussion point in political debates and analyses, and was included for instance in “electoral tests” which match the voter’s responses to the positions of the political parties. For our part, we developed an overview of party positions on the issue of child detention, to inform the population but also to try and convince parties that might be on the fence to take a clear stance against child detention.Interestingly, positions are very distinct when comparing both sides of the Belgian linguistic border. All French-speaking parties except one (former Prime Minister Charles Michel’s party, Mouvement Reformateur, centre-right) have positioned themselves against child detention and for an unconditional prohibition on child detention. In Flanders, on the contrary, only two parties took this position (the left-wing Partij van de Arbeid and the green party Groen), as even the Flemish Socialists (sp.a) defend child detention when used as a last resort.

Most importantly, all parties opposing child detention have included this issue in their political programme for the next 4 years. Our hope is that they will further include it among their conditions to take part in a government coalition after the elections.

Another positive sign came with a recent judgment by the Belgian Council of State, which found that child detention in the newly built closed centre constitutes a violation of the fundamental rights of the detained, amongst other because of the persistent and loud noise caused by the Brussels Airport air traffic.

We hope that this judgment can bolster our demands and incite our future government to outlaw migrant child detention once and for all and to invest fully into alternatives to detention that are based on case management and let children live in the community. Because you don’t lock up a child. Period.