By Michele LeVoy (PICUM Director),
and Kadri Soova (PICUM Advocacy Officer).
1999 saw the historic conflation of the security agenda with migration that would shape all the future EU policy debates on migration. With the Tampere Agreement, the EU has situated migration around the prevention of irregular migration and the facilitation of return, with a strong focus dedicated to border control, the fight against trafficking of human beings and repatriation of migrants.
The increasing securitisation and criminalisation of cross-border movements of people and emphasis on border control has overshadowed the relevance and need to address other causes of irregularity, such as inadequate visa and residence policies, administrative failures, difficulties in understanding the complex procedures of residence and work permits etc. Regardless of efforts to prevent irregular migration, it is estimated that there are up to 3.8 million undocumented migrants in Europe, according to data collected by the DG Research “Clandestino” project. Prior to this ground-breaking research, the European Commission had estimated that there were nearly 8 million undocumented migrants in Europe. The numbers of undocumented migrants decreased substantially after the enlargement of the EU to include new member states (nationals of countries which became member states of the EU in 2004 were no longer considered undocumented after enlargement).
Irregular entry least relevant pathway to irregularity
Combating irregular entry is the key focus within EU migration policies in the fight against irregular migration. However, according to the findings of the “Clandestino” research project, irregular entry is the least relevant pathway into irregularity. The main paths into irregularity are:
- Legal entry and overstaying or legal entry and stay whilst working or engaging in self-employment in breach of immigration regulations.
- Refused asylum seekers who do not return, are not removed and/or who are de facto non-removable because of lack of documents, unclear identity, unsafe country of origin, family links or health, age and gender related constraints.
- Bureaucratic failure in processing residence and work permit applications, inefficient renewal and appeal procedures resulting in withdrawal or loss of status.
- Least relevant pathway: clandestine entry – often of individuals who subsequently apply for asylum – is high on the agenda though comparably low in numbers and rather the exception than the norm.
Human rights implications
Similarly, the insufficient focus on the human rights dimension in border management has led to lack of protections for migrants, deaths at the sea and grave human rights violations in the treatment of undocumented migrants by member states and border control agencies and a lack of responsibility when these violations do occur.
Academics have long established that due to the militarisation and intensification of border controls, migrants are forced to seek out alternative, more dangerous routes, which increases the number of fatalities. Civil society organisations monitoring and mapping the numbers of fatalities report that since 1988, nearly 15,000 migrants have died while trying to reach Europe, the majority in the Mediterranean Sea area.
Criminalization and enforcement measures
Pushing migration policies closer to the security and criminality policies serves to legitimize certain actions that severely restrict the enjoyment of the right to free movement, namely expulsions and detention, as well as restrictions of other fundamental rights, such as health care, education, housing, access to the labour market, fair working conditions and to justice. The restriction of undocumented migrants’ access to social services serves to marginalise and dehumanise this group of persons which in turn legitimises and fuels racist sentiments and violence against migrants in general.
The EU Fundamental Rights Agency has reported that while states have a right to control immigration, certain enforcement measures, such as reporting obligations, data sharing, or arresting migrants in front of schools, have a negative and often disproportionate impact on the effective exercise of the fundamental rights of irregular migrants, and has subsequently developed guidelines for immigration enforcement officials.
Although Frontex publicly admits that border control alone will not solve the issue of irregular migration , it has still sought to broaden its activities, increase its budget and staff and supported the EU’s plans for heavy investments in border technology and equipment such as satellites and drones.
Considerable financial resources have been invested in border and visa management, detection of irregular migrants, detention and expulsions to counteract the perceived threat posed by migrants entering Europe. Nonetheless, a number of EU legislative initiatives on migration, such as the EUROSUR regulation have been allowed to be built on a very weak evidence base in terms of the necessity, suitability and cost-effectiveness vis-à-vis the objective – reducing numbers of irregular migrants.
In EU legal and policy texts the fact that irregular migration must be “stopped”, “combatted”, “fought against” is consistently reiterated but there should be much more attention paid to what irregular migration means, what are its causes and consequences and what could be done to improve the situation for migrants.
This article was originally published in the Government Gazette in March 2013.