What justice for undocumented migrants?

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

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

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

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

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

Examples of promising practices exist in Europe.

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

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

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

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

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

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

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

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

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

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