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End of Mission Statement Migrants and the Mediterranean: UN rights expert on human rights of migrants follow up visit to Brussels for further development of his study on EU border management

“Banking on mobility to regain control of EU borders”

5 February 2015

Banking on mobility

Banking on mobility means that the overall goal is to have most migrants using official channels to enter and stay in Europe. For that, European Union (EU) member states must accept that migrants will come, no matter what, because there are either push factors or pull factors for them to do so. Any attempt at “sealing” borders, as the nationalist populist discourse stridently calls for, i.e. preventing irregular migrants from entering the EU without offering many more legal avenues for migration, will continue to fail on a massive scale. Sealing international borders is impossible, as Italy has recently recognised, and migrants will continue arriving despite all efforts to stop them, often at a terrible cost in lives and suffering.

It is paradoxical that, in the name of securing borders, European States have actually lost control over their borders, as flexible and opportunistic smuggling rings will generally be ahead of the game. Prohibitions and repressive policies, without regular migration channels for asylum seekers and much needed low-wage migrants, only entrench smuggling operations and underground labour markets where unscrupulous recruiters and employers exploit undocumented migrants, and increase the precariousness of the migrants’ situation, resulting in more deaths at sea and more human rights violations.

With time, continued repression of irregular migration is counterproductive, as it drives migrants further underground, thereby empowering smuggling rings, and creating conditions of alienation and marginalization that foster human rights violations, such as discrimination and violence against migrants. EU member states can thus be seen as co-responsible for creating conditions that encourage smuggling and make it more dangerous. While bringing unscrupulous smugglers to trial for the suffering they inflict on migrants should remain a priority, Europe will not succeed at fighting resourceful and adaptable smuggling rings unless it destroys their business model, which was created when barriers were erected and which thrives at evading repressive European migration policies.

If Europe is to witness a significant reduction of human suffering at borders, it must bank, not on strict closure and repression, but on regulated openness and mobility. In the end, it is better to recognise this effective mobility as an inescapable fact that is an inevitable consequence of globalisation, to offer the refugees and migrants what they need and therefore create incentives to register officially, and ultimately regain the control of entries and exits from the smuggling rings and the control of labour markets from unscrupulous underground employers.

Taking the leadership in refugee resettlement programmes

It is currently estimated that in 2014 more than 150,000 migrants and asylum seekers arrived in Europe by sea, compared with 80,000 in 2014. They migrate due to the push-factors in their countries of origin, which may include war, conflict, natural disasters, persecution or extreme poverty, as well as in response to pull factors such as the unrecognized needs in the labour markets of EU member states. These push and pull factors are unlikely to change in the foreseeable future. As such, serious long-term collective investment is needed in order to achieve results. States must create an environment that builds trust in the systems put in place and confidence that the human rights of the migrants will be at the centre of the preoccupations.

At present, many people crossing the Mediterranean, thanks to smugglers, are manifestly refugees, such as many Syrians and Eritreans. The EU cannot expect Syrians to live in camps or cities in Lebanon or Turkey indefinitely, with many having no prospects for a better life for themselves or their families, while the EU stalls in making a commitment to a meaningful refugee resettlement programme. If nothing else is available to them, they will take their chances with smugglers in order to provide a future for themselves and their children, as many of us would do in similar circumstances.

Most asylum seekers would wait in line and contribute some money for a meaningful opportunity of resettlement in the Global North. Europe is missing here, a great opportunity of taking the leadership of a key resettlement programme, in partnership with countries such as the USA, Canada, Australia and New Zealand. Altogether, taking as a model the Comprehensive Plan of Action for the Indochinese refugees of the 80s, and expanding on worthy initiatives such as the Austrian “Save Lives” proposal, one could imagine one million refugees being selected abroad (for example in Turkey, Lebanon and Jordan for the Syrians), over five years, with the help of UNHCR and civil society organisations, according to priority criteria, and resettled in the Global North. In Europe, they would be resettled according to a distribution key and benefit from integration programmes, all this being supported through EU programmes and solidarity funds. This would considerably reduce the market for smugglers and the consequent suffering of such refugees.

Commissioner Avramopoulos has called for a European refugee resettlement programme, and the reception initiatives of countries like Germany, Sweden and Austria are encouraging.

Banking on the mobility of asylum seekers

Reversing the present logic, asylum seekers should be able to register their asylum claim in the country of their choice and the EU should support the countries receiving asylum claims with proportionate and adequate financial and technical support. Trying to forcibly allocate individuals and families to countries in which they don’t want to live and which don’t offer them the chance at a better life for themselves and their families, is a recipe for entrenching opportunities for smuggling operations and underground employers.

Standardising reception conditions and Refugee Status Determination (RSD) procedures throughout the EU should be a top priority, in order to avoid “asylum dumping” and stress on the countries that offer better conditions. In addition, EASO needs considerable expansion and harmonisation should be accelerated through several mechanisms including: mutual recognition of RSD decisions; exchange of refugee judges between States; a common EU Refugee Determination Appeal Board; and a common or shared reception mechanisms.

Despite good initiatives like the increase in search and rescue (SAR) operations such as the Mare Nostrum operation which have saved numerous lives and for which Italy must be commended, some EU member states officially refrain from supporting such SAR operations, on the twisted reasoning that it encourages other irregular migrants to come to Europe. I urge the EU to strengthen its search and rescue capacity, while respecting the principle of non-refoulement, guaranteeing immediate disembarkation of asylum seekers and migrants at the nearest post, providing information, care and support to migrants, processing equitably the asylum claims, and encouraging commercial vessels to carry out rescue operations without risk of retaliation or harassment due to them being considered as accessory to smuggling operations. In order to cope with the peak months in which migration by sea occur, the EU must strengthen Frontex’s Triton Operation, which has already rescued 17,000 migrants in the past two months. This will include providing Triton or a similar operation with a longer term mandate, more resources and an increased area for its search and rescue operations – similar to those of Mare Nostrum – in order for it to effectively continue to save lives.

More concerted effort is also required from European member states to assist the frontline states such as Italy and Malta. The search and rescue programmes cannot be the sole responsibility of the frontline countries. With the current surge in migration, the EU should ensure that there are sufficient reception centres with adequate facilities to accommodate the new arrivals. Upon arrival at port or country of destination, and in collaboration with civil society organisations, asylum seekers and migrants should have access to medical care, psycho-social support and legal counsel, after which individual assessments should be implemented to determine their protection needs. The immigration procedures need to be clear, explained in language that the asylum seeker or migrant understands, fair and efficient.

Banking on the mobility of migrant workers

European Union should help weaning EU member states from their addiction to “cheap labour” in sectors of their economies where huge numbers of irregular migrants are employed, such as agriculture, construction, hospitality or caregiving. European countries should recognise their real labour needs, particularly in the low-wage and medium-wage sectors. The EU should help those States combine facilitated regular migration for such sectors. This should be accompanied with a sharp increase in the effectiveness of labour inspections for ensuring the respect of labour conditions, as well as a real effort in the repression of unscrupulous exploitative employers, inter alia through the effective implementation of the Employer Sanction Directive. This would create an entirely new framework for legal and better regulated labour markets, thus reducing an important pull factor for irregular migration.

Beyond the worthy initiatives on seasonal workers and the “blue card” – which have yet to be implemented in sufficient numbers – or soon on students and researchers, Europe will find it necessary to open numerous visa options for entering regularly in the EU, as temporary or long-term migrant worker, at all skills levels. Such visas must be flexible and migrants need to be able to exercise their agency in order for them to find the best way to integrate and contribute to their host society.

Allowing migrants to express their “voice”

I commend the European Ombudsperson for the interest taken in the rights of migrants and encourage her and the network of European National Ombudspersons that she presides to continue working on the necessity of accountability of all persons and institutions who take decisions affecting the lives of migrants. I encourage civil society organisations to submit more actio popularis complaints to the European Ombudsperson, to provide her with examples of cases where accountability is necessary.

The EU needs to coordinate better the EU National Human Rights institutions (NHRIs) in order to achieve a better standard of protection for the human rights of migrants. This can be done through enhanced complaint mechanisms, increased investigative powers, site visits to detention facilities and monitoring of return procedures.

Access to justice

Access to justice for all migrants is also key, if Europe really wants their rights to be respected, protected and promoted. In the recent past, the European Court of Human Rights, the European Court of Justice, national courts and tribunals, as well as national human rights institutions and ombudspersons, have shown their willingness to defend the rights of migrants. Facilitating access to justice by migrants, without fear of detection, detention or deportation, in order to help them fight for their rights, would go a long way towards, on the one hand, legitimising such migration policies through showing that territorial sovereignty and human rights are not incompatible, and, on the other hand, changing mentalities regarding migration through fighting fantasies and stereotypes.

Firewalls

In order to protect the rights of irregular migrants, efforts must also be undertaken to establish a “firewall” between immigration enforcement and all other public authorities, who should not be used as auxiliaries of immigration enforcement. Irregular migrants should be able to access health care, education, local police, social services, public housing, health and safety inspectors, and labour inspectors, without risking being reported to immigration enforcement authorities. In terms of labour standards, migrant workers must be considered as workers first, all labour standards must be respected, and proper wages and adequate compensation must be paid despite the migrant worker being in an irregular situation and susceptible to deportation.

Achieving coherence between EU internal and external actions on migration issues

I commend Ms. Federica Mogherini, the new High Representative of the European Union for Foreign Affairs and Security Policy and Vice-President of the European Commission, for the preoccupation that she has expressed for the inclusion of migration issues as a priority in the external action of the EU and am eager to see how the new Strategic Framework and Work Plan will develop this preoccupation.

The involvement of the EEAS in the design and implementation of Mobility Partnerships should also focus on reinforcing the human rights guarantees and mechanisms available to migrants.

The support that the EU could provide to national human rights institutions in partner countries would be of extreme importance for migrants, as such NHRIs should be able to receive complaints from migrants and investigate situations where migrant rights may be violated, such as detention and return procedures for which the EU is providing capacity-building programmes.

Taking stock of the collapse of the Dublin logic

The information I have gathered based on my research and visits has demonstrated to me that the Dublin mechanisms prevent EU member states from taking shared responsibility for the asylum seekers, discourage frontline states from fully implementing Dublin Regulations, and encourage asylum seekers to use smugglers. A question I have often heard from frontline State officials is “how much physical violence does Brussels want us to use so as to implement Dublin?” Migrants and asylum seekers are unwilling to provide their fingerprints because they do not trust that it serves their best interest in the long term. The European Court of Human Rights has also urged that EU member states apply the Dublin Regulation in manner compatible with the European Convention on Human Rights1.

Registration at the earliest contact is an important element of migration governance, and it can be best implemented when incentives are offered to do so because benefits are attached to it. An EU wide resettlement programme, implemented in consultation with the asylum seeker and a well-managed distribution key for allocating appropriate funding to countries actually receiving asylum seekers – thus reversing the logic of Dublin – would constitute a clear incentive for asylum seekers to get registered in the first European country of entry. It would encourage asylum seekers to not use the evasion tactics that are now systematically employed to avoid their identification and thus the application of the Dublin logic.

There is also an urgent need to allow migrants to circulate within the EU to where they can be reunited with their families, or find a job and start contributing to their new communities and paying taxes. Europe cannot expect that frontline countries will use violence against thousands of migrants who haven’t committed any crime, in order to implement identification mechanisms, such as fingerprinting, when such migrants are reluctant to do so because of the consequences attached to such identification, in particular the inability to move beyond the European country deemed responsible for the entry and the prohibition of claiming asylum in the country of their choice. This is especially true as some northern EU member states have made little use of the family reunification clause, the humanitarian clause and the sovereignty clause that could enhance the mobility of migrants throughout Europe. Trying to confine migrants to the territory of the frontline countries obliges migrants to continue traveling underground, further empowering smuggling rings and unscrupulous employers, and places undue responsibilities on such frontline countries.

In effect, the Dublin logic has already collapsed, with the realisation that the return of migrants to the frontline countries of Europe constitutes a punishment for both the migrant and the frontline countries to which they return: it is unsustainable in the long term.

Tackling discrimination against migrants

While it may constitute an administrative offence, irregular migration is not a crime, neither against persons, nor against property, nor against State security (in their vast majority, migrants are harmless and hardworking). Although they may have violated an administrative requirement, irregular migrants are not criminals per se, and should not be treated as such.

There is an urgent need for a political counter-discourse that would emphasize the benefits that migration brings to both countries of origin and destination. It can be done, as has been demonstrated by countries like Germany where Chancellor Merkel has provided a strong counter-discourse to far-right anti-immigration movements. Facts-based analyses which highlight the contribution of migrants to society are important in countering the nationalist populist discourse and informing the electorate.

In conclusion, I urge the EU and EU Member States to progressively establish a human-rights-based, coherent and comprehensive migration policy which addresses these issues and makes mobility its central asset. A common narrative celebrating mobility and diversity, recognising real labour market needs as well as the needs of migrants, based on human rights guaranties and access to justice, must be developed.

1. Sharifi and Others v. Italy and Greece; Tarakhel v. Switzerland