Workshop
on the ILPA/ MPG Proposed Directive on Irregular Migrants (Amsterdam Proposals
2000/6)
Held in Antwerp, 23 February
2001
.
Introduction
The
European asylum- and migration policy is developing rapidly. This is a
consequence of the fact that with the Amsterdam Treaty, the asylum- and
migration policy was moved from the third to the first pillar: after a
transitional period of 5 years, asylum and migration will fall completely within
the competence of the EU. The Amsterdam Treaty provides the legal basis for the
design and adoption of common immigration and asylum policies. Recently
Euro-Commissioner Vitorino published two ‘communications’: one on asylum and
one on migration, and by that opened the discussion in Europe.
The Amsterdam Proposals are
published in March 2000 by the Immigration Law Practitioners’ Association
(ILPA) and the Migration Policy Group (MPG). With these Proposals, the authors
intend to assist policy makers in the European Union in formulating legislative
proposals. The Proposals reflect the views and concerns of non-governmental
organisations, law practitioners and academics active in the field of
immigration and asylum.
There
are proposed directives on Asylum, on the right to Family Reunion, on Long-term
Residents, on Visas and Border Controls, on the Admission of Migrants, and on
Irregular Migrants.
Of
PICUM’s concern is particularly the Proposed Directive on Irregular Migrants
(full title: Proposed Directive 2000/06 ensuring minimum standards of human
rights protection applying to persons in an irregular situation in a Member
State) The authors of this Directive state that EU rules so far have focused
largely on the details of arranging expulsion, paying only limited regard to the
status and the rights of illegal migrants. The entry into force of the Treaty of
Amsterdam provides according to them an opportunity to reconsider this approach
and to restore some balance to Community migration law.
.
Presentation
The
Amsterdam Proposals are not seen by their authors as an information and lobby
tool for grassroot organizations, and they
do not consider the contents
of these Proposals open for discussion. Therefore, instead of
the authors, the PICUM coordinator made a brief presentation of the
Proposals.
The
Proposed Directive on Irregular Migrants addresses mainly detention and
expulsion of undocumented migrants. Regarding expulsion (art 5-15), the
Directive puts some substantive limitations on the grounds (such as
prohibition of collective expulsion, etc). The directive contains as well
rather detailed rulings on the expulsion procedure, i.a. on the part of
notification, appeal, interpreting and legal advice, settlement of outstanding
claims, etc. Concerning detention of undocumented migrants during the expulsion
process, some preconditions are outlined. The detention should be prescribed by
law, and for a specific period, which must be as short as possible and for
specific reasons. The detention should furthermore be used proportionally, and
should be strictly necessary for compelling reasons relevant to the undocumented
migrant’s individual case.
The Proposed Directive includes as well provisions regarding
non-discrimination and judicial enforcement. Lastly it limits sanctions for
employers, transporters or harbourers to these situations in which it can be
proven that it was for financial gain and that
they were aware of the irregular situation. Furthermore it states that no
criminal or administrative penalties should be imposed upon transporters,
harbourers or employers, where the person was subsequently recognised as a
refugee.
Of
main importance for PICUM are the substantive rights that are guaranteed
in the proposed Directive. On the one hand, there are ‘Employment rights’:
member states must ensure that employers fulfill their legal and contractual
obligations to undocumented migrants (art 16). On the other hand there are
‘Social Rights’. They state that concerning access to social security (art
18), health care (art 19) and education (art 20), Member States shall ensure the
persons in an irregular situation and members of their families enjoy equal
treatment granted to nationals of the Member State concerned in similar
circumstances.
.
Discussion
Some
remarks on the contents were made:
A
maximum period of detention should be fixed
The
option of a ‘voluntary return’ should be considered: undocumented migrants
must be offered the possibility to opt for a voluntary return program during
their detention.
Regarding
grounds of expulsion, the following limitations are mentioned: article 6(1) bars
collective expulsion of foreigners, article 6(2) protects persons who have only
slipped into an irregular situation by accident, for example by missing a
deadline to file for a renewal of a residence permit due to illness, but who
would have been entitled to remain if they had applied in time. Article 6(3)
prevents Member States from expelling persons on grounds of fraud unless the
allegation of fraud has been tested in a court.
Another
limitation on expulsion should be added: if there is a risk for the own life or
for deprivation of freedom in the country of origin (cf Standpoints of Amnesty
International)
The
provisions of non-discrimination include that checks would only be carried out
on a person if there is a reasonable grounds for suspecting this person is
illegal. Which are those reasonable grounds? This should be clarified. It should
be added that no checks will be carried out during medical treatment and
revalidation, in educational institutions, and in case of ‘snitching’.
(Didier Vanderslycke, SMZP)
The wording used in the Proposals and in the Convention
concerning urgent medical care (“medical care that is urgently required for
the preservation of their life or the avoidance of irreparable harm to their
health”) was considered problematic
by several German PICUM members. In Belgium and the Netherlands this wording is in use,
and in these two countries it turned out to be interpreted broadly enough. In
Germany however the interpretation tends to be far more restrictive. There has
been considerable protest against this formulation, and it is of course not a
good idea to present and lobby for an international document in which exactly
this clause is used.
Another
right that should be guaranteed is that families shall not be separated as a
result of the expulsion.
Some
questions rose concerning the employment rights:
Ralf
Rothenbush (Pax Christi Deutschland) remarked that the employment rights
mentioned in this Proposed Directive are too ‘theoretical’. What guarantee
do undocumented migrants have that the consequence of having a contract is not
that they will be expelled?
Tetty
Rooze (Prot. Sociaal Centrum, Antwerp) drew the attention to another important
point: even if undocumented migrants have a contract, it’s often too time and
money consuming for them to go to court in case of any violations.
It was noted that sometimes trade unions can help an undocumented worker, but only if the worker had started his work with a legal contract. In Germany however is is feared that trade unions are also ‘official institutions’ that have the duty to denounce undocumented migrants.
Finally,
there is no anti–denouncing rule included in this Proposed Directive. The
confidentiality/privacy policy is not mentioned. What good is a social right on
education if schools have the duty to denounce their pupils to the aliens’
police?
.
Conclusions / Points of action for PICUM
The Proposed Directive focuses very much on expulsion and detention, and not so much on social rights. The participants of the meeting recognized that the authors of the Amsterdam Proposals probably had a certain strategy that made them promote this particular limited set of rights.
The
participants stated that it was good to know that this Proposed Directive
exists. It offered an excellent opportunity to exchange experiences.
An
important point that arose in the discussion is the role of trade unions. It was
felt necessary to have a closer look in how they function throughout Europe, and
in how we could present our concerns there.
URL:
www.migpolgroup.com
PICUM
Working Document on the Amsterdam Proposals, December 2000, Unpublished.
Present:
Jonathan Hepburn (Migrants Rights International –
Geneva)
Wilfried Gepts (Pax Christi International)
Ralf Rothenbusch (Pax
Christi International)
Dominique van Huystee (ASKV – Amsterdam)
Marijn Uyen
(ASKV- Amsterdam)
Alice Beldman (ASKV – Amsterdam)
René Plaetevoet
(December 18)
Myriam De Feyter (December 18)
Rian Ederveen (Netwerk
Religieuzen voor Vluchtelingen- Nederland)
Jenny Monahan (Human Too)
Pieter
Muller (Raad van Kerken – Nederland)
Tetty Rooze (Protestants Sociaal Centrum
– Antwerp)
Ilke Adam (Steunpunt Mensen Zonder Papieren – Belgium)
Didier
Vanderslycke (Steunpunt Mensen Zonder Papieren – Belgium)
Holk Stobbe (Flüchtlingsrat Niedersachsen)
Hans Arwert (SOW Kerken – the Netherlands)
Margret and
Wolfgang Müller (Flüchtlingsrat Nordrhein-Westfalen)
Cesar Taguba (Ecumenical
Ministry for Filipinos Abroad (EMFA)
Nele Verbruggen (PICUM, minutes)
Apologies:
Irene Donadio
(ECRE)
Doris Peschke (CCME)
Piet Struyk (Espaces)
Lena
Barret (JRS)
Albrecht Kieser (Kein Mensch ist Illegal)
Paul Lansu (Pax Christi International)
Hildegard Grosse (BAG Asyl in der Kirche)
Ute Möhring (Red Cross)
Rachel Bryers (QCEA)
Berry Tholen (VON)
