Ref. :  000030413
Date :  2008-09-29
Language :  English
Home Page / The whole website
fr / es / de / po / en

''It is wrong to criminalise migration''

In his latest 'Viewpoint,' of 29 September, the Commissioner for Human Rights voices his concerns over the trend to criminalise the irregular entry and stay of migrants. ''It causes many human tragedies without achieving its purpose of genuine control,'' he writes, proposing a more principled approach for immigration policies.


I have observed with increasing concern a trend to criminalize the irregular entry and presence of migrants as part of a policy of ‘migration management’. Such a method of controlling international movement corrodes established international law principles. It also causes many human tragedies without achieving its purpose of genuine control.

States do have a legitimate interest to control their borders and can refuse the entry and stay of persons coming from the ‘outside’. However, there are binding international agreements about the right of individuals to seek asylum through fair, rights-based procedures. The principle of non-refoulement has been established in order to protect individuals from being sent back to situations which would threaten their lives or personal safety.

However, many migrants cannot claim refugee status, even if their enforced return would amount to personal tragedy and/or economic disaster. Many have not managed to regularize their presence in their new country and live underground, constantly fearing to be caught by the police and sent away. A number have lived in the host country for long periods and may have children at school.

Migrants are finding themselves increasingly targeted and some governments have even set quotas on how many should be found and deported through fast-track procedures. It has been necessary – and important – to make clear that irregular migrants have human rights.

I am now aware of proposals to criminalize attempts to enter a country or to stay there without a permit. This may be popular among xenophobes but would be a retrogressive step.

For one thing, to put a criminal stamp on attempts to enter a country would undermine the right to seek asylum and affect refugees. In addition, persons who have been smuggled into a country should not be seen as having committed a crime(1). There are agreed international standards to protect persons who have been victims of human trafficking from any criminal liability.

The 1990 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, expressly holds that if migrants are detained for violating provisions relating to migration, they should be held separately from convicted persons or persons detained pending trial. They should not be seen as criminals.(2)

Criminalization is a disproportionate measure which exceeds a state’s legitimate interest in controlling its borders. To criminalize irregular migrants would, in effect, equate them with the smugglers or employers who, in many cases, have exploited them. Such a policy would cause further stigmatization and marginalization, even though the majority of migrants contribute to the development of European states and their societies. Immigration offences should remain administrative in nature.

There are two particular side effects which States should also bear in mind when they think about resorting to criminal law in order to control irregular immigration:

Firstly, the issue of over-burdening the court system. When in Italy recently, I learned that national judges were worried about the introduction of new criminal offences into domestic legislation which would target migrants. Courts in several European countries face problems of excessive length of proceedings, in violation of Article 6 of the European Convention on Human Rights. Indeed, this in turn encourages a large number of applications before the European Court of Human Rights.

Secondly, the issue of over-crowding in prisons and detention centres. Categorizing irregular migrants as “criminals” under national law would entail their pre-trial and post-conviction detention. It is well-known, and I have personally witnessed this in several countries, that a number of Council of Europe member states are faced with a serious problem of overcrowding and of inhumane and degrading conditions in detention centres and prisons. Aliens in administrative detention are particularly vulnerable to such abusive treatment.

In this context, I should like to reiterate my grave concern about the possibility of detaining irregular migrants in EU member states for a maximum period of 18 months. This possibility is provided for by the legislative resolution on the “Returns Directive” which was adopted by the European Parliament last June. This was a mistake and an unfortunate response to the urgent need to harmonize European policies in this area.

Political decision-makers should not lose the human rights perspective in this discussion and should try to formulate a rational long-term strategy. Such an approach has to include the need for migrant labour to perform the jobs which nationals very often refuse to take. In other words, European states should face up to the reality that irregular migrants are working because migrant labour is in demand.

By way of example, the agricultural sector in southern European countries is one where irregular migrant workers have been extensively employed. Sadly, migrants in this field often fall prey to substandard working and living conditions(3).

Migration is a social phenomenon which requires multi-lateral and intelligent action by states. Irregular migration has increased and thrived not only because of underdevelopment in migrants’ countries of origin. Another root cause is the lack of clear immigration mechanisms and procedures which can respond to labour demands through regular migration channels.

It is characteristic that immigration in most European states remains one of the most complex areas of law. Efforts to simplify immigration law, such as those under way in the UK, should be further promoted.. In this regard, I draw attention to the important guidelines contained in Parliamentary Assembly’s Recommendation 1618 (2003) and Resolution 1509 (2006) regarding irregular migrants. Member states should endeavour to establish transparent and efficient legal immigration avenues, as a way out of irregular migration routes.

Such efforts may well benefit from member states’ accession to the 1977 European Convention on the Legal Status of Migrant Workers: an important treaty concerning regular migrant workers from Council of Europe member states. It covers the principal aspects of regular migration, such as migrant labour recruitment, working and living conditions, social and medical assistance. Regrettably, after thirty-one years, this treaty has still only been ratified by 11 member states.

I recommend that member states accede to the 1990 International Convention on Migrant Workers, the most comprehensive, international treaty on migrant workers reaffirming and establishing basic human rights norms for regular and irregular migrants. To date it has been ratified by four and signed by two Council of Europe member states, even though many European countries actively participated in its drafting. Ratification and implementation of this treaty will enhance the effective protection of all migrant workers’ fundamental rights which should be an absolute priority for every state’s immigration policy and practice.

Thomas Hammarberg


- Notes
1. Article 5, the 2000 Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention Against Transnational Organized Crime
2. Article 17, paragraph 3 of the Convention
3. See, inter alia, Parliamentary Assembly Recommendation 1618 (2003)

- Links

Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the UN Convention Against Transnational Organized Crime
Migrants in irregular employment in the agricultural sector of southern European countries
PACE Recommendation 1618 (2003)
Human rights of irregular migrants
PACE Resolution 1509 (2006)
UK Border Agency


"Also available at the Commissioner's website at www.commissioner.coe.int"


Rate this content
 
 
 
Average of 118 ratings 
Rating 2.55 / 4 MoyenMoyenMoyenMoyen
Same author:
 flecheWorld Forum for Democracy - “Gender Equality: Whose Battle?” from November 19th to 21st 2018
 flecheLaunch of an Internet platform to protect journalism and promote safety of journalists
 flecheSocial rights: 252 violations in 41 countries
 flecheHungary: progress needed on media freedom, anti-discrimination measures and migrants’ rights
 flecheStudy: abuse of prescription drugs
 flecheParliamentary Assembly of Council of Europe: "Annexation of Crimea is illegal"
 flecheWorld Forum for Democracy
 flechePACE Health Committee denounces ‘unjustified scare’ of Swine Flu, waste of public money
 flecheIntercultural cities - Towards a model for intercultural integration / Edited by Phil Wood
 flecheCybercrime lawmakers call for worldwide implementation of the Budapest Convention
 flecheInternational conference " Rethinking cultural policy: implementing a new paradigm" (10-11 June 2010, Brussels)
 flecheGeorge A. Papandreou: ''Humanising and democratising globalisation''
 flecheLanguage rights of national minorities must be respected - Viewpoint by COE Human Rights Commissioner
 flecheCopenhagen political declaration lacks ambition, regrets PACE President
 flecheInternational Migrants Day - Recalling the plight of people on the move because of the economic crisis and changes in the environment
 flecheMulticulturalism is an important dimension of our national identities - Viewpoint by COE Human Rights Commissioner
 flecheCouncil of Europe Conference of Ministers responsible for Local and Regional Government adopts the Utrecht Declaration
 flecheClimate change is causing an unprecedented, global human rights crisis – and must now be countered by co-ordinated, rights-based action
 flecheLudmila Sfirloaga : ''Co-operation between European regions is essential to face future challenges''
 flecheE-democracy as a chance to increase citizens participation in local politics
 flecheRecommendation CM/Rec(2009)7 of the Committee of Ministers to member states on national film policies and the diversity of cultural expressions
 flecheLiving in a healthy environment should become a human right
 flecheEuronews reports on pilot "Intercultural cities"
 flecheViewpoint by Commissioner Thomas Hammarberg: "Serious implementation of human rights standards requires that benchmarking indicators are defined"
 flecheFirst international meeting of the Territories of Co-responsibility (September 25th 2009, Mulhouse - France)
 flecheFirst international meeting of the Territories of Co-responsibility (September 25th 2009, Mulhouse - France)
 flecheEuropean Urban Charter II: the Congress calls for a new urbanity
 flecheThe Council of Europe publishes a book about economic migration
 fleche''The times when governments could regulate territorial development alone are gone"
 fleche"The response to the crisis must include a shift towards more equality" : View point by Council of Europe Commissioner for Human Rights Thomas Hammarberg
 flecheTerry Davis: minority languages ''a source of cultural richness"
 flecheEurope has learned to fight terrorism the hard way
 flecheInternational financial crisis: consequences for European territorial authorties
 fleche''Intercultural dialogue should not be reduced to exchanges of benevolent platitudes at international seminars''
 fleche“Arbitrary procedures for terrorist black-listing must now be changed” - Commissioner Thomas Hammarberg's Viewpoint
 flecheDiscours d'Esther Maurer, membre du Congrès des pouvoirs locaux et régionaux du Conseil de l’Europe à la Conférence sur les Droits de l’homme dans les sociétés culturellement diverses: défis et perspectives
 flecheParliaments active in guaranteeing the right to water
 fleche"The contribution of minority languages to regional development"
 flecheConference of Ministers responsible for Culture on “Intercultural dialogue as a basis for peace and sustainable development in Europe and its neighbouring regions” (2 – 3 December 2008, Baku - Azerbaijan)
 flecheCooperation between cities and regions, an alternative to conflict: Round Table in Brussels
 flechePrime Minister of Sweden - ''Council of Europe has to act when international law has been violated''
 flecheTerritorial authorities a catalyst for action on climate change and biodiversity, says Gaye Doganoglu
 flecheThematic report of the 8th Council of Europe Conference of Ministers responsible for Migration Affairs : "Economic migration, social cohesion and development: towards an integrated approach"
 flecheViewpoint by Commissioner Thomas Hammarberg: "Refugees must be able to reunite with their family members"
 flecheTerry Davis: promote the learning of intercultural competences
 flecheTripartite high level meeting: the promotion of intercultural dialogue
 flecheCherniguiv seminar calls for strengthening efficiency of transfrontier and inter-regional co-operation
 flecheMORE Database: a new tool helping transfrontier co-operation
 flecheThe “White Paper on Intercultural Dialogue” of the Council of Europe
 fleche“Congress has a reinforced political role and unique institutional presence”, says the outgoing President of the Congress of Local and Regional Authorities, in his final activity report
 flecheIan Micallef: ''European construction cannot be achieved without the Mediterranean, and the Arab world''
 flecheIntercultural and inter-religious dialogue: conclusions of 2008 meeting
 flecheEuropean Day of Integration and Intercultural Tolerance
 fleche2008 Council of Europe Exchange on the religious dimension of intercultural dialogue
 flecheConference to propose landmark cybercrime guidelines to increase co-operation between law enforcement and internet service providers
 flecheDubai Final Declaration
 fleche“At last, Europe has an effective weapon to fight modern slavery”
 flecheYavuz Mildon: ''L'espace rhénan est un véritable laboratoire de la coopération transfrontalière en Europe''
 flecheViewpoint by Commissioner Thomas Hammarberg: “The new European migration policy should be based on human rights principles, not xenophobia”
 flecheCongress creates Ad Hoc Working Group on Interregional Cooperation
 fleche''Our society is a quilt which can only be sewn together through mutual acceptance''
 flecheEuropean Film Awards – the Eurimages Prize
 flecheRecommendation of the Committee of Ministers to member states on the legal status of non-governmental organisations in Europe
 flecheCouncil of Europe ministers promote good democratic governance at local level
 flecheCouncil of Europe member states to meet in Valencia to discuss a common strategy to improve local and regional democracy
 flecheCouncil of Europe member states to meet in Valencia to discuss a common strategy to improve local and regional democracy (October 15-16, 2007, Valencia - Spain)
 flecheInterview with Lluis Maria de Puig: “Regionalisation makes for political stability in Europe”
 flecheImage des femmes dans la publicité
 fleche“Victims of human rights violations deserve more”
 flecheA new Council of Europe Convention to protect children against sexual exploitation and abuse

 flecheYavuz Mildon: ''L'objectif de l'Eurorégion Mer noire est de contribuer à la stabilité et à la sécurité en Europe''
 flecheTerry Davis: Direct cooperation between local and regional authorities is the most effective
 flecheBorders and bridges of the Mediterranean Village: "All Different All Equal" campaign facilitates discussion on migration and inclusion
 flecheInternational conference: "Why terrorism? Addressing the Conditions Conducive to the Spread of Terrorism" (Strasbourg, 25-26 April 2007)
 fleche Declaration of the Committee of Ministers on protecting the role of the media in democracy in the context of media concentration
 flecheSpeech by Halvdan Skard, Congress President at the Conference on the parliamentary dimension of election observation
 flecheDéclaration sur le dialogue interculturel et la prévention des conflits (Opatija - Croatie, 22 octobre 2003)
 flecheDiscussion paper on the Intercultural Dialogue Forum of the Council of Europe INGO Conference (Strasbourg, November 2006)
 flechePreparing the ”White Paper on intercultural dialogue” of the Council of Europe: Introduction to the consultation process - Consultation document
 flecheSite dédié au dialogue interculturel du Conseil de l'Europe
 flecheOn Human Rights Day, PACE President calls for stronger democratic controls over secret services
 flecheVolga Forum Declaration
 flecheFinal Declaration of the International Conference on Intercultural and Interfaith Dialogue (Volga Forum) : in favour of regular dialogue between the Council of Europe and religious communities
 flecheLa coopération transfrontalière est un outil précieux qui permet aux régions de s’ouvrir à de nouvelles idées
 flecheSpeech by Terry Davis, Secretary General of the Council of Europe, at the Launch of the Adriatic Euro-region Conference
 flecheCouncil of Europe Submission to the Internet Governance Forum
 flecheConference ''Inter-regional cooperation in the Black Sea Basin'' (30 March 2006, Constanta - Romania)
 flecheRecommendation Rec(2006)3 of the Committee of Ministers to member states on the UNESCO Convention on the protection and promotion of the diversity of cultural expressions
 flecheReport on Local and Regional Democracy in France
 flecheEuropean Charter for Regional or Minority Languages
 flecheDéclaration finale de la conférence sur « la promotion des produits typiques regionaux face a la globalisation : Eduquer le palais »
 flecheThe impact of globalisation on regions
 flecheEuropean Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities
 flecheEuropean Charter of Local Self-Government
 flecheDeclaration of the Founding Congress of the New Unified World Organisation of Local Authorities “United Cities and Local Governments”
 flechePACE President warns that ‘Europe could soon be on the road back to egocentric nationalism’
 flecheSpeech by Terry Davis, Secretary General on the occasion of the 60th meeting of the CDDH
 flecheCouncil of Europe: Reports on racism in Albania, Croatia, Poland, Sweden and the United Kingdom
 flecheSpeech by Giovanni di Stasi, President of the Congress, to the 9th Petersburg International Economic Forum
13-16 June 2005

 flecheThe role of the Council of Europe in the new European institutional architecture
 flecheCouncil of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism
 flecheCouncil of Europe Convention on the Prevention of Terrorism
 flecheCouncil of Europe Convention on Action against Trafficking in Human Being
 flecheRegional Forum “Cultural Corridors in South East Europe”
(Varna, Bulgaria - 20-21 May 2005)

 flecheEU proposes WTO consultations with China on two textile product categories
 fleche2nd European Youth Summit (Warsaw, 15-16 May 2005)
 flecheWarsaw Declaration
 flecheMigration et intégration: un défi et une opportunité pour l'Europe
 flecheCouncil of Europe moves to protect victims of terrorist acts
 flecheDavis, Terry
 flecheDiversité culturelle et pluralisme des médias à l’heure de la mondialisation
 flecheOpening Conference for the 50th Anniversary of the European Cultural Convention
 fleche50th anniversary of the European cultural convention
 flecheEuropean ministers call on the Council of Europe to boost dialogue with neighbouring regions
 flecheReport to the Secretary General to the Wroclaw Conference on the 50 years of the European cultural convention
 flecheOur work in the field of culture remains fundamental - Ministerial conference: Defining the way ahead for European cultural policy
 flecheProtocol No. 14 to the European Convention on Human Rights: Signature and ratification ceremony
 flecheMonaco becomes the 46th Council of Europe member state
 flecheEuropean Charter for Regional or Minority Languages
 flecheLa résolution des conflits, thème d'une rencontre de jeunes d'Israël, de Palestine et du Kosovo (1er - 7 juillet 2004)
 flecheTurkey and the European Union: looking beyond prejudice
 flecheNew ECRI report on San Marino
 flecheStatement by Javier Solana, EU High Representative for CFSP at the Launch of the Dialogue between Belgrade and Pristina
 flecheCouncil of Europe Anti-Torture Committee visits Turkey
 flecheLinguistic variety one of Europe’s strengths
 flecheEuropean Day of Languages 2003 - 26 September
 flecheProgramme commun Conseil de l'Europe/Union européenne pour la sauvegarde du patrimoine culturel de l'Europe du Sud-Est
 flecheThirty Council of Europe Culture Ministers to discuss their new role in conflict prevention
13
SEARCH
Keywords   go
in 
Translate this page Traduire par Google Translate
Share

Share on Facebook
FACEBOOK
Partager sur Twitter
TWITTER
Share on Google+Google + Share on LinkedInLinkedIn
Partager sur MessengerMessenger Partager sur BloggerBlogger