Harmonization in the European Union: Asylum, Migration and Integration Institute for Social Research, Oslo, 24 November 2009 Irregular Migration in Europe.

Harmonization in the European Union:Asylum, Migration and Integration

Institute for Social Research, Oslo, 24 November 2009

Irregular Migration in Europe

Ryszard CholewinskiMigration Policy and Research Department

International Organization for Migration (IOM), Geneva

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Presentation contentFocus is less on complexities of

phenomenon of irregular migration itself, but more on the EU policies being formulated to address it

Need to tackle topic of irregular migration in a more honest, holistic and integrated manner

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Presentation content (cont’d)Presentation content (cont’d)

Five areas where better synergies need to be developed:

1. Terminology2. Linkages with legal/ regular migration3. Treatment and human rights of all migrants,

irrespective of their immigration status4. Internal and external (externalization)

dimensions of EU immigration law and policy5. Management of irregular migration and

mixed flows

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1. Terminology

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Combatting “illegal” migration

Lynchpin of EU’s immigration policy, both in its internal and external dimensionsE.g. Commission June 2008 Communication on

“A Common Immigration Policy for Europe” Justification?

To ensure credibility and acceptance of policy on legal/ regular immigration

Manifested in the principal measures adopted in this fieldE.g. Return Directive, FRONTEX Regulation (as

amended)

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Irregular/ undocumented migration

“Irregular migration” appears throughout Commission’s October 2008 Communication on “Strengthening the Global Approach to Migration: Increasing Coordination, Coherence and Synergies”Global Approach to Migration articulates external

dimension of EU policy in this field Why “irregular” (or “undocumented”)

migration?Fundamental right of everyone to recognition as a

person everywhere before the lawAvoids criminalizing/ stigmatizing such migrantsNeutral terminology used by international and

regional organizations with a migration mandate (ILO, IOM, Council of Europe) 66

2. Linkages with regular/ legal migration

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Linkages inevitable

Difficult to discuss irregular migration in isolation without reference to regular/ legal migration

Many irregular migrants are in employment Causes of both regular and irregular

migration are similar Argument often advanced that one important

means of reducing irregular migration is creation of more regular migration channels

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Law and policymaking on legal/ regular migration to EU

EU at a distinct disadvantage No legal competence to determine “volumes of

admission” of third-country nationals for purpose of employment (enshrined in Lisbon Treaty)

But EU does have a mandate concerning visa policy relating to short-term visits (but not in respect of Ireland / UK)Visa facilitation also possible

To some degree, move towards adoption of mobility partnerships reflects this limited EU competence

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Law and policymaking on legal/ regular migration in EU (cont’d)

Legal/ regular migration was seen as “missing link” in formulation of EU immigration policy

Recent developmentsStudent and Researchers DirectivesBlue Card Directive (highly skilled migration)Commission proposal for “General Framework”

Directive on single application procedure for a single permit for third-country nationals to work and reside in EU Member States and on a common set of rights

Policy Plan of Legal Migration: “other measures” Cooperation with third countries (e.g. temporary/circular

migration) European immigration portal 1010

Blue Card Directive Background – most highly skilled migrants go

to U.S. Canada and Australia and not EU MS Does it meet expectations of third countries

in terms of legal/ regular migration to EU? Inherent limitation on determining volumes of

admissions to EU Incentives sufficient?

More social rights, including facilitated family reunion Possibility of moving to another EU MS after 18 months of

lawful residence in first MS Advantages of immediate permanent residence in

terms of mobility and contribution to country of origin

No obligation on MS to replace their own schemes for admitting highly skilled migrants with Blue Card

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Proposed General Framework Directive

Single application procedure for a single permit for third-country nationals to work and reside in EU MS

Would also encompass admission of low or semi-skilled third-country national workers

But no obligation on MS to admit such workers Need for policy changes at level of MS to ensure

that structural demand for such jobs is met Policy position in some MS (e.g. UK) that demand in low/

semi-skilled sectors can be met by nationals from new MS

Crux: If demand for low-skilled workers is not met, employers turn to the informal labour market,

which is also pole of attraction for irregular migrants

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3. Treatment and human rights of all migrants

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EU measures: a fragmented approach to rights

Elements of a uniform EU approach to treatment of third-country national workers in proposed General Framework Directive

But standards are minimal in comparison to what is offered to highly skilled migrants in Blue Card Directive

Contrast with horizontal approach in Swedish labour migration law (and rejected in 2001 Directive)

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EU measures: a fragmented EU measures: a fragmented approach to rights (cont’d)approach to rights (cont’d)

Approach sits very uneasily with international and regional human rights law, which applies principle of non-discrimination to all persons regardless of their nationality or skill levelCore international human rights law (e.g. ICCPR,

ICESCR)European Convention on Human Rights 1950 Specific instruments protecting migrant workers

1990 Migrant Workers Convention ILO Conventions No. 97 and No. 143 European Social Charter / Convention on Legal Status of Migrant

Workers

EU Measures also silent on rights of those third-country nationals who work in EU MS without authorization

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Basic Facts on 1990 Migrant Workers Convention

Not ratified by a single EU MS or EEA country Only three Council of Europe MS have ratified

it: Azerbaijan, Bosnia, Turkey Africa: ratified by 17 countries Asia/ Central Asia: ratified by three

significant countries of origin – Philippines, Sri Lanka, Kyrgyzstan, Tajikistan

Latin America and Caribbean: ratified by 15 countries

13 States parties have submitted initial periodic report to Migrant Workers Committee

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Whither a legal framework for Whither a legal framework for protection of all migrant protection of all migrant

workers?workers? Return Directive: EU Member States which ratify

1990 Migrant Workers Convention will have to put in place more favourable standards, particularly in the expulsion process

1990 Migrant Workers Convention also affords fundamental rights to all migrants, including social rights such as access to (emergency) health care, social security and education

Currently no EU legally binding measure in place devoted to protection of all migrants irrespective of their immigration status Proposed Immigration Code unlikely to change this position Although EU Charter of Fundamental rights generally does

not distinguish on the basis of legal status Irregular migrants will have to rely on national legal

frameworks; ECHR; or, in practice, the goodwill of local authorities and NGOs

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4. Internal and external dimensions of EU

immigration policy

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EU Global Approach to migrationEU Global Approach to migration Commission’s October 2008 Communication on the EU Commission’s October 2008 Communication on the EU

Global Approach to migration notes that it is “based on Global Approach to migration notes that it is “based on genuine partnership with third countries, is fully genuine partnership with third countries, is fully integrated into the EU’s external policies, and integrated into the EU’s external policies, and addresses all migration and asylum issues in a addresses all migration and asylum issues in a comprehensive and balanced manner”comprehensive and balanced manner”

Three thematic areas: (1) legal migration, (2) fight Three thematic areas: (1) legal migration, (2) fight against irregular migration, and (3) migration and against irregular migration, and (3) migration and developmentdevelopment

Approach purports to be different to the essentially Approach purports to be different to the essentially “security-centred” approach pursued in the past “security-centred” approach pursued in the past largely focusing on preventing irregular migrationlargely focusing on preventing irregular migration

Welcome shift, but in practice the security paradigm Welcome shift, but in practice the security paradigm continues to predominatecontinues to predominate Readmission agreements / role of FRONTEXReadmission agreements / role of FRONTEX No comprehensive legal measures on migration and development No comprehensive legal measures on migration and development

(some provisions in Blue Card Directive on ethical recruitment)(some provisions in Blue Card Directive on ethical recruitment) Mobility partnerships?Mobility partnerships? 1919

Importance of policy coherence and synergies

Integration of / mainstreaming migration into external relations policy of EU insufficient alone

Important that there is coherence and synergies between internal and external dimensions of EU immigration policy

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5. Management of irregular migration and mixed flows

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Mixed flows Realizing the rights of all migrants in the

EU irrespective of immigration status becomes especially salient when considering irregular migration and mixed flows

Mixed flows defined as “complex population movements including refugees, asylum-seekers, economic migrants and other migrants” (IOM Glossary, 2004)

In essence, mixed flows are irregular movements

Most visible in Europe in Mediterranean (Lampedusa, Malta) and Eastern Atlantic (Canary Islands) 2222

Mixed flows (cont’d) Present particular challenges to States not only

because they infringe on their sovereign prerogative to determine which non-nationals may enter their territory, but also because persons involved in such movements are more likely to be subject to hardship, human rights violations and discrimination, and thus require special and individualized assistance

Focus is often on asylum-seekers and refugees because of non-refoulement principle

But mixed flows also comprise particularly vulnerable groups, such as victims of trafficking, smuggled migrants, stranded migrants, unaccompanied minors, and those subject to violence (including gender-based violence) and trauma in migration process

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Mixed flows (cont’d) When no explicit legal framework for

protection of the rights of all migrants in EU, it is difficult to envisage how asylum-seekers, refugees as well as particularly vulnerable migrants in mixed flows can be adequately assisted and protected

Council of Europe Parliamentary Assembly Resolution 1637 (2008) of 28 November 2008 on Europe’s boat people: mixed flows by sea into southern EuropeRecommendations to Council of Europe

Mediterranean Member States and EU (with the support of EU MS)

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5. Conclusion

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Conclusion EU and its Member States find themselves

between a rock and a hard placeThe Rock of fundamental human rights

standards, which apply to all persons irrespective of their nationality and immigration status, including the estimated 8 million irregular migrants in the EU

The Hard Place of negative media and public opinion, which tends to villify migrants, particularly in hard economic times, and expects politicians to deter further immigration

But this does not mean that there is no room for policymakers to engage on the

issue of irregular migration2626

Thank you for your attention

Ryszard [email protected]

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