Human Rights Watch⁽¹⁾ and the European Council on Refugees and Exiles (ECRE)⁽²⁾ welcome the opportunity to attend and participate in the Strasbourg meeting--"All Different, All Equal: From Principle to Practice," the European contribution to the U.N. World Conference Against Racism--and its associated NGO Forum. We also welcome the opportunity to provide input into the Draft General Conclusions of the European Conference Against Racism.⁽³⁾ The following observations are not a comprehensive critique of the General Conclusions but address issues of concern to Human Rights Watch and ECRE regarding the human rights of refugees and migrants.⁽⁴⁾

The rise of xenophobia and racist violence against asylum seekers, refugees and migrants in Western Europe throughout the last few years--and the emergence of political movements founded on the manipulation of racist fears and the promotion of racist, exclusionary policies--make discrimination against refugees and migrants a priority area of concern. Recent measures in European Union countries have reflected this increasing intolerance:

• The so-called "management of migration," featuring highly restrictive national immigration policies limiting the number of migrants granted entry; facilitation of the return of undocumented migrants; summary removal of rejected asylum seekers following expedited procedures; and strengthening border control mechanisms;
• Preventing refugees from leaving their places of persecution and accessing protection in Western Europe through special and highly restrictive visa regimes, carriers' sanctions, and so-called "safe third country" practices, while proposals for "regionalisation of refugee protection," by designation of "safe havens" and the promotion of the "right to remain" threaten to create new obstacles;
• Numerous European Union states' narrow interpretation of the 1951 Refugee Convention resulting in a "protection lottery" in Europe, with refugees being protected (or not) depending on where they make their asylum claims rather than on the basis of Europe-wide procedural and legal safeguards and international standards of legal interpretation;
• Plans for an E.U.-coordinated "crime control" approach to dealing with asylum seekers and the trafficking and smuggling of migrants swamping any concomitant commitment to the protection of vulnerable migrants' basic human rights and refugee protection obligations under the 1951 Refugee Convention and other relevant international instruments;
• A trend in the public discourse of government officials and political leaders to characterize asylum seekers and migrants above all as threats to the European Union, generalizing the challenge as one of "illegal migrants" and "bogus asylum seekers";

• Physically abusive methods of restraint used in the process of deporting rejected asylum seekers and undocumented migrants⁽⁵⁾ that have, in some cases, resulted in death;

• Overt and subtle forms of racist and xenophobic rhetoric--and the stereotyping of asylum seekers and migrants as criminals and job usurpers--as tools for political mobilization by nationalist parties and increasingly by some mainstream parties;
• Special employment and social welfare laws for migrant workers, or the lack thereof, often guaranteeing employers impunity for holding migrants in debt bondage, withholding pay, unsafe working conditions, and other violations of labor and employment laws, while denying migrant workers social welfare benefits equal in scope to nationals;
• Denial or restriction of access for asylum seekers, refugees, and migrants to basic economic and social rights as provided in international law, including social security, health care, education, employment, and adequate housing, as well as access to the means to secure legal advice and representation;
• The physical and psychological abuse of migrant workers, for example the sexual assault of women migrant domestic workers, who are discouraged from seeking remedies for such abuse for fear of immediate detention and summary deportation;
• Undue restrictions on family reunification and the consequent erosion of the internationally recognized right to family life;

• Public acts of racist and xenophobic violence against asylum seekers, refugees, and migrants and their communities, often with the complicity of the police; and
• Police abuse of migrants.

All of these policies and practices contribute to the negative and racist stereotyping of migrants and refugees and provide the greater context within which further discrimination and xenophobia against migrants and refugees thrive--and consequent acts of racist violence are rationalized.

A Note on Process

Human Rights Watch and ECRE note with disappointment that although the NGO Forum preceding the European Conference established a "Working Group on Immigration and Asylum," the official conference has no similar mechanism. The current migration and asylum⁽⁶⁾ debate raging across Europe points to an urgent need for the creation of neutral, inclusive fora in which to identify and discuss the links between racism, xenophobia and racist violence and the policies and practices that give rise to such phenomena. We consider the absence of such a forum at the official European conference a missed opportunity, and encourage governments, in the alternative, to consider migration and asylum issues as a priority cross-cutting theme in the four established working groups.

Comments on the Draft General Conclusions

Human Rights Watch and ECRE welcome the European Conference's acknowledgment in the General Conclusions that diversity in all its forms--ethnic, linguistic, cultural, and religious--should be embraced as both a source of social vitality and for its contribution to Europe's economic prosperity. We further welcome the references to problems of racism, racial discrimination, xenophobia, and related intolerance experienced by vulnerable groups, including migrants, refugees, and asylum seekers. We also recognize the critical need for a strategically coherent program of action--at national and local levels based on partnerships between governments and civil society--supported by detailed recommendations, and thus welcome the European Conference's efforts in drafting General Conclusions that address racism and xenophobia in an organized manner from a number of different perspectives (legal protection, policy development, practical applications, education, media).

Notwithstanding, we believe that in order for the General Conclusions of the European Conference against Racism to provide a framework for effective action to eradicate racism, racial discrimination, xenophobia and related intolerance, due consideration must be paid to the specific root causes of racism and xenophobia in Europe. Within this context, we regret the absence of a more detailed treatment in the General Conclusions of the implications of the current migration and asylum debate taking place across Europe and in particular of its effect on the growth of xenophobia, racism and intolerance. We remain concerned that the General Conclusions fail to make essential connections between government policies and practices that--either directly or indirectly--adversely affect migrants and refugees thus contributing to negative and racist stereotyping of these groups and consequent racist violence against them.

Conclusion 2: Ratification/Compliance with International and Regional Legal Instruments

Appendix I, containing the international and regional instruments that European countries are encouraged to ratify and observe, is a near comprehensive list but fails to mention several International Labour Organization (ILO) conventions that contain provisions regarding discriminatory and abusive treatment of migrant workers, and the right to freedom of association. As noted above, migrants are often subject to discriminatory practices in employment and to various forms of abuse, reinforcing the idea that they are less than equal to nationals. It is also essential that migrant workers--acknowledged in the General Conclusions as a vulnerable group--be permitted to exercise the right of free association in order to form or join trade unions that will, in turn, advocate on their behalf. Moreover, ILO instruments are complemented by monitoring, complaint, and redress mechanisms that provide governments and social partners means to discourage discrimination and protect vulnerable persons. It is recommended that the following ILO instruments be added to Appendix I:

• Convention 97: Migration for Employment (Revised), 1949. Forty-one ratifications worldwide, including Belgium, France, Spain, Germany, Italy, the Netherlands, Portugal, United Kingdom, Norway, Bosnia, Cyprus, Macedonia, Slovenia, and Yugoslavia.
• Convention 143: Migrant Workers (Supplementary Provisions) Convention, 1975. Eighteen ratifications, including Italy, Portugal, Norway, Sweden, Slovenia, Bosnia, Macedonia, and Yugoslavia.
• Convention 87: Freedom of Association and Protection of the Right to Organise Convention, 1948. One-hundred and thirty ratifications, including over thirty European countries.
• Convention 98: Right to Organise and Collective Bargaining Convention, 1949. One hundred and forty-seven ratifications, including nearly every European country.
• Convention 138: Minimum Age Convention. One hundred ratifications, including over thirty European countries.
• Convention 182: Worst Forms of Child Labour Convention, 1999. Thirty-five ratifications, including Denmark, Finland, Hungary, Ireland, Italy, Portugal, Slovakia, Switzerland, and the United Kingdom.

Moreover, a general conclusion should be added that recognizes the significance of the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference in June 1998, and urges European governments to reaffirm their support for the general principles articulated in the declaration. The declaration states that all members states of the ILO, even if they have not ratified the conventions in question, have an "an obligation, arising from the very fact of membership in the Organization, to respect, to promote, and to realize, in good faith," a set of principles concerning fundamental rights that are the subject of key ILO conventions including the right to freedom of association and collective bargaining, the elimination of forced labour, the abolition of child labour, and the elimination of discrimination in employment.

We also note that the two ILO conventions currently included in Appendix I are not identified as ILO conventions but simply as legal instruments operating at the "universal level." We recommend that ILO conventions be identified as such in order for the European Conference to affirm its support for international workers' rights and reaffirm European governments' commitment to ILO principles and procedures.

Conclusion 9: Effective and Adequate Remedies

We welcome the call to states to provide effective remedies against racism to "all victims." This provision should be interpreted literally, particularly in the case of undocumented migrants seeking redress. International standards provide a right to redress for undocumented migrants for some national labor law violations (for example, pay for work completed), and for due process and security of person violations related to abuse suffered at the hands of employers, traffickers, and state agents such as the police. However, undocumented migrants are often forced to withstand discrimination and violence (including sexual assault and domestic violence) because once they attempt to seek redress through the criminal justice system they can be identified as residing or working in a country without legal documentation and are often detained and threatened with deportation by the authorities as a matter of first course. Undocumented migrants should be able to seek effective remedies for a set of basic human rights violations, without fear of detention and summary deportation.⁽⁷⁾

Conclusion 15: Integration

Human Rights Watch and ECRE welcome the call for full integration of resident non-nationals and the admonition that integration policies should not be subordinate to other policies such as immigration controls. This provision should be a reminder to states that many immigrants and refugees enjoy the internationally recognized right to family life and that family reunification policies should not be subordinated to immigration quotas or subject to political manipulation. We also urge governments to fully comply with their obligations under the 1951 Refugee Convention thus continuing to recognize refugees and asylum seekers and their need for international protection. Effective guarantees should also be provided to ensure that migration control measures and the fight against trafficking and smuggling of persons currently preoccupying a great number of European countries do not interfere with international refugee protection obligations.

Conclusion 19: Combating Discrimination against Migrants

A special provision urging states to take preventive measures to combat intolerance and acts of violence against migrants is most welcome. However, Human Rights Watch and ECRE strongly urge the European Conference to add "undocumented migrants" and "refugees and asylum seekers" specifically to the list of vulnerable persons enumerated in the provision. Undocumented migrants are vulnerable to racist violence as they are routinely unjustly labeled--by the media, politicians, and other public figures--as criminals or as persons taking jobs away from nationals, thus providing those with an inclination toward violence with an apparent justification for attacking them. As noted above, undocumented migrants are often forced to endure such acts of violence without recourse to effective remedies for fear of deportation, thus affording racists a "soft target."

Likewise, certain media outlets and political parties repeatedly express the opinion that Europe is under threat from "floods" of asylum seekers and refugees. Existing violations of the 1951 Convention Relating to the Status of Refugees and of refugees' human rights illustrate that the reality in Europe is that it is refugees who are under threat and not asylum states. This is highlighted in the Conclusions of the fifty-seventh session of the Committee on the Elimination of Racial Discrimination. In its observations on the United Kingdom, the Committee suggested that the United Kingdom "take leadership in sending out positive messages about asylum seekers and in protecting them from racial harassment; (and) that a strategy be implemented ensuring that asylum seekers'…basic rights were protected."⁽⁸⁾ As with undocumented migrants, negative stereotyping of refugees and asylum seekers leaves them vulnerable to discrimination in employment, housing, education, and health care--and serves to rationalize racist violence.

Given the recent debate across Western Europe regarding migration and asylum--and resultant restrictive immigration policies, escalation of anti-immigrant/anti-asylum seeker rhetoric, and a consequent upsurge in acts of racist violence against migrants and refugees--this provision should specifically urge European governments to ratify without delay the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and reaffirm unequivocal support for compliance with the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees.

Conclusion 21: Role of Politicians

Human Rights Watch and ECRE recognize the key function of political leaders in combating racism, xenophobia, and related forms of intolerance. However, public leaders in other segments of society can also have a significant effect on attitudes toward minorities, migrants, refugees, asylum seekers, foreigners, and other targets of discrimination and racist and xenophobic violence. We therefore recommend that the heading for this conclusion be amended to read Role of Politicians, Political Parties and Other Public Figures. The first sentence of the conclusion should thus read, "The European Conference underlines the key role that politicians; political parties; business, trade union, and religious leaders; and other public figures can play in combating racism, xenophobia, antisemitism and related intolerance, by shaping and leading public opinion." An additional sentence should be added before "Such steps may include": "It [the European Conference] also encourages actors in civil society and the private sector to articulate clear messages and take firm actions to discourage discrimination and promote equality of opportunity."

Conclusion 22: Criminal Justice System

Human Rights Watch has identified discrimination in the administration of justice as a priority area of concern for the World Conference. Human Rights Watch and ECRE thus welcome the provision in the European Conference's conclusions calling for measures to sensitize law enforcement officials to issues of racism. We urge governments to include victims of xenophobia specifically in such sensitization exercises and to ensure that practical measures are taken to address gender-specific issues of witness protection and support (e.g. the prevention of gender-based violence in host and transit countries during custody, detention, incarceration, or repatriation proceedings).

We also recommend additional language to the effect that measures be taken "to counter any actual or perceived unfairness in the application of the law and discrimination in the treatment of persons belonging to vulnerable groups in the criminal justice system." To this end, we recommend an additional measure to ensure that law enforcement agencies address on-going practices that do, in fact, discriminate against racial and ethnic minorities, migrants and asylum seekers:

22. . . . Such measures may include:

• rigorous evaluation of state agencies (e.g. law enforcement) for policies and practices promoting discrimination in the application of the law (e.g. racial profiling, mass round-ups of migrants, the abuse of emergency laws intended to address political violence to target migrants and other foreigners); directives from authorities to halt discriminatory practices; and retraining for those who engaged in such discriminatory acts.

Conclusion 23: Employment/Social Policies to Improve the Prospects of Vulnerable Groups

The Draft General Conclusions correctly point out that "good community relations are generally enhanced by social development and the full realisation of economic, social and cultural rights." However, the provision's objective--to improve the prospects of vulnerable groups facing obstacles to keeping or regaining work--should address the regularization processes that can be vehicles for the most vulnerable (i.e. undocumented/irregular migrants and their families) to gain and maintain legal employment. Procedures to regularize immigration and employment status should be thorough but simple (that is, not require documentation that is impossible for most migrants to access) so that migrants wanting to take advantage can do so in a timely fashion. To ensure the greatest possible participation, governments should take measures to assure irregular migrants that a regularization procedure will not be used as a tool to identify those residing and working in country without legal documents for punitive action, such as detention and deportation. Finally, regularization processes should not be used as a proxy for fair and non-discriminatory immigration and admission policies.

Finally, focus must be placed on the economic rights of asylum seekers and persons granted non-Refugee Convention forms of protection. There is currently great differentiation in the rights to employment of these two groups across Europe. It has often been argued that lengthy exclusion from the labor market of asylum seekers and persons with a complementary protection status not only hinders long-term integration but greatly affects host society perceptions of refugees and therefore community relations.⁽⁹⁾ We recommend that European states lift restrictions on employment for asylum seekers and other protected persons at the earliest possible stage, with national governments, nongovernmental and church organizations taking lead roles in sensitizing employers and trade unions to the existence of valuable skills and knowledge among refugees and their potential contribution in the workplace.

Conclusion 24: Monitoring

Human Rights Watch and ECRE endorse the call for the effective use of disaggregated statistics, data broken down to reflect factors of race, gender, age, etc., in formulating policies to advance protections for migrants and refugees. In particular, we urge governments to use such statistics to assess the complexities of modern migration patterns (for example, the difference between rights protection for women in low-paying domestic service and professionals in the computer industry or other high-tech fields) and to allocate limited resources accordingly.

Conclusion 25: Immigration and Admission Procedures

Human Rights Watch and ECRE welcome the acknowledgment in this provision that restrictive immigration policies, resultant negative stereotyping of migrants, and arbitrary detention of migrants and asylum seekers contribute to the growth of a climate of xenophobia. The role of restrictive immigration policies on the growth of racism and xenophobia, however, should be recognized much earlier in the document and identified as one of the root causes of negative attitudes toward migrants and refugees. We recommend that a summary of the above language also appear in the section titled "Context" and replace the ahistorical bracketed statement regarding the unequal rights of migrants and refugees.

Conclusion 26: Family Reunification

We welcome the call to governments to facilitate family reunification with due regard to the need for an independent status for all family members (for example, an immigrant woman's authorization to remain in a country should not be inextricably linked to her husband's authorization to work). We urge the European Conference to add appropriate language to this conclusion underscoring the fact that independent status is imperative particularly for the protection of women and children against family violence.

Conclusion 39: General Awareness-Raising Campaigns

Governments should be encouraged, as noted above, to counter negative stereotypes of migrants as criminals and persons "stealing" jobs from nationals by routinely publishing disaggregated labor and crime statistics to illustrate that such stereotyping has no foundation in reality. Crime statistics across Europe consistently show that migrants are no more apt (and in many cases are less likely) to commit crimes in proportion to their numbers than nationals are in proportion to their numbers. Moreover, migrants often work in low wage and little regulated labor sectors that nationals reject (e.g. domestic household help, construction, sweatshop labor, and agricultural production) and should be recognized as essential to the economic prosperity of European countries.

We also welcome the importance attached to human rights education and public information campaigns in the Draft General Conclusions. However, further emphasis must be placed on the existing international obligations of European states as prescribed by treaties such as the 1951 Convention Relating to the Status of Refugees and the European Convention on Human Rights. With increasing recognition throughout Europe of the need to re-open legal immigration channels to respond to trade and industry pressures, it is important to highlight the centrality of international obligations deriving from the 1951 Refugee Convention and warn against political or administrative discretion with respect to refugee protection. Not only is the Refugee Convention essential to the human rights framework agreed upon by the United Nations, it remains the only internationally binding instrument guaranteeing protection from serious harm for millions of refugees.

Conclusion

The United Nations General Assembly has expressed special concern for the plight of migrants in its recent resolutions concerning racism. Most recently, in December 1999, it expressed deep concern "that racism and racial discrimination against migrant workers continues to increase," and condemned these forms of intolerance as well as "stereotyping of migrant workers and members of their families." All states were called upon "to review and, where necessary, revise their immigration policies with a view to eliminating all discriminatory policies and practices against migrants which are inconsistent with relevant international human rights instruments." In April 2000, the U.N. Commission on Human Rights adopted a resolution condemning racist and xenophobic discrimination and violence against migrants, encouraging governments to revise discriminatory immigration policies and practices against migrants, and urging all states "to protect fully the universally recognized human rights of migrants, especially women and children, regardless of their legal status."

Equally, the United Nations High Commissioner for Refugees in its strategic presentation to the 18th meeting of the Standing Committee (5-7 July 2000) has expressed concern about the "considerable stress…the integrity and quality of asylum in Western Europe has come under…at least in part due to the complexities of the immigration phenomenon. The emphasis has shifted from protection to control due to the large mixed movements of people coming to Europe of whom asylum seekers are a small proportion." It urges States to ensure that "persons in need of international protection continue to have access to the territories of European States." UNHCR has often urged states to ensure that they continue granting asylum to those fleeing persecution and conflict. But UNHCR also warns that:

[A]sylum, as indispensable as it is to protection, is only the first step. Implementing protection entails a broad spectrum of activities. Protection...takes the form of relieving the refugees' plight: ensuring that their material needs are met, counselling and alleviating their traumas, helping them become self-sufficient, [and] making sure that communities hosting them do not become hostile...⁽¹⁰⁾

October 2000

For more information contact:

Human Rights Watch

1. Human Rights Watch is an international, nongovernmental human rights organization that conducts research and advocacy in over seventy countries worldwide and maintains offices in New York, Washington, D.C., London, Brussels, and Moscow. Human Rights Watch authored the segments of this document addressing migrants rights.

2. ECRE is an umbrella organization for cooperation among sixty-seven European NGOs concerned with refugees and asylum seekers. ECRE works through research, information, policy development and education on behalf of its pan-European membership for humane, fair and comprehensive asylum policies. ECRE authored the segments of this document addressing refugee protection and the right to seek asylum.

3. Many thanks to Patrick Taran and Maud Easter of Migrants Rights International, and Martina Liebsch of Caritas Germany for reviewing this critique and making useful comments on the draft text.

4. For general information, see Human Rights Watch's web site at http://www.hrw.org/. For specific information about Human Rights Watch's participation in the U.N. World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Forms of Intolerance, go to http://www.hrw.org/hrw/campaigns/race/. For access to ECRE's comprehensive policy positions on refugee-related issues, see http://www.ecre.org/.

5. Some officials of governmental organizations and migrants rights advocates promote the use of the term "unauthorized migrants" for migrants without proper authorization to stay and/or work in a country. This paper uses the terms "undocumented migrants" and "irregular migrants" interchangeably but recognizes and welcomes the move toward terminology that is more precise in describing the situation of irregular migrants.

6. We recommend that the term "migration and asylum" be substituted for the more limited coupling "immigration and asylum." Immigration implies a focus on only those countries that receive migrants. We propose the use of "migration" because it includes concerns of the so-called receiver countries, as well as migrant countries of origin (countries of emigration) and countries through which migrants transit. Use of "migration" thus affords a deeper analysis of migrants rights issues, taking account of economic and political "push" factors causing persons to emigrate, treatment of migrants en route, and conditions for migrants in their host countries.

7. International law guarantees to "all persons" such basic human rights guarantees as the right to life; freedom from torture, cruel, inhuman and degrading treatment; freedom from slavery and slave-like practices; freedom of thought, conscience and religion; the right to leave any country and return to one's country; the right to family life; the right to security of person; due process rights and equal treatment in the administration of justice.

8. United Nations Information Service, Press Release, "Committee on the Elimination of Racial Discrimination Concludes Fifty-Seventh Session," HR/CERD/00/69, 25 August 2000.

9. European Council on Refugees and Exiles, Position on the Integration of Refugees in Europe, September 1999.

10. Opening statement by the United Nations High Commissioner for Refugees at the Fiftieth Session of the Executive Committee of the High Commissioner's Programme, Geneva, 4 October 1999.


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