While September 11 gave many industrialized countries what appeared to be an even greater rationale for restrictive immigration policies, it also gave rise to a new rhetoric in the "fight against illegal immigration" that generally labeled migrants and asylum seekers as threats to internal security. In the immediate aftermath of September 11, Spanish authorities openly equated the fight against illegal immigration with the war against terrorism. This public declaration set the stage for many European Union member states and accession countries to fall back on their historic "Fortress Europe" stance; a posture of isolation characterized by "zero immigration" and restrictive asylum policies that many of us had hoped to assign to history in the new century as we had begun to see some West European countries discussing the benefits of well-managed labor migration.

Many countries, however, quickly followed Spain's lead, labeling all migrants and refugees as a threat. In Greece, migrants arriving by boat-including Afghans fleeing the armed conflict-were summarily denied the opportunity to apply for asylum or leave to remain and were instead given fifteen-day expulsion notices. The Greek government subsequently reversed this policy under heavy criticism, including from the United Nations High Commissioner for Refugees (UNHCR) in Athens. However, the equation of refugees from Afghanistan with terrorism was established. In Hungary, Afghan refugees were moved from open reception centers to facilities with heightened security. In Italy, leaflets claiming that "illegal immigrants equal terrorists" were distributed at a right wing coalition meeting.

More recently, Sweden and Austria have deported male asylum seekers to Egypt on suspicions that the men were associated with armed political groups there. These deportations are particularly disturbing because the Egyptian government's guarantees of fair trials and freedom from torture or ill-treatment ring hollow in light of persistent credible allegations of Egypt's systematic use of torture and proclivity for unfair trials. As feared, the war against terrorism has created a space for some European countries to waiver in their commitments under the European Convention on Human Rights. The integrity of Article 3, prohibiting torture or returning a person to a country where she or he might be tortured, is now vulnerable.

The European Union unfortunately failed to play the role of a mediating force in this frenzy of labeling migrants and refugees. The week after the attacks, the E.U. issued a set of documents; including two directives dealing with terrorism and a "plan of action against terrorism." The minutes from an Extraordinary Justice and Home Affairs Council Meeting of September 20 called for the European Commission "to examine urgently the relationship between safeguarding internal security and complying with international protection obligations." This appeared to be an attempt to explore ways to circumvent international protection obligations and to seek additional means to exclude people from the provisions of the 1951 Refugee Convention. The resultant European Commission Working Paper was issued on December 5, 2001. The working paper categorically states that immigration and asylum systems "could offer real possibilities for identifying those suspected of terrorist involvement at an early stage." The paper proposes measures and suggests amendments to European laws that could violate fundamental human rights enshrined in the European Convention on Human Rights, the E.U. Charter of Fundamental Rights and international human rights instruments, including the prohibitions against torture and arbitrary detention; the E.U.'s and Council of Europe's longstanding principled opposition to the use of the death penalty; and protections regarding privacy and the integrity of family life. Moreover, it appears to endorse the use of an international protection instrument - the 1951 Refugee Convention - as a law enforcement mechanism to "weed out" terrorists.

In the meantime, the Council of the European Union adopted a "common position" on December 27, 2001, which requires all E.U. member states to vet refugees and asylum seekers for any connections with terrorist activity. While the directives and any amendments to E.U. law that may result from the above-mentioned working paper are subject to consultative procedures, common positions adopted by written procedure by member states are not subject to any form of accountability. Thus, the E.U. has made certain that any dissent with respect to the potential undermining of international protection obligations has no avenue to be heard and acted upon.

The documents prepared by the European Commission in preparation for the upcoming ministerial meeting on April 22-23 here in Valencia also fail to recognize that all migrants have rights. In a February 13, 2002 European Commission Communication, External Relations Commissioner Chris Patten set out a slate of proposals "to address issues of freedom, justice and governance, to deepen the dialogue between cultures and to extend the [Euro-Mediterranean] partnership to its social dimension." These proposals included strengthening joint commitments and concrete actions on the promotion of human rights and democracy; enhancing cooperation with respect to the protection of legal migrants; and addressing the issue of illegal immigration in the Euro-Mediterranean region. The Communication noted that, particularly in light of the events of September 11, the political and security dialogue among partners "requires close cooperation on the cross-border dimension of issues such as the fight against organised crime, illegal migration and trafficking in human beings, the management of legal migration, [and] the treatment of migrant communities." (paragraph 3.2).

The communication thus implicitly divided the migration issue into two parts: the treatment of legal migrants in the European Union and restricting access to the European Union for undocumented migrants, including combating the trafficking of human beings. The communication failed to recognize, however, that all migrants, regardless of their status, have fundamental human rights that are routinely violated by Euro-Mediterranean partner states. Moreover, the communication failed to acknowledge that, in accordance with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), supplementing the United Nations Convention against Transnational Organized Crime, trafficked persons are victims of a grievous human rights violation and as such are entitled to special protections.

The E.U. is not the only global actor that failed to stem the tide of anti-immigrant, anti-refugee sentiment in the wake of September 11. Actions taken by numerous other international bodies contributed to branding migrants and refugees as terrorist threats. United Nations Security Council resolution 1373 of September 28, 2001, stated that member states should take "appropriate measures in accordance with the relevant provisions of national and international law, including international standards on human rights, before granting refugee status, for the purpose of ensuring that the asylum seeker has not planned, facilitated or participated in the commission of terrorist acts."

One might have hoped that the United Nations High Commissioner for Refugees would vigorously oppose such language and reassert the "inclusion before exclusion" principle that requires a full and fair asylum determination procedure before the employment of any measures - including application of the Refugee Convention's exclusion clauses - to exclude persons from the convention's protections. To our dismay, however, their statements seemed to shift from a traditional caution about the immediate or blanket use of the exclusion clauses - long considered to be of an "extraordinary" nature and thus subject to use only in like circumstances -- to an endorsement of using the exclusion clauses consistently and uniformly. In December 2001, UNHCR issued a statement calling for the "rigorous use" of the exclusion clauses; the incorporation of the clauses into national legislation where states had chosen not to do so; the establishment of "exclusion units" within national asylum systems; the use of detention for asylum seekers based on "suspicion" of terrorist activity; and an evaluation of when refugee status can be cancelled and when extradition and expulsion are permitted under refugee law. Human Rights Watch is deeply concerned that the apparent shift in UNHCR's position will send states parties a signal that "exclusion before inclusion" is the new norm. This will inevitably lead to abuses of the exclusion clauses.

UNHCR's endorsement of procedures intended to exclude persons from the Refugee Convention as a matter of first course in the asylum process appeared to undermine its international protection role. UNHCR has publicly cautioned states against equating refugees and asylum seekers with terrorists, but the organization's recommendation for the rigorous use of the exclusion clauses and other suggestions regarding how to use the asylum process to snare terrorists merely fuels the impression that refugees and asylum seekers are inherently suspect.

Against the backdrop of these policy developments, conditions for Europe's migrants and immigrant communities have worsened in the aftermath of September 11. We have seen worrying signs of migrants rights abuses in the rise in police sweeps in migrant communities; the increase in hate crimes against migrants and refugees; and the erosion of civil liberties guarantees when migrants are apprehended and detained. Events in the United Kingdom are particularly illustrative, but migrants in many West European countries (in France and Spain, for example) have experienced similar abuses. Hate crimes in the United Kingdom - the U.S.'s staunchest ally in the war against terrorism - rose dramatically in the aftermath of September 11, according to the European Union Monitoring Centre. We have all heard by now the frightening account of the September 28 racist attack on the young Afghani taxi driver that left him paralyzed from the neck down. Numerous accounts since then indicate that race-relations in the U.K., long a festering human rights problem, have been exacerbated by the September 11 attacks.

Although the U.K. government took pains in public statements to say that attacks against Muslims, Arabs, and other foreigners would not be tolerated, it embarked on a course of action that could only be said to enflame hostilities toward certain migrant communities. First, the government passed a draconian anti-terrorism law in mid-December that permits, amongst other things, the prolonged indefinite detention of foreigners certified as international terrorists on suspicion of the Home Secretary; the denial of the right to seek asylum if so certified; and extremely limited appeals avenues, none of them before a fully constituted court, except on points of law. Since the law obviously flouted the U.K.'s obligations under the European Convention on Human Rights, the U.K. proclaimed a state of emergency and derogated from the ECHR-sending an extremely worrying signal to other European states that rights obligations are easily dispensed with when the specter of security vulnerability is raised. The Council of Europe Parliamentary Assembly recently stated that no member state should derogate from the ECHR in its attempts to enhance internal security. It will remain to be seen whether the Assembly's position has any real impact on the U.K.'s potentially precedent setting derogation.