Human Rights Watch's Europe and Central Asia division is currently at the mid-way point in a multi-year research and advocacy project focusing on the human rights of migrants in Western Europe. Our project involves conducting research in a number of West European countries, with an eye toward assessing both national and E.U. immigration and asylum law and policy. To date, we have published reports and policy papers on Greece, Spain, and the United Kingdom; and commentaries on the impact of September 11 on migrants and asylum seekers in the E.U. We have also begun a series of commentaries on E.U. immigration policy proposals. Our general approach has been to monitor and research immigration and asylum developments at the member state and E.U. level and assess how these developments conform with the 1999 Tampere European Council conclusions, which envisioned a union characterized by freedom, security, and justice based on human rights, democratic institutions, and the rule of law.

Of course as we consider extending the E.U. acquis in the area of asylum policy to the applicant states, we must begin with an assessment of that acquis. We should ask whether it is a body of law and policy that should be emulated in applicant states. From a human rights perspective, the answer must be no, not without a major revision of the E.U. acquis to ensure respect for basic principles of human rights and refugee protection.

I expect that my co-panelist, Johannes van der Klaauw, will survey the ways in which E.U. asylum policy falls short of the standards embodied in the U.N. Convention on the Status of Refugees and UNHCR's authoritative interpretation of the convention. Just to name a few: E.U. initiatives in this area have erected significant barriers to refugee protection in the form of visa restrictions, accelerated procedures, safe third country rules that risk indirect refoulement, limited appeal rights, and a narrowed definition of persecution warranting protection-as if tinkering with language in Brussels can change the fundamental character of torture or other abuse that asylum seekers may have experienced. Ironically, in its regular reports on applicant states, the E.U. is critical of applicant states in some of these areas, while its own policies and those of existing member states are sometimes no better. Certainly as part of any extension of the E.U. asylum acquis to applicant states, E.U. asylum policy itself needs to be brought into conformity with international protection standards.

But the human rights agenda for further development of E.U. asylum and migration policy needs to extend beyond shoring up the refugee convention and related protection norms. The entire project of developing a harmonized and more restrictive E.U. asylum policy appears to have been based on the false assumption that if a government can whittle down the number of "asylum seekers" and put more of those migrants in the category of "illegal immigrants," it can treat them as it wishes, detain them indefinitely or expel them summarily, and be rid of the problem. To the contrary, though European governments may prefer to ignore them, human rights conventions to which they are parties accord migrants a range of fundamental rights, regardless of their status.

It is increasingly recognized that populations of asylum seekers and other migrants are often intertwined and that there is an important nexus between asylum and immigration policy. Our current research occupies this nexus area. There we find many would-be or should-be asylum seekers, people in need of protection, who in the face of an ever more restrictive asylum regime either have no access to the asylum system or fear it as the fastest track to detention and expulsion. Against this backdrop, respect for fundamental migrant rights-for example, the rights to fair and non-arbitrary procedures, to be protected from inhumane conditions of detention, to a remedy for abuses suffered by trafficking victims-becomes all the more important. Attention to these rights needs to be injected into E.U. asylum and migration policy-making as it is deepened in the fifteen and extended to the applicant states. This is not to say that the particular rights of asylum seekers and refugees can be neglected; but that they need to be supplemented by respect for fundamental migrant rights as well.

To make this case, I would like to describe to you the ways in which these basic migrant rights are currently neglected in two key areas of existing European asylum and migration policy-immigration detention and the efforts to combat trafficking-and suggest how these current policies might be amended to respect migrant rights.

Immigration Detention
The expanding immigration detention regime in Western Europe and the abuses suffered by migrants and asylum seekers in detention in the fifteen member states is a source of serious concern. The E.U. has yet to articulate a position on immigration detention that requires member states to observe existing protections for migrants in detention according to well-established regional and international human rights norms. Our research has revealed widely disparate conditions of detention for migrants and asylum seekers, with many member states openly violating detainees' procedural rights and states' obligations to ensure that conditions of detention meet regional and international standards.

Our research in the Euro-Mediterranean region has highlighted the plight of migrants and asylum seekers detained in appalling conditions with inadequate procedural guarantees. In Spain, migrants and asylum seekers detained in old airport facilities in the Canary Islands are housed in gravely substandard facilities in overcrowded conditions with little or no access to regular health care, fresh air, or exercise. They have inadequate access to counsel and opportunities to appeal the legality of their detention. Many are denied the right to seek asylum. Aspects of their plight are mirrored in Greece, where we documented extremely substandard conditions of detention for undocumented migrants in police detention facilities in Athens. In both Greece and Spain, the Ombudsmen have publicly criticized these substandard conditions.

The increasing proclivity on the part of some governments to detain asylum seekers is also part of this worrying picture. In December 2001, the United Nations Human Rights Committee expressed concern that asylum seekers in the United Kingdom have been detained in various facilities on grounds other than those legitimate under the International Covenant on Civil and Political Rights (ICCPR), "including reasons of administrative convenience." Moreover, the committee noted that some rejected asylum seekers are held in detention "for an extended period when deportation might be impossible for legal or other considerations." The prolonged detention of migrants and asylum seekers who cannot be returned to their countries of origin sometimes amounts to arbitrary detention.

The 2001 European Commission Regular Reports on the candidate countries' progress towards accession suggest that the European Union intends to extend its members' detention policies without significant attention to the concomitant rights abuses.

In the reports, many accession states are lauded for the recent implementation of legislation addressing the presence of aliens or foreigners on their territories. These laws often involve provisions for the detention of migrants pending deportation if they do not carry the appropriate documentation, and for asylum seekers awaiting a determination on an asylum claim or, having had their asylum claim rejected, awaiting repatriation to their home country or a third country.

With the exception of those on Latvia and Slovenia, most of the Commission's annual regular reports on candidate countries fail to address the issue of detention conditions for migrants awaiting deportation at all. The reports also do not generally address the issue of whether or not detainees-most of whom are undocumented migrants-are able to exercise their procedural rights to challenge their detention or deportation. The notable exceptions-the reports on Bulgaria and Romania-discuss these rights only in connection with the detention of asylum seekers, thus perpetuating the E.U.'s own neglect of all migrants' right to lodge a legal challenge to both their detention and deportation, regardless of their status.

The treatment of migrants in detention is a serious human rights problem throughout Western Europe, reflecting a broader trend toward a singularly one-dimensional focus on the law enforcement aspect of migration at the expense of migrants' human rights and international protection standards. Yet, the E.U. has failed to establish clear guidelines detailing any safeguards for immigration detainees.

In the November 2001 Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Immigration, the communication addresses the issue of a community return policy based on "common principles, common standards and common measures." It states that based on the principles of voluntary as opposed to forced return and the international obligation of states to readmit their own nationals, "common standards on expulsion, detention, and deportation could be developed." (Emphasis added.) This tentative approach to common standards in these areas of immigration management and the emphasis on "administrative cooperation" are regrettable. Many relevant standards governing these activities exist in regional and international human rights law and need only to be re-articulated and implemented at the E.U. level. Indeed, the commission appears to be well aware of these standards as detailed in its criticism of candidate countries for lack of conformity with them.

With regard to enlargement, the E.U. must provide leadership in terms of human rights protections for vulnerable populations. A first step would be for the E.U. to make it a priority to develop common standards and guidelines on expulsion, detention, and deportation of migrants and asylum seekers in full conformity with regional and international standards. Such guidelines would help bring current member states into line with their existing human rights obligations and would set the standard for the fair treatment of migrants and asylum seekers in detention in candidate countries.

Trafficking
Many of the immigration policy proposals in development by the E.U. focus exclusively on the law enforcement dimension of the effort to combat illegal immigration in the forms of smuggling and trafficking. As with the failure to acknowledge the rights of migrants and asylum seekers in detention, the E.U. has consistently failed to recognize the victim protection rights of persons who are trafficked into the union.

Ironically, many of the candidate countries are criticized in the 2001 Regular Reports for not providing adequate protection mechanisms to trafficking victims. The report on the Czech Republic states that "increased provision should be made for the care and protection of the victims of trafficking." Likewise, the commission notes that in Lithuania "[a]dequate protection and support for victims need to be ensured" and that Bulgaria "also needs to adopt a programme…for the protection of trafficking victims." Romania is targeted for "insufficient legislative tools for prosecuting and punishing traffickers and for protecting victims."

Unfortunately, the commission's alleged concern for trafficking victims in the candidate countries has not extended to commission proposals for action against trafficking at the E.U. level. Evidence the December 2000 Commission Proposal for a Council Framework Decision on Combating Trafficking (Trafficking Proposal), failing to provide adequate victim and witness protection mechanisms. The Commission put forward the proposal, just after its member states had completed negotiations on the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), supplementing the United Nations Convention against Transnational Organized Crime. Article 2 of the U.N. Protocol calls on states parties "to protect and assist" the victims of trafficking, "with full respect for their human rights." Article 6 encourages states to implement measures for the physical psychological, and social recovery of victims. In particular, the Protocol calls on states, "in appropriate cases," to consider providing victims with housing; counseling and information; medical, psychological and material assistance; and employment, educational, and training opportunities. The Protocol also calls upon states to permit trafficked persons to remain in country temporarily or permanently in appropriate cases.

Notwithstanding the Protocol's provisions on victim protection, the E.U.'s Trafficking Proposal provided virtually no protections for trafficking victims, focusing instead on definitions and on penalties for traffickers. In a December 2001 revised version of the proposal, it was acknowledged that "[t]rafficking in human beings constitutes serious violations of fundamental human rights and human dignity and involves ruthless practices such as the abuse and deception of vulnerable persons, as well as the use of violence, threats, debt bondage and coercion." There was no concomitant provision, however, for adequate protection and assistance to victims. Throughout the course of deliberations on the proposal, nongovernmental organizations were assured that, although it did not include protection measures, victim and witness protection would be addressed in a separate document.

Against this backdrop, in February 2002, the commission issued a proposal for short-term residence permits for some trafficking victims. To our dismay, the proposal perpetuates the E.U.'s disregard for victim protection obligations. The explanatory memorandum accompanying the document bluntly states that only certain trafficking victims-those considered "useful" for the purpose of investigating, arresting, and prosecuting traffickers-will be informed about and be entitled to apply for the short-term permit and thus enjoy the benefit of a "reflection period" that includes access to a range of victims' services. The proposal then refers to the March 2001 Framework Decision on the status of victims in criminal proceedings and a November 1995 Council resolution on the protection of witnesses in the framework of the fight against international organized crime as adequately covering the victim and witness protection needs of trafficking victims.

Neither of these earlier documents was adopted with the very special needs of trafficking victims in mind, however. They do not specifically contemplate the range of abuses particular to trafficking victims, who often suffer under conditions of forced labor or servitude at the hands of exploitive "employers" and under the surveillance of brutal transnational trafficking networks. Moreover, as with the E.U. directive, neither of these documents applies to victims who do not cooperate with the authorities in the context of a criminal proceeding. Thus, those trafficking victims who cannot or will not cooperate with authorities could be subject to arrest, detention and deportation. This approach ironically punishes the trafficking victim, categorizing her or him solely as an undocumented migrant subject to expulsion, without any recognition that he or she is a victim of a serious rights abuse.

Human Rights Watch's research, in Greece and the Balkans in particular, indicates that trafficking victims often will not or cannot cooperate with the authorities for a variety of reasons. Often the victim fears retaliation from the traffickers or corrupt officials in the country of origin. Trafficking victims who have left children at home are particularly vulnerable to these threats. Many trafficking victims also understand that law enforcement officials in the country to which they are trafficked may be complicit in trafficking networks; many victims are thus reluctant to engage with such officials in any manner. Some trafficking victims may view the incentives to cooperate with the authorities skeptically, understanding that many so-called protection measures are only temporary and do not provide the type of safety and security they will need in the long term. Finally, our research has revealed that many migrants are apprehended, detained, and deported as a matter of first course, their status as undocumented migrants trumping their status as victims of trafficking.

In failing to provide protection mechanisms for all trafficking victims, the E.U. falls short of international standards for protection of victims of human rights violations. For the commission to recommend that candidate countries ensure such protection measures without any recognition at the E.U. level that such protection is a human rights obligation for the union as well is to send a signal to accession states that the needs of trafficking victims are far less important than stopping the flow of migrants into the union.