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E.U.: Protect the Rights of Migrants and Asylum Seekers in Seville Policy Proposals

Letter to E.U. Heads of State

June 13, 2002

Re: Human Rights Watch Concerns Relevant to the June 21-22 European Council Meeting at Seville

To European Union Heads of State:

We write in anticipation of the Seville European Council meeting on June 21-22 to voice concern about the treatment of migrants and asylum seekers in the context of European Union (E.U.) action to combat illegal immigration.

Human Rights Watch is a private, international, nongovernmental organization that monitors human rights in over seventy countries worldwide. We are currently engaged in a multi-year project focusing on the human rights of migrants in Western Europe. Our research has revealed a wide range of serious violations of migrants' rights in E.U. member states.

In light of this research, we are deeply concerned about the failure of the E.U. to incorporate rights protections into a range of legal and policy documents issued in recent years on the subject of immigration and asylum. The E.U.'s singular focus on law enforcement efforts to combat illegal immigration ignores the fundamental human rights of migrants and asylum seekers. Recent statements by senior government officials from a number of E.U. member states reflect the continuing neglect of the human rights dimension of migration control.

The actual treatment of migrants and asylum seekers in many member states is a powerful indicator of this disregard for the fundamental human rights of migrants. Our research has revealed a range of serious abuses suffered by migrants in the E.U., including arbitrary detention; gravely substandard conditions of detention; procedural violations in criminal and administrative law proceedings, and in the asylum system; violations of core international refugee protection standards; racial and ethnic discrimination; police abuse; arbitrary and collective expulsions; violations of children's and women's rights; and horrendous abuses of migrants and asylum seekers at the hands of human traffickers, often in complicity with law enforcement officials in E.U. member or accession states.

The development of ever more restrictive immigration and asylum policies resulting in the abusive treatment of migrants and asylum seekers-and the undermining of international refugee protection standards-is not the vision of a union characterized by freedom, security, and justice based on human rights, democratic institutions, and the rule of law as enshrined in the 1999 Tampere European Council conclusions. Human Rights Watch urges the E.U. leaders present at Seville to honor the Tampere conclusions and to ensure that action to combat illegal immigration includes protection and promotion of the rights of migrants, asylum seekers, and refugees.

We focus below on some of the most egregious violations we have found in the E.U. with respect to immigration detention; human trafficking; the return of undocumented migrants and rejected asylum seekers; the treatment of unaccompanied migrant children; and refugee protection. Our survey of these topics includes analysis of the ways in which current E.U. policy proposals fail to address these concerns, and proposes measures to fill these gaps. We hope that it contributes to your deliberations at Seville.

Immigration Detention
The expanding immigration detention regime in Western Europe and the abuses suffered by migrants and asylum seekers in detention 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.

In the November 2001 Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Immigration, the section on compliance with international obligations and human rights focuses exclusively on "the obligation to protect those genuinely in need of international protection" and references members states' obligation to observe the principle of nonrefoulement according to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the 1951 Convention relating to the Status of Refugees (Refugee Convention). This narrow approach to the human rights dimension of migration rightly recognizes that those fleeing persecution are entitled to international protection, but fails to acknowledge that all migrants, including undocumented migrants, are entitled to fundamental human rights protections.

The communication goes on to address 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. Indeed, 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.

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 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 face obstacles to the right to seek asylum, primarily as a result of the absence of any information about asylum procedures. 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 national ombudsmen have publicly criticized these substandard conditions.

The increasing proclivity on the part of some E.U. governments to detain asylum seekers is also a worrying trend. 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 can amount to arbitrary detention.

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. With such grievous abuses and policies documented by groups like Human Rights Watch, openly opposed by some humanitarian organizations, and condemned by the offices of national ombudsmen, it would seem that E.U. member states would take a greater interest in identifying and implementing the relevant common E.U. standards for the treatment of immigration detainees. However, there has been little effort to do so in recent E.U. initiatives. E.U. documents that do refer to the rights of migrants and asylum seekers in detention do so in a tentative and non-committal fashion.

Human Rights Watch urges the E.U. to include explicit procedural safeguards and guidelines for safe and sanitary conditions of detention-in compliance with regional and international human rights standards-in all immigration and asylum policy proposals that address the issue of immigration detention. Asylum seekers, in general, should not be detained.

Trafficking in Persons
The debate on combating trafficking in human beings at the E.U. level is colored by the general resistance to acknowledging that migrants can be victims of human rights abuses. Governments have focused on law enforcement efforts to combat trafficking but have been slow to recognize that trafficking victims have suffered a grievous human rights abuse.

In February 2001, Human Rights Watch criticized the December 2000 Commission Proposal for a Council Framework Decision on Combating Trafficking for its failure to provide adequate victim and witness protection mechanisms consistent with international standards-in particular, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, which many E.U. member states had signed. The Protocol encourages states to provide a range of social services to trafficking victims and, in appropriate cases, to provide temporary or permanent residence to trafficking victims. A December 2001 version of the Framework Decision 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," but still contained no concomitant provision for adequate protection and assistance to victims.

In February 2002, the Commission issued a Proposal for a Council Directive "on the short-term residence permit issued to victims of action to facilitate illegal immigration or trafficking in human beings who cooperate with the competent authorities." The explanatory memorandum accompanying the document stated that the proposal's aim was not victim or witness protection and that only certain trafficking victims-those considered "useful" for the purpose of investigating, arresting, and prosecuting traffickers-would be informed about and be entitled to apply for the short-term permit. Trafficking victims who cannot or will not cooperate with law enforcement authorities would not be eligible for the short-term residence permit and would potentially be subject to arrest, detention, and deportation. The proposal left issues of victim protection and rehabilitation to the discretion of member states.

The flaw in the E.U. approach is its orientation toward the problem of trafficking solely as an element of efforts to combat illegal immigration. This approach gives rise to two categories of victims: those who are willing and able to assist the authorities in prosecutions and those who do not or cannot-without paying due attention to the needs for protection common to all of these victims, regardless of the level of their cooperation with the fight against illegal immigration.

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. 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. Child trafficking victims often will not have the confidence or ability to cooperate with law enforcement or judicial authorities. Finally, our research has revealed that many migrants are apprehended, detained, and deported as a matter of first course, their status as undocumented migrants automatically trumping their status as victims of trafficking.

There thus remains a serious gap in terms of specific protection measures for all victims in the European-wide anti-trafficking regime. This gap creates a legal vacuum at the E.U. level in which victims who do not cooperate with authorities in criminal proceedings are left without any protection at all. By neglecting the need for such protection for all trafficking victims, the E.U. falls short of the standards outlined in the U.N. Trafficking Protocol and relevant international human rights instruments.

Human Rights Watch urges the E.U. to integrate measures for the protection of all victims of trafficking into all of its policy initiatives related to trafficking in human beings.

Expulsion, Deportation, and Return
Both the November 2001 Communication from the Commission to the Council and the European Parliament on a Common Policy on Illegal Immigration and the April 2002 European Commission Green Paper on a Community Return Policy on Illegal Residents ask whether common standards governing the return of undocumented migrants and rejected asylum seekers should be developed. Our research indicates that there is an urgent need for common standards that conform to regional and international human rights guarantees to govern return policies. Current expulsion practices in many member states violate, among other things, the prohibition against the arbitrary application of the law, the prohibition against discrimination, the right to seek asylum, the prohibition against refoulement, and, indeed, the right to life.

Our research in Spain, for example, has raised serious concerns about the arbitrary application of Spanish immigration law and how disparate treatment of certain migrants and migrant groups can result in rights abuses in the course of processing undocumented migrants and rejected asylum seekers for return. Many migrants in Spain receive little to no information on their rights. Procedural guarantees spelled out in the law, such as meaningful access to counsel and interpretation services, are often little more than a technicality. This lack of information impedes some migrants' ability to effectively challenge an expulsion order. For example, none of the dozens of migrants facing Spain's rapid deportation procedure, known as devolución, had meaningful access to counsel, interpretation services or a full and fair individual determination of their potential claims against deportation.

Moreover, the arbitrary application of the Spanish foreigner's law appears to have a disparate and potentially discriminatory impact on certain migrant groups-Algerians, in particular. Our research has revealed that Algerian migrants in Spain were more apt than other similarly situated migrants to be given expulsion orders, thus prohibiting them from seeking regularization in Spain at a later date. Human Rights Watch is concerned that Spanish authorities responsible for implementing the foreigner's law frequently wield excessively broad decision-making powers and appear to interpret the law in an arbitrary manner, having little regard for regional and international obligations against arbitrary and potentially discriminatory treatment. In July 2002, Human Rights Watch will release a report with its findings and recommendations regarding the implementation of Spain's foreigner's law.

Procedural rights violations can also serve as an obstacle to the right to seek asylum. In the immediate aftermath of the September 11 attacks in the United States, certain migrant groups arriving by boat to Greece were given fifteen-day expulsion notices, without the right of appeal or the ability to apply for asylum. Such policies can result in the violation of a government's fundamental nonrefoulement obligations, resulting in the return of asylum seekers to countries where their lives or freedom could be threatened. The Greek government subsequently reversed this policy under heavy criticism, including from the United Nations High Commissioner for Refugees (UNHCR) in Athens.

Perhaps one of the most egregious violations affecting migrants in the process of expulsion is the violation of the right to life. Migrant deaths, allegedly at the hands of law enforcement and immigration officials, are a serious continuing concern. Since 1994, deaths during deportation have been reported in a number of West European and E.U. member states, including Austria, Belgium, Germany, and Switzerland. The death of Nigerian asylum seeker Semira Adamu in Belgium in 1998 is just one case where coercion in the process of deportation resulted in the death of an asylum seeker while in the custody-and possibly at the hands-of law enforcement officials. In March 2002, three officers in the Adamu case were charged with assault, battery, and involuntary manslaughter for forcing Adamu's head into an airline pillow just before the plane departed Belgium, and two officers have been charged with criminal negligence for failing to stop the physical coercion. Adamu, aged twenty, died of a brain hemorrhage.

Violations of the right to life, the right to seek asylum, the prohibition against refoulement, the right to equal treatment under the law, and the right to be free from discrimination are serious abuses inflicted on migrants and asylum seekers in the course of expulsion and deportation procedures. The E.U. must take urgent action to ensure that all mechanisms for the return of undocumented migrants and rejected asylum seekers include safeguards against such egregious abuses.

Unaccompanied Migrant Children
Unaccompanied migrant children are particularly vulnerable to human rights violations when government agencies charged with their care fail to protect their interests and when they lack access to complaint mechanisms. Some E.U. immigration policy proposals contain vague language regarding the "special needs of children," but virtually none articulate the fundamental protections guaranteed by international law to unaccompanied migrant children present in E.U. member states.

Our research in Spain highlights our concern that in absence of a specific mandate at E.U.-level to guarantee the rights of unaccompanied migrant children, member states will often fail to provide the special care to which children are entitled under the Convention on the Rights of the Child. We have documented widespread and serious abuses of migrant children in Ceuta and Melilla. Children were subject to illegal expulsions and to beatings by the police; held in severely overcrowded and unsanitary government-funded residential centers; faced extortion, theft, and physical abuse by other children in the centers; and rarely enjoyed the protection of center personnel, even when staff witnessed physical attacks. Some staff also engaged in abusive disciplinary practices, including beatings, collective punishment, and threats of expulsion. Spanish authorities frequently denied children basic health and education sevices guaranteed them in national law, and children in both cities often failed to receive the temporary legal residency status they were entitled to under the law because their legal guardian, the Department of Social Welfare, did not apply for it.

No Spanish government agency actively takes responsibility for ensuring that unaccompanied children in Ceuta and Melilla receive care and protection, and no effective mechanisms exist to facilitate the lodging of complaints by children or the exercise of their right to be heard in all proceedings that affect them, as required by international law. While our research focused on the Spanish autonomous cities in North Africa, nongovernmental organizations across Spain report that unaccompanied migrant children in many regions of the country experience similar abuses.

We urge the E.U. to ensure that the rights and special needs of unaccompanied migrant children are enshrined in all immigration policy proposals.

Refugees and Asylum Seekers
The impact of increasingly restrictive asylum and immigration policies on refugee protection standards in the E.U. is a matter of ongoing concern. The Tampere conclusions included a reaffirmation of the right to seek asylum and a commitment to work toward the establishment of a common European asylum system based on the full and inclusive application of the 1951 Refugee Convention. The conclusions also required the harmonization of European asylum policies with "guarantees to those who seek protection in or access to the European Union." Recent developments in European asylum policy, however, have marked a disturbing departure from these fundamental principles, and the harmonization of E.U. asylum policies has resulted in a dilution rather than enhancement of refugee protection standards.

Throughout the E.U., member states have progressively undermined their obligations under the Refugee Convention. Some governments have applied excessively restrictive and non-inclusive interpretations of the Convention, in particular the refugee definition, in ways never intended by the original drafters of the Convention. For example, France and, until recently, Germany have excluded individuals fleeing non-state agents of persecution or situations of state breakdown from refugee protection. Certain E.U. governments, including Austria and the U.K., have questioned the relevancy of the Refugee Convention and have proposed alternative policies that would undermine their obligations under international refugee law.

The right to seek and enjoy asylum is severely under threat throughout the E.U. Restrictive immigration policies, including visa requirements, carriers sanctions, border controls, and the posting of "airline immigration officers" in refugees' countries of origin, have made it increasingly difficult for asylum seekers to exercise their fundamental right to seek asylum through legal channels. As a result, many asylum seekers are forced to enter countries of asylum through irregular and often dangerous and exploitative channels, including the use of people smugglers and human traffickers. Governments have increasingly resorted to immigration detention to penalize asylum seekers who enter through irregular channels and as an alleged deterrent to others, in contravention of the Refugee Convention, which prohibits governments from penalizing refugees who enter countries illegally. The increasing use of "safe third country" and "safe country of origin" policies, readmission agreements, and containment policies, including the notion of an "internal flight alternative," by E.U. member states has allowed governments to evade their obligations towards refugees and asylum seekers and shift responsibility to other countries, often those least equipped to cope with large numbers of refugees. These policies also risk returning refugees to a country where their lives or freedom may be threatened, in violation of the fundamental principle of nonrefoulement.

Human Rights Watch calls on E.U. leaders meeting in Seville to honor the commitments made by E.U. leaders at Tampere to uphold a full and inclusive application of the Refugee Convention and the fundamental right to seek asylum. We urge you to ensure that measures to combat illegal immigration within the E.U. do not undermine international refugee protection standards.

Conclusion
Human Rights Watch has acknowledged the European Union as a leader in the promotion and protection of human rights worldwide. We have lauded the E.U. for consistent principled positions on a wide range of issues, including the abolition of the death penalty, equality between women and men, and respect for privacy and family life. The development and implementation of an E.U.-wide anti-discrimination regime has also been a welcomed advancement in community law.

These efforts, however, should be coupled with respect for the fundamental rights of all persons in the E.U., including migrants, asylum seekers, and refugees. A human rights regime that protects only nationals of member states and those with proper documents falls far short of observing international and regional standards for the protection of all persons in the E.U., without respect to legal status or nationality. It can only be hoped that in its effort to realize Tampere's promise, the E.U. will develop immigration and asylum policies that continue the community's long tradition of respecting fundamental rights.

Sincerely,

Elizabeth Andersen
Executive Director
Europe and Central Asia Division

Lotte Leicht
Director
Brussels Office

cc.
E.U. Ministers of Foreign Affairs
E.U. Ministers of Justice and Home Affairs
Chris Patten, Commissioner for External Relations
Antonio Vitorino, Commissioner for Justice and Home Affairs
Anna Diamantopoulou, Commissioner for Employment and Social Affairs
Ana Palacio Vallelersundi, Chair, European Parliament Committee on Citizen's Freedoms and Rights, Justice and Home Affairs
Elmar Brok, Chair, European Parliament Committee on Foreign Affairs, Human Rights, Common Security and Defence Policy
Theodorus J.J. Bouwman, Chair, European Parliament Committee on Employment and Social Affairs
Anna Karamanou, Chair, European Parliament Committee on Women's Rights and Equal Opportunities

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