The Criminalization of Migration in Europe: The Way Ahead

T
he contemporary world is fraught with trends directed at the criminalization of international migration (CoM). The modus operandi of migration management is replete with the flagrant violation of international refugee law (IRL) principles like non-refoulement that does not allow any person to be sent back to the territories inimical to his/her life, liberty and security.

CoM has pandered to many human catastrophes sans accomplishing the fundamental principles of IRL. It is, indeed, a well-established fact of international law that states are legitimate in controlling, securing and administrating their national borders while refusing the entry of people or individuals arriving from foreign lands. However, there are international instruments, agreements, and understandings where under rights of migrants, immigrants, refugees, asylum-seekers are protected on a binding basis. These international arrangements envisage non-discriminatory and rights-based procedures to seek asylum in another country. But, unfortunately, some migrants cannot claim refugee status even if they are involuntarily repatriated, deported or expelled to their homelands of persecution and economic calamities. On many occasions, a number of migrants live in the country of refuge for a long time and secretly earn their livelihood in the host countries. These migrants have their children in schools but they could not get themselves regularized in the host country and destined to live under clandestine conditions with the fear of being apprehended and deported by the law enforcement agencies.

In the present circumstances, far-right political trends and xenophobia have created a hostile atmosphere for the migrants in all countries. Therefore, migrants are being targeted and deported by the host governments under the quota system back to their turbulent countries. However, it must be noted here that irregular migrants do have human rights under international law. But there is no indication to criminalize the efforts to enter or stay in a country without any permission or visa documents. This retrogressive situation is exploited by the xenophobes and human trafficking syndicates. Consequently, such steps have put the right to seek asylum in jeopardy that would badly hit the refugees in the long run. Thus, the persons who were smuggled into a country of reception must not be perceived to have committed a crime. Under the international conventions, victims of human trafficking must be protected from any criminal liability. The protection of the rights of all migrant workers and members of their families who have been detained for violating the migration law must be separated from the convicted persons or persons with the pending trial. Migrant workers and members of their families are not criminals in these circumstances. Therefore, CoM is a measure disproportionate to the rights of a state to secure its national borders and territorial integrity otherwise criminalizing irregular migrants would tantamount to compare them with smugglers and human traffickers. Moreover, such a measure would cause ostracism, marginalization, and stigmatization of majority of the migrants.

Meanwhile, migrants have been making modest contributions in the development of the host countries in Asia, Canada, Europe, and North America, etc. but national governments treat immigration offenses as criminal acts instead of omissions of administrative nature. In many countries of Europe and member states of Council of Europe (CoE) and Pax-Americana, prisons are full of irregular migrants due to their being labeled as criminals. In these prisons, worst violations of human rights are rampant. Irregular migrants are subjected to live in degrading and inhumane conditions and picture is not very different in the detention centers. However, aliens are extremely vulnerable under the administrative confinement where they get highly abusive treatment. On the other hand, there is an emerging issue of demand of cheap labour that is primarily provided by the irregular migrants in the host countries of Southern Europe where in agricultural sector, a lot of migrants have been employed by the European landlords. In this backdrop, states should control irregular migration while taking into consideration the following aspects:

  1. That states must not contemplate new criminal offenses into municipal legal systems relating to entry, stay, and residence for migrants and must not overburden the existing judicial establishments.
  2. That the European judiciaries must not be subjected to confront the problems of the disproportionate duration of proceedings in violation of Article 6 of ECHR as European Court of Human Rights might flood with the greater amount of applications.
  3. That the host national governments must not overcrowd their jails and must not establish new detention facilities for irregular migrants as tagging them as criminals under national penal laws would require pre-trial and post-conviction detention facilities.
  4. That the detention of irregular migrants for eighteen months in EU member states under the Returns Directive that was adopted by the European Parliament must be harmonized in conformity with the European policies and values on the primacy of human rights, the rule of law and democracy.
  5. That Pax-Americana and European political establishment must realize the fact of human rights supremacy in administrative and governance affairs and nation-states must strive to conceive a long-term strategy for irregular migrants for their employment.
  6. That the migrants are a cheap labour in many parts of Europe and industrialized countries and they are in demand to perform all those jobs which are not preferred by the nationals of the host countries particularly agrarian jobs. But, unfortunately, working conditions in the agricultural field are not of European or global human rights standards; therefore, existing corrupt state of affairs needs a drastic improvement thereon.

There is an incremental, influential and proximal mobility in the contemporary world where irregular migration has been thriving beyond the simple understanding of deprivation, denial, and exclusion of migrants in the countries of origin. However, the migration is a pre-socio-political and perennial phenomenon of human peregrination that entails an infallible, indelible and multi-dimensional action by the nation-states. Though, there is a lack of transparent immigration mechanisms and procedures that cannot address the demands of different sectors where adequate labour is not available. It is interesting to note that in most European states immigration is still the most complex and intricate field of law owing to inter-alia the emergence of the far-right political nationalism.

Therefore, European countries should make efforts to streamline their immigration laws as per the guidelines followed by the UK government in its dealing with irregular migrants. Thus, it is incumbent upon the European member states to formulate clear and efficient immigration ways ahead out of irregular migration channels. All the members of Council of Europe must accede to the European Convention on the Legal Status of Migrant Workers that addresses the core aspects of the regular migration, migrant labour employment, working conditions, social support and medical benefits, etc. Now, it is, indeed, the most opportune time for CoE member states to ratify the International Convention on Migrant Workers (ICRMW) as the CoE countries have contributed in the drafting of this Convention that globally and comprehensively addresses the plight of regular and irregular migrants and establishes the fundamental human rights guarantees for them. It is imperative upon the CoE member states to ensure the full compliance with the ICRMW and its integration in their state policy, priority and practice on human rights.

Dr. Nafees Ahmad

Ph. D., LL.M. Author teaches at the Faculty of Legal Studies, South Asian University (An International University Established by the Eights SAARC Nations)-New Delhi, author is an Indian national who holds a Doctorate (Ph.D.) in International Refugee Law and Human Rights. Author writes on International Forced & Irregular Migrations, Human Displacement, Climate-Change Refugees, Refugee Studies, Asylum Policies, Human Trafficking in Refugees and Migrants, Durable Solutions, Diplomacy, International Relations, Extradition and SAARC Issues. Author has conducted research on Internally Displaced Persons (IDPs) from Jammu & Kashmir and North-East Region in India and has worked with several research scholars from US, UK and India and consulted with several research institutions and NGO’s in the area of human displacement and forced migration. Dr. Ahmad has introduced a new Program called Comparative Constitutional Law of SAARC Nations for LLM along with International Human Rights, International Humanitarian Law and International Refugee Law.  Author has been serving since 2010 as Senior Visiting Faculty to World Learning (WL)-India under the India-Health and Human Rights Program organized by the World Learning, 1 Kipling Road, Brattleboro VT-05302, USA for Fall & Spring Semesters Batches of US Students by its School for International Training (SIT Study Abroad) in New Delhi-INDIA nafeestarana[at]gmail.com,   drnafeesahmad[at]sau.ac.in

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