Reclaiming Human Rights, Migrant Mobility and Transnational Engagement

Reclaiming Human Rights, Migrant Mobility and Transnational Engagement

June 5-‐6 2013 in Athens, Greece

Contribution to “ Mobilizing Global Civil Society Action for the 2013 UN High Level Dialogue on Migration & Development, a process in Europe led by the Transnational Migrant Platform

Participants of European Working Conference joining the demonstration for Alter Summit in Athens, June 2013

Migrants from Europe joining the demonstration NAGKAISA (United), the biggest and the broadest labor coalition, November 2012

PREAMBLE

Contribution to “ Mobilizing Global Civil Society Action for the 2013 UN High Level Dialogue on Migration & Development |II

PREAMBLE The Universal Declaration of Human Rights is generally agreed to be the foundation of international human rights law. Adopted in 1948, the UDHR has inspired a rich body of legally binding international human rights treaties. It continues to be an inspiration to us all whether in addressing injustices, in times of conflicts, in societies suffering repression, and in our efforts towards achieving universal enjoyment of human rights. It represents the universal recognition that basic rights and fundamental freedoms are inherent to all human beings, inalienable and equally applicable to everyone, and that every one of us is born free and equal in dignity and rights. Whatever our nationality, place of residence, gender, national or ethnic origin, colour, religion, language, or any other status, the international community on December 10 1948 made a commitment to upholding dignity and justice for all of us.

-‐ “Everyone has the right to freedom of movement

and residence within the borders of each state... Everyone has the right to leave any country, including his own”. Universal Declaration of Human Rights -‐ Article 13-‐ December 10, 1948

-‐ “ The right to development is an inalienable human right by virtue of which every human being, person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. The human right to development also implies the full realization of the right of peoples to self-‐determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources”. UN Declaration on the Human Right to Development – Article 1-‐ December 4, 1986

-‐ “States Parties undertake, in accordance with the international instruments concerning human rights, to respect and to ensure to all migrant workers and members of their families within their territory or subject to their jurisdiction the rights provided for in the present Convention without distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status”. UN Convention on the Protection of the rights of all Migrant Workers and members of their Families –Article 7 on non-‐discrimination with respect to rights – December 18, 1990)

I HAVE A DREAM………

Contribution to “ Mobilizing Global Civil Society Action for the 2013 UN High Level Dialogue on Migration & Development |III

I HAVE A DREAM With the devastation of livelihoods and the environment and unprecedented impoverishment in the South, migrants choose to move forward by claiming migration as a adaptation/strategy and to be agents to realize their aspirations and dreams and transforms not only their lives but also contribute to find alternatives and create the necessary human development conditions that makes migration into a choice rather than a necessity. Hereunder we want to present the dream of Ngobi George. Ngobi George is a migrant from Uganda residing in Netherlands. He formulated his dream which is part of his portfolio as a Student of Integrated Human Rights Education at Foundation University, in Amsterdam.

I have a dream..... By Ngobi George

I am not unmindful that some of you have come here out of great trials and tribulations. Some have come fresh from narrow jail cells; quest for freedom left you battered by storms of persecution, police brutality and harsh governments. I have been a veteran of creative sufferings as an immigrant in this world of imbalance, reality of human rights where we come from. I have a dream, to make any change in a democratic world, to respect human rights, everybody must participate because life is interrelated, and some however are caught in an inescapable network. Whatever affects one directly, affects all indirectly and this disrupts someone’s dream or destiny. Martin Luther King said, “When man is pushed on the wall, the only option for him is to move forward.” So, changes do not roll in on the wheels of inevitability but comes through continuous struggle. Now, if you can’t run, walk. I f you can’t walk, then, crawl. But whatever you do, keep moving forward. This will bring a great change. I have also learned never to be afraid of what is right, especially if the well being of a person is at stake because society’s punishments are smaller compared to the wounds we inflict on our souls when we look the other way. Nothing pains some people more than having to think of the impossible, but you know you can do it. You may not see the light at the end of the tunnel at first but know that it is there. So, take the initiative and risk to go through it because it can be fun. This will help you out of your comfort zone. Lastly, people fail to achieve or get along because they fear each other; we fear each other because we don’t know each other. We don’t know each other because we don’t communicate with each other. So, it may be hard to believe in your ability to turn things around, but keep this in your mind “you are the best solution who can make for fair and equal rights, respect for all. Live in free diversity with no fear of aggressive laws and for lasting peace to make the world a better place to be. Therefore, I would like to be an actor in reform to for and take responsibility, advocate for equal human rights.

TABLE OF CONTENT

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PREAMBLE II

I HAVE A DREAM....................................................................................................................III

ABBREVIATIONS..................................................................................................................... V

KEY WORKING DIFINITIONS................................................................................................... VI

1 Introduction......................................................................................................1 1.1 Building migrant Capacity to reclaim the agenda of migration and development ................................... 1 1.2 In the lead up to participation of the un high level dialogue 2013 ................................................................ 1 1.3 Global civil society 7-‐point statement, 5-‐year action plan ................................................................................ 1 1.4 International Mechanisms for Migrant Rights Protection ................................................................................. 2 1.5 Entrepreneurship and Remittances .......................................................................................................................... 2 1.6 Migrants as Transnational Social Actors .................................................................................................................. 4

2 Recommendations ............................................................................................5 2.1 Principles ............................................................................................................................................................................ 5 2.2 Proposal .............................................................................................................................................................................. 5

2.2.1 In the area of governance of mobility.................................................................................................................. 6 2.2.2 In the area of governance of migration and development ......................................................................... 7 2.2.3 In the area of institutional mechanisms of migration governance.....................................................10

2.3 Special Attention to the Situation of (young) migrants in Greece................................................................10

3 Background and Analysis ................................................................................11 3.1 Development a co-‐responsibility? ...........................................................................................................................11 3.2 Coherency EU Development aid and post 2015 development Framework Migration..........................11 3.3 Regional Integration and Mobility in EU ................................................................................................................12 3.4 The evolution of European immigration policy ...................................................................................................12 3.5 Wide gap between the EU’s discourse and practice .........................................................................................13

4 The Making of Fortress Europe .......................................................................14 4.1 Selective immigration policy creates a society with citizens with different rights .................................14

4.1.2 Selective labour migration policy ........................................................................................................................14 4.1.3 Migrant Domestic Workers....................................................................................................................................14

4.2 Restrictive migration policy and Human rights in crisis....................................................................................15

5 Crisis in Europe ...............................................................................................18

6 Racism and Discrimination & rightist political trends ......................................20 6.1 Implementation of anti-‐discrimination policies ..................................................................................................20

ANNEX 1 THE GREAT european fire sale.........................................................................21

ANNEX 2 DEATH AT BORDERS........................................................................................22

ANNEX 3 Déclaration Plateforme Euro-‐Marocaine « Migration, Developpement, Democratie, Citoyennete ......................................................................................................23

ANNEX 4 RELEVANT UN AND ILO CONVENTIONS ..........................................................24

Annex 5 Campaign Position J4DW ................................................................................25

ABBREVIATIONS

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ABBREVIATIONS

CEDAW United Nation Convention on the elimination of all Forms of discrimination against Women CERD United Nation Convention on the Elimination of All Forms of Racism and Discrimination, CRC United Nation Convention on the Rights of the Child CSD Civil Society Days CSOs Civil Society Organizations ECHR European Convention on Human Rights

EU European Union Europe 2020 The EU’s Strategy for Growth and Jobs

EPA Economic Partnership Agreements GAMM Global Approach on Migration and Mobility GCM Global Coallition on Migration

GFMD Global Forum on Migration and Development HLD High Level Dialogue (UN)

ILO C 189 ILO Convention 189 on Decent work for domestic workers or Domestic Workers Convention MC The UN International Convention on the Protection of the Rights of All Migrant Workers and

Members of Their Families or UN Migrants’ Convention MDWs Migrant Domestic Workers MFA Migrant Forum Asia MRI Migrant Rights International PGA Peoples Global Action TCN Third Country National TMP Transnational Migrant Platform

Transnational Migrant Platform Co-‐Convenors: Commission For Filipino Migrant Workers (CFMW), Platform of Filipino Migrant Organisations, Foundation University, Turkish Workers Foundation (HTIB), Euro-‐Mediterraan Centrum Migratie & Ontwikkeling (EMCEMO), Kromantse Foundation (Ghana), Social Development Cooperative (Ghana), Africa Roots Movement, RESPECT Netherlands: TRUSTED Migrants, KOOP Natin, Indonesian Migrant Workers Union (IMWU), OTRADELA, Transnational Institute (TNI).

TMP’s Temporary Migration Programmes UDHR UN Universal Declaration on Human Rights

UN United Nation

KEY WORKING DIFINITIONS

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KEY WORKING DIFINITIONS European Union: the European union (Eu) of 27 member States is served by a central executive institution, the European commission, which has its own right of initiative and the competence over a number of EU policy areas (such as trade or fisheries) where it acts on behalf of the union. Development cooperation is a ‘shared competence’ with the commission and many of the member States each having their own development programmes and bilateral aid agencies. These are, however, guided by a common policy document, the European consensus on Development (2005), and there are efforts to promote joint action and complementarity among them. In this report unless otherwise stated the term EU is used to refer to the collective effort of the whole union, that is member States and the commission. A transformative agenda aims to achieve structural transformation while at the same time ensuring that it leads to a sustained and inclusive development at the local, national and global levels. a transformative development path requires profound changes to infrastructures, production processes, regulation systems and lifestyles. policy options, such as green growth, should be explored as an important means to promote sustainable development for instance. The principle of non-‐discrimination is a cornerstone of international human rights law. All of the core human rights treaties reflect the general principle adopted by the UDHR that the rights set out in the treaties should be enjoyed without distinction of any kind. Article 2 UDHR sets out a non-‐exhaustive list of prohibited grounds for discrimination, including race or colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The general principle of equality and non-‐ discrimination consist of a number of elements: -‐ You have the right to be treated equally before

the law and to enjoy equal protection by the law, without any discrimination;

-‐ You have the right to be protected against discrimination and any incitement to discrimination;

-‐ If your rights are violated you must have access to effective remedies.

Criminalisation of migration/migrants refers to the use of criminal sanctions, or administrative sanctions which mimic criminal ones (such as detention), in respect of border and immigration control PARTICIPATION Wherever we live and in whatever sort of society, one of our basic rights is to be allowed to take a full part in the life of our community. Without participation we cannot experience and enjoy the wide range of rights and freedoms that the Universal Declaration of Human Rights seeks to guarantee. Our participation should be active, free and meaningful. Our views to improve our lives and our community should be heard and answered. We can have a say in the decisions of our local community and in national affairs. Article 21 explicitly says everyone has the right to take part in elections and government. Crucially, participation also means that the voices of people who are often excluded should be heard and heeded, especially when we are marginalised or discriminated against because of our disability, race, religion, gender, descent, age or on other grounds. We should be in a position to influence our own destiny and take part in decisions affecting us. DIGNITY & JUSTICE Dignity and justice for each and every human being is the promise of the Universal Declaration of Human Rights. The concept of dignity lies at the heart of human rights. It is mentioned in the first sentence of the Preamble to the Declaration and appears again in Article 1. Yet of all the rights to which everyone is entitled, dignity is perhaps the most difficult to express and to put into a tangible form. Put simply, it means we must treat each other with respect, tolerance and understanding. Governments must do the same, in law as well as in practice, for the individuals who make up communities, societies and nations. The idea of justice and the equality of everyone before the law appear throughout the Declaration. In fact the Declaration's core values of non-‐discrimination and equality are ultimately a commitment to universal justice and recognition of inherent human dignity.

ACKNOWLEDGEMENT

Contribution to “ Mobilizing Global Civil Society Action for the 2013 UN High Level Dialogue on Migration & Development |VII

Transnational Migrant Platform would like to thank the participants of the Working Conference.

Country Name Organisation

Belgium Drisss El Korchi FALDI (Forum des associations de luttes démocratiques de límmigration)

Belgium Sarah Klingeberg WSF

Denmark Jean Gocotano Union FOA Denmark Kat Palad FCD Europe Kadri Soova PICUM

France Brice Monnou Le Forum des Organisations de Solidarité Internationale issues des Migrations (FORIM)

France Jamal Lahoussain MDCD

France Abdellah Zniber FALDI

France Abdellatif Mortajine MDCD (Plateforme Euromarocaine Migration, Développement Citoyennetë et Démocratie

Greece Debbie Valencia KASAPI HELLAS Greece Joe Valencia KASAPI HELLAS

Greece Alex Freris Barolo Greek Council for Refugees

Greece Andreas Bloom Asante

Greece Andromachi Papaioanou Generation 2.0

Greece Donald Okhawere Nigerian Community Greece, President

Greece Irene Vazu Kasapi Hellas

Greece Nikos Udubitan Generation 2.0

Greece Nora I. Ukachukwu Nigerian Women Organisation

International Colin Rajah GCM/MRI

International Ignacio Packer Terre des Hommes

Italy Edda Pando, ARCI Italy Romeo Sangcap Commission for Filipino Migrant Workers (CFMW) Italy

Italy Rosa Jijon Ecuadorian artist and activist

Lithuania Lina Vosyliute RESPECT Lithuania Vija Plataciute Vytautas Magnus Univeristy / Diversity Development Group

Netherlands Abdou Menebhi EMCEMO

Netherlands Brid Brennan Transnational Institute Netherlands Brigitte Mugiraneza United Wisdom of Africa Foundation Netherlands Frank Slijper Transnational Institute

Netherlands Jille Belisario CFMW Europe Netherlands Mahdi Attar Semlali EMCEMO

Netherlands Mustafa Ayranci HTIB

Netherlands Nonoi Hacbang CFMW/Platform of Filipino Migrant Organisations Netherlands Olusola Elijah Africa Roots Movements

Netherlands Petra Snelders RESPECT NL Netherlands Sol Trumbo Villa Transnational Institute Netherlands/

Ghana Thomas Moore Kromantse Foundation

Netherlands/Ghana

Coffi Badou-‐Bonsou Social Development Cooperative

UK Donn Flynn Migrant Rights Network

ACKNOWLEDGEMENT

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We would like to thank Global Coalition on Migration facilitating this working conference and mobilizing and bringing Migrants' Voices to the UNHLD on Migration & Development. Together we will challenge governments inside the UNHLD process—bringing migrants' voices into this exclusive forum to push our agenda of human rights, justice, and respect for all migrant workers and members of their families. TMP was involve of preparatory for the Vienna+20 CSO conference, and therefore acknowledge and taken on board some of the proposals in formulation of recommendations. Other members of the network were not able to participate during the working conference, but have sent their position paper, see position paper of Justice 4 Domestic Workers See annex 5 In Europe beside the Transnational Migrant Platform, other organisations held their consultations. This document is the outcome of the proces in Europe that was led by the Transnational Migrant Platform.

CHAPTER ONE RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT

Contribution to “ Mobilizing Global Civil Society Action for the 2013 UN High Level Dialogue on Migration & Development |1

1 INTRODUCTION 1.1 BUILDING MIGRANT CAPACITY TO RECLAIM THE

AGENDA OF MIGRATION AND DEVELOPMENT In Europe as migrant networks and civil society organizations we respond to the various national, European and global developments that are impacting heavily on the daily lives of migrant and refugee communities in Europe in this era of unprecedented crises. We mobilise our communities and intervene actively to reclaim the agenda of migration and development, taking the UN Universal Declaration on Human Rights (UDHR 1945), the UN Migrant Convention (1990), and the UN Declaration on the Right to Development (UN General Assembly 1986) as starting points. From our perspective as migrants and refugees we exercise our role in various forms of responsibility – whether as migrant workers, migrant or refugee communities or as citizens in the Global North or towards our countries of origin in the Global South. It is in this perspective that as migrant and refugee communities living in Europe we welcomed the United Nations initiative to hold a High Level Dialogue on Migration and Development (UNHLD) in New York, 2006 and we have also participated in each subsequent meeting of the Global Forum on Migration and Development (GFMD) (2007–2012) both inside the formal government processes—in the limited space provided by governments to raise migrants' rights issues—and outside, together with Migrant Rights International (MRI) and Migrant Forum Asia (MFA) we have co-‐organised the Peoples Global Action (PGA) in the form of parallel events and street mobilisations. To maximize the spaces provided by the Civil Society Days (CSD)/GFMD, PGA and other international arenas to advocate migrant priorities, the Transnational Migrant Platform, (TMP)1 initiated the process in Europe of holding an annual Europe wide Conference on the substantive agenda of the GFMD, and at the same time to contribute to the development of new social movements and networks that go beyond the CSD/GFMD and the PGA.

1 The Transnational Migrant Platform (TMP), was set up in 2008 as a convergence and alliance of several migrant communities from the Global South – as well as European and international organisations involved in solidarity, anti-‐racist and global justice work. http://www.cfmw.org/transnational-‐migrant-‐platf/

1.2 IN THE LEAD UP TO PARTICIPATION OF THE UN HIGH

LEVEL DIALOGUE 2013 This year, the annual inter-‐governmental process of the GFMD returns to the United Nations in New York for a second UN HLD on Migration & Development (October 3-‐4, 2013). In preparation for this, the Transnational Migrant Platform is participating in the initiative of the Global Coalition on Migration (GCM)2, “ Mobilizing Global Civil Society Action for the 2013 UN High Level Dialogue on Migration & Development”. It is an initiative where migrants' rights organizations and migrant communities from across the world are currently collaborating on preparing contributions and proposals to take into the UNHLD process. This preparatory process in Europe, led by the Transnational Migrant Platform has taken place on different occasions in 2013: in workshops during the World Social Forum in Tunis (26-‐30 March, 2013); a national meeting in Netherlands May 25, 2013; the European Working Conference “Reclaiming Human Rights, Migrant Mobility and Transnational Engagement, June 5-‐6 in Athens, Greece hosted by Kasapi Hellas and during the Migrants Assembly at the Alter Summit held on June 7 in Athens, Greece. Representatives from national and bi-‐national migrant led organizations as well as pan-‐European and International networks participated. 1.3 GLOBAL CIVIL SOCIETY 7-‐POINT STATEMENT, 5-‐YEAR ACTION PLAN As indicated earlier, the consultation in Europe was part of a global preparatory process of regional conferences initiated by the GCM. Each of the regional conferences was organised within the framework of the Civil Society proposal on the 7-‐point statement for the UNHLD on key outcomes, to be developed in a 5-‐year action plan. This statement was initially developed during the WSF Migration in Manila in December 2012 and submitted to the UN GA Second Committee and UN Member States on 3 December 2012 (see Annex 1).

2 The concept of the GCM was born out of the collaborations of its initial member organizations around the Global Forum on Migration (GFMD) and the corresponding People’s Global Action on Migration, Development & Human Rights (PGA) processes. http://gcmigration.org/



The Conference and consultations in Europe, have likewise reflected these seven topics of the key outcomes in the proposed UNHLD action agenda: a) In the area of governance of mobility: 1) The need for regulation of the migrant labour recruitment industry as well as; 2) The need for assistance and protection of the rights of migrants stranded in distress situations. b) In the area of governance of migration and development, attention has been given to: 3) The integration of migration into the post 2015 development agenda; 4) The priority of protecting labour rights for migrant workers (including migrant domestic workers); 5) Models and frameworks that address the specific needs and rights of migrant women. c) In the area of institutional mechanisms of migration governance: 6) Development of benchmarks on the exchange of good practice and enactment and implementation of national legislation to comply with the full range of provisions on human rights in UN and other international conventions; 7) re-‐definition of the interaction of international mechanisms of migrant rights protection within the UN normative framework and including an evaluation of the GFMD process. 1.4 INTERNATIONAL MECHANISMS FOR MIGRANT RIGHTS PROTECTION While migration is a positive and rewarding experience for many migrant workers, a significant number face serious violations of their human rights, which can occur at each stage of their journey. This includes ill treatment by immigration or law enforcement authorities, abusive or exploitative working conditions, an absence of basic workplace rights and protections, limited or no access to social security, systemic discrimination and wide-‐spread racist, xenophobia and prejudice. Moreover, migrants in an irregular situation can live and work at the very margins of basic protections and safety. In some cases, especially involving individuals who have been trafficked across borders, the working conditions they experience can amount to forced labour. The UN Convention provides a legal framework for the protection of the rights of migrants and their families. However, many migrants today do not benefit from it because this and other core human rights treaties are neither universally ratified nor implemented. Furthermore, too often effective protection is not available because the actors that potentially have the best capabilities to offer protection do not live up to

this promise. Rights on paper do not automatically lead to rights in practice. For this to happen rights-‐holders have to be aware of the fact that they too should be treated with respect and dignity and that their governments can be held accountable for the commitments they have made under international law. The report of the Global Commission on International Migration released in October 2005 concludes that “the international community has failed to capitalize on the opportunities and to meet the challenges associated with international migration.” It also recommends new approaches to correct this situation. The 19-‐member independent Commission states “the establishment of a coherent approach to migration requires states to demonstrate a greater respect for the provisions of the legal and normative framework affecting international migrants, especially the seven core UN human rights treaties.” 1.5 ENTREPRENEURSHIP AND REMITTANCES As migrants, we have asserted that sustainable development needs to be human rights based – putting the basic human needs of people at the core of economic and development policy globally. This implies a paradigm shift – where people’s needs and not corporate profit would determine the priorities of development. This also implies an enabling policy environment for migrants that are rights based -‐ empowering migrants to be actors in development both in destination countries and origin countries. Human history has demonstrated how migrants have exercised this dual role. Much has been written about migrant remittances – and indeed these are significant in various countries – outstripping in some cases earnings from oil (Mexico) and development aid. The impact of these remittances are over and above the provision which is made by migrants for all the economic and social needs of their families – food, housing, health and education. In many countries such as the Philippines, still burdened with huge external debt since the Marcos dictatorship remittances generate the foreign currency needed. How different development prospects would be if such foreign were strategically earmarked for and alternative development.



Migrants are also investing in the real economy – enabling their families to set up small productive enterprises, which convert their remittances into a more sustainable livelihood for family members. Increasingly, also migrants are engaging in community development projects – while still abroad or as return migrants. Some such projects are seen as ‘brain gain’ projects where migrants convert their migrant experience and expertise into more viable futures for themselves, their families and the community. Therefore migrants are taking a keen interest in the course of current development discourse. They participate in critical assessment of the current model of development, as well as being very keen in contributing to the articulation of an alternative model of development and working in partnerships in the host country and country of origin who are committed to a human rights based model of development.

Migrants have seen first hand the haphazard outcomes from an extractive development model whose benefits accrue only to local elites, leading to increases in inequality in both sending and receiving countries. These local elites become the willing partners in the design of “migration-‐development” partnerships – the so-‐called cooperation agreements. These agreements require migration flows to be policed in accordance with the requirements of the receiving countries (such as visa system, readmission policies) in return for privileged access to trade agreements and development aid. In this way, European states externalize their borders by using bilateral agreements to create outside borders. The sending countries cater to the interests of the EU’s development model -‐ access to raw materials, agreements on investor to state privileges, low taxation on corporations. This is essentially an economic paradigm where out-‐migration and the international division of labour comes into place.



1.6 MIGRANTS AS TRANSNATIONAL SOCIAL ACTORS It is within this context that migration mobility needs to be viewed as a demonstration of agency by migrants/adaptation strategy motivated by the impoverishment of their families and communities to seek alternative development opportunities. The complex realities and considerations leading to the decision to migrate cannot be captured by one story or approach alone. People, in spite of hardship, show great amounts of courage, resourcefulness and resilience in their efforts to find ways to exercise their rights – including the right to development. To a large extent, the ultimate aim of those who migrate is to improve their own and family economic situation, and escape political, social and overpopulation problems, in their country of origin and to be an agents and stakeholders of developments. We believe that for development to work is it essential to focus on human development and to integrate the interests and needs of migrants as well as other basic sectors into policy responses aimed at economic recovery. There is a new trend of migration emerging in Europe itself – from the southern European crisis countries to northern Europe and to former colonies in Latin America. This is an additional consideration for being decisive in placing Human mobility under a human rights regime – making migration to be part of the solution and not the problem. Governments have adopted restrictive immigration policy and legislation in the following: -‐ Restrictive immigration policies based on

national security; -‐ Migration measures that privilege the movement

of “skilled” over” unskilled” and predominantly female labour; and

-‐ Protectionist laws and policies that close EU borders and limit freedom of movement in the name of protecting citizens from the harms of migration.

These restrictive immigration laws have generated repression and violation of migrant rights and the selective immigration policies also generate increasing racism against migrants. These also generate tension and divisiveness among migrant communities. To date, the EU policy response in addressing informal migration flows has resulted in the criminalisation of migrant communities.

CHAPTER TWO RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


2 RECOMMENDATIONS 2.1 PRINCIPLES The primacy of human rights defines our starting point in elaborating the nexus relationship between Migration and Development. The failure of the current corporate led development model is a failure to achieve basic human rights – that could ensure adequacy of livelihood and work, food and nutrition, access to clean water, housing, health and education -‐ and is frequently a root cause of migration. The migration process if undertaken in a human rights framework, can lead to the enlargement not only of people’s individual capabilities (defined as what they are able to do and be in life3 but also to the enhancement of development both in the receiving and sending countries. In this context, migrants and refugees can become protagonists and architects of a just and more sustainable people-‐led development. The goals and the means of development are therefore, to enhance peoples’ intrinsic capacities (e.g. dignity, knowledge, well-‐being, self-‐ respect), as well as the opportunities (e.g. access to education, employment, and participative decision-‐making processes) that make them ‘capable’ of shaping their own destiny. This would mean achieving a stage of development where migration would be a choice not a necessity. “Migration and Development” are grounded in our understanding of the changing nature of inequality and its nexus with sustainability. Addressing structural inequality which we see as a pillar for achieving universal human rights, means more than addressing income, poverty and remittance mechanisms, it must fundamentally; -‐ Address equitable access towards civil, political,

economic, social and cultural rights; -‐ Address discrimination of migrants and refugees

(with a particular focus on the more vulnerable groups);

-‐ Provide equitable access to services for all – independent of the migration/administrative status.

3 In what has become known as the ‘capabilities approach’ (1999), Sen suggests that development is concerned both with the processes through which a given state of wellbeing can be achieved and with the results achieved, or outcomes

Respect, protection, promotion and fulfilment of all human rights are the first responsibilities of States. The acceptance and implementation of extraterritorial obligations, human rights cannot be universally realized, nor can they play a determining role in the regulation of globalization, in laying the basis for an equitable and just development or in clarifying differentiated State responsibilities. Adequate international governance of labour mobility is to the advantage of migrants and can help bridge labour market gaps, provide labour to fuel structural economic transformation, drive innovation through migrants’ dynamism, and contribute to social security systems. Migration and mobility may pose challenges for managing urbanisation, but they are also vital for the functioning of cities as centres of growth. In the absence of effective governance, the costs of migration may be significant, and can include social tensions with host populations – often exploited by populist forces – and pressure on scarce resources. 2.2 Proposal Convinced that the High Level Dialogue (HLD) should produce “a succinct negotiated outcome document¨ that can address critical issues of global migration governance and propose concrete actions for strong rights based HLD outcomes; Understanding that this is to be an ongoing process of dialogue with member states and that the negotiated outcome document should, however, be in the form of a five-‐year action agenda, framed around a maximum of seven important issues where there is a broad sense that progress is politically achievable during that period and can be measured; Anticipating that the action agenda will contain measurable benchmarks and timelines for action at the national, regional and global levels, with appropriate engagement of all stakeholders. We recognise the importance of a facility or process within the UN system taking lead responsibility to promote action—and measuring progress—among stakeholders in the implementation of this 5-‐year action agenda, modestly resourced.



Recognising that the possibilities include a joint working group of states and civil society together with a reporting function incorporated within the existing annual Coordination meeting organized by UN DESA. We propose that the action agenda’s seven key outcomes, be achieved over five years and comprise:

2.2.1 In the area of governance of mobility The role of migration and mobility first and foremost shall be considered in a language of human rights and entitlements – as human beings, workers, residents and, consequently, as fully pledged citizens of the EU, not only in the language of highly skilled human capital, but with contributions for society and added value for improving other dimensions of well being at large social cohesion of society. It is within this understanding that States are urged to take upon themselves the responsibility to guarantee a human rights based regime for all stages of the migration process – preparation, transit, destination and return: 1) The need for regulation of the migrant labour recruitment industry States need to ensure that migrants enjoy the same treatment in matters of social security, access to health and welfare granted to nationals, the portability of pensions, and paths to citizenship, guaranteed in the legislation of the State as well as in bilateral and multilateral treaties. States must ensure the elimination of slavery and forced labour, and enact specific legislation guaranteeing the rights of migrant domestic workers (who often work in slave like conditions) to ensure decent conditions of work and protection from human rights violations: Proposals States need to ensure effective implementation of standards and mechanisms to regulate and monitor the migrant labour recruitment industry. States need to place frameworks where labour and jobs are streamlined, wherein not only the costs of migration are lessen but also contribute to decent and productive employment for the migrants

2) Migrants in structural distress in Europe The lack of legal avenues for migration and the disproportionate administrative criteria’s for acquiring regular migration status to migrant women and men working and living in the EU is a major factor, which pushes migrant into an irregular status. Besides that today, in EU the increasing trend towards criminalization of migrants – particularly those in an irregular situation – are more likely to face discrimination, exclusion, exploitation and violation of their rights at all stages of the migration process. Of immediate and urgent concern is the recent rise of intolerance, racism, xenophobia, and Islamophobia against migrants and their communities, sometimes manifested itself in acts of extreme violence against migrants in transit and in destination countries. Within this context States are reminded of their responsibility on the implications of irregularity that compelled irregular migrants to take extreme risks (slavery working conditions (trafficking, forced labour) abusive house owners, health implications/psychological implications) to evade restrictive measures in destination states. Proposals States are likewise urged to end those measures that criminalize irregular migration including the laws that penalize migrants in an irregular situation as well as the persons that assist them; the use of excessive and disproportionate force during migration control operations; the detention of undocumented migrants; deportations without procedural guarantees; and also to address xenophobic statements in which authorities and the media encourage the stigmatization of migrants. States are asked to urgently to regularise those who are undocumented, and to stop the growing use of mass detention and expulsion, including violent border regimes (e.g. Mexico-‐US and EU-‐ Mediterranean). We urge to rollback the ¨Return Directive¨.



Human rights law does not generally regulate the Human rights at international borders (immigration policy of states in general), particularly decisions about entry and stay. Proposal States need to ensure protection of the rights of all migrants and refugees including unaccompanied children, in transit and passage through borders, whether in regular travel or when caught in crisis situations or in distress. Migrants and refugees, who experience rape, trauma or other forms of violence when in transit, have the right, irrespective of status, to be assisted by the State in receiving appropriate assistance and access to justice. General and authoritative guidance on human rights at international borders, targeted at the full spectrum of the very principles of dignity, equality and liberty of the EU Fundamental Rights Charter and of the European Human Rights Convention. This with regard to: -‐ screening processes and procedures as well as

due process safeguards in order to identify the human rights needs of migrants at borders;

-‐ to better implement their obligations to protect the rights of children and stop detention of children.

2.2.2 In the area of governance of migration and development

3) Integration of migration into the post 2015 development agenda; Proposals States need to implement coherence in the post 2015 development agenda and should better link the High Level Dialogue on Migration and Development and Post-‐2015 debates. States needs to reaffirm the primacy of human rights in the post-‐2015 and; -‐ Transform current aid-‐based model of

sustainable development agenda develop new universally applicable framework as a means to contribute and together work towards transformational, structural change. Ensuring economic, trade, investment and development policies that guarantee the human rights of people (food, shelter, education, health) and make migration a choice and not a necessity;

-‐ States should ensure that resources are generated fully, sustainably and distributed fairly, at all times prioritizing the most marginalized. Targets to eliminate extreme

poverty and redistribute extreme income and wealth must be included beyond an overall focus on poverty reduction and well-‐being.

-‐ Respect, protect and fulfil the economic, social, and cultural rights of all peoples, with prioritization of marginalized groups without retrogression and on the basis of non-‐discrimination and equality, immediately ensuring universal social protection floors, universal health coverage, adequate food and nutrition, water, sanitation, education and housing. They have to protect workers’ rights, guarantee minimum wages and pensions, close gender, ethnic, regional and other wage gaps, and restrain excessive levels of compensation;

-‐ Officially recognise migration as an enabler, and that migrants and refugee communities are contributing to development in host countries and to facilitate their contributions to economic and human development, especially in countries of origin.

States are asked to integrate sustainability as a human rights principle to be monitored in the ongoing Universal Periodic Review or a similar modus established under the High Level Political Forum, and need to tackle the structural drivers of inequality, including discrimination, ecological degradation, climate change, the poorly regulated financial system, and global trade and investment regimes, by which economically powerful, including private interests dictate development to the detriment of the public interest. 4) The priority of protecting labour rights for migrant workers (including migrant domestic workers) Labour rights for migrant workers The EU has the best regional Human Rights regime for its nationals, nevertheless migrants, especially undocumented migrants, asylum seekers, migrant domestic workers are still found to be left in an inhuman and degrading working and living conditions.



Proposals Migrant workers and refugees should enjoy treatment equal to that of nationals of the State of employment with respect to remuneration and other conditions of work, as well as in terms of employment, including the right to join trade unions and other associations. The right to transfers and services safeguarding social security is indispensable for the exercise migrant rights. Social security has to cover the full life cycle and be available to each migrant and should include a guaranteed basic income sufficient to access adequate food, housing, clothing and an adequate standard of living under all circumstances. Migrant Domestic Workers We welcome the putting in place of the ILO Convention C 189 on the protection of the rights of domestic Workers. However this Convention does not address specific discrimination experienced by migrant domestic workers (which are not explicitly covered by the ILO Convention). The oppression and abuse experienced by MDWs is well documented and has been likened to modern day slavery. Besides, MDWs who become undocumented for any reason, are also likely to be discriminated in relation to the conditions of their work by their employers, and are also excluded from access to public services and to fair treatment before the law – since being undocumented make many of them fearful to bring their experience of racial abuse and discrimination to the police or the Courts. Proposal We urge the States to eliminate the root cause of discrimination experienced by undocumented migrant domestic workers – and put in place a policy that recognises domestic work as a category for immigration and includes the right change employers. Ratification of the ILO Convention would mean the recognition of domestic work as proper work. On this point it is also important to consider CEDAW General Recommendation No.26 on Women Migrant Workers.(2008)

5) Models and Frameworks that address the specific needs and rights of migrant women and Migrant youth and Children This criminalization means that migrants in irregular status are more likely to face discrimination, exclusion, exploitation and violation of their rights at all stages of the migration process. Of immediate and urgent concern is the recent rise of intolerance, racism, xenophobia, and Islamophobia against migrants and their communities, sometimes manifested itself in acts of extreme violence against migrants in transit and in destination countries. States are also reminded of their responsibility to insist on a zero tolerance of racism and to effectively address the intense xenophobic attacks on migrants and refugees and the rise in Islamophobia towards people of Muslim origin in the aftermath of the of the 2000 9/11 in New York and 11th of March, 2004 bombings in Madrid and 7th of July, 2005 bombings in London.4 “Anti-‐terrorism” discourse has recently become a new manifestation of racism against the Árabic-‐looking´ population. 5.1 Rights of Migrant Women Proposals The intersection of gender based discrimination, poverty, socio-‐economic marginalization and States must address violence. It is within this context that the precarious situation of female migrants, displaced women, and trafficked women and girls demands urgent action. As migration for migrant women is widely linked with women's impoverishment and the international gender division of labour that stereotypes women, in particular of discriminated racial and ethnic groups.

4 Ethnic Minority Communities & Social Cohesion Research. (2006) / http://www.mori.com/ethnic/index.shtml.



States have to tackle root causes as well as guarantee the rights and social protection of migrant women in transit and host countries. The practice of tying residence permits and rights to the fortunes of a primary migrant reinforces gender inequalities within migrant communities. The ‘dependent status’ is an unnatural family situation in itself, which has detrimental effects on women, in terms of their social inclusion, self-‐confidence and realisation in life. This puts many migrant women experiencing domestic violence in a precarious situation. The migrant women in question are inclined to endure domestic abuse longer, as they are threatened with the possibility of becoming undocumented, homeless and without means of support. We call on EU Member states to put an end to policies establishing dependency between family members.

Economic globalization, financial crises, the privatisation of public services and austerity programs have increased women’s multiple responsibilities and workload in paid and unpaid work. The high income required for family reunion. Conditions linked with income and housing put migrant women at a direct disadvantage because they are often low earners and employed in low skilled jobs such as domestic work. This results in migrant women having fewer chances in qualifying for reunification with their family members. We urge for gender sensitive family reunification policies that recognise the specifics in migrant women’s lives and promote their chances at happiness within their families and communities. It is crucial that integration issues are mainstreamed in all relevant policies such as social inclusion, anti-‐discrimination and gender equality for example. Key links need to be made between these policies to ensure that a coherent framework is put into place. We call notably for the future new European Gender Equality strategy to pay particular attention to the integration of migrant women. The future European strategy on Violence against Women should also include measures to tackle the specific forms of violence experienced by migrant women such as Female Genital Mutilation and remove the legal obstacles faced by migrant women to access protection.

5.2 Rights of Migrant Children Child protection must be guaranteed regardless of migration status. Proposal States should review and reform all migration and social laws, policies and practices which limit the enjoyment of child rights and protection from violence, exploitation and abuse. This should include ensuring access to services and justice, with clear separation from immigration control and prohibition of data sharing. States should ensure the effective capacity of child and social protection systems to detect, refer and support situations of vulnerability beyond material poverty and should include specific goals and indicators on child protection in the context of migration in local, national and international data collection, evaluation and monitoring frameworks (including on human rights, public policy and development). Immigration detention of children must stop States should expeditiously and completely cease the immigration detention of children, prohibiting the detention of children on the basis of their or their parent’s immigration status. States should implement a presumption against deprivation of liberty and adopt legislation, policies and practices that enable children to remain with family members and/or guardians if they are present in the transit and/or destination countries and be accommodated as a family in non-‐custodial, community-‐based contexts while their immigration status is being resolved, using the least restrictive means necessary. 5.3 Right to Citizenship of second generation of migrants Second generation of migrant should be able acquire to their rights to citizenship. States are urged to implement the very principles of dignity, equality and liberty of the EU Fundamental Rights Charter and of the European Human Rights Convention and grant automatic birthright citizenship to the second-‐generation migrants regardless of status of their parents to have opportunities and become active citizens as integral agents/actors in the development society in all aspects.



2.2.3 In the area of institutional mechanisms of migration governance

6) Development of benchmarks on the exchange of good practice and enactment and implementation of national legislation to comply with the full range of provisions on human rights in UN and other international conventions We, as migrant led organizations and civil society representatives, stress the urgent need for closer transnational engagement and improved coherence between the EU’s external and internal policies that have direct impact on both -‐ migration and development. Thus, we urge the EU to join us in rethinking this nexus and implement such migration policies, which make the link between migration and development policies more enabling.5 EU states are urged to address the lack of coherence among the EU Global commitments and policies and as well as among internal EU strategies and policies. The EU in its Global Approach on Migration and Mobility as well as within the EU Agenda for Change is stressing the role of Fundamental Rights and Human Rights as well as principles of non-‐discrimination and equality among the states globally. However this approach is lacking within the EU´s internal strategies and policies with respect to the treatment of migrants and refugees. 7) Re-‐definition of the interaction of international mechanisms of migrant rights protection within the UN normative framework and including an evaluation of the GFMD process. States are called upon to enact and implement national legislation to comply with the full range of provisions in international conventions that pertain to the human rights of migrants and refugees; to implement migration policy and practice in accord with international standards and rights protection for global migration governance (with particular reference to the UN High Level Dialogue on Migration and Development) and in the context of the UN normative framework; and to institutionalize the participation of migrant and refugee organisations in future governance mechanisms. States have to guarantee and implement the human rights of migrants, refugees and displaced persons as enshrined in the UN Universal Declaration of Human Rights, the ILO Conventions 97, 143, 181, 189, the Maritime Labour Convention of 2006 and the Refugee Convention (1951) and Protocol (1967.

5 After the Treaty of Lisbon, the EU has the power to make and implement decisions as a legal body

States are urged to ratify the UN Convention on the Protection of the Rights of All Migrant Workers and Members of their Families as a fundamental reference for migration governance, as well as the ILO Convention 189 on Domestic Work. While advances have been made, there is a need to recognise the gaps in implementation, and the multiple factors and conditions (climate change, environmental disasters, economic and investment projects, land expropriations, political persecution, wars and occupations), which further increase the pressure for out migration and seeking of refuge. 2.3 SPECIAL ATTENTION TO THE SITUATION OF (YOUNG) MIGRANTS IN GREECE In Greece 2nd generation of migrant are denied of their rights to citizenship. Besides the violation of these fundamental rights, this form exclusion results as well as in identity crisis. This also deprives them of opportunities to become active citizens and as integral agents/actors in the development of the Greek society in all aspects. We call of the Greek government and in particular the State Council, the Greek Parliament and the Ministry of Justice and Interior Ministry to provide according to the European Convention on Human Rights. The current practice of street harassment, arrest and detention of minority ethnic people amounts to degrading and inhumane treatments in contravention of Article 3 European Convention on Human Rights. We are particularly alarmed at accounts of grossly inadequate facilities at the immigration detention centres, which include overcrowding, in sanitary toilet and washing facilities and prolonged and unnecessary detention. We raise our concerns to practices, which have been reported from the rural economy over farm labour extracted from migrants without proper remuneration. In condition it has amount to forced labour. In conclusion, and relying on the universal application of Human Rights as a fundamental feature of our civilized society, and we express our solidarity with migrant community and organization of Greek civil society who are working to support in these precarious living and working conditions.

CHAPTER THREE RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


3 BACKGROUND AND ANALYSIS 3.1 DEVELOPMENT A CO-‐RESPONSIBILITY? There are multi-‐factors impacting on out-‐migration including Europe's economic, trade and investment policies. Over the last two decades, EU governments — and the EU itself, particularly after the Treaty of Lisbon came into force in 2009 — have been insisting on the opening up of foreign markets and creating profitable investment opportunities for EU companies. The EU has aggressively pushed trade and investment agreements with the global South -‐ e.g. Economic Partnership Agreements (EPAs), Free Trade Agreements with India, Columbia and Peru, and with Central America and currently negotiating with ASEAN countries. These unequal and unjust agreements have meant that countries in the global South have had to give up many of their rights to implement their own national policy priorities in exchange for investment and limited market access to the EU. In practice all this means that the EU is actually forcing a model of development, where countries have to choose between attracting foreign investment, and developing equitable and sustainable economies. Furthermore, the EU is using its new trade and investment agreements and negotiations to try and gain access to strategic minerals and leverage open new markets for European food exports, with devastating consequences for farmers and communities in those countries. One third of the EU’s raw materials are imported,6,7meaning that Europe is more dependent on imports than any other region in the world.8 This import dependency is likely to spiral upwards, as policies on bio fuels and bio-‐economies kick in. The EU’s target of having 10% of all transport fuel coming from renewable sources by 20209 is already driving an explosion in land grabbing in developing countries: there were nearly 300 significant land grabs for bio fuels between 2002 and 2012.10 Global demand for bio fuels stood at 81 billion litres in 2008, but this is predicted to increase to 172 billion litres by 2020. A more recent additional factor impacting on out-‐migration is climate change. International trade and

6 http://ec.europa.eu/trade/creating-‐opportunities/trade-‐topics/raw-‐materials/ 7 http://www.foeeurope.org/publications/2011/Briefing_Europe_Global_Land_Demand_Oct11.pdf 8 http://www.foeeurope.org/resource-‐use 9 http://ec.europa.eu/energy/renewables/biofuels/biofuels_en.htm 9 http://www.grain.org/article/entries/4653-‐land-‐grabbing-‐for-‐biofuels-‐must-‐stop 10 10http://ec.europa.eu/energy/renewables/biofuels/biofuels_en.htm 10 http://www.grain.org/article/entries/4653-‐land-‐grabbing-‐for-‐biofuels-‐must-‐stop

investment agreements are a driving force behind the growth of energy-‐intensive industrial sectors, the continued extraction and processing of fossil fuels, and the expansion of intensive agriculture. This has an impact on climate change -‐ desertification, flooding and storms, lost of arable land for livelihood, resulting in massive displacement, refuge seeking and migration. The current EU’s investment strategy is under contestation by both civil society in the EU and in the global South with advocacy for an alternative to the current corporate profit seeking strategy that could contribute to a sustainable future where people’s human rights are respected, and there is decent life opportunities and dignified employment for people in Europe and in the rest of the world. 3.2 COHERENCY EU DEVELOPMENT AID AND POST 2015 DEVELOPMENT FRAMEWORK MIGRATION The European commission developed the Global approach to migration in 2005, which became the Global approach to migration and mobility (GAMM) in 2011. The commission has used structured dialogue and mobility partnerships to implement the GAMM. These are intended to ensure that migration is well governed and permits greater mobility, but unfortunately this ‘cooperation policy’ with migrants’ countries of origin and transit consists in mainly offering incentives to combat irregular migration. The European Pact encourages the conclusion of EU-‐wide and bilateral agreements with those countries in which increased opportunities for legal migration are made in exchange for the origin countries’ commitment to participate in the control and readmission of undocumented migrants. European development aid to these countries becomes increasingly conditional on their adoption of ‘readmission agreements’ by which signatory states commit themselves to readmit into their territory, not only their nationals apprehended while residing irregularly in a country of the EU, but also other nationals who transited through their territory. Such policies are at odds with the EU’s commitment to enhance the contribution of migration to development. “Coherence between migration and development policies”, increasing border controls and the fight against ‘irregular immigration’ do not serve development nor contribute to the achievement of the millennium development goals. On the contrary, by making development conditional on cooperation in border control, the EU is turning development aid into a tool for its immigration policy.



3.3 REGIONAL INTEGRATION AND MOBILITY IN EU International economic integration expressed in Europe the dynamics towards European integration and EU enlargement lies behind the `marketisation’ of migration in Europe. Despite the nation-‐state’s continuous attempt to define migration as a political phenomenon -‐ controlled by categories of `regular’ and ìrregular’ migration, the granting (or not) of nationality and citizenship rights, and so forth, migration in Europe is in fact beginning to self-‐regulating supply and demand factors as the ultimate determinants of why people move and where they end up. May 1, 2004 enlargement brought two main issues: the potential from migration from the new member states, and the need to develop a proper immigration, asylum and border control policy for the entire EU. The EU-‐15 had committed to having in place by that date several key building blocks of what has been termed “An Area of Freedom, Security and Justice”.11 This refers to the entire territory of the EU Member States, which the EU aspires to make into a space in which: • Citizens are free to circulate;• Immigration is well managed; • Access to the humanitarian protection of asylum is well regulated;• Citizens and other residents are secure; • Justice is upheld for all. European Union citizenship, as established in the 1992 Treaty on European Union confers three key rights to the citizens of all EU Member States. One of these—the right to move to, reside, and take up employment in all Member States—is at the heart of the EU integration project. It broadens not only the personal horizons of EU citizens, but also offers the Union as a whole an opportunity to forge a common identity that crosses geographical, linguistic, and cultural boundaries. As the Union enlarged on May 1, 2004, the citizens of eight of the ten new Member States entered it as ‘second-‐class EU citizens’, prevented from exercising this right in full. They are able to move and reside across the EU, but they are not able to take up employment freely in all Member States. This seems at odds with the second key right, which is to equal treatment and non-‐discrimination on the grounds of nationality. The third key right is the right to vote and stand for election in European Parliament elections in all EU countries. Previous enlargements, in the 1980s, also excluded the citizens of new, Southern Member States, from free movement

11Communication from the Commission to the Council and the European Parliament, Biannual Update of the Scoreboard to Review Progress on the Creation of an Area of “Freedom, Security and Justice” in the European Union, 30 December, 2003.

rights. At that point, however, the concept of EU citizenship, and the rights attached to it, was not in place. 12 3.4 THE EVOLUTION OF EUROPEAN IMMIGRATION POLICY In the aftermath of WWII, the need for foreign workers for the reconstruction and modernisation of Western Europe led countries such as Britain, France, Germany and Netherlands to actively recruit migrant labour. The high immigration flows in that period -‐ known as guest workers -‐ were dictated by European countries' economic and labour needs. In the 1970s, northern European countries hit by economic recession and growing unemployment, put a halt to their laissez-‐faire immigration policies. Moreover, it had become clear that the stay of the first-‐wave of migrants was not temporary, but permanent. Until the mid-‐1980s, Western European states were reluctant to cooperate on immigration and asylum issues. The right to freedom of movement was recognised in the founding treaties of the European Community: in the Treaty of Paris (1951) establishing the European Coal and Steel Community (ECSC) and in the Treaty of Rome (1957) establishing the European Economic Community (EEC). However, such freedom of movement was a right only for EC nationals, who were understood as workers, rather than citizens. Nation states retained most of their policy-‐making authority regarding the immigration of third-‐country nationals (TCNs). From the early 1990s, European countries witnessed an upsurge in immigration flows and asylum demands. The reaction of policymakers was to strengthen national restrictions and increase cooperation on border control. In addition, the Schengen Agreement, signed in 1985, but which came into force ten years later, provided a further incentive to cooperate on asylum and immigration issues. With the dismantling of their internal borders, signatory countries sought to reassert their control over external borders through collaborative action. They adopted a common visa policy for third country nationals (TCNs) and created common Schengen information System (SIS) to facilitate interstate judicial cooperation.

12See: “Managing Migration in a European Union of 25 Members”, J. Van Selm and E. Tsolakis, Brussels, May 2004.



The need for a common European immigration and asylum policy was officially recognised in 1992 in the Treaty of Maastricht. EU cooperation on these issues was especially upgraded by the Treaty of Amsterdam, signed in 1997, which gave increased power to EU institutions on the subject. In 2004, the Dutch presidency of the European Council set a new agenda for immigration and asylum issues, known as the Hague Programme, for the period 2005 to 2010. More recently, in October 2008, the EU Council adopted the ‘European Pact on immigration and asylum’, drafted by the French presidency of the Union. The new five-‐year policy framework for immigration and asylum for the period 2010 to 2014, referred to as the Stockholm Programme, was adopted by EU leaders at the EU Council Summit in December 2009. 3.5 WIDE GAP BETWEEN THE EU’S DISCOURSE AND PRACTICE The population decline and ageing have reduced the labour force in the EU menbers states , thereby generating a demand for migrant workers in some areas of the economy. However, that increased demand has not been matched by a corresponding increase in regular migration channels. As a result, employers often resort to migrant workers in an irregular situation to fill their labour needs. Simultaneously there has been a liberalisation of the procedures for regular migration channels for highly qualified people – the “knowledge” migrants. There is a wide gap therefore between the EU’s discourse and practice with respect to migrants’ rights. In a strange historic twist, Europe’s current practice on migration policies follows Europe’s colonial past13 – while European governments do not directly administer their overseas territories, but they do maintain control over the movement of their peoples through immigration regulation. The injustice engendered by this system, forms one strand of the crisis of Europe’s system of immigration regulation. The second strand comes from the contradictory path that the European continent has taken through the creation of its single market, involving a right of free movement for labour alongside that of goods, services, and capital. A form of relatively free migration rights has by these means come to exist alongside the very restrictive controls imposed on the migration of people from outside the Union. Yet the political elites of the region have provided no 13 Cross, H. M. (2009). ‘The EU Migration Regime and West African Clandestine Migrants’, Journal of Contemporary European Research. 5 (2), pp. 171-‐187. Available at: http://www.jcer.net/ojs/index.php/jcer/article/view/175/148/

explanatory narrative why this division is required. In its absence, the officially sanctioned disparagement of so-‐called Third Country Nationals (TCNs) has been allowed to contaminate public opinion in respect of the free movement rights of EU citizens. But the fact that the EU’s fundamental law prevents member state governments from restricting this latter form of migration has meant that the EU has come to be seen as the wrongdoer which has forced unwanted migrants on national societies against the better judgment of their elected governments. All of this has contributed to the sense of democratic crisis and lack of accountability of the European authorities. This is the context in which right wing, anti-‐immigrant rhetoric has fused with a profound sense of the failure of the European Union project. Time and time again, it is migrants who are presented as the reasons why, not just the European Union is failing, but also the centrist, social market policies, which had supported the welfare state model since the end of the Second World War. The bureau of European policy advisers overview of the policies of Eu member States on low-‐skilled migration shows that these vary considerably. It observes that ‘despite [the need for low-‐skilled

workers] none of the 27 member States have specific institutional or legislative systems in place addressing their access to the labour market’. Europe regards itself as adhering to rights. a reason frequently cited for not signing the un convention on migrant Workers

(CMW) is that existing European legislation goes beyond its provisions. the bureau of European policy advisers (bEpa, 2010) finds that low-‐skilled migrants rarely enjoy the protection of even minimum labour standards and are prone to exploitation. This may be

due to the fact that under most existing tmps in Europe, migrants have ‘neither the right to free choice of employment nor the rights that citizens and legal

long-‐term residents typically enjoy’.

Despite the economic crisis and unemployment rates, there are openings for work, particularly in the “care” sector for Europe’s ageing population which is also not well serviced by national health systems. According to Eurostat statistics, the EU will need an additional 50 millions migrant workers from Third countries by 20601.

CHAPTER FOUR RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


4 THE MAKING OF FORTRESS EUROPE 4.1 SELECTIVE IMMIGRATION POLICY CREATES A SOCIETY

WITH CITIZENS WITH DIFFERENT RIGHTS In the late 80s and early 90s, ahead of the Maastricht Treaty (1992), and later the Amsterdam Treaty (1997), selective and restrictive immigration policies began to dominate migration policy agenda in the EU14.

4.1.2 Selective labour migration policy Migrants coming from the global south and from Eastern Europe have continued to fill the less attractive and less paid jobs not taken by nationals – in agriculture, building and construction work, and in care and domestic work. In these conditions, the migrants are often working without recognition and without rights. It is often the case that the migrant workers are employed at a skill level below their qualifications and their educational qualifications are equal to or higher than European nationals who might be doing the same job. The selective labour migration makes a distinction between “high skilled labourers” (= with rights) and “low skilled labourers” (= no rights or only temporary contracts). It promotes a hierarchy, as well between migrants as between workers – citizens and migrants. And with the extra and disproportionate administrative criteria currently applied to different categories of migrants it is nearly impossible for migrants and refugees to obtain a status, residence or work permit – and therefore they are forced to become undocumented. For example, domestic work is regarded as a ¨low skilled” work and in many European countries it is not a category for migration – therefore it is not possible for migrant domestic workers (MDWs) to acquire a working and resident permit for this work. In the UK, where a longstanding campaign won the right for MDWs, this has been rolled back in 2012 and MDWs again face an undocumented status.

14 Cross, H. M. (2009). ‘The EU Migration Regime and West African Clandestine Migrants’, Journal of Contemporary European Research. 5 (2), pp. 171-‐187. Available at: http://www.jcer.net/ojs/index.php/jcer/article/view/175/148/

4.1.3 Migrant Domestic Workers Despite the growing demand for care and domestic work in the private household in European society, domestic work has only been recently recognized as a proper work (ILO Convention 189) but not yet as a category for migration. The reality is that the demand for care and domestic workers is being filled by migrants (mainly women) coming from the global south15. These Migrant Domestic Workers (MDWs) are mainly working without recognition for their contribution to society in the area of reproductive work and are denied their human rights and labour rights. MDWs are unable to regularise their migration status or legitimise their work status because all avenues are closed by current migration policy. Their living and working conditions have been well documented and expose racist, sexist treatment as well as being placed in a ćlass´ outside society. Similar conditions are also frequently experienced by au-‐pairs and migrant domestic workers working in Embassies and the private homes of diplomats. The ILO Convention 189 did not include these categories of domestic workers.

15 http://focus-‐migration.hwwi.de/index.php?id=6029&L=1

Restrictive immigration policy have adopted various measures: most of the policy changes introduced by EU Member States were aimed at reducing the inflow of lower-‐skilled labour migration, prioritize nationals, reduce quotas, and change visa and admissions requirements. (IOM Thematic Study: Migration and the economic crisis in the European Union: implications for policy, 2010)



There is a growing acknowledgement in the European Commission on the decline of potential carers within the family16. Many more European women are working outside the home and participating in the formal economy. Unfortunately there is no recognition that these factors are all pull factors for women and men coming from the global south who are now mainly employed in the care sector as one main area of employment for migrants. The lack of this recognition on the contribution and role of migrants in this sector in combination with restrictive immigration policy has led to a very unequal labour position of migrants in the labour market. A second observation is the inequality and the status quo of gender inequality. There is acknowledgement that women in the EU member states are taking increasing part in the formal sector of the economy and therefore more and more care is being outsourced and migrant women are being 'contracted-‐in' to perform domestic and reproductive work. As the European Women's Lobby (EWL) has indicated in their contribution to, the ‘European Commission Public Consultation on ‘Exploiting the employment potential of the personal and household services’, the externalisation of care work is being channelled to individuals mainly migrants who are often highly skilled and many of whom have 3rd level education. Again due to the lack of recognition on the contribution and role of migrants there is a tendency that again women are doing the care work (and the extension of care work), but in the case of migrants there is also the issue of using skilled migrant labour for 'unequal' and low cost wages. 4.2 RESTRICTIVE MIGRATION POLICY AND HUMAN RIGHTS

IN CRISIS Since Amsterdam Treaty in 1997 Member States of the European Union have opted to follow a hard-‐line approach towards undocumented migrants that emphasizes the criminalization of migrants while ignoring their human rights17. Extra and disproportionate criteria are currently applied to migration, it is nearly impossible for migrants and refugees to obtain a refugee status, residence or work permit situations whereby migrant workers and members of their families are in, or are at risk of falling into, an irregular situation.

16 Employment, Social Affairs & Inclusion Summary consultation responses on Personal and household services 17 The making of the illegal migrant: How twenty years of Dutch immigration policy have created Fortress Netherlands, Rosalie Stephan and Leonie Verschuure, 2008. pg 1

The increasing restrictive immigration policy in combination with the criminalisation approach is creating the conditions for more abuse, exploitation and discrimination of undocumented migrants. The European Union consistently presents itself as a key player in development aid and as a fervent defender of Human rights. Indeed the Lisbon treaty that will soon provide the legal basis for the European Union identifies the rule of law and respect for human rights, both inside and outside the Union, as founding values. However, European immigration and asylum policies are not always in line with development objectives. They often contradict international Human Rights standards, notably the Universal Declaration of Human rights, the Convention on the elimination of all Forms of Racism and Discrimination, the Convention on the elimination of all Forms of discrimination against Women, and the Convention on the rights of the Child. In addition they do not always comply with the European Social Charter. It is particularly worrying that the European Union member states have not ratified the Un Migrant Workers Convention which aims at guaranteeing all migrant workers and members of their families the same fundamental human rights as nationals – regardless of their legal status. The Convention does identify a further number of specific situations of equal treatment that currently are valid only for documented migrants. Undocumented migrants must paradoxically raise public awareness of their situation while facing greater fears of being caught in public. This unstable environment increases the vulnerability of undocumented migrant families, women and children who are left without recourse for abuses and violation of their rights because of their lack of immigration status. Undocumented migrants have limited or no access at all to social rights, such as: education, healthcare, legal work opportunities, housing, free movement, legal and social protection. Immigration policy facilitates not only exclusion and systematic violations of the fundamental rights of undocumented migrants but it also denies them the right to meaningful participation in development.



Criminalization policy takes hold There has been increasing intervention of security frameworks and criminal law into the area of immigration policy also called as crimmigration. This policy stigmatizes both documented and undocumented migrants, and fosters stereotyped and xenophobic images more vulnerable to racism and Ìslamophobia. First there is the pervasive way in which the measures (a) separate foreigners from citizens through an elision of administrative and criminal law language and (b) subject the foreigner to measures, which cannot be applied to citizens, such as detention without charge, trial or conviction. Secondly, there is the criminalisation of persons, whether citizens or foreigners who engage with foreigners. The message, which is sent, is that contact with foreigners can be risky as it may result in criminal charges. This is particularly true for transport companies (which have difficulty avoiding carrying foreigners) and employers (who may be better able to avoid employing foreigners at all)18. Other people, going about their daily life, also become targets of this criminalisation such as landlords, doctors, friends etc. Contact with foreigners increasingly becomes associated with criminal law. The result may include rising levels of discrimination against persons suspected of being foreigners (often on the basis of race, ethnic origin or religion), xenophobia and/or hate crime. This criminalisation process is particularly intense at the EU borders. The United Nations Special Rapporteur on the human rights of migrants, François Crépeau, undertook a number of fact-‐finding missions in 2011-‐2012 to examine the rights of migrants in the Euro-‐Mediterranean region, focusing in particular on the management of the external borders of the European Union. Starting with a visit to the EU authorities in Brussels, Mr. Crépeau also carried out information-‐gathering missions to two key transit countries, Turkey and Tunisia, and two of the main entry points into the EU, Greece and Italy. In his Report to the UNHRC, the Special Rapporteur stressed that; “within EU institutional and policy structures, migration and border control have been increasingly integrated into security frameworks that emphasize policing, defence and criminality over a rights-‐based approach”. Mr. Crépeau also added that “I regret that within the EU policy context, irregular migration remains largely viewed as a security concern that must be stopped,” the independent expert said. “This is fundamentally at odds with a human rights approach, concerning the

18 Criminalisation of Migration in Europe: Human Rights Implications Issue Paper commissioned and published by Thomas Hammarberg, Council of Europe Commissioner for Human Rights

conceptualization of migrants as individuals and equal holders of human rights.’’ The Special Rapporteur also draws attention to the big investment in the FRONTEX and other new surveillance technologies such as EUROSUR – “despite the financial crisis, Frontex’s budget has steadily increased from €19.2 million in 2006, to nearly €42 million in 2007 topping €87 million by 2010.EUROSUR which will improve the information exchange and cooperation between border control authorities, also promises increased surveillance of the European Union ’s sea and land borders using a vast array of new technologies, off shore sensors and satellite tracking systems, at a high cost.”19 Inhumane conditions of detention of undocumented migrants Migrants are currently being held in detention in the interests of public order or national security. With a view to expulsion, undocumented migrants are kept in custody20. The conditions in the detention centres are stricter and more sober than in ordinary prisons121. The detention cells can hold up to six migrants and often times there is only limited access to meaningful daily activities and communication. Isolation cells are implemented to monitor or restore order22. According to the 2013 Report of François Crépeau, the UN Special Rapporteur on Migration “In some senses, the harmonisation of European Union law, and in particular the passing of the Return Directive can be said to have institutionalized detention within the European Union as a viable tool in migration management.” The detention is an excessive practice and the conditions are inappropriate and disproportionate for those whose only “crime” is not having legal documents, especially considering that most of them play an active role in the economic development both in the host country and in the country of origin. The threat of detention and eventual expulsion prevents many migrants from reporting rights abuses to the authorities23.

19http://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/SRMigrantsIndex.aspx Full Report: http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session23/Pages/ListReports.aspx 20 http://en.justitiaetpax.nl/project/14 21 http://en.justitiaetpax.nl/project/14 22 Humaniteit in vreemdelingenbewaring', Justitia et Pax, May 2010 23 European Social Watch report 2009, Migrants in Europe as development Actors, Between hope and vulnerability



Impact of Restrictive Immigration Policy on Undocumented Women The limited access to justice and social services has particularly strong repercussions among migrant women. The lack of a legal status makes them the more vulnerable for domestic and sexual violence. Undocumented migrant women are often employed as domestic workers in a working place with no public oversight. Reporting abuse puts an undocumented migrant at risk of deportation, which often exempts employers from the legal repercussions for underpaying, overworking or sexually abusing their female employees. Lack of status also prevents undocumented migrant women from receiving workers compensation for sick leave or un-‐just termination. Migrant women experience the same barriers by reporting domestic or sexual abuse. As said before, the restrictive immigration policy makes it also harder to maintain their legal immigration status. Impact of Restrictive Immigration Policy on Undocumented Children Despite a clear legal framework obliging states to respect and ensure the rights of all children regardless of migration status, children in the context of international migration face numerous systematic violations of their civil, cultural, economic, political and social rights in countries of origin, transit and destination. Child rights are largely absent in migration policies and practices and even directly violated by national laws. Migrant children are largely excluded from public policies and services, particularly when undocumented, leading to further exclusion and child rights violations. The interconnections between the need to protect and promote the rights of all children in the context of migration are under-‐represented in development strategies and programmes. The Committee on the Rights of the Child has called for States Parties to the Convention to “adopt comprehensive human rights-‐based laws and policies to ensure that all children involved in or affected by international migration enjoy the full protection of the Convention in a timely manner, regardless of age, economic status, documentation status of themselves or their parents, in both voluntary and involuntary migration situations, whether accompanied or unaccompanied, or any other.24”

24 Committee on the Rights of the Child (2013) Report of the 2012 Day of General Discussion on the Rights of all children in the context of international migration, para 58.

The Committee has elaborated a number of concrete recommendations on how to implement this systemic comprehensive child-‐rights approach to migration. Immigration control is taking clear priority over the rights of the child, including the right to protection against exploitation, abuse and other forms of violence. In violation to the Convention on the Rights of the Child States often fail to ensure the principle of non-‐discrimination when it comes to migrant children. Children in context of migration face severe restriction on access to services and justice, increasing thereby the likelihood that they become abused and exploited. Immigration detention violates an array of civil, cultural, economic, political and social rights, in terms of the fact of detention, as well as its process, length and conditions. Nevertheless, it remains a widespread policy in all world regions, with minimal safeguards or legitimisation. The Committee on the Rights on the Child has affirmed that, “Children should not be criminalized or subject to punitive measures because of their or their parents’ migration status. The detention of a child because of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status.” The Committee has also clarified that to respect the rights of the child, “States should adopt legislation, policies and practices that allow children to remain with family members and/or guardians if they are present in the transit and/or destination countries and be accommodated as a family in non-‐custodial, community-‐based contexts while their immigration status is being resolved.”25

25 Committee on the Rights of the Child (2013) Report of the 2012 Day of General Discussion on the Rights of all children in the context of international migration, para. 79.

CHAPTER FIVE RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


5 CRISIS IN EUROPE The current crisis in Europe has revealed the extent of the strain that the European social and political model has been placed under by three decades of neoliberal economic policies. The broad social consensus sustained by welfare state systems is fast unwinding as the policies of privatisation and austerity have rolled out government agendas handing over to corporations and private entities schools, hospitals, nursing homes, water and power utilities, telecommunications, and other vital Services. See Annex 1 Besides privatisation of public services and assets, the consequences of the austerity policies are massive unemployment as well as a serious downgrading of working and living conditions. In Europe the austerity policies put forward by governments are eroding the social gains that men and women built and benefited from in previous decades. Intensifying conditions of inequalities between peoples is resulting in impoverishment and disenfranchisement of rights that were gained through earlier struggles of people’s movements in Europe26. These, in turn, lead to widespread increases in poverty: today, 120 million people in the EU at risk of poverty or social exclusion2728. One of the major casualties of the current EU crisis policy of ‘austerity’ is the hollowing out of workers rights including collective bargaining and massive unemployment. Eurostat estimates that 26.522 million men and women in the EU-‐2729, of whom 19.340 million were in the euro area (EA-‐17), were unemployed in May 2013. Compared with April 2013, the number of persons unemployed increased by 15.000 in the EU-‐27 and by 67.000 in the euro area. Compared with May 2012, unemployment rose by 1, 438 000 in the EU-‐27 and by 1, 459 000 in the euro area. Among the Member States, the lowest unemployment rates were recorded in Austria (4.7 %), Germany (5.3 %) and Luxembourg (5.7 %), and the highest rates in Spain (26.9 %) and Greece (26.8 % in March 2013).

26 A PEOPLES’ MANIFESTO, Our urgent common priorities for a democratic, social, ecological and feminist EuropeROLL BACK AUSTERITY AND CLAIM REAL DEMOCRACY!, The Alter Summit in Athens on June 7th and 8th 2013 will be an important step in this direction. Calendar and information: www.altersummit.eu 27 http://irishstudentleftonline.wordpress.com/2013/04/11/the-‐eu-‐need-‐not-‐look-‐beyond-‐its-‐own-‐borders-‐to-‐see-‐widespread-‐poverty/ 28 http://ec.europa.eu/social/main.jsp?catId=751 29 http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Unemployment_statistics

This current labour market environment has very heavy impacts also on migrants – less hours of work are available and they are expected to work for less pay. Besides many also lose their job and consequently also their homes since they are unable to sustain mortgage payments. However there are counter trends that effect employment patterns for migrants.

Millions of Europeans are still on the side-‐lines, both

from the labour market and from social inclusion and

integration. Their numbers are increasing, as

witnessed by the statistics from 2011:

-‐ 24% of all the EU population (over 120 million

people), are at risk of poverty or social exclusion –

this includes 27% of all children in Europe, 20.5%

of those over 65, and 9% of those with a job

-‐ Close to 9% of all Europeans live in severe

material deprivation -‐ they don't have the

resources to own a washing machine, a car, a

telephone, to heat their homes or face

unexpected expenses

-‐ 17% of Europeans live on less than 60% of their

country's average household income

-‐ 10% of Europeans live in households where no

one has a job

-‐ There is a wide gap in performance between the

welfare systems in different EU countries -‐ the

best reduced the risk of poverty by 35%, the least

effective by less than 15% (EU average 35%)

-‐ 12 million more women than men are living in

poverty in the EU

-‐ Specific populations such as the Roma are

especially challenged: two-‐thirds are

unemployed, one in two children attends

kindergarten and only 15% complete secondary

school.

CHAPTER FIVE RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


At the same time, as mainstream parties of the centre left and the centre right have conceded their incapacity to maintain the old form of the social contract between labour and capital, stable parliamentary democracy itself has been plunged into crisis, by the rise of populist right wing nationalist movements and parties. In country after country, blame for the breakdown of the European welfare state model is being placed on immigrant, migrant and refugee communities while allowing the failure of the economic model of neo-‐liberalism to escape scarcely without criticism. It is within this context that currently, we as migrants and refugees living and working in the member states of the EU are living the economic, political and social impacts being experienced by the European people. In addition, we are also impacted in specific ways, which are not isolated incidents but are the direct consequence of growing restrictive immigration politics in Europe. Instead of protecting human rights in this era of crisis for all peoples, we have witnessed the EU adopt exclusionary immigration policy and practice turning a blind eye to the root causes of migration and generating a human rights crisis on the borders of Europe. The gaps between discourse and practice of human rights protection in the EU are nowhere more exposed than in the militarised borders to the east and the Mediterranean Sea to the south where 17,306 migrant and refugee deaths have taken place in the period 1993-‐june 201330. See Annex 2 Border map

30 http://www.unitedagainstracism.org/pages/underframeFatalRealitiesFortressEurope.htm#99

EU claims that the so-‐called ‘Race Directive’ (EC, 2000) is the most advanced legislation in the world. Unfortunately, the Race Directive has serious limitations: Article 2 excludes “any treatment which arises from the legal status of the third country nationals”, thus allowing Member States to adopt discriminatory immigration laws and creating a de facto barrier to access by immigrants to legal remedies against racial and multiple discriminations

CHAPTER SIX RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


6 RACISM AND DISCRIMINATION & RIGHTIST POLITICAL

TRENDS In 1997, the European Union established a legal basis to develop ‘appropriate measures to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’ (Article 19 of the Treaty on the Functioning of the EU). Using these powers the European Union adopted the Race Equality Directive 2000/43/EC in June 2000, and later that year the Employment Equality Directive 2000/78/EC. The EU also adopted a Framework Decision against Racism and Xenophobia in April 2007. This should ensure that racism and xenophobia are punishable by effective, proportionate and dissuasive criminal penalties across the EU. These measures have played a key role in the development of a common anti-‐discrimination agenda, adopted in 2000, and were a major step in the fight against discrimination in Europe. However the EU must not see progress to date as the endgame, but rather a first step towards a society in which everyone can participate equally. Despite these positive developments, racism and discrimination are still structural in European society and continue to be experienced by ethnic and religious minority groups, as well as by migrants and refugees across the European Union in a range of sectors, including employment, education, health, housing and accommodation, and access to goods and services. In addition, the impact of counter-‐terrorism measures on the protection of human rights on the one hand, and the racialisation of the security agenda on the other, are worrying trends. These effects need to be monitored closely to ensure that anti-‐racism is part of counter-‐terrorism policies and that the fundamental human rights of all are respected. The context of the deepening economic and social crisis particularly during the last five years, Europe has seen the rising trend of political parties of the right, which have also gained in electoral representation in local, national and European Parliament elections. In Greece for example, the Golden Dawn, a neo-‐fascist and overt racist political party has 18 members in parliament. Protected by the police they openly attack individual migrants on the streets or targets shops and small business run by migrants.

Europe also continues to experience problems of hate crimes and violence perpetrated against migrants and refugees as well as European religious and ethnic minorities – for example the Roma people. In the aftermath of the 9/11 New York attacks the dominance of the security agenda has created conditions where Islamophobia has also emerged as a major issue. The European Network Against Racism (ENAR) 2011/12 Shadow Report on racism in Europe includes a special focus on Muslim communities or communities of Muslim origin. It is the first pan-‐European qualitative survey of Islamophobia and makes an assessment on how these communities experience discrimination and how Islamophobia manifests itself across the 26 member states of the EU31. The report establishes that Islamophobia is widespread and prejudice towards Muslims has been more visible than that experienced by other religious or ethnic minority groups. The manifestations of racist violence are difficult to quantify as official data collection is still non-‐existent or requires further development in many EU countries. Under-‐recording and denial of the existence of racist crime is still common practice in many Member States. It is therefore essential to ensure that and anti-‐racist and anti-‐discrimination legislation e.g. the Framework Decision on racism and xenophobia (2007) is transposed by all EU Member States and properly implemented and that the gaps in existing legislation be filled and that institutional discrimination and multiple discrimination be adequately addressed. 6.1 IMPLEMENTATION OF ANTI-‐DISCRIMINATION POLICIES Almost all European countries have adopted legal provisions against racial discrimination. Nevertheless, there are still important gaps to be filled, the most important being the distance and inconsistency between legislation and its implementation. Members of ethnic minorities, including immigrants, have difficulty accessing crucial mechanisms. Recourse to legal remedies is often prevented by lack of information and basic instruments (mandatory by law), like judicial interpreters and translated documents. Legal remedies are often barely accessible to members of targeted groups; specialised bodies are limited in power and scope and under-‐resourced; and law enforcement agencies are neither specifically trained nor monitored for discriminatory behaviour.

31 www.enar-‐eu.org/Page_Generale.asp?DocID=15294&langue=EN

ANNEXES RECLAIMING HUMAN RIGHTS, MIGRANT MOBILITY AND TRANSNATIONAL ENGAGEMENT


ANNEXES 1 THE GREAT EUROPEAN FIRE SALE



ANNEX 2 DEATH AT BORDERS



ANNEX 3 DÉCLARATION PLATEFORME EURO-‐MAROCAINE « MIGRATION, DEVELOPPEMENT, DEMOCRATIE, CITOYENNETE Le dialogue de haut niveau des Nations Unies Migrations et Développement est organisé dans un contexte particulièrement délicat. Le monde traverse une crise profonde porteuse de graves dangers économiques, culturels et sociétaux. Cette crise peut engendrer le pire comme le meilleur. Les migrants à travers le monde sont l’une des catégories sociales les plus vulnérables, variable d’ajustement de politiques de courte vue sur le plan économique, victimes d’une montée inquiétante du racisme, de la xénophobie et du rejet de l’Autre. Au Sud comme au Nord, les migrants sont les éternels bouc-‐ émissaires d’un système basé sur le profit et la déshumanisation des rapports entre les peuples. Face à ces dangers, nous sommes au carrefour de choix historiques : Soit continuer dans une impasse d’égoïsmes nationaux et régionaux, se barricadant derrière des murs visibles et invisibles, menant des politiques faisant le lit des bêtes immondes, n’hésitant pas à souffler sur les braises pour mettre à l’index les migrants source, selon eux, de tous les maux de la société. Soit saisir ces énormes défis pour initier une nouvelle vision du monde capable de mobiliser les énergies positives des peuples et la solidarité internationale, mettant l’Homme au cœur de tout projet de développement humain. Nous associations et plateformes issues des migrations internationales, préconisons l’urgence et la nécessité de mener une nouvelle politique migratoire au niveau mondial s’appuyant sur des idées-‐forces novatrices, en particulier : 1. La libre circulation et d’installation de toutes et

de tous : Dans son rapport 2009 sur le développement humain, le PNUD a démontré que les migrants sont les principaux vecteurs du développement loin devant l’aide publique de développement (APD). La production des richesses humaines, économiques et culturelles passe par la libre circulation des êtres humains source d’accumulation, d’échange et de connaissance mutuelle entre les peuples et les individus. Les barrières érigées entre le Nord et le Sud sont non seulement inefficaces mais surtout mènent des pans entiers de la jeunesse des pays du Sud

vers la mort certaine dans le plus grand cimetière marin du monde qu’est devenu la méditerranée, ou contre des murs électrifiés (ex. à Ceuta, Melilla, frontière mexico américaine…).

2. La reconnaissance des droits politiques et civiques des migrants : Le statut d’infra-‐droit des migrants à travers le monde aggrave les inégalités, exacerbe les tensions entre les différentes composantes des sociétés et renforce l’extrême droite dans ses campagnes haineuses contre les plus démunis. L’égalité des droits économiques, sociaux, culturels et politiques basée sur la résidence est le seul fondement juridique qui doit régir les rapports entre les hommes et les femmes à travers le monde.

3. La gouvernance démocratique des questions migratoires : -‐ Alors que l’immigration est au cœur

d’enjeux planétaires, elle reste prisonnière de politiques nationales ou régionales essentiellement sécuritaires. Il est temps que les mécanismes et les instruments mis en place au niveau mondial puissent intégrer les droits des migrants dans la transparence. Des actes urgents sont nécessaires à poser, notamment :

-‐ La ratification par tous les Etats membres des Nations Unies de la convention internationale des droits des migrants et de leurs familles.

-‐ L’inscription des migrations internationales dans l’agenda post 2015 des Objectifs Mondiaux du Millénaire (OMD) comme axe transversal.

L’association systématique des OSIM (Organisations de Solidarité Internationales Migrantes) dans les espaces de réflexion et de décision concernant les migrations internationales.



ANNEX 4 RELEVANT UN AND ILO

CONVENTIONS

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) aims at preventing and combating all forms of discrimination against women in both private and public life. It defines discrimination as every form of distinction, exclusion or restriction that impairs the rights of women. Gender based violence is considered to be a form of discrimination against women because it impairs women’s ability to enjoy their rights and freedoms on a basis of equality with men (General Recommendation no. 19). The Convention indicates methods for combating discrimination, and lays down what States must do to improve the position of women in their country. By ratifying the Convention, States commit themselves to incorporating the principle of equality of men and women in their legal system, abolishing all discriminatory laws, and ensuring the elimination of all acts of discrimination against women by persons, organisations and enterprises. Over 185 States have ratified the Convention. Article 6 CEDAW obliges State parties to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women”. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits racial discrimination, e.g. any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) prohibits any form of torture as well as other acts of cruel, inhuman or degrading treatment or punishment. Article 3 of the Convention prohibits countries from returning (‘refouler’) or extraditing personsto their State of origin (or any other State), if there were substantial grounds for believing they would be at risk of being subjected to torture. This is called the principle of non-‐refoulement. It also forbids activities, which might not be considered torture per se, but whichconstitute cruel or degrading treatment. The Convention on the Rights of the Child (CRC) specifically addresses the rights of children, since people under 18 years old often need special care and protection that adults do not. The Convention sets out

the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life. The four core principles of the Convention are: non-‐discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) protects the rights of migrant workers and their families, but only 39 States have ratified it. No country in the Global North has ratified it. According to the Convention migrant workers are entitled to enjoy their basic human rights regardless of their legal status. It seeks to prevent and eliminate the exploitation of migrant workers throughout the entire migration process by providing a set of binding international standards to address the treatment, welfare and human rights of both documented and undocumented migrants. It also details the measures to be taken to combat the illegal or clandestine recruitment and trafficking of migrant workers. THE 8 FUNDAMENTAL ILO CONVENTIONS ON HUMAN RIGHTS ARE: • Freedom of Association and Protection of the Right

to Organise Convention, 1948 (No. 87) • Right to Organise and Collective Bargaining

Convention, 1949 (No. 98) • Forced Labour Convention, 1930 (No. 29), and

Abolition of Forced Labour Convention, 1957 (No. 105)

• Equal Remuneration Convention, 1951 (No. 100) • Discrimination (Employment and Occupation)

Convention, 1958 (No. 111) • Minimum Age Convention, 1973 (No. 138) • Worst Forms of Child Labour Convention, 1999

(No. 182). IMPORTANT ILO TREATY FOR MIGRANTS ARE: • ILO Convention on Migrant Workers, 1975 (No. 143), which specifically addresses the rights of undocumented migrant workers. ILO Convention 97: Migration for Employment convention (1949), which introduces the principle of equal treatment for domestic and migrant workers LO Convention 143: Migrant Workers (Supplementary provisions) (1975), which advances rights to equal opportunities and integration of migrant workers, and covers irregular migrants.



ANNEX 5 CAMPAIGN POSITION J4DW Member of RESPECT Network in Europe Campaign Position Paper Campaign Aims We are campaigning for: 1. The restoration and expansion of the previous

immigration system governing migrant domestic

workers accompanying their employers to the UK. Specifically:

a. The right to change employer; b. The right to renew the domestic worker

visa while still in the UK; c. The right to settlement following five

years presence in the UK; d. The right to family reunion;

e. All the above to be applied to domestic workers working in diplomatic

households. 2. The signing, ratification and implementation of

the ILO Convention on domestic work by the UK government.

Why Are we Campaigning? On April 6th 2012 the British government removed the right of people on a migrant domestic worker visa to change employers. They are now given a visa that is valid for a maximum of six months and only for employment with a named employer. The removal of these rights from incoming domestic workers has severe repercussions on them as workers and as people. There is no protection from abuse and exploitation. There are urgent, practical drivers behind our campaign.

”My employer would lock me in my room after I finished my work at midnight and unlock my room at 4.30 am so I could start my work again. I was caged. My body would tremble of hunger as I drank water so I could survive every day, I thought of dying and that I would never see my family again. As I searched for my way out to survive I found my fellow domestic workers in J4DW”. The government says that people in extreme situations will be protected by anti-‐trafficking legislation and that people who ‘experience abuse but are not trafficked’ will be supported and returned to their country of origin. We reject a ‘protection’ that denies domestic workers basic labour rights. Anti-‐trafficking protections are not enough, and immigration regulations are not protecting domestic workers but making us more vulnerable. Domestic workers experience: Exclusion – cleaners and carers are excluded from our society in many ways. They often work long, anti-‐social hours making it difficult for them to balance a family life, and to get involved in community activities. Their work is invisible and ignored – indeed the better they are at their work the more invisible it is. Domestic work is support work, unnoticed if it is done well, but noticed if it isn’t done. Employers can keep them isolated, especially if they are live-‐in. These challenges are greater for migrants who are excluded as migrants as well as domestic workers. Language difficulties, unfamiliarity with British culture, lack of friends and contacts in British society, mean that migrant domestic workers are excluded. The domestic worker visa makes this exclusion even more extreme by limiting the holder to a maximum of six months stay in the UK. The message is clear: you will not be included in British society.



Exploitation – the lack of status of domestic work and its invisibility mean it is not valued. This is clearly reflected in the level of pay that is usual in the sector. Employers often do not make NI contributions, pay sick pay or maternity leave, or offer paid holidays and time off. Workers and carers especially those who live-‐in, are often called upon to do unpaid ‘favours’ e.g. babysitting, and to be on call. Excessive hours with no breaks are a serious problem. Exploitation is rife throughout the sector, and there is a particular problem with the application of the minimum wage. The so-‐called ‘family worker exemption’ allows that household workers who are treated ‘as a member of the family’ are not eligible for the minimum wage. A domestic worker in a private household is employed to work. She is not a member of the family, no matter however she is treated. These difficulties are even more acute for migrant workers, especially if they are not able to work legally. They cannot access rights even if they technically should be able to. For domestic worker visa holders, although they have the right in theory to these protections, the fact that they are only resident for 6 months makes them meaningless in practice. Imprisonment – domestic workers can be highly dependent on their employer because their workplace is someone else’s house. This is even more difficult when they are living in. For people who are migrants this can mean that employers can exercise considerable power over them. Good employers may use this power to help their worker, by supporting visa applications for example, but bad employers can use it to harm them, even as far as physical abuse. (ref: Bonded Labour: Kalayaan & Oxfam) For domestic worker visa holders this dependence is made even more extreme through government enforcement of visa restrictions. If the domestic worker does not obey their employer they can simply be ‘sent home’. This is not free labour but servitude. Domestic work is central to human life. It is the beginning and the end of our labour. Yet it is always treated as ‘exceptional’, something that doesn’t fit, unskilled and unimportant. We know that to demand respect and value the work of caring, cleaning and cooking, is ambitious and requires a fundamental change for most people. But to restore the domestic worker visa and to extend it to apply to people who work for diplomats is a step along the way and it is not a big step. It is the only just

response to the new rules Tying migrant domestic workers to employers, not giving them the independent right to renew their visa or to settle, only increases exclusion, exploitation and power differences. No decent employer wants to take advantage of this. At a time when most governments of the world have signed the ILO Convention on Decent Work for Domestic Workers, the British government must restore and extend the visa and recognise the rights of all domestic workers, migrant and non-‐migrant, by signing and ratifying the ILO Convention.

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Reclaiming Human Rights, Migrant Mobility and Transnational Engagement

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