FRA 2011 Migrants in an Irregular Situation En

8/20/2019 FRA 2011 Migrants in an Irregular Situation En

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SOLIDARITY

Fundamental rights ofmigrants in an irregular situation

in the European Union

EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS


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Photo (cover & inside): iStockphoto®

More information on the European Union is available on the Internet (http://europa.eu).

FRA – European Union Agency for Fundamental RightsSchwarzenbergplatz 11 – 1040 Vienna – AustriaTel.: +43 (0)1 580 30 - 0 – Fax: +43 (0)1 580 30 - 699Email: [email protected] – fra.europa.eu

Cataloguing data can be found at the end of this publication.

Luxembourg: Publications Ofce of the European Union, 2011

ISBN 978-92-9192-706-7doi:10.2811/31559

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Fundamental rights ofmigrants in an irregular situation

in the European UnionComparative report


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Foreword

Millions of migrants in Europe live ‘irregularly’, a vulnerable situation that puts them at heightened risk offundamental rights violations. Their situation is irregular either because they do not have a valid authorisation tostay or reside, having entered the European Union (EU) in various ways, or they become irregular as they overstaythe period to which they are entitled. They try to make a living, typically in jobs which are dangerous, dirty ordegrading, lling gaps in the labour market, sometimes under exploitative conditions. Fearful of detection, arrestand expulsion, migrants in an irregular situation often face considerable hurdles in accessing their fundamentalrights, including healthcare, education of their children or appropriate housing. This report addresses a numberof these fundamental rights challenges with respect to migrants in an irregular situation.

The EU has developed legislation on measures intended to facilitate regular migration and to address irregularmigration. Legal migration opportunities for low-skilled labour, however, remain limited in many EU countries assecondary EU law has primarily focused on highly skilled labour. In 2010, the European Commission presented

a proposal for a seasonal migrant workers directive, which, once adopted, should provide a tool to ll seasonallabour demands, particularly for unskilled workers, through regular channels. This would be a step towardssimplifying and amplifying the options for legal migration, thus reducing the demands on an irregular workforce.

Except for specic categories of persons, such as asylum seekers, it is the prerogative of states to decide whocan enter a country and who cannot. Once an individual is in the country, however, he or she is entitled to enjoya set of fundamental rights granted to all human beings irrespective of their migration status. As this reportdemonstrates, access to basic rights, such as education or healthcare, by migrants in an irregular situation differssignicantly among EU Member States in law and practice.

The European Union Agency for Fundamental Rights (FRA) carried out comparative research on the fundamentalrights situation of irregular migrants through a review of available literature and legal sources, a set of

questionnaires sent to national and local authorities as well as civil society representatives and through qualitativeinterviews with migrants in an irregular situation and those who work with them. Based on the ndings of thisresearch, the report advises on how fundamental rights should be incorporated in policies, laws and administrativepractices affecting migrants in irregular situations.

This report was presented in November 2011 at the Fundamental Rights Conference organised by the FRA togetherwith the Polish EU Presidency.

Morten KjaerumDirector


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Contents

FOREWORD .......................................................................................................................................................

EXECUTIVE SUMMARY .....................................................................................................................................

OPINIONS ........................................................................................................................................................

INTRODUCTION ...............................................................................................................................................

. FUNDAMENTAL RIGHTS FRAMEWORK .................................................................................................

1.1 International human rights law .............................. ................................. ................................. .......................191.2 The Council of Europe framework ................................ ................................ ................................. ..................231.3 European Union law ................................. ................................ ................................. ................................. ...... 24Conclusions ...................................................................................................................................................................25

. NON REMOVED PERSONS ....................................................................................................................

2.1 Reasons preventing removal ............................. ................................ ................................. ............................ 292.2 Responses to non-removability ............................. ................................. ................................. ...................... 34

Conclusions .............................. ................................. ................................. ................................. ................................ . 38. IMMIGRATION LAW ENFORCEMENT ...................................................................................................

3.1 Direct enforcement measures ................................ ................................. ................................. ...................... 393.2 Reporting obligations .............................. ................................ ................................. ................................. ...... 42Conclusions .............................. ................................. ................................. ................................. ................................ . 45

. WORKERS’ RIGHTS ................................................................................................................................

4.1 Withheld or unfair pay ................................. ................................. ................................. ................................ .484.2 Compensation for work accidents .............................. ................................ ................................. .................. 514.3 Access to justice ................................ ................................. ................................. ................................. ............53Conclusions .............................. ................................. ................................. ................................. ................................ . 57

. ADEQUATE STANDARD OF LIVING ........................................................................................................

5.1 Access to private accommodation .............................. ................................ ................................. ..................615.2 Access to shelter for homeless people ............................ ................................. ................................. ........... 645.3 Housing and social assistance for non-removed migrants ............................. ................................. ........... 65Conclusions ..................................................................................................................................................................69

. HEALTHCARE ..........................................................................................................................................

6.1 The right to healthcare in the 27 European Union Member States ............................... ............................ 73

6.2 Entitlements for specic groups ............................. ................................. ................................. ...................... 786.3 Obstacles to accessing healthcare ............................... ................................ ................................. ................. 82Conclusions .............................. ................................. ................................. ................................. ................................ . 83


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. EDUCATION ............................................................................................................................................

7.1 The right to education in national law ............................... ................................. ................................. .......... 877.2 Obstacles preventing access to schools in practice ............................... ................................. ..................... 907.3 Civil engagement ................................ ................................. ................................. ................................. .......... 92Conclusions ................................ ................................ ................................. ................................. ................................ 93

. FAMILY LIFE ..........................................................................................................................................

8.1 Reasons for irregularity involving families ............................. ................................. ................................ .....968.2 Patterns of irregularity involving families ............................... ................................. ................................ .....988.3 Family reunication ............................. ................................. ................................. ................................. ..........998.4 Access to marriage .............................. ................................. ................................. ................................. .........102Conclusions .................................................................................................................................................................103

ANNEX ..........................................................................................................................................................

Figures and tablesTable 1: State parties to key UN and ILO instruments, EU27 ................................. ................................. .......... 20Table 2: Policy options for persons not removed due to practical or technical

obstacles – certication given to persons concerned .............................. ................................. ...........33Table 3: Ways out of limbo: examples of residence permit for tolerated persons ............................. .......... 37Table 4: Main international law provisions on fair remuneration .............................. ................................. .....49Table 5: Main international law provisions on compensation for work accidents .............................. ...........52Table 6: Main human rights provisions on adequate standards of living ............................ ........................... 60Table 7: Main human rights provisions relating to healthcare .............................. ................................. .......... 72Table 8: Free healthcare entitlements for irregular migrant children ................. ................................. ..........80

Table 9: Key human rights provisions on education ............................... ................................ ........................... 86Table 10: The right to education for undocumented children, EU27 ................................. ................................ 89Table 11: Family members most often in an irregular situation according to civil society

responses, selected EU Member States ...............................................................................................99

Figure 1: Orders to leave for 2009 and 2010 and indications of conrmed returnsof third-country nationals (no. of persons) ............................... ................................ ........................... 28

Figure 2: Obstacles to removal ............................ ................................. ................................. ................................ 29Figure 3: Degree of security of residence ..................................... ................................ ................................. ..... 34Figure 4: Is irregular entry/stay considered a crime? .............................. ................................ ........................... 43Figure 5: Punishment for renting shelter to migrants in an irregular situation, EU27 ............................... ..... 63Figure 6: General healthcare entitlements for migrants in an irregular situation, EU27 ................................ 75Figure 7: Reasons considered most important by civil society responses for irregularity

of family members, selected EU Member States ...............................................................................98Figure 8: Access to legal status for irregular family members of legal residents according

to civil society responses, selected EU Member States ............................... ................................. ... 100Figure A1: Estimates of migrants in an irregular situation, EU27 .............................. ................................. ........ 105


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Executive summary

International human rights instruments and theEuropean Convention on Human Rights (ECHR)enshrine and enforce rights which are of generalapplication. Unless individuals are expressly excludedfrom their scope of application, rights and freedomsare applicable to everyone within the jurisdictionof the contracting parties, including migrants in anirregular situation. Non-compliance with the conditionsfor entry, stay or residence in a European Union (EU)Member State cannot deprive migrants in an irregularsituation of certain basic rights shared by all humanbeings.

EU law has been interpreted in light of human rightsstandards which are binding on EU Member Statesas has been evidenced by references of the Courtof Justice of the European Union (CJEU) to the ECHR,the European Social Charter (ESC), the InternationalCovenant on Civil and Political Rights (ICCPR) andInternational Labour Organization (ILO) conventions.

EU law must be implemented and applied inaccordance with the Charter of Fundamental Rights ofthe European Union. In all those areas not covered by

EU law, fundamental rights continue to be guaranteedat the national level. Unlike for legal migrants,there are no explicit safeguards in EU primary lawconcerning the rights of persons who are subject tothe measures aimed at controlling illegal immigrationand trafcking in human beings. However, the Treatyon the Functioning of the European Union for example,sets out social and health protection measures that arenot expressly restricted to nationals or lawfully stayingthird-country nationals. In addition, EU secondary lawspells out the rights of migrants in an irregular situationto different degrees depending on the thematic area.For persons in return procedures or who are notremoved, a minimum level of specic fundamentalrights is detailed in the EU Return Directive.

Two broad categories among the irregular migrantpopulation in the EU can be distinguished. A firstgroup is composed of those persons who live in hiding.Their stay is not known to the police or immigrationauthorities. An estimated 1.9 to 3.8 million migrants inan irregular situation were staying in the EU in 2008,according to the EU-funded project Clandestino.A second group consists of third-country nationalswhose presence in the territory is known to the

immigration authorities, but who, for a variety ofreasons related to legal or humanitarian considerations,practical obstacles or policy choices, are not removed.In these cases, the national authorities may decide

to suspend, not issue or merely not enforce a returnorder, without, however, granting residence rights. Thenumber of persons who are not removed but typicallylack regular status is believed to be considerable,although no reliable estimates exist.

The EU Return Directive contains only limited guidanceon the fundamental rights guarantees for persons whoare not removed (Article 14) and does not provide forany mechanism that could put an end to situations oflegal limbo deriving from protracted non-removability.EU Member States have chosen different responses inacknowledging non-removed persons, ranging fromgranting (temporary) residence permits to formally orde facto tolerating their presence to not certifying theirnon-removal at all. In most cases, any residence title,if awarded, depends on the reasons for not removingthe third-country national and is subject to differentconditions in the individual EU Member States. Theseconditions become directly relevant to fundamentalrights issues as the degree of access to rights is oftendetermined by the legal residence status obtained.

While states have a right to control immigration,

certain enforcement measures , such as reportingobligations, data sharing, or arresting migrants in anirregular situation in front of schools, have a negativeand often disproportionate impact on the effectiveexercise of their fundamental rights. Similarly, linkingworkplace inspections with checks on immigrationstatus creates an environment which is not conduciveto identifying labour exploitation or abuse asmigrants in an irregular situation are discouragedfrom reporting on or testifying to such conditions. Itis often the atmosphere of fear generated by theseenforcement measures that prevents migrants in anirregular situation from claiming their fundamentalrights or seeking redress when they are violated.Public institutions may be obliged to report migrantsin an irregular situation in EU Member States whereirregular entry or stay constitutes a crime. Uncertaintyoften prevails among authorities as well as migrants.This prevents migrants in an irregular situation fromseeking support.

Migrant workers in an irregular situation are at highrisk of exploitation in the labour market . Althoughthe labour rights of migrants in an irregular situationare recognised in human rights and labour law

instruments at the international level and, in part,through the Employers Sanctions Directive at the EUlevel, not all EU Member States recognise the rightto claim back pay or compensation for accidents in


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the workplace. With respect to back pay, however,remaining gaps should have been addressed by nowgiven the 20 July 2011 transposition deadline for theEmployers Sanctions Directive. Practical obstaclessuch as proving a work relationship, its durationor the identity of the employer, make it difcult totake advantage of these rights. Migrants often avoidseeking judicial redress when there is a personalrelationship between an employer and an employee,considering it inappropriate or avoiding it fear ofreprisal. A common strategy is to switch employersand not report discriminatory or abusive treatment.Fear of detection, low awareness of rights and limitedor no security of residence are additional factors thatincrease dependency on employers and discouragerecourse to courts.

The support and advocacy work of trade unions andnon-governmental organisations (NGOs) is vital toobtaining justice in employment-related disputes.Despite different positions vis-à-vis migrants in anirregular situation and the migrants’ tendency toconcentrate in economic sectors where there arefewer unions, there has been an increasing trend toinvolve such migrants in union activities.

The housing situation of migrants in an irregularsituation is often precarious and insecure. Migrantsusually rely on family, friends or others in their

social network to find accommodation. This istypically short-term housing, often in overcrowded,insecure dwellings, and sometimes without accessto the most basic services such as running water,electricity and heating. Lending support to migrantsin an irregular situation is discouraged and can bepenalised as facilitation of irregular stay under EU law(Facilitation Directive), although the directive must beimplemented in line with the Charter of FundamentalRights. Registration with local authorities, obligationsto notify the police of the presence of foreigners orthe need to provide identity documents are obstaclesthat further restrict access to accommodation inpractice. This vulnerability is often exploited by highrents demanded for accommodation that is sometimesof inadequate quality. Homeless shelters are usuallythe last resort and only a short-term option due toreporting obligations, requirements for a residencepermit or source of income, access restrictions and/orlimited availability of space.

Suspension of removal does not necessarily lead togranting housing or other forms of social assistance.In some EU Member States, non-removed personsmay have access to public accommodation centres

but have no right to stay. In others, the situation isreversed, while in yet others, neither the stay of non-removed persons is authorised nor accommodationprovided. Similarly, social assistance may or may not

be obtainable, or may be restricted to residents ofaccommodation centres. This is particularly problematicas persons whose removal cannot be carried out –including where this is through no fault of their own –are often excluded from the regular labour market andhave no source of income. The lack of knowledge ofthe rights granted by law to non-removed migrants onthe part of both the individuals concerned and serviceproviders renders access to basic social assistance bynon-removed persons difcult.

With respect to health , the fundamental right tohealthcare for migrants in an irregular situationis unevenly protected in the EU Member States.Healthcare entitlements range from a restriction tofee-paying emergency treatment in some EU MemberStates to, in others, access to the health system as

full healthcare recipients on an equal footing withnationals. Common obstacles to implementingthese rights include, among others, unawarenessof entitlements by migrants as well as healthcareproviders, and data exchanges between serviceproviders and immigration enforcement authorities.

The situation of persons who are not removed isgenerally better although highly diverse with regardto the scope and possibilities for cost coverage ofmedical treatment. The right to maternity care andchild healthcare is unequally provided for and subject

to different conditions. The legal situation is oftenunclear, creating uncertainty for health staff andprompting discretionary responses.

The right to education for irregular migrant childrenremains unclear in many countries. In ve EU MemberStates, only some children in an irregular situationare entitled to access state schools free of charge.In practice there are still major uncertainties amongschool administrations, teachers, parents, and NGOsas well as among national and local authorities asto whether and to what extent this right appliesto irregular migrant children. Documentationrequirements for enrolment or receipt of diplomas,reporting obligations, enforcement practices and theallocation of nancial resources to schools based onthe number of ofcial residents rather than effectivepopulation numbers, further risk undermining the rightto education. The higher the levels of education andthe older the child, the more restricted access usuallybecomes.

Access to education of persons who are not removedis generally less controversial although the scopeand preconditions differ among EU Member States,

and often the same practical obstacles apply asto undetected migrants in an irregular situation.Humanitarian approaches and civil engagement byschool principals, NGOs, parents’ associations or data


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protection activists have helped to enable access toschools for migrant children in an irregular situation.

The presence of irregular migration in the EU hasan important family dimension. Factors that of tenlead family members to seek reunication outsideof the legal framework are: a narrow denition of‘family’, resources required to apply for reunication,requirements for sponsors to show stable and regularresources or to meet accommodation requirementsand the inability to comply with requirements forfamily reunification from abroad. Complying witha return decision and/or the requirement to apply forreunication from abroad, however, may further lead

authorities to question whether the dispersed familymembers still have active family ties, thus underminingthe possibility of family reunication.

Irregular family members of legal residents may beable to legalise their stay to different degrees in EUMember States, e.g. if granted temporary residencepermits or in the case of suspension of removal.Thus considerable uncertainty remains about thepossibilities of obtaining legal status. Blanketrestrictions on access to marriage on grounds ofirregular stay are problematic and disproportionate,but they still can be found in some EU MemberStates.


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Opinions

The European Union Agency for Fundamental Rights(FRA) has formulated the following opinions based onthis report’s ndings and comparative analysis.

Migrants in return procedures who arenot removedNeither the Return Directive, nor other EU policydocuments provide for a mechanism to put an end tosituations of legal limbo that derive from protractedsituations of non-removability. The safeguards setforth in the Return Directive (Article 14(1)) for non-

removed persons do not cover all rights and apply onlyif removal is formally postponed.

European Union (EU) institutions and Member States should pay more attention to the situation of migrantsin an irregular situation who have been given a returndecision but who have not been removed. Mechanisms should be set up either at Union or Member Statelevel to avoid a situation where persons who are notremoved remain in legal limbo for many years.

Following the evaluation of the Return Directive

planned for 2014, the European Commission should propose amendments to the directive to ensure thatthe basic rights of persons who are not removed arerespected.

EU Member States should issue a certication of postponement of removal as required by the ReturnDirective. It is an important tool to protect non-removed persons and to facilitate their access torights. This should also be done when removal is only

postponed de facto.

For more information, see Chapter 2 page 27.

Detection policies and their impact onfundamental rights

The Return Directive expressly recognises theprinciple of proportionality in Recital 13. This meansthat the obligation to issue return decisions to illegallystaying third-country nationals under Article 6 of theReturn Directive cannot be used as a justication forexcessive checks or scrutiny, which have the effectof discouraging migrants from accessing basic rights.

EU Member States are, therefore, encouraged to givedue importance to the impact on the fundamentalrights of migrants when planning and evaluatingdetection tactics and operations.

To facilitate this, consideration should be given todeveloping guidance for police ofcers, either in theform of a handbook or a list of ‘dos and don’ts’. Sucha tool should discourage, in particular, apprehensionsfrom or near schools, medical facilities, counsellingcentres, churches or other institutions offeringessential services to migrants. It should alsodiscourage data exchange between these institutionsand immigration law enforcement bodies as suchexchanges can disproportionately hinder migrants’access to basic rights or raise privacy and data

protection concerns.


Possibility to lodge complaints againstabusive or exploitative employers

Access to justice is a crucial right since the enforcementof all other fundamental rights hinges upon it in theevent of a breach. Trade unions, labour inspectors,civil society organisations, national human rightsinstitutions and equality bodies play a vital role inmaking justice mechanisms more accessible. Practical

barriers to access justice should be removed throughthe following actions by Member States:

Building on the Employers Sanctions Directive,establish effective mechanisms to allow migrantworkers in an irregular situation to lodge complaintsagainst abusive employers.

Ensuring, where possible, that any personal datarevealing migrants’ identity or whereabouts are not

shared with immigration enforcement bodies whenmigrants seek redress against abusive employers.

Provide the necessary nancial or other appropriate support to trade unions, equality bodies and NGOs, so that they can effectively assist migrants in anirregular situation in seeking justice, includingthrough different forms of arbitration.


The impact of provisions which penalisefacilitation of irregular stay

Measures to penalise facilitation of irregular stay

taken on the basis of the Facilitation Directive maydiscourage persons and organisations from providingassistance to migrants in an irregular situation andbar them from renting housing in the private market.


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This can force them into accepting precarious andinsecure accommodation, sometimes at exploitativeconditions.

The Facilitation Directive should be revised,making it compulsory for EU Member States to

prohibit the penalisation of actions committed witha humanitarian aim. The wording of the directive

should be revised so as to exclude the punishmentof persons who rent accommodation to migrants inan irregular situation, unless this is done for the sole

purpose of preventing removal.

Until such a rewording has taken place, EU MemberStates should, in order to reduce the risk ofexploitative or abusive situations, apply the directivein a way that does not curtail the possibility of

migrants in an irregular situation from rentinghousing on the free market.

For more information see, Chapter 5 page 59.

Housing and social assistance fordestitute migrants in return proceedings

Minimum standards of treatment with regards tohousing and social assistance are not included in theReturn Directive, except possibly in an indirect way forvulnerable persons.

Current safeguards set forth in the Return Directiveas regards housing and social assistance for destitutemigrants or persons who belong to vulnerable

groups should be strengthened, taking into accountthe duty to respect human dignity set forth in

Article 1 of the EU Charter of Fundamental Rights aswell as good practices in EU Member States.

For more information see Chapter 5 .3 page 65.

Access to healthcare

The fundamental right to healthcare for migrants inan irregular situation is unevenly protected in theEU Member States. The fear of being detected, basedon the real or perceived exchange of data betweenhealthcare providers and immigration enforcement,means that irregular migrants delay seeking healthcareuntil an emergency arises, delays which have negativeconsequences both for the health of the individual aswell as for that of the society at large.

Migrants in an irregular situation should, asa minimum, be entitled by law to access necessary

healthcare services. Such healthcare should notbe limited to emergency care only, but should alsoinclude other forms of necessary healthcare, suchas the possibility to see a general practitioner or

receive necessary medicines. The same rules for payment of fees and exemption from payment should apply to migrants in an irregular situationas to nationals.

EU Member States should disconnect healthcarefrom immigration-control policies. They should notimpose a duty to report migrants in an irregular

situation upon healthcare providers or authorities incharge of healthcare administration. The absence ofthis duty to report should be clearly communicatedto them.


Access to education

Legal provisions should explicitly address the rightto education of irregular migrant children , therebysafeguarding their access to education. In addition,EU Member States should take the following steps toremove practical obstacles to accessing primary andsecondary education:

Instruct school authorities not to requiredocumentation for school enrolment which migrantsin an irregular situation cannot procure.

Prohibit the reporting of irregular migrant children

to immigration law enforcement bodies and theexchange of information with such bodies.

Implement information campaigns in cooperationwith civil society to raise more awareness amongstmigrants and educational authorities aboutentitlements to education of migrant children in anirregular situation.


Family life

There are many reasons why individuals join theirfamily members outside established procedures.Entry bans may present an obstacle to or delayfamily reunications. Efforts to forestall marriages ofconvenience should not compromise the right to marryand establish a family.

More research should be done to determine thekey factors (e.g. procedural, technical or resource-related obstacles) contributing to the phenomenonof spontaneous family reunications outsideestablished procedures, as irregular status is one of

the factors that heightens the risk of fundamentalrights violations. Such research should build on thendings of this report.


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The FRA considers it important to monitor the effectsof an EU-wide entry-ban system on the exercise ofthe right to family reunication and to include a rstevaluation in the report on the implementation ofthe Return Directive planned for 2014. Such a report

should also evaluate if the consultation processbetween the Member State issuing a residence

permit and the one banning entry leads tounnecessary delays.

Immigration-control measures should notresult in the application by Member States ofdisproportionate restrictions on the right to marryand establish a family, such as blanket prohibitionson marrying or the imposition of restrictions which

go beyond an assessment of the genuineness ofthe relationship.



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Introduction

Aim of the reportMost fundamental rights apply to al l personsirrespective of their migration status. Nevertheless,migrants in an irregular situation often face difcultiesin enjoying their rights. This can be for a variety ofreasons, such as restrictive national legal provisions,practical or bureaucratic obstacles or limited rightsawareness.

An EU-funded project produced minimum andmaximum estimates of the size of the irregularmigrant population for 2008. The aggregate estimatepresented for the 27 EU Member States rangedfrom 1.9 to 3.8 million persons.1 Although the calculationof this wide range relied on assumptions which wereonly in part empirically founded, implausibly highand low numbers were excluded. Annex 1 providesa country overview of the estimates presented.

The EU irregular migrant population also has animportant gender and family component. Sexand age ratios among migrants found presentirregularly provide a rough indicator: in 2010, womenaveraged 18% of the migrants apprehended in theEU 27. As women are typically less aggressivelytargeted than men by immigration law enforcement,their actual proportion is likely to be even higher.In the 25 EU Member States for which gures wereavailable, 41,455 of those apprehended were children.2 This gure included 16,250 children below the ageof 14 and 25,205 between the ages of 14 and 17.

1 Clandestino project ‘Undocumented Migration: Countingthe Uncountable. Data and Trends Across Europe’ , European

Commission, DG Research, Sixth Framework Programme,Priority 8: Scientic Support to Policies, more informationavailable at:http://clandestino.eliamep.gr; http://irregular-migration.hwwi.net (all hyperlinks accessed on 15 October 2011).

2 Eurostat (2011)Enforcement of Immigration Legislation Statistics,extracted on 7 July 2011, and own calculations.

The phenomenon of irregular migration is likely topersist, as opportunities for legal migration remainlimited and migration-control measures will notstop irregular ows entirely. Many migrants enterwith a visa and their status subsequently becomesirregular, sometimes as a result of complex proceduresor arbitrary acts by private individuals. 3 Hence, it isreasonable to assume that in the years to comea considerable number of migrants in an irregularsituation will continue to live in the EU.

Against this background, the FRA ManagementBoard requested the FRA to carry out a studyin 2009 and 2010 on the situation of irregular migrantsin the EU. This comparative report is one of the mainoutcomes of this project. It examines the situation ofmigrants in an irregular situation from a fundamentalrights perspective, independently of broaderconsiderations relating to migration management.Although in recent years a number of NGO reportshave been published focusing on specic fundamentalrights with respect to migrants in an irregular situationin Europe,4 this is the rst report that covers a range ofrights for all 27 EU Member States.

3 See as an illustrat ion the example in Greece, quote in EuropeanUnion Agency for Fundamental Rights (FRA) (2011)Coping witha fundamental rights emergency – The situation of personscrossing the Greek land border in an irregular manner , Vienna,FRA, p. 43. In this case, employers at some point refused to payor could not afford the necessary social insurance contributionsfor migrants, who in turn could not renew their residencepermits.

4 See the various publications by the Platform for InternationalCooperation on Undocumented Migrants (PICUM), available

at: www.picum.org/en/publications/reports; Jesuit RefugeeService (JRS) (2010)Living in Limbo: forced migrant destitutionin Europe, Brussels, JRS – Europe, available at:www.jrseurope.org/news_releases/ANDES%20report2010.htm ; as well as theresearch recently undertaken in the eld of healthcare cited inchapter 6.

http://clandestino.eliamep.gr/http://irregular-migration.hwwi.net/http://irregular-migration.hwwi.net/http://www.picum.org/en/publications/reportshttp://www.jrseurope.org/news_releases/ANDES%20report2010.htmhttp://www.jrseurope.org/news_releases/ANDES%20report2010.htmhttp://www.jrseurope.org/news_releases/ANDES%20report2010.htmhttp://www.jrseurope.org/news_releases/ANDES%20report2010.htmhttp://www.picum.org/en/publications/reportshttp://irregular-migration.hwwi.net/http://irregular-migration.hwwi.net/http://clandestino.eliamep.gr/


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The objective of this report is to provide an overviewof the extent to which the fundamental rights ofmigrants in an irregular situation are legally protectedwithin the EU. It describes the related legislation andpolicies of the 27 EU Member States. Additionally, itillustrates practical challenges which can becomeobstacles to the enjoyment of entitlements existingunder national law.

The report focuses on a selection of civil, socialand economic rights which have been grouped insix thematic areas. It deals rst with the fundamentalrights implication of immigration law enforcementbefore examining workers’ rights, access to housingand social assistance, healthcare and education. The lastchapter is devoted to family life. The FRA selected theseareas in order to cover those aspects that are considered

particularly important to migrants’ everyday lives. Ananalysis of the applicable international and Europeanhuman rights framework as well as relevant EU law setsthe foundation for the comparative analysis of the sixthematic areas described above.

Against the background of EU law, the report makesa broad distinction between migrants who are in returnor expulsion procedures but who have not yet beenremoved and those who live undetected in the Union.Basic standards of treatment are set forth in Union lawfor persons who have received a return decision but

have not yet been removed, as they have been givena time to depart voluntarily or their removal has beenpostponed. A specic chapter is, therefore, devoted tomigrants in an irregular situation who are not removed.

Undetected migrants are primarily the subject ofpolicies and measures developed by the EU for thepurpose of combating irregular migration. Directly orindirectly, these policies often substantially affect therights of migrants in an irregular situation. In somecases Union law expressly protects such rights. This isthe case, for example, with the right to claim unpaidwages in the Employers Sanctions Directive. Moreover,migrants in an irregular situation are not excluded frommeasures taken by the Union in other elds, such as,for example, in relation to public health or workers’health and safety.

Nevertheless, in line with the respective EUcompetences, the coverage by Union law of the rightsof undetected migrants depends on the thematic areaexamined. For these areas the references made tothe EU Charter of Fundamental Rights throughout thetext should be understood as relating only to thoseaspects which are covered by Union law. In all other

cases, fundamental rights continue to be guaranteedat the national level by national constitutional systemsand by applicable international human rights law andlabour law provisions.

Dening migrants in anirregular situation

Broadly speaking this report uses ‘migrants in anirregular situation ’ as synonymous with the term‘illegally staying third-country nationals’ used inArticle 3 of the Return Directive: 5

“‘[I]llegal stay’ means the presence on the territoryof a Member State, of a third-country national whodoes not full, or no longer fulls the conditionsof entry as set out in Article 5 of the SchengenBorders Code or other conditions for entry, stay orresidence in that Member State;[…]”

This report does not include EU citizens; it covers

only third-country nationals. Among the latter, thefollowing groups are not considered to be migrantsin an irregular situation in the sense of this report:asylum seekers and persons granted refugee statusor subsidiary protection; persons working in breachof their visa or residence permit. These persons arenot included, as they (still) have a right to stay in anEU Member State. In addition, persons residing withforged papers are not dealt with in this report, as inpractice they are treated as if they had a residencepermit, at least until they are discovered. Only at thatpoint would they fall within the scope of this report.

The report distinguishes between two broad subgroupsof migrants in an irregular situation: the rst groupincludes migrants without any residence status whoare undetected . The second group encompasses thosemigrants in an irregular situation who are known tothe immigration authorities, as they have been issuedan expulsion or return decision, which has not howeverbeen implemented, typically for humanitarian orpractical reasons. In those cases in which these personsare not granted a residence permit, they remain in thecountry with no or only a weak recognition of theirright to stay. This second group is referred to as ‘non-removed persons’.

While this report provides an overview of the rightsof migrants in an irregular situation in general, someparts of the study, notably the one on adequatestandards of living, focus primarily on migrants in anirregular situation who are not removed. A systematiccoverage of the rights of non-removed persons inthe 27 EU Member States has not been possible inthis report as their legal situation depends on thetype of authorisation to stay that is granted. Often,

5 Directive 2008/115/EC of the European Parliament and ofthe Council of 16 December 2008 on common standards andprocedures in Member States for returning illegally stayingthird-country nationals, OJ 2008 L 348/98.


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however, their legal situation is not different from thatof undetected migrants in an irregular situation.

Similarly, certain vulnerable categories of third-countrynationals enjoying special protection under EU andinternational law, such as victims of human trafckingand unaccompanied minors, fall outside the scope ofthis study. 6

Finally, the themes covered in this report are primarilyanalysed from the perspective of migrants who remainin an irregular situation over a protracted period oftime. For example, migrants who are in voluntaryreturn procedures (as they have been given a shorttime to depart on their own before their removal iseffected by force) may face specific fundamentalrights challenges which are not covered in this report.

Methodology of the studyThe report is based on a combination of desk researchand primary data collection through questionnairescarried out in the framework of this project andthrough qualitative interviews. More specically, theresearch included the following three parts:

Desk research of existing secondary sources , suchas European Migration Network studies and publicly

available ad-hoc queries,7

Platform for InternationalCooperation on Undocumented Migrants (PICUM)monthly and quarterly newsletters from betweenearly 2007 and mid 2011 8 as well as data andinformation collected by the FRA through previousprojects 9 and a review of relevant national legislativeprovisions.

Three sets of structured questionnaires to collectcomparable information on access to fundamentalrights across all EU Member States and on other issues,such as estimates of irregular migrant population orreporting obligations not available from existingsources. The questionnaires were distributed to:

• National authorities, mainly disseminated toNational Contact Points within the European

6 See on these issues the reports by the FRA (2009)ChildTrafcking in the EU – Challenges, perspectives and good practices, Luxembourg, Publications Ofce of the EuropeanUnion (Publications Ofce); and FRA (2010)Separated,asylum-seeking children in European Union Member States –comparative report , Luxembourg, Publications ofce.

7 Seehttp://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Queries.

8 PICUM newsletters are available at:http://picum.org.9 Country-level information collected by the FRA in 2009 fromits Fralex network in the context of the project on the rightsof irregular immigrants in voluntary and involuntary returnprocedures was systematically reviewed. In addition, annualreports from FRA’s Raxen network were also reviewed.

Migration Network. Altogether, responses from24 of the 27 EU Member States were received. 10

• Local authorities, disseminated via the Eurocitiesand CLIP networks, 11 as well as among individualcity ofcials known to the researchers involved inthe project. However, this questionnaire resultedin just 13 responses 12 and could be used only toa limited extent in the analysis.

• Civil society organisations (with an abridgedversion also specifically disseminated amongtrade unions), disseminated to NGOs via PICUMand to national trade union federations via theEuropean Trade Union Congress (ETUC). 13 Overallsome 133 responses were received. 14 While intotal a high response rate was achieved for the

civil society questionnaire, responses were spreadunevenly across EU Member States. Nevertheless,the nature of the survey – essentially one ofexpert opinions – means that the lack of statisticalrepresentativeness does not necessarily reducethe validity of the information collected. Amongall respondents, however, differences in thelevel of expertise, political bias as a result of thecontested nature of the topic and variations ofrelevant practices within a country all mean thatthe responses need to be interpreted with caution.

Empirical eldwork-based research on two themes(domestic work and healthcare) conducted in 10 EUMember States, namely Belgium, France, Germany,Greece, Hungary, Ireland, Italy, Poland, Spain andSweden. While the results of this research havebeen published in two separate thematic reports,the present report also draws from them whereappropriate.

The rst eld research included 118 in-depth interviewswith migrant workers in an irregular situationemployed in the domestic work sector as well as withNGOs and trade unions working with them.

The second focused on access to healthcare andinvolved 221 semi-structured qualitative interviews withmigrants in an irregular situation, public authorities, civilsociety representatives and health staff.

10 Completed questionnaires were received from all EU MemberStates except Luxembourg, Malta and Romania.

11 Eurocities, available at:www.eurocities.eu/main.php; CLIPstands for ‘European network of cities for local integrationpolicies for migrants’, available at:www.eurofound.europa.eu/areas/populationandsociety/clip.htm.

12 Only 13 responses covering seven EU Member States werereceived.13 Trade unions received questionnaires relating only to

employment and workers’ rights.14 This represents the total number of valid responses minus

incomplete responses and double entries.

http://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Querieshttp://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Querieshttp://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Querieshttp://picum.org/http://www.eurocities.eu/main.phphttp://www.eurofound.europa.eu/areas/populationandsociety/clip.htmhttp://www.eurofound.europa.eu/areas/populationandsociety/clip.htmhttp://www.eurofound.europa.eu/areas/populationandsociety/clip.htmhttp://www.eurofound.europa.eu/areas/populationandsociety/clip.htmhttp://www.eurocities.eu/main.phphttp://picum.org/http://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Querieshttp://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Querieshttp://emn.intrasoft-intl.com/Downloads/prepareShowFiles.do?entryTitle=4.%20EMN%20Ad-Hoc%20Queries


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Wherever possible, information from questionnaireswas cross-checked with other sources, and inparticular with national legislation. There is,however, often limited case law providing for a clearinterpretation on the applicability of relevant legalprovisions to migrants in an irregular situation.Different legal opinions may co-exist, while practicesmay vary from one place to another. Therefore, thequestionnaires did not only ask for national legislativeprovisions, but also aimed at collecting information onenjoyment of rights in practice. In addition, the surveyof local authorities and civil society stakeholdersalso served to identify contradictory interpretationsof national policies, and, as such, also of rightsawareness among the two concerned stakeholdergroups. Finally, some information gaps remain, asresponses from all EU Member State could not be

obtained for all questions.

Data collection for this study was conductedin 2010 by a consortium led by the InternationalCentre for Migration Policy Development (ICMPD)

and which included the Centre for European PolicyStudies (CEPS), the Hellenic Foundation for Europeanand Foreign Policy (Eliamep) and the Platform forInternational Cooperation on Undocumented Migrants(PICUM). Initial reports were submitted to the FRAby ICMPD (Alina Cibea, Christina Hollomey, AlbertKraler), CEPS (Sergio Carrera, Massimo Merlino),Eliamep (Thanos Maroukis), and individual expert sfrom other institutions (Franck Düvell, Dita Vogel,Bastian Vollmer) contracted by the consortium. Thesereports were reviewed and consolidated by the FRA.The revised draft comparative report was shared forcomments with the National Contact Points of theEuropean Migration Network, selected internationalorganisations as well as through the FRA NationalLiaison Ofcers with relevant authorities in the 27 EUMember States. Comments were received from the

Ofce of the High Commissioner for Human Rights,the European Commission and from 17 Member States,partly through the National Contact Points of theEuropean Migration Network which further helped inimproving the report’s accuracy.


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The need to protect the fundamental rights ofmigrants in an irregular situation has been repeatedlyunderlined by several international and regionalorganisations as well as non-state actors. For example,in 2006 the Parliamentary Assembly of the Council ofEurope (PACE) called attention to the vulnerabilityof irregular migrants and pointed to the need fora number of minimum social and political rights, onthe one hand, and economic and social rights on theother, to be granted to irregular migrants in Europe. 15

More recently, on 14 October 2010, intergovernmentalbodies came together to issue a call to strengthen theirprotection framework. 16

This chapter provides an overview of the fundamentaland human rights framework applicable to migrantsin an irregular situation, focusing on those rightswhich are the subject of this report. It is structuredinto three parts. The rst part reviews key UnitedNations (UN) human rights and International LabourOrganization (ILO) instruments. The second partfocuses on the human rights framework developedwithin the system of the Council of Europe, essentiallythe European Convention of Human Rights (ECHR) and

15 Council of Europe, Parliamentary Assembly (PACE)(2006) Resolution 1509 (2006) Human Rights of IrregularMigrants, 27 June 2006.

16 Among the intergovernmental organisations in question werethe World Bank, the UN High Commissioner for Refugees, theUnited Nations Children’s Fund (UNICEF), the United NationsEducational, Scientic and Cultural Organization (UNESCO), theUN Development Programme and the International LabourOrganization. Global Migration Group (GMG) (2010)Statementof the Global Migration Group on the Human Rights of Migrantsin an Irregular Situation, 30 September 2010, available at:www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.

aspx?NewsID=10396&LangID=E. The statement was initiated bythe Ofce of the High Commissioner for Human Rights (OHCHR)while it chaired the GMG. Protecting and promoting the humanrights of migrants in an irregular situation is a priority of OHCHR.See OHCHR (2009)High Commissioner’s Strategic ManagementPlan 2010/2011, Geneva, OHCHR, in particular p. 31.

the European Social Charter (ESC). The third part dealswith community law.

1.1 International humanrights law

The international bill of rights law comprises theUniversal Declaration of Human Rights (UDHR), 17

the International Covenant on Civil and PoliticalRights (ICCPR)18 and the International Covenant onSocial, Economic and Cultural Rights (ICESCR).19 TheOffice of the High Commissioner has defined ninecore international human rights treaties, some ofwhich have optional protocols dealing with specicconcerns.20 A set of instruments adopted in the contextof the ILO provides for international standards in theeld of labour law.

International human rights norms are generallyapplicable to every person as a consequence ofbeing human, irrespective of their migration status.Therefore, as a general rule, human rights apply

17 United Nations (UN), Universal Declaration of Human Rights(UDHR), Article 3, 10 December 1948, 217 A (III).

18 UN, International Covenant on Civil and Political Rights(ICCPR), 16 December 1966.

19 UN, International Covenant on Economic, Social and CulturalRights (ICESCR), 16 December 1966.

20 The following nine conventions constitute ‘Core Human RightsInstruments’ according to the OHCHR: International Conventionon the Elimination of All Forms of Racial Discrimination (1965),ICCPR (1966), ICESCR (1966), Convention on the Elimination ofAll Forms of Discrimination against Women (1979), Conventionagainst Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment (1984), Convention on the Rights of

the Child (1989), International Convention on the Protection ofthe Rights of All Migrant Workers and Members of Their Families(1990), International Convention for the Protection of All Personsfrom Enforced Disappearance (2006), Convention on the Rightsof Persons with Disabilities (2006). List available at:www2.ohchr.org/english/law/.

Fundamental rightsframework

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10396&LangID=Ehttp://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10396&LangID=Ehttp://www2.ohchr.org/english/law/http://www2.ohchr.org/english/law/http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10396&LangID=Ehttp://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10396&LangID=E


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to migrants in an irregular situation, unless theyare expressly excluded from the application of theprovision. Similarly, core ILO instruments apply to allmigrant workers without discrimination.

Human rights standards which are binding forEU Member States can also be relevant for theinterpretation of EU law. For instance, the Courtof Justice of the European Union (CJEU) has madereference to the European Social Charter, 21 theInternational Covenant on Civil and Political Rights(ICCPR)22 and ILO Conventions, 23 which evidences thepractice of interpreting EU law in conformity withrecognised international fundamental rights standards.When identifying general principles of law, the Court

21 CJEU, C-149/77,Defrenne v. Sabena (No. 3),15 June 1978. 22 CJEU, C-374/87,Orkem v. Commission,18 October 1989; C-249/96,Grant v. South-West Trains Ltd.,17 February 1998.

23 CJEU, C-41/90,Höfner and Elser v. Macrotron, 23 April 1991;C-158/91,Levy , 2 August 1993; C-197/96,Commissionv. France, 16 January 1997.

“draws inspiration from […] the guidelines supplied byinternational treaties for protection of human rightson which the Member States have collaborated or towhich they are signatories”. 24

It is thus important to provide an overview of thestate of ratication of those instruments which aremost relevant for the protection of migrants in anirregular situation. As Table 1 shows, all EU MemberStates have ratied the main UN instruments,25 exceptfor the International Convention on the Protection ofthe Rights of All Migrant Workers and Members oftheir Families (ICRMW), which none have acceded to.Ratication of ILO instruments reviewed in this reportdiffers by EU Member State.

24 CJEU, Opinion of the Court of 28 March 1996, Accession by the

Community to the European Convention for the Protectionof Human Rights and Fundamental Freedoms, Opinion 2/94,European Court Reports 1996.

25 See Tables 4, 6, 7 and 9 for reservations/declarations relatedto the specic provisions of these conventions which affectmigrants in an irregular situation.

Table 1: State parties to key UN and ILO instruments, EU27

Country

Austria ( ) ( )

Belgium ( )

Bulgaria

Cyprus

Czech Republic

Denmark

Estonia

Finland

France ( ) ( ) ( )

Germany

Greece

Hungary

Ireland

Italy

Latvia

Lithuania

Luxembourg

Malta ( )

Netherlands

I C E R D

I C C P R

I C E S C R

C E D A W

C A T C R C

I C R M W

I L O 8 7

I L O 1 4 3


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Article 2 of the UDHR clearly stipulates that everyone

is entitled to the rights and freedoms set forth in theDeclaration “ without distinction of any kind , suchas race, colour, sex, language, religion, political orother opinion, national or social origin, property, birth“or other status ” (bold added). The UDHR has beenaccepted by all EU Member States, but is not a legallybinding treaty.

The two Covenants (ICCPR and ICESCR) have beenratified by all EU Member States and are legallybinding. The Covenants are generally applicable to allexcept when otherwise specied. The ICCPR stipulatesthat there are rights which only apply to citizens, suchas the right to vote in Article 25, and rights which onlyapply to lawfully residing aliens.26 By contrast, the textof the ICESCR does not make any distinction on thebasis of nationality or legal status and grants rightsto all. 27 However, the interpretation of the personalscope of social rights included in the Covenant (socialsecurity, social services, medical care and healthprotection) has proven controversial. In 1985, the UN

26 Such as the right of movement and to choose a residence(Article 12) and the limits on the expulsion of aliens (Article 13).See, for more details, UN Human Rights Committee (HRC)

CCPR General Comment No. 15: The position of aliens under theCovenant , 11 April 1986.27 Article 3(2) of the Covenant provides for the possibility of

introducing limitations for non-nationals, but this provision onlyapplies to ‘developing countries’ and is thus not relevant for EUMember States.

Declaration on The Human Rights of Individuals who

are not Nationals of the Country in which They Live limited the application of social rights only to migrantslawfully residing in the territory of the state. However,the Committee on Economic, Social and Cultural Rights(CESCR) later specied in three General Commentsthat migrants in an irregular situation have a right tohealthcare.28 Taking note of Article 2 of the CRC, it alsoconrmed that the right to education extends to allpersons of school age residing in the territory. 29

Thematic human rights treaties, which are addressed tospecic groups or fundamental human rights, are alsorelevant for the protection of migrants in an irregularsituation. While this may not always be evident fromthe text of the conventions, clarifications in thisregard have been delivered by the committees of

28 See the UN monitoring body of the ICESCR, the Committee onEconomic, Social and Cultural Rights (CESCR) (2000)GeneralComment No. 14: The right to the highest attainable standardof health (Article 12), 11 August 2000, paragraph 34; CESCR(2008)General Comment No. 19: The right to social security(Article 9), 4 February 2008, paragraph 37; CESCR (2009)GeneralComment No. 20: Non-Discrimination in Economic, Social andCultural Rights (Article 2(2)), 10 June 2009, of CESCR in relation tonon-discrimination, which explicitly prohibits discrimination in

Covenant rights on the ground of nationality regardless of legalstatus and documentation, paragraph 30. General commentscontain the interpretation of the content of the human rightsprovisions by the Committee.

29 See CESCR (1999)General Comment No. 13: The right toeducation (Article 13), 8 December 1999, paragraph 34.

Country

Poland

Portugal

Romania

Slovakia

Slovenia

Spain

Sweden

United Kingdom ( )

Notes: ICERD - International Convention on the Elimination of All Forms of Racial Discrimination; ICCPR - International Covenanton Civil and Political Rights; ICESCR - International Covenant on Economic, Social and Cultural Rights; CEDAW - Conventionon the Elimination of All Forms of Discrimination against Women; CAT - Convention against Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment; CRC - Convention on the Rights of the Child; ICRMW - InternationalConvention on the Protection of the Rights of All Migrant Workers and Members of Their Families; ILO 87 - Freedom of Association and Protection of the Right to Organise Convention; ILO 143 - Migrant Workers Convention.The (parentheses) indicate reservations and de facto reservations (declarations) that may restrict the rights of migrantsin an irregular situation. An underlined check means that individual complaint mechanisms are in force. For the ICESCR, of the 10 requiredratications of the Optional Protocol, only three have been submitted to date. Spain is the only EU Member State thathas ratied the Protocol. An additional eight EU Member States have signed (Belgium, Finland, Italy, Luxembourg, theNetherlands, Portugal, Slovakia and Slovenia). Individual complaint mechanisms are not in place for the CRC and are notenvisaged for ILO conventions.

Source: FRA, 2011

I C E R D

I C C P R

I C E S C R

C E D A W

C A T C R C

I C R M W

I L O 8 7

I L O 1 4 3


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independent experts set up by the various instrumentsto monitor their implementation. 30

The International Convention on the Elimination ofAll Forms of Racial Discrimination (ICERD)31 calls onstate parties to undertake a policy of eliminatingracial discrimination. The ICERD allows for differenttreatment between citizens and non-citizens(Article 1(2)). Guarantees against racial discriminationalso apply, however, to non-citizens regardless of theirimmigration status. 32

Likewise, the Committee on the Elimination of All Formsof Discrimination against Women has interpreted theCEDAW as granting basic human rights, such as accessto legal remedies and justice and humane treatmentwhilst in detention, to undocumented female migrant

workers. 33

The Convention on the Rights of the Child (CRC) 34 alsohas broad scope. In Article 2 it states that its provisionsapply to every child in a signatory state: “withoutdiscrimination of any kind irrespective of the child’sor his or her parent’s or legal guardian’s race, colour,sex, language, religion, political or other opinion,national, ethnic or social origin, property, disability,birth orother status” (bold added). General CommentNo. 6 of the Committee on the Rights of the Childfurther specied that the rights enshrined in the CRC,

if not explicitly stated otherwise, apply to all childrenirrespective of their status. 35

Although the UN Convention on the Protection of theRights of All Migrant Workers and Members of theirFamilies (ICRMW) has not yet been ratied by any EU

30 For a list of the core international human rights instruments andtheir monitoring bodies see the web page of the OHCHR:www2.ohchr.org/english/law/.

31 For a more detailed overview of ICERD, see Thornberry, P. (2005)‘Confronting Racial Discrimination: A CERD Perspective’,HumanRights Law Review , Vol. 5, No. 2, pp. 239-69.

32 UN, Committee on the Elimination of Racial Discriminat ion(CERD) (2004)General Comment No. 30: Discrimination againstnon-citizens, 1 October 2004, paragraph 7.

33 UN, Committee on the Elimination of Discrimination againstWomen (2008)General Recommendation No. 26 on womenmigrant workers, 5 December 2008. While paragraph 6 setsforth a number of rights that are applicable to women migrantworkers in general, paragraph 26 (l) lists the responsibilities ofhost countries towards undocumented women migrant workers.See also paragraph 26(c)(i) on legal remedies and complaintsmechanisms protecting them from discrimination, exploitationand abuse as well as paragraph 26(i), according to which victimsof abuse must be provided with relevant emergency and socialservices, regardless of their immigration status. See on thisissue also Kapuy, K. (2009) ‘European and International Law inRelation to the Social Security of Irregular Migrant Workers’,in Pieters D. and Schoukens, P. (eds.),The Social Security

Coordination Between the EU and Non-EU Countries, Oxford,Intersentia, pp. 124-25.34 UN, Convention on the Rights of the Child, 20 November 1989.35 UN, Committee on the Rights of the Child (2005)General

Comment No. 6: Treatment of Unaccompanied and SeparatedChildren Outside their Country of Origin, 1 September 2005.

Member State, 36 most of the rights enumerated in theConvention restate the application of rights alreadyspelled out in the ICCPR, the ICESCR and the othercore human rights treaties ratied by all EU MemberStates. 37

Finally, certain instruments of the ILO are applicable toall migrant workers, regardless of nationality or legalstatus. Eight ILO Conventions have been identiedby the ILO’s governing body as fundamental to therights of people at work and hence applicable to allworkers. 38 These include, for example, ILO ConventionNo. 87 on freedom of association and protection of theright to organise. The Migrant Workers (SupplementaryProvisions) Convention 1975 (No. 143) 39 containsspecic provisions on migrant workers in an irregularsituation. In addition, the Convention on Decent Work

for Domestic Workers adopted in 2011 applies to alldomestic workers (Article 2).

Although not legally binding, the rights of migrantsin an irregular situation have also featured withinthe conclusions and recommendations directed at EUMember States during the Universal Periodic Review(UPR) process. The UPR is a human rights mechanismlaunched in 2008 by the UN’s Human Rights Councilwhich reviews the human rights records of everyUN Member State once every four years. Each statecan declare what actions it has taken to improve

its domestic human rights situation. Other statescan provide non-binding recommendations. Typicalrecommendations directed at EU Member States

36 A UNESCO-commissioned report (see footnote 37), based oninterviews with migration stakeholders, examines obstacles forratication of the ICRMW in seven European countries, whichinclude misconceptions of the substance of certain provisions.See also OHCHR Europe Regional Ofce (2011)Migrant Workers’Rights in Europe, Brussels, OHCHR – Europe Regional Ofce,available at:http://europe.ohchr.org/Documents/Publications/Migrant_Workers.pdf.

37 See MacDonald, E. and Cholewinski, R. (2007)The MigrantWorkers Convention in Europe: Obstacles to the Raticationof the International Convention on the Protection of theRights of All Migrant Workers and Members of Their Families:EU/EEA Perspectives, Paris, UNESCO, p. 23; Weissbrodt, D. andMeili, S. (2010) ‘Human Rights and Protection of Non-Citizens:Whither Universality and Indivisibility of Rights?’,RefugeeSurvey Quarterly , Vol. 28(4), p. 43.

38 ILO Conventions Nos. 29, 87, 98, 100, 105, 111, 138 and 182covering freedom of association and collective bargaining,child labour, forced and compulsory labour, discrimination inrespect to employment and occupation. All EU Member Stateshave ratied them. The 1998 ILO Declaration on FundamentalPrinciples and Rights at Work stresses in Article 2 that allILO Members, even if they have not ratied the Conventionsin question, have an obligation arising from the very fact ofmembership in the ILO to respect, to promote and to realise, ingood faith and in accordance with the Constitution, the principlesconcerning fundamental rights.

39 Migrant Workers (Supplementary Provisions) Convention (No. 143),

1975 ratied by ve EU Member States. The applicability ofArticle 1 of Convention No. 143 to migrants in an irregularsituation has been conrmed by the Committee of Experts, seeILO Conference 87th Session 1999, ‘Global Survey on MigrantWorkers’ paragraph 297, available at:www.ilo.org/public/libdoc/ilo/P/09661/09661(1999-87_1B).pdf.

http://www2.ohchr.org/english/law/http://europe.ohchr.org/Documents/Publications/Migrant_Workers.pdfhttp://europe.ohchr.org/Documents/Publications/Migrant_Workers.pdfhttp://www.ilo.org/public/libdoc/ilo/P/09661/09661(1999-87_1B).pdfhttp://www.ilo.org/public/libdoc/ilo/P/09661/09661(1999-87_1B).pdfhttp://www.ilo.org/public/libdoc/ilo/P/09661/09661(1999-87_1B).pdfhttp://www.ilo.org/public/libdoc/ilo/P/09661/09661(1999-87_1B).pdfhttp://europe.ohchr.org/Documents/Publications/Migrant_Workers.pdfhttp://europe.ohchr.org/Documents/Publications/Migrant_Workers.pdfhttp://www2.ohchr.org/english/law/


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include calls to accede to the ICRMW and to protectthe rights of all migrants, regardless of their status. 40 Other recommendations are explicitly focused onmigrants in an irregular situation, such as those callingon EU Member States to guarantee them access tobasic social services or to take appropriate legislativemeasures to decriminalise irregular entry and stay. 41

1.2 The Council of Europeframework

The Council of Europe oversees a comprehensiver e g i o n a l h u m a n r i g h t s f r a m e w o r k w i t happroximately 200 legally binding treaties orconventions. Two core human rights instruments of

the Council of Europe are the ECHR and the revisedESC. Read in light of the resulting case law, bothinstruments are relevant for the protection of migrantsin an irregular situation.

Unless otherwise specified, the provisions in theEuropean Convention on Human Rights (ECHR) areof general application. Hence its rights and freedomsgenerally apply to everyone within the jurisdiction ofthe contracting parties. All 27 EU Member States arecontracting parties of the ECHR. The EU is not party tothe ECHR yet; the Treaty of Lisbon, however, provides

the legal basis for accession. Individuals whose rightsand freedoms provided for by the ECHR have beenviolated, can under certain conditions approach theEuropean Court of Human Rights (ECtHR) whose

judgments are binding.

The ECHR primarily covers civil and political rights,although it also provides for the right to education inProtocol 1, Article 2, and therefore only parts of therights are analysed in this report. Furthermore, in

40 See for example, the recommendation of Mexico to Germanyto “[m]aintain under study the ratication of the InternationalConvention on the Protection of the Rights of All MigrantWorkers and Members of Their Families from a human rightsperspective, recognizing the fact that human rights are universalin nature and therefore are not conditioned by migrant status.”HRC (2009)Report of the Working Group on the UniversalPeriodic Review: Germany , 4 March 2009, paragraph 2; therecommendation by Algeria to Romania to work “towardsimproving its human rights situation” and “adhere to theInternational Convention on the Protection of the Rights of AllMigrant Workers and Members of Their Families.” HRC (2008)Report of the Working Group on the Universal Periodic Review:Romania, 3 June 2008, paragraph 14; Egypt recommendedthat the Netherlands accede to the International Conventionon the ICRMW, HRC (2008)Report of the Working Group onthe Universal Periodic Review: the Netherlands, 13 May 2008,paragraph 23.

41 See for example the recommendation of Canada to Germanyto “ensure that measures to control irregular migration do notoperate to impede access to primary health care, education and judicial authorities.” HRC (2009)Report of the Working Groupon the Universal Periodic Review: Germany , 4 March 2009,paragraph 38.

some cases, the ECtHR has held that certain aspectsof social security are protected under the ECHR. Twoprovisions of the ECHR are central to the protection ofmigrants in an irregular situation: the right not to besubject to torture or inhuman and degrading treatmentenshrined in Article 3; and the right to respect privateand family life in Article 8. Although the fair trialguarantees enshrined in Article 6 of the ECHR do notapply to immigration rulings, the right to an effectiveremedy in these cases is guaranteed by Article 13 andArticle 1 of Protocol 7 to the ECHR.

Article 3 of the ECHR prohibits torture as well as cruel,inhuman or degrading treatment or punishment. First,it provides safeguards for the treatment of migrantsin an irregular situation, including when they aredeprived of liberty. Second, it restricts the authorities

of the contracting states from proceeding with anexpulsion to a country where there is a real risk thatan individual will be subject to prohibited treatment.

While Article 8 of the ECHR does not precludeexpulsion, it has been used by the ECtHR to protectindividuals against expulsion decisions, which werenot considered justied in light of the right to respectprivate and family life. InBerrehab v. the Netherlands,42 it considered the expulsion to be an unjustifiedinterference with the right to family life in the countryof residence. In the Boultif case the ECtHR established

criteria to assess a ‘fair balance’ between the interestof the state in maintaining public order and the rightto family life of the individual concerned. 43

The European Social Charter (ESC) was rst adoptedin 1961 and revised in 1996. It complements the ECHRby offering further guarantees of economic and socialhuman rights, although the two versions differ inscope. Five EU Member States are not party to theESC and nine have not ratied the revised ESC, butall EU Member States have ratied at least one of thetwo. 44 While individual complaints are not permitted,an additional protocol entitles social partners andNGOs to lodge collective complaints of Charterviolations in states which have ratied or accepted

42 ECtHR,Berrehab v. the Netherlands, No. 10730/84, 21 June 1988.See alsoMoustaquim v. Belgium, No. 12313/86, 18 February 2001.

43 ECtHR,Boultif v. Switzerland , No. 54273/00, 2 August 2001. Theso-calledBoultif criteria are listed on p. 30.

44 All EU Member States except Bulgaria, Estonia, Lithuania,Romania and Slovenia are party to the European Social Charter.The following nine EU Member States are not party to therevised European Social Charter: Czech Republic, Denmark,Germany, Greece, Latvia, Luxembourg, Poland, Spain and theUnited Kingdom.


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it.45 From a procedural point of view, if the Committeeof Social Rights considers a complaint admissible itsends a report to the concerned parties and to theCommittee of Ministers. Building on the report, theCommittee of Ministers then adopts a resolution whichcan recommend the state resolve the conict with theCharter.

The scope of the ESC is limited: its Appendix extendsits application to “foreigners only in so far as they arenationals of other Parties lawfully resident or workingregularly within the territory of the Party concerned”.In principle, this wording excludes migrants in anirregular situation from the application of the socialrights enshrined in the Charter.

Nevertheless, the European Committee on Social Rightsconcluded in FIDH v. France that legislation or practicewhich denies entitlement to medical assistance,regardless of legal status in the country, was contraryto the ESC.46 The Committee stressed that healthcareis a prerequisite for the preservation of human dignity,which is a fundamental value in European humanrights law. 47 Furthermore, in Defence for ChildrenInternational v. the Netherlands ,48 the EuropeanCommittee on Social Rights pointed out that the rightto shelter is directly linked to the rights to life, socialprotection and respect for the child’s human dignityand best interests. The Committee considered the

general principle of the best interests of the child , asrecognised in Article 3 of the CRC, as a binding principleunder the ESC. The Committee next considered that“the right to shelter is closely connected to the rightto life and is crucial for the respect of every person’shuman dignity.” The Committee concluded that:“states parties are required, under Article 31(2) of therevised Charter, to provide adequate shelter to children

45 Council of Europe, Additional Protocol to the European SocialCharter Providing for a System of Collective Complaints, CETSNo. 158, 1995. As of June 2011, the Protocol has been signedby 16 EU Member States: Austria, Belgium, Cyprus, CzechRepublic, Denmark, Finland, France, Greece, Hungary, Ireland,Italy, Netherlands, Portugal, Slovakia, Slovenia and Sweden;it entered into force in 10 EU Member States: Belgium, Cyprus,Finland, France, Greece, Ireland, Italy, Netherlands, Portugaland Sweden, available at:http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=158&CM=&DF=&CL=ENG. Thecollective complaints procedure under the Protocol is alsoapplicable for Bulgaria and Slovenia, see Declarations inaccordance with Article D (2) ETS 163, available at:http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=163&CM=8&DF=16/06/2011&CL=ENG&VL=1. The collectivecomplaint procedure is also applicable for Bulgaria and Slovenia,based on Declarations in accordance with Article D(2) ETS 163.

46 See the European Committee on Social Rights (ECSR), International Federation for Human Rights (FIDH) v. France,

Collective complaint No. 14/2003, decision on the meritsof 8 September 2004, available at:www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC14Merits_en.pdf.

47 Ibid., paragraphs 31 and 32.48 ECSR,Defence for Children International v. the Netherlands,

Complaint No. 47/2008, 27 October 2009.

unlawfully present in their territory for as long as theyare in their jurisdiction”. 49

1.3 European Union lawWhen analysing the protection of the rights of migrantsin an irregular situation, the rst issue is to determinewhether or not this is an area covered by Union law.The answer to this question determines whether theCharter of Fundamental Rights of the European Unionapplies. According to Article 51, the Charter applies toEU institutions and EU Member States only when theyare implementing Union law.

The need to respect fundamental rights does notrequire the existence of secondary EU law. According to

the case law of the CJEU, Member States must respectfundamental rights wherever “national legislationfalls within the field of application of Communitylaw”. 50 The entry into force of the Charter does notchange matters. 51 In all other cases outside the scopeof Union law, fundamental rights are guaranteed atnational level by national constitutional systems andby applicable international human rights law andlabour law provisions.

The majority of the rights and principles enshrined inthe Charter are accorded to everyone and therefore

also to third-country nationals, independent of theirmigration status. A limited number of provisionscontained in the Charter are restricted to citizensor lawful residents only. These concern, amongstothers, consular protection (Article 46) and certainpolitical rights (Articles 39 and 40) as well as socialsecurity benets (Article 34(2)), freedom of movement(Article 45) and access to the labour market (Article 15).More importantly for this report, the Charter restrictscertain rights and principles which are granted toeveryone according to “national laws and practices.”This is for example, the case of Article 34 on socialsecurity and social assistance and of Article 35 onhealthcare.

Under Article 79(1) of the Treaty on the Functioning ofthe European Union (TFEU), the Union must “developa common immigration policy” which ensures “fairtreatment of third-country nationals residing legallyin Member States” and prevents and combats “illegalimmigration and trafcking in human beings”.

While an express reference to fair treatment (andthus indirectly to fundamental rights) is made with

49 Ibid., paragraph 64 of the decision.50 CJEU, C-299/95,Kremzow , 29 May 1997, paragraph 15.51 See for example, CJEU, C-555/07,Kücükdeveci , 19 January 2010,

paragraph 21, read in conjunction with paragraph 50f.

http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=158&CM=&DF=&CL=ENGhttp://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=158&CM=&DF=&CL=ENGhttp://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=163&CM=8&DF=16/06/2011&CL=ENG&VL=1http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?NT=163&CM=8&DF=16/06/2011&CL=ENG&VL=1http://conventions.coe.int

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