Challenges to and opportunities for building migration policy around fundamental rights

Keynote speech by Morten Kjærum, Director of the European Union Agency for Fundamental Rights, at the International Summer School on Migration – Challenges and Opportunities for Europe, Turin.
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Speech by Morten Kjaerum at the Turin Summer School, 19 September 2011

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Ladies and gentlemen,
I would like to express my sincere thanks for being invited to deliver this keynote
speech at your International Summer School on Migration – Challenges and
Opportunities for Europe.
Looking at your very rich programme between now and the end of the month, part of
me wishes that I had the next two weeks to spare. You appear to be covering almost
every angle the range of challenges to fundamental rights posed in the context of
migration.
Trees have roots. Human beings use boots. We have always moved around: for family
reasons, for economic reasons, or to escape persecution, war or natural disasters.
We do not have exact numbers, but the roads to Europe claim many lives. You may
recall in April of this year that a boat leaving Libya with 300 migrants and asylum
seekers capsized 40 miles off the Italian island of Lampedusa with only 50 survivors.

In August, Italian coast guards intercepted a boat off the coast of Lampedusa finding
the bodies of 25 people who had suffocated because of overcrowding.
The land journey also claims its victims. In January the Fundamental Rights Agency
visited the land border between Greece and Turkey, which has been experiencing very
high levels of irregular border crossings. There were 45 recorded deaths at the border
in 2010. Our own experts counted almost 50 unmarked graves at a makeshift cemetery
near the border.
This is the cold, hard, desperate reality facing asylum seekers and irregular migrants
trying to cross the EU’s borders.
And the challenges do not stop once they have crossed over. They continue:
• For those trying to access asylum procedures
• For irregular migrants kept in detention
• For victims of trafficking
• And for those who find a way to remain in the Member States without
permission
It is clear from a legal perspective that migration policies and practices – just like all
other areas of EU law and policy – have to respect fundamental rights not only for the
above mentioned 4 groups but also for all other persons migrating into the European
Union. But looking at the everyday reality, putting this into practice is apparently
more difficult.
In line with the approach of your summer school I would like to speak not only about
the challenges but also the opportunities that face the EU in ensuring that migration
policies are built around fundamental rights standards.
1) Firstly, I will talk about fundamental rights implementation at the EU’s
external borders.
2) Secondly, I will speak about the rights of migrants once they are inside the
EU.

1) So, turning to respect for fundamental rights at the EU’s external borders.
It is well established in international law that it is each State’s right to determine who
enters its territory, and who is allowed to stay on its territory.
But there are two important exceptions to that rule. One is the rule of nonrefoulement,
which means that an individual cannot be turned away and sent back to a
country where there is a risk that they may face persecution. The other is the
obligation on States to rescue people in distress at sea.
Here I would point to two challenges in putting these exceptions into practice.
Firstly, vessels carrying migrants are often intercepted by coast guards on the high
seas. Because they are intercepted outside the territory of the EU, it is sometimes
argued that the rule of non-refoulement does not apply. In addition to this, cooperation
agreements between Member States and third countries allow for intercepted vessels
to be returned automatically to their country of departure.
So the first challenge is that intercepting and returning irregular migrants before they
even reach the territory of the EU prevents those who are genuinely in need of asylum,
from actually lodging applications.
The second challenge comes from the condition of the vessels in which people try to
reach Europe. I opened my speech with two accounts of lives lost at sea because of
boats that were overcrowded or simply unseaworthy. Forcing people to return in these
conditions increases the risk to life. At the same time States need to ask themselves if
they are doing enough to prevent loss of life at sea. Is the obligation to rescue being
interpreted passively, in the sense of helping migrants in difficulty where they are
found? Or pro-actively, in the sense of increasing resources to actually search for
boats in distress?
So, how do we ensure that those in need of asylum who are intercepted at sea, can
actually make an application? And how do we ensure that irregular migrants in vessels
that are in distress, get assistance?

It is here that I would point to three opportunities.
Firstly, in relation to migrants intercepted at sea, the EU Council adopted a Decision
on external borders last year that contained a mixture of binding and non-binding rules
on this issue. The decision stipulates that operations at sea should be carried out in
accordance with fundamental rights, and that the principle of non-refoulement should
be observed when deciding whether to return vessels to their country of departure.
Consideration should also be given to the needs of vulnerable persons like children,
victims of trafficking and those in need of international protection.
The second opportunity for improving the situation comes in the form of the newly
revised Regulation of the EU Border Agency, Frontex, includes explicit legal
provisions for respect of fundamental rights. Frontex will appoint a special
fundamental rights officer and establish a consultative forum, which the Fundamental
Rights Agency will participate in, to ensure that its policies incorporate fundamental
rights considerations. Frontex has also started to train their staff and border guards on
fundamental rights, in a joint project with the Fundamental Rights Agency.
Thirdly, we should also consider that Frontex has already been deploying rapid border
intervention teams this year at the Greece-Turkey land border to help deal with
increased migration flows. And this has had a positive effect on fundamental rights by
reducing the number of people who are pushed-back automatically at the border
without having the chance to make an asylum application.
These are all steps in the right direction, but questions remain over how the new rules
will be interpreted in practice. For example, for the new rules relating to migrants
intercepted at sea, what does it mean to give consideration to the needs of these
vulnerable groups in practice? How will border guard units assess whether they are
observing the non refoulement principle in returning people to the country from which
their vessel departed?
During 2011, the Agency is conducting research that may allow us to get some
answers.
The project focuses on the experiences of individuals, including third country
nationals themselves, in rescue or interception operations at the Southern maritime
borders of the EU in Spain, Italy, Malta, Greece and Cyprus.
Only three weeks ago, two of my colleagues from the Fundamental Rights Agency
accompanied Frontex on their patrol boats in the Mediterranean. They were able to
observe the disembarkation of 42 migrants left without fuel in a small dinghy at open
sea. During the reception, assistance, registration work done by the Spanish authorities
they took precise note of different fundamental rights issues arising during these
processes. These included issues such as whether urgent medical assistance was
provided upon arrival, whether information on rights was provided in a language that
migrants could understand, the conditions of the reception facilities, and the treatment
of children. The research results will be published in 2012.

2) I would now like to turn to the second question, which is the challenges and
opportunities for migrants once they are inside the EU.
There are four categories of persons I will cover. Of course, there are other categories
of migrants, including those arriving and settling legally in the EU, who face their
own set of challenges. However, since the focus here is on migration, rather than
integration or social cohesion, I will focus on the following groups:
• Irregular migrants or asylum seekers and their reception conditions
• Those trying to access asylum procedures
• Victims of trafficking
• And those who find a way to remain in the Member States without permission
Turning to irregular migrants or asylum seekers. Here we are speaking of individuals
who have arrived in a Member State without a visa. Some of these may wish to apply
for asylum, others may have been intending just to enter the country without
permission and have been detained.
The most pressing challenge here relates to the reception conditions in those countries
facing large-scale arrivals. During the second half of 2010, 38,000 undocumented
persons were detected crossing the land border between Greece and Turkey. During
2010 the Greek external borders accounted for 90% of all detections of irregular land
and sea border crossings into the EU. Lampedusa and Sardinia in Italy have received
more than 50,000 arrivals since the beginning of this year.
These are massive and sudden inflows taking place over a short space of time. Usually
governments and local authorities do not have the logistical capacity to cope, and this
has a significant impact on reception conditions including overcrowding and lack of
sanitation.
My own colleagues visited 3 detention centres at the Greek-Turkish land border in
January of this year. To give you a picture of one detention centre, imagine that you
have an apartment of 110 square meters – a comfortable size for a small family. Then
you invite 140 people over to stay there with you for several months. That is what we
found in the centre in Soufli. People were lying on the beds and on the floor tightly
packed one next to the other. My colleagues had to climb over the bodies to get in and
move around. One person slept in a non-functioning shower. Three other people slept
in a dark hole above the toilet.
These kinds of reception conditions are not only a challenge in themselves. The sheer
number of migrants relative to available resources also means that it is extremely
difficult for the authorities to set up a process to determine who may need
international protection. And that means that people in genuine need of asylum cannot
actually make an application and put their rights into practice.
So here we have the challenges: firstly that Member States on the borders of the EU
need resources to be able to offer adequate conditions of reception that guarantee
basic requirements such as accommodation, food and health. Secondly, authorities
also need resources to ensure systematic access to the right to asylum for those in need
of protection.
While the numbers of people entering Greece and Italy are large, we cannot treat them
as exceptional. History tells us that governments need to be prepared. We may recall
that during the conflict in Kosovo in 1999 Italy received as many as 50,000 Kosovars
not to mention almost one million fleeing to Macedonia and Albania. You may also
remember that in 2006 the Canary Islands received almost 32,000 arrivals.
So what opportunities can we identify to overcome these difficulties?
The Agency’s report on Greece highlighted three areas of action by the EU based on
solidarity.
• Firstly, measures of financial solidarity between Member States is crucial since
States at the external borders of the EU inevitably face a greater burden than
others. Additional funds are indeed being disbursed through the External
Border Fund and the European Refugee Funds.
However, the Agency’s research has shown that sometimes administrative
problems in the receiving country can cause significant delays, or may not
reach organisations capable of providing support, like NGOs. And makes it
difficult to cater for the basic needs of arrivals.
• Secondly, the provision of operational support. In this sense the EU has
deployed personnel from FRONTEX, the EU’s border agency, and will in
future provide personnel from the European Asylum Support Office (EASO).
These human resources can support the border and asylum infrastructure by
assisting with the screening of migrants to identify those who wish to claim
asylum, as well as physically patrolling the border while ensuring respect for
fundamental rights. For example, as I mentioned earlier, since the presence of
Frontex at the Greek-Turkish border, push-backs have considerably decreased.
• A third way forward is the promotion of voluntary relocation programmes
within the EU. Under a pilot project for relocation of refugees from Malta
(EUREMA) a few Member States have agreed to relocate recognised refugees
on their territory. Expanding this pilot project might go some way towards
easing the pressure on border States by sharing responsibility with others. 

 3). I will now turn to a third category: victims of trafficking, and particularly
children.
It is thought that every year several hundred thousand people are trafficked into or
within the EU, and that these are mostly women and children. Around 80% of these
work in prostitution or are sexually exploited. Many are also forced into domestic
labour.
I will focus on the situation of children. Here I would like to recount a story reported
in the BBC in 2009. Dayo, 15 years old, was brought from Nigeria to the UK. She
looked after 3 children, did all the domestic tasks and was beaten daily. When she
finally contacted a help group, the trafficker tried to return her to Nigeria. She refused
to get on to the plane and was therefore taken to the immigration services. The
immigration officers did not believe anything she said. They let the trafficker go, and
kept Dayo in a centre. After 5 days they took her to the airport for deportation, but
Dayo managed to contact an Asylum Aid group that prevented her deportation,
claiming that she was an unaccompanied minor who was seeking asylum in the UK.
Ladies and Gentlemen, this is one of the rare cases that have been made public.
But sadly, every year thousands of children and young people experience similar
stories throughout the EU. And all these cases of child trafficking remain unknown,
unreported, and unpunished.
Dayo’s story typifies the impossible choice facing trafficked children: to remain living
in slave-like conditions, or to try to seek help and risk prosecution or deportation.
And this is another challenge in the context of migration. The Agency’s research in
this area shows that unfortunately there are Member States that have not tended to
take a fully victim centred approach to children who are trafficked. That is, an
approach that focuses on the best interest of the child by providing protection and
ensuring their material, educational, health and emotional needs.
However, we can point to the emergence of opportunities to protect the rights of
victims of trafficking.
In March of this year the EU Council adopted a new Directive on human trafficking
that introduces a number of protective measures for its victims, including children.
This is a welcome development, and should be read alongside a proposal from the
Commission for establishing minimum standards on the rights, support and protection
of victims of crime. The latter would create a range of rights for victims, and oblige
Member States to take into account the particular needs and vulnerabilities of victims.
It is vitally important not to re-victimise a victim and to ensure that legal proceedings
are child-friendly and that the physical, emotional and developmental needs of minors
are catered for once they have been removed from the control of traffickers.

4). The final category of persons I would like to address are migrants who are
living in an EU Member State, but doing so without permission.
The exact number of irregular migrants in the EU is unknown, but a recent EUCommission-
funded project (CLANDESTINO) estimated that in 2008 the numbers
lay between around 2 and 4 million people (1.8 and 3.8 m to be exact).
Irregular migrants are particularly vulnerable. Those who have arrived here illegally
or who have outstayed their visas find themselves open to exploitation, particularly
from unscrupulous employers. They force themselves to fly below the radar because
any contact with public authorities could lead to their detention or deportation. They
may also find that they have reduced access to certain basic services.
For example the Agency will shortly be publishing a report which finds that irregular
migrant children rarely enjoy equal access to health care. Only four Member States
(Greece, Portugal, Romania and Spain) guarantee access to healthcare that is similar
to children who are on the territory legally. Other Member States restrict access to free
health care or health insurance to specific groups such as unaccompanied minors or
children who have no right to remain but cannot be removed.
Worse still, in some Member States, there is actually an active duty on health service
providers to report undocumented migrants to the police. Even if in practice this duty
is not systematically implemented, the fear of being reported can obviously deter
people from getting help and have a very negative effect on the health of irregular
migrants.
And what about those migrants who manage to find work – irregularly? Allow me
here to focus on domestic work, where the Agency has recently published new
research.
Domestic work is typically less regulated by legal standards and enforcement
mechanisms (such as labour inspectorates) than other forms of employment, and is
usually carried out by women.
They typically work for long hours and low pay. Rest periods, paid holidays, and paid
sick leave are often not provided, even if available under legislation.
Our research also found that irregular domestic workers reported a number of physical
and mental occupational illnesses. At the same time the threat or fear of being sacked
and the lack of affordable health care and lack of paid sick leave was found to put
people off seeking medical assistance or taking time to recover. And this could then
lead to chronic injuries or permanent disability.
Where individuals do experience exploitation or unfair treatment, there are several
barriers in getting access to justice. Principally irregular migrants are put off going to
court because they fear that public bodies might alert the immigration authorities, who
may then deport them.

Ladies and gentlemen,
As you can see from the issues that I have touched upon, there are many challenges
posed to the protection of fundamental rights in the context of migration. And I
touched here only on the most urgent needs for specific migrant groups arriving in EU
Member States. But there are also opportunities to overcome these challenges in the
form of some positive developments in law and policy.
Ensuring that these opportunities are fully used and that fundamental rights guarantees
are met remains a challenge for policy-makers as they implement the detail of existing
rules and develop new legislation and policy.
If we are to ensure that fundamental rights become real living standards for everyone,
then they must become an integral part of policy-making in all areas, including
migration. In closing, I would highlight that this is a process that will be open to all of
you in your future and present careers whether that is in academia, NGOs the civil
service or other fields.
I would like to thank you very much for your attention and look forward to your
questions.But in addition, because their employment is often not formalised through a written
contract, they also face difficulties in producing evidence of an employment
relationship.
So in practice, the fear of deportation or losing one’s job deters victims from going to
court. And because possible deportation is the price of access to justice, often those
who mistreat irregular domestic workers go unpunished.
What opportunities do we have to prevent the exploitation of irregular migrants
and ensure that they have access to basic services?
Here the solution to the problem lies in returning to the very core of human rights: that
they are universal. As internationally accepted standards reaffirm, human rights are
for all, regardless of immigration status. Of course, putting this into practice remains a
difficulty but some steps have already been taken towards this. For example, the ILO
Convention Concerning Decent Work for Domestic Workers, which was adopted in
June 2011, applies to all domestic workers.
We can also point to the Employers Sanctions Directive which gives some rights to
irregular migrant workers. This includes the right to claim wages not yet paid against
their employers. And, in certain circumstances, the possibility to stay in the Member
State temporarily while these legal proceedings are on-going.
Finally, we should note that there are cases where irregular migrants do go to court to
enforce their rights and succeed. These are predominantly in situations where the
individual is assisted by a trade union, NGO or other organisation, which has the
resources and the knowledge to access the justice system. So Member States have the
opportunity to improve access to justice for irregular migrants by supporting these
organisations.