PICUM Report: Using Legal Strategies to Enforce Undocumented Migrants’ Human Rights
The report is the outcome of a discussion amongst representatives from key monitoring bodies, legal experts, and frontline service providers at PICUM’s Annual Workshop in June 2012. The United Nations Special Rapporteur on the Human Rights of Migrants, François Crépeau, highlighted the need to restrict sharing of information between service providers and immigration authorities:
“Access to justice is key. The voice of migrants has to be heard by institutions. Good practices do exist and firewalls are part of the good practices. Public services, such as the police, healthcare providers, labour inspectors, or school teachers or administrators, should be able to perform their missions, without the unwelcome interference of being forced to act as auxiliaries.”
The European Union Agency for Fundamental Rights (FRA) has developed guidelines for EU member states to enable undocumented migrants to report crime and access justice without fear of being apprehended. These guidelines suggest the possibility for anonymous reporting to the police through a third party and to delink the immigration status of victims from the main residence permit holder if he or she is the perpetrator.
Two European Union directives also foresee ways for undocumented migrants to access justice. Under Article 6 of the Employers’ Sanction Directive (Directive 2009/52/EC), which provides for “minimum standards on sanctions and measures against employers of illegally staying third-country nationals”, undocumented migrants are entitled to introduce a claim against their employer for outstanding payments. The Victims’ Directive (2012/29/EU), establishing “minimum standards on the rights, support and protection of victims of crime,” adopted in October 2012 and to be transposed by EU Member States by 2015, aims at strengthening the rights of all victims and their family members, irrespective of their residence status as stated in Article 1 of the Directive.
The challenge remains on the national, regional and local levels, to ensure that practical measures will be put in place to ensure that undocumented migrants can safely file a complaint if they have been exploited or abused. The national legal frameworks of EU Member States do not always assess sufficiently if undocumented victims of crime are ensured effective access to justice and victim support services.
By building cases, the report gives concrete examples of how to take action at national and at EU level, including the collection of evidence of exploitation, how to lodge a complaint and training within NGOs to proceed with court cases.