The European Commission convened the first ever EU Summit on Anti-Racism on 19 March. The Summit is one of the activities foreseen by the EU’s Anti-Racism Action Plan, adopted 18 September, which commits to addressing systemic and structural racism in Europe, and to mainstreaming anti-racism across all EU policy domains - including migration. The Summit gathered high-level EU leaders, as well as NGOs, to discuss the way forward - but was criticised for failing to adequately involve affected communities in its planning and for not taking a true intersectional approach to the root causes of racism in Europe. In the lead-up to the Summit, PICUM published a blog arguing that to truly tackle racism, we must change our approach to migration policy, including as reflected in the EU’s recent Pact on Asylum and Migration.

A Frontex internal working group identified deficiencies in the monitoring and reporting system of Frontex and suggested further necessary improvement. The working group looked into thirteen allegations of pushbacks and found that in six incidents of pushbacks, the investigators weren’t able to resolve the incidents beyond any reasonable doubt. When heard by the European Parliament about this report, Frontex’ Director Fabrice Leggeri said “I can see that there is no violation of fundamental rights.”

The Global Legal Action Network and Human Rights 360 submitted a complaint to the UN Human Rights Committee arguing that migrant pushbacks amount to enforced disappearance. The case involves a Syrian boy who was granted asylum in Germany and later went to Greece to search for his missing 11-year-old brother. There, the Greek police arrested him, took his “cellphone, passport, keys and all of his other personal effects,” and deported him to Turkey, where he was “stuck in legal limbo” for three years. As one of his attorneys explained, the “‘black ops and clandestine nature of the violations,’ lack of paper trail, and concealment of facts, as well as the denial of justice and the breakdown in the rule of law, cumulated into an enforced disappearance.”

The Council of Europe (CoE) Commissioner for Human Rights published a report analysing the main trends and developments in the Central Mediterranean. Between July 2019 and December 2020, over 2,600 people died and over 20,000 were returned to Libya. In the same period, at least 23 new criminal or administrative proceedings were initiated against NGOs, mostly in Italy. Both the Netherlands and Germany adopted stricter requirements for the work of search and rescue NGOs. The Commissioner urged CoE member states to provide for a quick and adequate response to distress calls, to stop hindering NGOs’ human rights activities, including search and rescue as well as human rights monitoring, and to end pushback and pullback practices.

Late March, the UK government released a new Plan for Immigration, which aims to “deter illegal entry” and to “remove more easily from the UK those with no right to be here”. The plan heavily focuses on deporting people and lowering safeguards for those who cannot be returned. In particular, the plan seeks to ensure the rapid removal of inadmissible cases to the safe country from which they embarked or to another safe third country. In parallel, it introduces a new temporary protection status with less entitlements and limited family reunion rights for people who are inadmissible but cannot be returned to their country of origin or another safe country.

The Commission launched the first EU Strategy on the Rights of the Child defining EU priorities for the coming years. The Commission plans to work for ensuring all children realise their full potential regardless of their social background, ensure all children have access to child-friendly justice, ensure that all children are free from violence, can safely navigate the digital environment and participate in democratic life. The strategy also has an external element and aims to mainstream child rights in all EU policies affecting them.

With regards to undocumented children and children in migration, the Commission sets out to support Member States in the development of “effective and viable alternatives to detention of children in migration procedures.” The Strategy takes steps towards realising a ‘continuum of care’ across borders, calls for the improvement of national child protection systems (focusing on unaccompanied children), calls on member states to improve guardianship systems and prevent statelessness through free and universal birth registration, and promotes equal access to services and education for all children.

In a resolution adopted ahead of the Strategy’s publication, the European Parliament had called on the EU and the Member States to step up action to end the detention of children, and to work out community-based alternatives to detention that meet the best interests of the child.

On 24 March, the European Commission published its proposal for a Council recommendation on a European Child Guarantee, an instrument aiming at tackling social exclusion by supporting Member States in guaranteeing access to quality key services for children in need (in education and care, healthcare, nutrition, and housing). The actions, planned and monitored on the basis of national priorities, will be supported by EU funds. Member States with a rate of children at risk of poverty above the EU average, will have to earmark 5% of their ESF+ funds to combating child poverty or social exclusion. Children with a migrant background, irrespective of their migration status, are explicitly included in the list of target groups.

PICUM published a new report, Navigating Irregularity: the Impact of Growing up Undocumented in Europe, which explores how undocumented children’s housing situation, access to services, household income, schooling and family life are impacted by their and their family’s irregular residence status, and the consequences this has on their well-being and development. The report also explores the impact going through complex and nerve-wracking migration procedures has on them. The report is available in English, French and Spanish.  

Spanish organisations Fundacion Por Causa and Save the Children Spain have similarly documented the situation of undocumented children in Spain, including high risks of poverty and human rights violations (read more on El País).

In M.A. v Belgium, the Court of Justice of the EU ruled that Belgium is required to consider the best interests of the child when returning the undocumented father of a child who is an EU citizen. The CJEU considered that, in conformity with Article 5 of the Return Directive and in conjunction with Article 24 of the Charter of Fundamental Rights of the EU (on the rights of the child), Member States must take due account of the best interests of the child before adopting a return decision accompanied by an entry ban, even when the person to whom that decision is directed is not the child but their parent.

This February, the UK Court of Appeals upheld the ruling of the High Court that the £1,012 (~ 1,170 €) fee charged by the Home Office creates an insurmountable barrier for many families to register their children as British citizen. The judgment considers the fee unlawful and requires the Home Office to reconsider the fee and ensure that children’s best interests are taken fully into account in doing so. The courts have made clear that where a child has a right to British citizenship it will generally be in the child’s best interests to be registered as British. The case was brought by the Project for the Registration of Children as British Citizens.

On 31 March, the French Court of Cassation dismissed the case against Cédric Herrou, a farmer who was charged in 2017 with facilitation of irregular entry for guiding nearly 200 migrants through the mountains between France and Italy. In 2018, The French Constitutional Council upheld the “principle of fraternity” and overturned his first conviction, sending the case back to the Court of Appeal in Lyon. In May 2020, the Lyon Court of Appeal discharged Herrou but the prosecutor appealed the decision. By rejecting the prosecutor’s appeal, the Court of Cassation finally put a halt to the judicial harassment against Cédric Herrou.

In the case of R.R. and Others v. Hungary, the European Court of Human Rights found that the detention conditions in the Röszke transit zone violated the prohibition of ill-treatment. The Court assessed the detention of a family of five, including children and a pregnant mother, who lacked adequate access to food, health and other basic services. The Court also found that the situation in the Röszke transit zone amounted to a de facto deprivation of liberty (art. 5§1).

A report by the Jesuit Refugee Service Europe analyses the impact of COVID-19 on immigration detention, alternatives to detention and detention conditions in Belgium, Germany, Italy, Malta, Portugal, Romania and Spain. Of the countries analysed, only Spain officially released all people held in detention centers during the lockdown and suspended new detention orders. In Belgium, Germany and Italy, many detainees were released in practice, but there was no official decision from the responsible authorities on the issue. Post-release accommodation was not always guaranteed. In all countries, people released during the pandemic could be detained again. Their orders to leave the country, as well as associated time limits, were generally not altered.

A new study by PICUM looks at the detention of people with vulnerabilities, and screening mechanisms, in Belgium, Greece, the Netherlands, Spain and the United Kingdom. The study finds that mechanisms to screen vulnerabilities are absent in most cases, and even when they exist, like in Belgium and in the UK, people who are identified as vulnerable are frequently still detained as migration control purposes trump other considerations. The study recommends the establishment of regular screenings, which have to be independent, transparent and individualised, so people with vulnerabilities are not detained.

The Portuguese authorities have launched an online platform that undocumented people living in the country can use to register for their COVID-19 vaccination, without need of a social security number. Although a welcome development, grassroots organisations denounce the delay in establishing such a platform and fear that the lack of trust towards public authorities will prevent many from registering.

On 8 March, several UN experts issued a Joint Guidance Note on Equitable Access to COVID-19 Vaccines for All Migrants. The note echoes previous calls from Special Rapporteurs on migrant rights and the right to health for inclusive access for migrants in the vaccination campaigns.

On 14 April, the European Commission released the new EU Strategy on Combatting Trafficking in Human Beings (2021-2025). The strategy remains largely focused on criminal law responses, but some attention is paid to initiatives on corporate governance, protection support and empowerment of victims, which would lead to a more human-rights based approach to anti-trafficking. The strategy invites EU governments to create safe environments for victims to report crime without fear of prosecution for acts they were forced to commit, or being exposed to  secondary victimisation,  intimidation or retaliation. Challenges around access to residence permits and reflection periods for non-EU citizens and Dublin transfers are also mentioned.

In a referendum on 7 March, the Swiss public voted with a large majority (68.8%) in favour of a law proposed by the cantonal government in Geneva to extend wage compensation to workers who lost their jobs during the first wave of the pandemic but were left out of the national wage compensation package. Undocumented workers are explicitly included in the policy. The law will provide financial assistance of up to 4,000 Swiss francs per month in compensation for lost earnings during the period 17 March – 16 May 2020. Civil society who campaigned in favour of the measure will support implementation, and continue to call for the wage compensation to be prolonged to also cover the second wave of the pandemic.

The state government of New York has pledged $2.1 billion as a relief package to support undocumented essential workers who have been laid off during the pandemic, and who have, up until now, been excluded from unemployment assistance. Undocumented workers will be able to receive up to $ 15,600 if they can prove they were employed before the start of the pandemic, through Individual Tax Identification Numbers or other official forms that attest to employment. Nonetheless, these requirements mean many undocumented workers will be left out of the program.

A new report on labour exploitation of third-country national workers, commissioned by the European Platform tackling undeclared work, finds that workers with no valid work or residence permit are the most at risk of undeclared work and exploitation. They also have extremely limited or no alternative options and experience fear in reporting exploitative conditions to authorities. The report finds that labour inspectorates are often asked to monitor immigration law, and this can conflict with their mandate to ensure fair work and decent working conditions for all workers. Among the solutions, it recommends establishing confidential reporting mechanisms to protect workers, cooperation with social partners and NGOs, and carefully designed regularisation schemes.

Caritas Europa’s new policy paper, Demystifying the regularisation of undocumented migrants, shows how regularisation can allow undocumented migrants to access their rights, and provides recommendations for how regularisation can be implemented. The paper recommends that regularisation should be seen alongside efforts to expand regular migration pathways, and that governments should facilitate the issuance of stable residence permits to avoid pushing people into irregularity. Moreover, it urges the Commission to coordinate and share best practices between member states, and calls on governments to cool down the heated debate on regularisation and affirm it as a legitimate policy option.