“Erecting barriers only makes the journey more difficult, more expensive and more dangerous.”
The ECRE Weekly Bulletin has talked to Professor François Crépeau, who was appointed as United Nations Special Rapporteur on the Human Rights of Migrants in 2011. Prof. Crépeau holds the Hans and Tamar Oppenheimer Chair in Public International Law and is the scientific director of the Centre for Human Rights and Legal Pluralism, at the Faculty of Law of McGill University. The focus of his current research includes migration control mechanisms, the rights of foreigners, the connection between security and migration, and between the Rule of Law and globalization. The Special Rapporteur’s first thematic report on detention will be presented to the Human Rights Council in June and he is soon to undertake a mission to Greece. You can also read the interview on our website.
How would you evaluate the current situation with regards to the level of respect of migrants’ human rights in Europe?
Undocumented migrants and other vulnerable migrants who have precarious administrative status, such as agricultural workers who work on a seasonal basis or domestic workers who very often live under precarious conditions, are not empowered to fight for their rights.
Over the past twenty years, courts have had an increasing role in protecting the human rights of migrants, especially since 9/11. The European Court of Human Rights (ECtHR), the Court of Justice of the European Union (CJEU), supreme courts and lower tribunals have all told governments that there are certain standards by which they need to abide.
This, in turn, has created a tendency to try to increase administrative discretion in immigration matters in order to be able to deal with migration in a way that is fast and fair, but in practice it is often faster than fair. There has been an increase in detention, expedited returns, joint returns and other sorts of mechanisms through which States have tried to maintain a level of administrative discretion in dealing with undesirable migration. We also see that there are fewer opportunities to appeal decisions, as well as more limitations on access to legal aid and social support for migrants.
I don’t blame politicians personally for not taking a stronger moral stance on issues relating to migration. Structurally, in democracies, elections are the key incentives. Migrants don’t vote: irregular migrants, vulnerable migrants don’t vote, don’t mobilise, and don’t complain. They rarely go to court. Citizens don’t really mobilise for migrants. There are NGOs, umbrella organisations, and churches, but this is not a constituency in the political sense. No party, in government or in the opposition, is actually championing the rights of irregular migrants, no one.
Very often governments are replaced by the opposition, but the policies remain the same because the electoral pressure is the same for all. The discourse on migration is often a toxic discourse. You may lose elections on an immigration issue if you start championing the rights of migrants that the general public doesn’t want. So structurally, politicians have no incentive to protect migrants’ rights. That leaves the courts, the NGOs and lawyers fighting for their rights, but winning legal battles is becoming more difficult than in the past.
The electoral pressure will remain until we change the toxic political discourse at State level. Indeed, it will persist until we start changing the general population’s perceptions of migration. For example, the idea that migration is a security issue only came into being in the past 25 to 30 years. The twinning of migration and security by politicians has been done with the sole purpose of making electoral gains. For years, there has been no counter-discourse but it is possible to change perceptions. We have done so in the past. For example, a few weeks before Romania and Bulgaria joined the EU, some Member States were still expelling Romanians and Bulgarians because they were foreigners. A month later, they were EU citizens and had the right to be on the territory. Bulgarians are no longer nasty irregular migrants who might be a security risk and even terrorists; they are EU citizens. If we changed our perceptions about them, we can do that with others. I see my role as UN Special Rapporteur as someone who can bring forward and voice another type of discourse.
Many irregular migrants are exploited. I think in the EU, it was estimated that, in 2008, there were between 1.9 and 3.8 million irregular migrants. Many do not seek legal redress for exploitation, for unpaid wages, or for having to work in a hazardous work environment. However, if lawyers or NGOs seek redress for just a handful of them, it can have a profound effect on policy, which in turn helps all migrants in these conditions.
Courts have two functions: redress for the individual concerned combined with an educational function to tell States: ‘no you can’t do that so change your policy now’. This in turn sends a message to the public: ‘do what I have told the State, that’s how you treat people’.
The EU can make progress in the field of migration over the next 10 years. Before the Lisbon Treaty, most of the migration policy was shaped by States. Since its adoption, the European Parliament – which is more removed from the electoral discourse – the European Commission and the Court of Justice of the European Union are playing a much greater role.
There will be progress and setbacks and both will often happen at the same time.
What is your opinion on governments’ policy responses to the economic crisis in the EU? Do you think they are having an impact on the respect of migrants’ and refugees’ human rights?
People often think that in periods of prosperity, migration is positive as migrants help countries to produce more, but in times of economic crisis, people generally think that migrants should return to their countries of origin. Migration is very often a good thing because it is a source of quick and readily available labour. Migrants move from one city to the next and look for places where there are jobs, as do citizens themselves.
Tightening border controls prevents this inflow and outflow, which is a natural coping mechanism of our economies: people don’t stay if there are no jobs and this in turn eases the pressure on the social support systems. The idea that we should make our border controls more robust in order to stop everyone who wants to cross is a misconception. The idea of sealing a border is simply not going to happen, as we need this inflow and outflow of people. The belief that democracies can seal borders is a fantasy, but we hear that from politicians in many parts of the world.
Unrecognised labour needs are currently being filled by irregular migration. We need to start acknowledging these unrecognised labour needs. We can choose to make it legal, control and inspect it to make sure everything is above board and that these people become legal residents. Or we can simply decide to let migrants down and close the borders with all the associated costs- the implication being that it is not worthy to subsidise a whole economic sector through cheap labour where the same products can be produced much cheaper elsewhere. To come up with a solution, we first need to publicly recognise these labour needs.
What is your opinion on the use of drones (remote-controlled pilotless aircrafts) and other monitoring mechanisms?
The technique in itself is not a problem. If drones save lives, I’m all for it. If drones identify a boat that is sinking and calls for support and that support comes within an hour and you save most of the lives, this would be excellent. At the same time, we have to be realistic. This is one tool in an arsenal of technical tools to prevent irregular migration. States are sovereign, and they have the power to prevent people from accessing their territory but there are questions about people in need of protection. States usually say this will be implemented in full respect of State’s obligations regarding the Refugee Convention, at least that is what we always read. What are the concrete steps?
First, all necessary measures need to be taken to make sure that all people in need of protection are identified. Then there are people who don’t really need protection, they try to come, get caught and get sent back. This is what territorial sovereignty is all about. This control of irregular migration must however operate in full respect of the obligations imposed by the human rights framework at international and domestic level.
What I say is that as long as there are unrecognised labour needs, people will come. So we can erect the most sophisticated border control arsenal, people will still try to get around it. The pull factor is the unrecognised labour market. We should make that labour market emerge and legalise it, but, this means tough decisions on closing businesses and giving much better wages and better working conditions to people in the industrial or economic sector.
Erecting barriers only makes the journey more difficult, more expensive and more dangerous. Working on the labour demand at home is actually what is going to reduce migratory pressure.
The European Commission released in November 2011 the Global Approach to Migration and Mobility. How do you assess the ‘migrant-oriented’ approach as mentioned in the Communication?
I am quite happy to see that this communication is much more migrant centred than previous documents. I think it is an effort by the European Commission to try to change the conceptual framework from past migration policies which were mainly steered by Member States.
Now the European Commission, since the Lisbon Treaty, has a chance to put forward a more balanced conceptual framework that will not be driven solely by border control and anti-irregular migration deterrents, such as deportation policies. Whether States will allow this new approach to flourish remains to be seen. I think the European Commission is in the process of trying to rethink several of the instruments that have been adopted in the past ten years. It might be a good idea for the EU institutions to wait until the courts get into the debate through a series of decisions and then try to use the case law that might go against what states perceive to be in their interest. We have to understand that State territorial sovereignty is not going to disappear in the foreseeable future. At the domestic level, human rights guarantees are very often constitutional so they are also above parliamentary sovereignty. At the international level, we have the territorial sovereignty paradigm, States are sovereign. Also, we have a human rights paradigm since 1948 which says that we, as individuals, have rights at anytime, anywhere. States still consider that they should have unfettered discretion to deal with migrants. So, the European Commission needs to be very cautious if it does not want the Council to simply reject all its proposals, it has to take this into account. The EU and the international community are made of States and States ultimately decide. You have to send out the message that State sovereignty will be respected but it has to be made compatible with the human rights guarantees. You have to offer States something in exchange and that is a difficult line to walk. So, I don’t think we are going to see huge progress in a very short time. We’re going to see painstaking attempts to move forward, and it will take time.