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Recent Issues in Immigration policy: Criminalisation, Detention and Socio-Economic Rights

The Immigrant Council of Ireland recently briefed delegates from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) during their recent ‘periodic visit’ toDublin. You can find the Irish reports and responses from 2002 and 2006 here. The ICI says in its latest newsletter that :

At the meeting, the ICI highlighted existing legislative provisions for immigration-related detention in a wide range of circumstances, as well as the proposed provisions in the Immigration, Residence and Protection Bill 2008. The ICI also highlighted the ongoing difficulties in monitoring the welfare and conditions of migrants in detention due to the lack of official data recorded by the Irish Prison Service or other agencies…In addition, the ICI raised concerns about victims of trafficking being kept in detention and charged with immigration related offences, concerns which were also expressly highlighted by the US Trafficking In Persons Report (2009)

The  ICI’s focus on detention touches on a very important issue in immigration policy. The Council of Europe’s Commissioner for Human Rights has published an issue paper on the human rights implications of the criminalisation of immigration in Europe – whether by the application of criminal law, or by measures – such as detention – which have a criminalising effect. The paper is here.  The paper concludes:

[T]here is a steady advance of the discourse of ‘illegality’ in migration law and policy. While the early EU legislation refrains from using the terminology, after about 2003, it becomes common currency appearing again and again throughout documents, legislation and decisions. This trend is of questionable consistency with the human rights obligations of the member states and their activities within the Council of Europe. As regards human rights, all the EU measures discussed above confirm, at least in their preambles, that they comply with the EU’s fundamental rights obligations. Explicit references are made to member states’ duties under the ECHR and, in asylum related measures to the UN Refugee Convention. However, the recognition of these commitments does not appear to influence, in practice, the approach towards criminalisation.

Two aspects of the EU’s criminalisation of foreigners are striking. First there is the pervasive way in which the measures (a) separate foreigners from citizens through an elision of administrative and criminal law language and (b) subject the foreigner to measures which cannot be applied to citizens, such as detention without charge, trial or conviction. Secondly, there is the criminalisation of persons, whether citizens or foreigners who engage with foreigners. The message which is sent is that contact with foreigners can be risky as it may result in criminal charges. This is particularly true for transport companies (which have difficulty avoiding carrying foreigners) and employers (who may be better able to avoid employing foreigners at all). Other people, going about their daily life, also become targets of this criminalisation such as landlords, doctors, friends etc. Contact with foreigners increasingly becomes associated with criminal law. The result may include rising levels of discrimination against persons suspected of being foreigners (often on the basis of race, ethnic origin or religion), xenophobia and/or hate crime.

The Council of Europe member states should reverse these trends and establish a human rights compliant approach to irregular migration.

The Immigrant Council of Ireland has also made a submission to the UN’s Special Rapporteur on the Human Rights of Migrants. The submission is available here. The submission argues that:

limited access to English language tuition, lack of legislation governing recognition of qualifications people have gained in non-EU countries and immigration status-related restrictions on access to education for some migrants all have negative impacts on their right to an adequate standard of living…Excessive fees [are] charged for employment permits, visas, registration cards and certificates of naturalisation… [Immigrants are also affected by] restrictions on access to housing…[P]rovisions in the Immigration, Residence and Protection Bill 2008 restrict undocumented migrants’ access to health services [and] social welfare .

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