Francois Crepeau, the United Nations Special Rapporteur on the Human Rights of Migrants, last week presented his report on Europe to the UN Human Rights Council. Having spent a year investigating the rights of migrants in that region, Crepeau offered some strong and timely recommendations. Criticising the EU's current focus on security concerns, he called for the EU and its member states to adopt a human rights-based approach to migration. But it was not just the Special Rapporteur taking to the floor to remind the EU of its legal and more obligations to uphold human rights - country after country from across the world repeated the fundamental necessity of a human rights-based approach to migrants. Country after country, that is, other than from the European Union.
Surprisingly, EU countries all but failed to engage with the Special Rapporteur during discussions at the Council. Portugal and Montenegro did mention his report but ignored the main thrust of his arguments. Greece and Italy, which had been visited by Crepeau when he was investigating the EU's external borders, sought to downplay the egregious violations of migrants' rights, including detention without charge and lack of access to legal services and healthcare. All other EU member states studiously avoided mentioning Crepeau's report.
Crepeau focused his country-specific reports on two of the EU's external borders - Greece and Italy. The year-long investigation and resulting report applies to all EU member states, despite not singling out countries for particular praise or criticism. The UK, which prides itself on commitment to human rights and fundamental freedoms, must take heed of last week's report. 'Security concerns', as Crepeau explains, cannot be the primary basis for policies on migrants. That approach undermines the existence of basic rights for all people. Focusing solely on blocking irregular migrants from reaching the UK's shores, or on removing them once they arrive, ignores their human rights. Migrants are, first and foremost, human beings. Regardless of whether they are regular or irregular migrants, their status as human beings remains unchanged; therefore their rights are not and cannot be removed.
Crepeau called upon states, at the very least, to build a firewall between immigration control and service providers. That would allow irregular migrants to access healthcare, police and other services without fear of information being shared that would expose their status to the immigration authorities.
The 'firewall' is one expression of a human rights-based approach. It requires that social services, health care providers, schools, labour inspectors and tribunals, amongst others, be prohibited from collaborating with the UK Border Agency in imposing controls and affecting removals. This expresses the idea that the state's power to return irregular migrants ought not to interfere with migrants' ability to access their rights. Migrants should be able to interact with public administrations without fear of being denounced, arrested, detained and deported.
A firewall would be a good start, but nonetheless only a step in the right direction. Firewalls only address migrants' rights to access service. A whole range of other violations of migrants' rights occur within the UK. Adopting a human rights-based approach would require the UK to rethink recent policy and judicial decisions. Currently, irregular migrants are not afforded basic labour rights. Under the Court of Appeal's ruling in 'Hounga v Allen' [2012], the doctrine of illegality results in irregular migrants being denied fundamental rights regarding work. So, by virtue of their status, and owing to the UK's failure to adopt a human rights-based approach to migrants, those people lose basic human rights.
And that is not the half of it...
Government policies of detention and denial of legal services, tacitly rather than actively, again violate human rights. Removal with force, particularly of vulnerable groups such as children and pregnant women, with UK Border Agency approval, also violates basic rights. Irregular migrants are denied the ability to realise their rights to food, adequate housing, a livelihood, healthcare, and many more. Such rights are systematically abused owing to the UK adopting a security, rather than human rights, based approach to migrants. Security, or indeed any other, concerns no longer can be used to justify non-compliance with the international human rights law that the UK was at the fore of creating.
As things currently stand, no EU country has adopted a firewall system, with the partial exception of Portugal. Countries, acting under the security paradigm, do not want to prevent their migration police from accessing all the information needed to repress irregular migration. The status quo is not good enough. But until we are ready to accept that all people, regardless of race, religion, nationality and status, are afforded fundamental rights by virtue of being a human, then we can no longer claim any moral high ground in the international human rights arena. The starting point is the need for EU states to set up firewalls, which will be the first step in accepting the paradigm shift from a security to a human rights-based approach. The UK must be at the fore of implementing and pushing for these changes.