1. Introduction
1. “Without papers but not without
rights”: the words of the Council of Europe Commissioner for Human Rights
neatly sum up the problem that is still very much topical in Europe.
Eight
years after the migration crisis, Europe is just emerging from another
– triggered this time by the Covid-19 pandemic – but the countries receiving
irregular migrants are still without the extensive and rights-based
solutions required to tackle this issue.
2. As pointed out in the motion for a resolution (
Doc. 15194) presented by the Committee on Social Affairs, Health
and Sustainable Development, “[i]n our countries there exists a
category of workers whom the Covid-19 crisis brought to light since
they are socio-economically more fragile than others: this is the
category of undocumented workers, of workers deprived from rights.
These workers have confronted a double sanction: a high socio-economic
precarity and a haphazard access to health care”. As rapporteur,
I will endeavour to come up with some concrete ways in which the
extremely difficult situation of such persons might be alleviated.
3. The issue of undocumented workers has been the subject of
several reports by international bodies, including the Parliamentary
Assembly. In particular, the Assembly has adopted
Resolution 1509 (2006) “Human rights of irregular migrants” and
Resolution 1568 (2007) “Regularisation programmes for irregular migrants”,
in addition to
Recommendation
1985 (2011) “Undocumented migrant children in an irregular situation:
a real cause for concern”. Resolution 1509 and Recommendation 1985
ask member countries to refuse to exchange information on the status
of such persons between administrations where such information concerns
vital services (for example, medical care and schooling) in order
to facilitate access to them by, in the first instance, undocumented
migrants and, in the second, their children. Resolution 1568 has
a different scope, addressing and encouraging regularisation programmes.
The Assembly was also in favour of monitoring these programmes,
but no real action was ever taken in this direction.
4. In 2016, the European Commission against Racism and Intolerance
(ECRI) put forward a series of measures to tackle an urgent discrimination
issue: access for those in this particularly vulnerable group to
the rights guaranteed to them in international human rights instruments,
in particular as concerns education, health care, housing, social
security and assistance, labour protection and justice, while they
are within the jurisdiction of a member State.
5. While Covid-19 has undoubtedly worsened hardship for these
workers who, from one day to the next, found themselves destitute
and unable to obtain official State support (for example, social
assistance, unemployment benefits, health care), some countries,
like Portugal, Ireland or Italy, have put in place partial regularisation
programmes to ensure access to health and social welfare programmes.
Others have temporarily extended their health coverage for these
vulnerable workers, without going through the regularisation process.
6. The approach I have adopted in preparing this report is a
pragmatic one: to provide a snapshot of undocumented migrants today
and to illustrate the abuses they are subject to despite the various
texts adopted by the Assembly and international treaties signed
by Council of Europe member States. On 18 May 2022, the Committee
on Social Affairs, Health and Sustainable Development held a hearing
with the participation
of representatives of the European association PICUM (Platform for
International Co-operation on Undocumented Migrants)
and Eurispes (Institute for Political,
Economic and Social Studies)
which
promote the rights of undocumented migrants. In addition, on the
basis of the replies to the questionnaire on the legislation, procedures,
and programmes for the regularisation of undocumented or irregular
workers, the report highlights best practices or shortcomings (even
in the case of regularisation programmes), and seeks to promote
human rights, including socio-economic rights as set out in the
European Social Charter (ETS No. 35), in Council of Europe member
States.
2. Profiles of undocumented workers
7. There is much literature covering
undeclared work in our countries. This concept is vast: it can mean income
not declared to the tax authorities, unpaid social security contributions,
or the employment of people whose residence status is not in order.
The scope of this report is limited to this last aspect, but there, differences
also exist. There is a tendency to refer to a worker without legal
residence as an undeclared worker. Yet, there are employees without
a valid residence permit who pay social security contributions,
insurance coverage of several types (for example contributions for
private health insurance or retirement schemes) and, in rare cases,
taxes.
8. It is in any case wrong to assume that anyone who works without
legal status is invisible to the authorities since these people
or their employers may pay some contributions to State funds (social
security contributions, contributions to pension schemes). This
shows the double hypocrisy of the system: firstly, there are workers who
contribute to the prosperity of a society but are denounced as personae non grata; secondly, some
of these same people contribute when they can to the financing of
the various insurance systems, but are not entitled, for example,
to unemployment benefits and/or social assistance if they cannot
work (such as when they are ill or due to a pandemic).
9. The issue of undocumented workers without residence permits
is both vast and complex. As the motion for a resolution points
out, “[w]e often find this category of workers in domestic work
(housekeepers, babysitters, nursemaids) or in the foodservice and
agricultural sectors, or even in sex work” but also at the service
of delivery platforms and on construction sites. According to studies
by the Pew Research Center, in 2017, the number of undocumented
persons living in Europe was estimated at between 4 and 5 million.
This number grew significantly in 2015 with the increase in asylum
seekers (who constitute a quarter of undocumented people in Europe).
It is estimated that, half of these persons live in Germany and
the United Kingdom.
10. There is no single definition of undocumented migrants: their
paths are sometimes very different. There are persons who arrive
with a visa and after its expiry do not leave. Others arrive to
apply for asylum and stay on the territory even if the answer is
negative. Some arrive with a residence permit obtained thanks to
a temporary employment contract, but see their situation change
when they lose work or change employer; still others come through
family reunification, but either the family structure changes or
they can no longer meet minimum thresholds and criteria that allow
them to take advantage of reunification policies, etc.
11. In this report, the question is not that of assessing their
migratory path or whether the laws on foreigners in Council of Europe
member States respect human rights. The report deals specifically
with what we will call “undocumented / unauthorised” workers or
those in an irregular situation resident in our countries. It seeks
to observe the treatment of hundreds of thousands of people who
should officially no longer be on our territories but who nonetheless
remain and work in black or grey zones. These workers are exploited
by employers who do not declare them or only partially declare them,
pay them entirely inadequate wages, and often do not respect any
decent working conditions. These workers do not have the means to
defend themselves against abuses in several areas (work, housing,
access to basic medical care, etc.) because recourse to justice
would put them at risk objectively or subjectively.
12. The reasons why regularisations would be desirable are set
out in the various reports and resolutions/recommendations mentioned
above. There are many negative consequences of allowing people to
remain indefinitely with no prospect of leaving and without legal
status, such as the risk of labour exploitation, complete dependence
on the employer and lack of access to the social safety net (especially
unemployment insurance, welfare payments, etc) or to basic medical
care, with the public health problems this may entail. Limited access to
social protection leads to a considerable risk of high levels of
insecurity. Children and young people are growing up in our countries
with no prospects other than undeclared work. Areas of lawlessness
and crime linked to these populations (violence, abusive and substandard
housing situation, frauds, loan-sharking, wage undercutting and
related unfair competition) develop because people feel they cannot
turn to the police and/or the justice system to defend their rights.
3. Types
of exploitation of undocumented migrants
13. No country can claim there
are no people working on its territory who should not officially
be there. These persons live in such a way as to go undetected,
especially by the authorities who could order and carry out their eviction
from where they have been living, some for many years. This position
of inequality and vulnerability carries the potential for abuse
and exploitation, including through forced labour. Exploitation
can be organised by a person (for example, embassy officials vis-à-vis
their domestic staff, as was recently reported in Geneva, Switzerland)
or
on a larger scale, for example on farms or factories. In extreme
cases of exploitation, there is a whole organisation of chiefs and
sub-chiefs, often migrants themselves, who organise, monitor, and
punish workers in fields or sweatshops. The example of countries
around the Mediterranean – very well documented – is striking in
this respect.
14. It is easy to see how the phenomenon of exploitation can take
root, and why the law cannot protect these people (impossible access
to the courts without the risk of being expelled or threats of reprisals).
Strong measures must be taken. It is important to understand that
the exploitation of undocumented migrants or widespread abuse of
their rights is part of a system that allows for breaches of the
labour and social rights of workers in general, and which is even
more violent for people with no residence permit. Indeed, the existing system
leaves space for the expansion of mafia-like or other organisations
that bring labour in from third countries either legally or illegally.
Even if the working conditions are more or less satisfactory on
paper, once these people have arrived the reality is often different,
with gruelling working days, poor pay (or sometimes no pay at all
for an extended period on the pretext of reimbursement of the travel
or other logistical costs), absence of insurance, etc.
15. During the committee hearing, the choice was made to take
Italy as a “case study”, not because it is worse or better than
any other country but because it is one of the main European immigration
routes. The Italian researcher Mr Marco Omizzolo, who now lives
under police protection, shared with us the results of his research:
based on participatory surveys, he discovered that many undocumented
workers are trafficked into Italy. Their number is estimated at
around 100 000, including women and children.
The
typical working hours of an undocumented worker are 40 hours and
six days a week, with some paid as little as 50 cents an hour and
others even forced to work up to 14 hours a day with just a few
10-minute breaks. The exploitation machinery is largely controlled
by the mafia, especially in the farming and agri-food sectors, which
employ about 30 000 people from India.
16. Human, including social rights, of these workers are systematically
violated, and many are subjected to physical harassment. It takes
an average of four years for trafficked workers to pay back the
traffickers. Faced with enormous pressure in the workplace, some
undocumented workers take drugs to ease their pain and cope with
the harsh conditions. Many cases of sexual abuse are reported. Several
exploited workers who went on strike (following an information campaign
organised by civil society) received death threats. Worker exploitation increased
during the Covid crisis,
with a 15-20%
rise in the number of migrant workers on Italian farms, increasing
the number of people exploited or at high risk of being exploited
by some 40 000 to 55 000.
17. This economic model that breaches workers’ rights clearly
exists in other countries too. For example, another area of intensive
farming with huge economic stakes is vegetable production in the
Spanish region of Andalusia (in particular Huelva and Alma). Several
sources of information provide alarming facts and figures on the
working conditions of agricultural workers.
The growing
of berries there (strawberries, blueberries, blackberries, raspberries)
provides 100 000 direct and indirect jobs (52.5% of them carried
out by Spanish nationals or residents of the country, 21.4% by seasonal
workers from the European Union and 25.9% by seasonal workers from
outside the European Union). Depending on the source, between 3 000
and 7 000 people live in Huelva in shanty towns with no water or
electricity during the harvest season. There are many workers from
Morocco and other African countries without residence permits (despite
an agreement between Morocco and Spain to reduce illegal migration).
According to several associations and trade unions, a collective labour
agreement exists (albeit below the national minimum wage) but there
is scant regard for the wage scale and the payment of overtime and
travel allowances. However, it should be noted that this is one
of the few intensive agricultural areas in Europe where an agreement
has been signed that includes the protection of the rights of seasonal
workers. The Spanish Government has committed to the full restoration
of the rights of workers, including those of migrants. It has made
co-operation with the Moroccan Government a priority in managing
this form of circular immigration, with the aim of ensuring maximum
equality and eliminating the risks of exploitation.
18. Therefore, what we have here is a huge economic market where
profits are made at the expense of workers, most of them immigrants,
whose rights are not respected, and with a very vulnerable population
of undocumented workers. Apart from the intolerable nature of the
abuses suffered – and even if the workplace abuse is not always
on this scale – these working conditions have a direct impact on
the status of workers when the renewal of their residence permits
depends on the number of hours worked, their income and their work permit.
A person can arrive in our countries with a residence permit and
work contract and see their conditions deteriorate as a result of
abuse by employers (large industrial groups or smaller organisations),
thus jeopardising their ability to meet the criteria to continue
working there legally.
19. It is clear that what drives some employers to behave in this
way is the competitive and liberal labour market system based on
lowering costs and increasing profits. One way of achieving this
is to make the workforce malleable and dependent, and this is carried
out in serious violation of migrant workers’ rights and human rights
treaties. For example, people with regular status are put under
pressure by threatening not to renew their contracts if they complain
or report their working conditions, and individuals without residence permits
are threatened with being reported to the migration authorities
and subsequent deportation.
20. However, the agri-food sector is by no means the only one
practising an economic model based on the exploitation of workers,
especially undocumented workers, in insecure jobs where employees’
rights are not respected. This model has been developing for some
years in online platform services too. In a new employment situation
in which an organisation denies it is an employer, there is an entire
group of home delivery workers who are neither employees nor self-employed
but dependent on an employer who does not wish to be classified
as such in order not to pay social security contributions. This
is where, based on the same type of systemic organisation, we find
a large proportion of workers who have been refused asylum, people with
expired work contracts or residence permits.
21. The weakness of labour law in this sector is amplified for
undocumented workers: often declared as self-employed or micro-enterprises,
delivery workers are paid by the drop, and it is often not known
how the price of the drop is calculated. Without social protection,
an accident at work will either not be covered or be covered only
to a limited extent. These couriers have no sick leave, no paid
holidays, and no unemployment benefit; they are often required to
pay for their own equipment. In Spain, Greece and regionally in
Switzerland,
there have
been attempts, sometimes successful through strikes or legal action,
to give these delivery platform couriers employee status. The Assembly
expressed its position on the matter in 2019 (
Resolution 2312 (2019) “The societal impact of the platform economy”); the
European Parliament expressed its support for employment status
in similar situations, in a non-binding resolution in September
2021. In common with the agri-food sector, similar patterns are
in evidence in this sector, namely insecure conditions of employment
preventing people from renewing or obtaining a work or residence
permit, not to mention the pressure and the abuses committed with
impunity.
22. In addition to the agri-food and delivery platform sector,
we might also mention what is happening in the fishing industry.
In May 2022, researchers from the University of Nottingham condemned
in a report
intolerable abuses
to which seafarers from countries outside the European Economic
Area were subjected in the United Kingdom. This followed another
report along the same lines by the International Transport Workers’ Federation.
The abuse is made possible by transit
visas that allow fishing vessel owners to bring these migrant workers
to fish in international waters in order for them to be in transit.
However, they then take them back to British ports and make them
sleep on the boats between fishing trips, which means they are no
longer in transit. These visas can last up to a year and the workers
are therefore confined to the vessels for that period because as
soon as they step on British soil, they are considered illegal and
risk return to their home countries. It is with this threat that
some vessel owners commit serious abuses in terms of working hours,
pay, rest time and living conditions.
23. In 2017, abuses were reported in Ireland by the Migrant Right
Centre Ireland (MRCI). Egyptians and Filipinos were working on Irish
trawlers for € 2.82 per hour (the minimum wage is € 9). The MRCI
recommended a series of measures to the Irish State to ensure that
these abuses were not repeated, including the regularisation of
the illegal workers among them within six months.
Thus, it can
be seen that in this sector as well the patterns are the same, with
serious breaches of labour law with particularly serious pressure
exerted on those without legal status. In fact, sometimes it is
even legal provisions (transit visas) that exacerbate the potential
for mistreatment.
24. The list of the areas involving undocumented workers and their
exploitation could go on and on. We could mention building sites,
including the recent cases concerning the sites for the 2024 Paris
Olympic Games. In Seine-Saint-Denis, near Paris, undocumented workers,
from Mali in particular, have publicly condemned their working conditions.
Among the examples of abuse, one
said it was possible to work for a week without being paid, with
no way of claiming the amount due. Here, a system of subcontractors
enables the laws to be circumvented with no one held to account.
25. In this report, which draws on specific cases involving particular
sectors of exploitation, we must also consider domestic work. From
the accounts of those who have been deprived of all liberty, subjected
to serious labour rights violations and physical and psychological
violence, it is clear that such treatment is a form of slavery.
While not all undocumented migrants are subject to such awful treatment,
much remains to be done to clean up the sector, in which undeclared
work is likely to occur, as cases reported around the world have shown.
On the one hand, workers who have a residence permit but do not
pay social contributions have less access to social benefits and
pensions, and on the other hand, the revenues of the State institutions
that are responsible for providing such benefits diminish. For those
without a residence permit, the lack of social protection and individual
security is obviously even greater.
26. In this way, we are caught up in a dangerous double movement:
we keep important parts of the economy going through the work done
by exploited employees, with or without residence permits, thus
jeopardising the economic activity of good employers; policies increasingly
brutalise the whole field of migration and lead to stigmatisation
of all migrants, both those who are legally present and those who
are undocumented. And while access to justice for the first category
(local workers or those with a residence permit) is not easy for
fear of losing their job, those in the second category (workers
without a residence permit) find subjective and objective access
to the courts even more difficult.
27. During the committee hearing, the PICUM representative said
some countries, such as Switzerland, Belgium, or France, have some
good practices regarding access to justice. According to one of
their studies, “(c)ivil courts and labour tribunals in 13 out of
15 EU member States in the study do or would consider undocumented
workers’ claims equally to other workers. They usually check identity,
but do not check work permits, and in practice do not report undocumented
workers for immigration enforcement purposes if the irregular status
of the worker is known”. However, this finding is tempered: “Practices
of labour inspections reporting personal information on undocumented
workers to immigration authorities vary greatly, as does whether
they are based on law, a formal cooperation agreement/policy or
common practice. [...] Aside from the risk of immigration enforcement
as a result of engaging in complaints mechanisms, key issues include
lack of information, advice, and legal assistance; the length of
procedures and associated costs; additional sanctions related to
irregular status or work; challenges to prove the employment relationship
and the extent of the rights violations; and difficulties to actually
receive funds when employers evade payment.” Considerable progress therefore
needs to be envisaged to enable these individuals to effectively
defend their own rights as employees and as human beings entitled
to a dignified life.
4. Regularisations
28. It is not possible to discuss
the regularisation of undocumented migrants without paying tribute
to the individuals and movements that have fought to bring into
the open this issue of men and women rendered invisible, and who
have attempted to influence the migration and labour law policies
to remedy the problems identified. Mention may be made here of the
March for Equality and Against Racism (Marche des Beurs) initiated
in 1983 in Lyon, France, by the priest Christian Delorme. Although
this was primarily an anti-racist march, it also made clear demands
such as a 10-year residence permit. Similarly, in Paris, from March
to August 1996, the images of the occupation of (and brutal expulsion
from) the Church of St. Ambroise by 300 people, including women
and children, demanding to be granted residence permits, went around
the world.
29. We could mention the European march organised by the International
Coalition of Undocumented Migrants in 2012, which crossed several
European countries (it started in Belgium, passed through the Netherlands,
Germany, Luxembourg, France, Switzerland and Italy and ended in
Strasbourg in front of the European Parliament).
We should
also mention here the courageous strikes in 2018 of agricultural
workers in Italy, encouraged by Aboubakar Soumahoro, in response
to distressing situations linked to their working conditions and
status. In Belgium, in 2021, 442 undocumented migrants went on a
gruelling hunger strike and took over the Béguinage church and the
premises of Brussels universities. As is often the case, these protests and
demands begin in reaction to dramatic events and stories of injustice,
such as workplace accidents due to working conditions, inhumane
evictions, or racially motivated murders.
30. How best to end the exploitation of undocumented workers has
already been the subject of political discussions in many of our
countries. It seems difficult in practice and ethically not desirable
to expel tens of thousands of persons whose stay in our countries
has lasted for years (we are sometimes faced with a second generation
of undocumented migrants). Not to mention that economic circles
would be deprived overnight of workers bringing prosperity and productivity.
This Assembly took a position on the issue in
Resolution 1568 (2007) “Regularisation programmes for irregular migrants”,
which recommended regularisations. Regularisation is designed to
give workers access to fundamental rights but also to tackle the
problem of undeclared work.
31. As I do not have the means to carry out a comprehensive or
exhaustive review of regularisation practices, I shall refer to
documents and work done by PICUM. I quote: “The most comprehensive
study on regularisation programmes and mechanisms in the EU is REGINE
study (2009), which identified that 24 of the 27 EU member States
implemented regularisation programmes or mechanisms between 1996
and 2008, and some several times. An estimated total of 5.5 to 6
million people were regularised in that time. 43 regularisation programmes
were implemented in 17 EU Member States in those 12 years, involving
4.7 million applicants, of whom at least 3.2 million were regularised”.
32. More recently, a
study by the European Commission’s European Migration Network
found that 60 “national protection procedures” (as opposed to international
protection, most of which could be called regularisation mechanisms)
existed in the 24 EU member States, the UK and Norway surveyed at
the end of 2018. The survey covered procedures based on humanitarian
grounds, exceptional circumstances, medical grounds, childhood,
non-refoulement and climate change but did not include the residence
status of victims of crime or trafficking.
33. Regularisations, especially regularisation programmes, have
been used with different objectives in mind and often reflect the
government’s broader approaches to equality, migration management
or the economy. Regularisation has, for instance, been used both
as a response to an acute economic challenge and to the failure
of the wider migration system.
Italy’s
2020 regularisation programme for agricultural workers in the face of the Covid-19
pandemic is an example of a government response to an economic challenge,
while Sweden’s regularisation programme for unaccompanied minors
and
Ireland’s
2022 regularisation programme are examples of schemes addressing a broader migration
policy issue.
34. In 2022, the German Government decided to regularise some
of “its” rejected asylum seekers (130 000 people): people with “tolerated”
(Duldung) status, that is,
those who could not be removed for various reasons and who remained
on German soil. Spain, which has a labour shortage, also decided
in 2022 to facilitate access to work for immigrants, even those
already in the country and in an irregular situation. Among them, those
who have been living in Spain for more than two years will be able
to be regularised and benefit from training. France is also considering
a draft law that would allow temporary permits to be given to irregular migrants
working in sectors with a shortage of workers.
35. There have been few reviews of regularisation programmes.
I will mention one from Switzerland not because the programme was
excellent in every respect but because it illustrates the positive
effects of such programmes that could be transferred to other countries.
Operation Papyrus, which enabled the Canton of Geneva to regularise
1 663 adults and 727 children between 2017 and 2018, generated about
€5.2 million in cantonal insurance at the end of 2019.
Moreover,
the authorities mention important aspects in their Operation Papyrus
evaluation report:
there
was no “pull effect” and the post-regulation situation was extremely
stable; 88% of employment relationships continued six months later
(employers did not dismiss these people, who became more expensive
with regularisation) and there was no recourse to social assistance
just because the persons concerned had obtained a permit allowing
them to apply for it once regularised. These observations respond
in a very concrete way to fears that some might have.
36. It is also necessary to adopt a balanced attitude and admit
that these programmes are not the absolute answer to all problems.
Still in Geneva, the researchers behind the Parchemin study
(June 2022) on the 4-year evaluation
of regularisation, assume that the benefits of regularisation on
living conditions and health will probably take longer than expected
to be felt and that it is mainly the second generation that will
benefit from it. The first generation, as is often the case in migration
situations, is the one that sacrifices. This makes the case for
the rapid regularisation of these workers in order not to generate
situations of insecurity over several generations.
5. Regularisations
and various protection programmes during the Covid-19 pandemic
37. Before discussing undocumented
migrants, it should be remembered that during the acute Covid-19 crisis,
when strict lockdown measures were taken, sectors such as agriculture
increased their demand for workers, underlining the importance of
foreign labour in these sectors. For example, in 2020 Confagricoltura, the
organisation that represents investors in agriculture in Italy,
organised aerial “green corridors” to bring in farm workers from
Morocco. The same happened in England with Romanian workers. The
strawberry harvest also continued in Spain. These people thus contributed
to the “war effort” demanded by the liberal globalised market economy.
38. At the same time, during the Covid-19 crisis we saw many persons
whose social and economic coverage was the most fragile, queuing
in front of food banks even in the richest countries in Europe.
Many of these people were either undocumented or had a precarious
residence permit. Their access to official aid such as social assistance
or unemployment insurance was made impossible administratively on
the one hand, and because of the fear of losing a precarious title
if they received public aid on the other.
39. While various regularisation programmes have been carried
out in a piecemeal fashion over the past few decades, the Covid-19
issue encouraged States to take measures that either “only” involved
expanding undocumented migrants’ access to health services as a
public health approach in the light of a pandemic that draws no
distinction according to a person’s status in terms of documents
or to realise that an effective health measure was to increase regularisations.
Accordingly, faced with the pandemic and the impossibility of sending people
back because of border closures or the inability of their authorities
to process permit renewal applications, many European countries
adopted policies to extend residence permits. At least ten EU member States
provided for the automatic extension of certain permits for a specific
period (Czech Republic, France, Greece, Hungary, Ireland, Italy,
Luxembourg, Poland, Slovak Republic and Spain). Some governments provided
for the possibility of granting an extension, but only on application
or request, and some countries, such as Belgium, did not guarantee
a positive decision.
This
helped to prevent an increase in the number of people without a
valid residence permit but residing in the territory and in any
case unable to travel because of the restrictions due to the pandemic.
40. Italy set up a regularisation programme and Portugal dealt
much more flexibly with pending temporary regularisation applications
(this programme permitted the regularisation of 240 000 people between
May 2020 and March 2021, but 100 000 appear to have been excluded
as they had not had a pending application.
Spain
also relaxed its regularisation criteria. In the United Kingdom,
family members of a person who died from Covid-19 and worked for
the National Health Service on a temporary residence permit were
granted an indefinite permit. This also applied to undocumented
migrants.
41. The Covid crisis resulted in various movements in many countries
renewing their demand for regularisation. In Belgium and France,
municipalities, associations of undocumented migrants, trade unions, lawyers,
intellectuals, doctors, and parliamentarians called for regularisation
and even organised demonstrations on the subject. In Luxembourg,
a working group, of which Caritas Luxembourg is a member, drew up
recommendations to the government on regularisation and combating
exploitation and trafficking. In Spain, a petition supported by
400 organisations and the #RegularizacionYa campaign called for
the extraordinary regularisation of all irregular migrants, as did
the city of Barcelona.
42. Some countries put in place special and extraordinary measures,
one example being Ireland, which introduced a nationwide weekly
payment for all employees and self-employed people who lost their
jobs during that period. The government agreed that no information
would be passed on to the immigration authorities, in line with
the firewall principle, so that the assistance could be safely claimed
by undocumented migrants. In practice, access to this assistance
was limited to undocumented workers with a social security number
and a tax record proving the loss of their source of income.
43. In May 2020, the Dutch Ministry of Health ordered every municipality
in the country to ensure that all homeless people have access to
a shelter, regardless of their migration status, in order to limit
the spread of Covid-19. In Spain, at the regional level, the Balearic
Islands extended, from May to June 2020, their guaranteed income
to all adults experiencing a social emergency due to Covid-19, irrespective
of their administrative status. The Canary Islands provided for
an emergency payment from June to October 2020 for registered residents
who were not eligible for the regional minimum income, including
undocumented residents.
Although
limited in time, all these programmes did at least exist and provided
very concrete help to the people concerned.
6. Comparative
review of relevant legislation in the selected countries: problem
areas and good practices
44. As we have seen, regularisation
programmes have been introduced before, during and after the Covid-19
pandemic. Associations defending undocumented migrants denounce
the complexity of administrative processes and the conditions set
by regularisation programmes that thus miss the original target.
For example, in Italy, in 2020, during a regularisation programme,
of the 600 000 people estimated to be in an irregular situation
in the country, only 200 000 were able to apply. In some countries
such as Switzerland where no regularisation programme has ever been
put in place at the national level, a canton (that of Geneva), in partnership
with the Confederation, launched its own programme called Papyrus
between February 2017 and December 2018. Operation Papyrus consisted
of a deal: clarification and broadening of the criteria for regularisation
while also providing for an amnesty for employers who employed these
people. Of the 10 000 undocumented persons in this canton, about
3 000 met all the required criteria and were thus able to be regularised
(mostly women involved in the domestic sector).
Although there are legal possibilities
to give a residence permit to such persons elsewhere in the country,
the various institutional channels through which the application
must pass drastically reduce the chances of obtaining regularisation.
45. This report should serve to reiterate the Assembly’s support
for these regularisation programmes, as was the case in 2007, and
also highlight the concrete measures to be taken, underscoring good
and bad practices, as well as the demands of various organisations
defending undocumented migrants (regularisation with fewer complicated
criteria to meet, improved working conditions, access to justice,
etc.).
46. In 2022, a questionnaire was sent through the European Centre
for Parliamentary Research and Documentation (ECPRD) to review national
legislation on the regularisation of undocumented workers in Denmark,
France, Ireland, Italy, Portugal, and Spain.
Relevant information
was also received from Belgium. These countries were asked questions
on the legislative basis for the regularisation of undocumented
workers, mechanisms, specific criteria, and time constraints for
regularisation, as well as on targeted regularisation arrangements
or programmes during the Covid-19 pandemic.
47. The analysis of the replies received reveals a number of problems,
such as regulatory frameworks that are too strict or not transparent
regarding the conditions to be met and that make access to regularisation procedures
excessively difficult, burdensome or unpredictable. It is therefore
essential to clearly list the regularisation criteria as well as
the documents recognised to demonstrate continuous residence in
the country, professional activity or any other criterion mentioned
by the regulation. Conversely, the use of broad, undefined concepts
such as public order
or exceptional circumstances
is
a source of uncertainty and unpredictability and even poses a risk
of arbitrary interpretation by national authorities. In terms of
procedure, Ireland appears to be a good example to follow, as its
regularisation programme for long-term undocumented migrants recognises
a wider range of documents as proof.
48. Furthermore, with regard to ad
hoc regularisation programmes, the limited eligibility
period for applications deprives them of their effect: eligible
persons may not be informed of their existence in time and therefore
be unable to apply. For example, in Belgium, when the 2009 regularisation
programme was launched, only applications submitted between 15 September
and 15 December 2009 could be assessed. Similarly, in Italy, the
exceptional regularisation scheme for foreign workers was open only
for a few months, for applications submitted between 1 June 2020
and 8 January 2021. This very short opening period of the regularisation
programmes very clearly restricted the number of applications.
49. The imposition of administrative fees when regularisation
applications are made
is an additional obstacle
that undocumented workers, most of whom are also economically deprived,
find it hard to overcome. Moreover, paying these fees does not guarantee
that the applicant will be regularised at the end of the procedure.
Improvements are also needed in the follow-up to the procedure once
the application for regularisation has been submitted. These procedures
are generally long and cumbersome. Good practices to be highlighted
include the use of electronic procedures (as in Ireland)
alongside paper-based
procedures for those who do not have access to new technologies,
the recording of supporting documents already submitted by the applicant
for regularisation or residence permit renewal, for use when subsequent
or parallel procedures are carried out
and fixing
the time frame for processing applications.
The
latter practice, which is linked to the legislation on foreign nationals
in general, could be extended to the processing of undocumented
migrants’ applications for regularisation.
50. Information on and accessibility of procedures are also a
real issue when it comes to ensuring access to regularisation. Often,
the lack of information, the language for the dissemination of information,
when it exists, and the short duration of certain programmes are
significant obstacles to accessing regularisation procedures. To
deal with this matter, member States should not only extend the
duration of regularisation programmes but also try to communicate
more widely and in a way that is more adapted to the specific case of
undocumented workers. It is therefore crucial to make use of intermediaries,
such as trade unions and local actors, including associations that
assist undocumented migrants and people in an irregular situation,
like Cimade in France. In these cases, it is essential for people
to be able to contact ombudspersons and intermediaries and be informed
in their own language.
51. When considering the adaptation and modernisation of the regulatory
framework for the regularisation of irregular workers, it should
not be overlooked that people may be worried about the adverse consequences for
their personal life and employment if they apply for regularisation.
For example, in a number of States, a strict understanding of the
condition of “continuous residence” in the national territory constitutes
an obstacle to drawing up the application.
In addition, in the case
of irregular workers, the fear of being subject to deportation or
an order to leave the territory is also present.
52. Finally, when it is up to the employer to initiate the regularisation
process the worker is less likely to apply for regularisation for
fear of reprisals or losing the employment contract. The worker
should therefore always be able to apply for regularisation himself/herself.
Group applications for regularisation through support groups for
undocumented workers is also a good practice to encourage. Some
States have already gone further in guaranteeing the rights of irregular
foreigners in their territory in the context of the Covid-19 crisis
by facilitating their access to healthcare and vaccines.
53. We can accordingly highlight the following good practices
that either exist or should be introduced, whether in the context
of
ad hoc programmes or permanent
regularisation mechanisms:
- Specific
regularisation programmes must be carried out over a sufficiently
long period of time in order to reach those concerned. Such programmes
could be announced ahead of time so as to enable people and organisations
to be as well prepared as possible;
- The application must be made by the undocumented migrant
himself/herself, without intermediaries who could blackmail him/her,
in particular on behalf of the employer (application against payment
for example);
- Information must be available in different languages to
ensure it is accessible and understood;
- For people on temporary contracts, enable them to change
employers without losing their residence status and thereby prevent
them from being artificially placed in an irregular situation;
- Direct grant of a residence permit for all migrants in
an irregular situation who co-operate with the police to report
abuses;
- For any victim of criminal labour exploitation, trafficking
in human beings and other violent crimes who would like to remain
in the territory, facilitate access to specific permits independently
of their co-operation with the authorities and their involvement
in judicial proceedings;
- Possibility of appeal in the event of a negative response
by the decision-making body or a decision by an authorised third
party not to submit the application for regularisation to the decision-making
body;
- Admissibility criteria such as a specific number of years
of residence in the country (reasonable duration) should be as clear
as possible, with shorter period in the case of children or individuals
raised/born in the country;
- Application and procedural fees should be as low as possible
because undocumented migrants have generally extremely low incomes;
- Support for associations that assist applicants in their
regularisation process throughout the procedure;
- The documents to be produced and requested by the authorities
should be reasonable and take into account that the discreet nature
of undocumented migrants’ lives means that not all papers and proof
of their existence in the country are completed in the same way
as for a citizen with official status;
- Once undocumented persons have had their situation regularised,
measures must be put in place to support them (for example, language
courses, help finding a new job, etc.);
- Access to justice without fear of being reported is essential
to exercising one's human and labour rights. Consequently, while
cases falling under the Criminal Code (crime, theft, etc.) are automatically
reported to the migration authorities, those pertaining to the civil
justice system (child protection, industrial tribunals, etc.) should
not be systematically reported (for example, to prevent employers
from reporting undocumented workers in the event of a labour dispute).
The automatic transmission of data between the various judicial
bodies should be discontinued in order to encourage undocumented
migrants to take legal action.
7. Analysis
of the scope of European legal tools to protect irregular workers
54. It is important to note that
several European directives cover the protection and rights of workers,
and some explicitly cover workers without residence status. For
example, Directive 2009/52/EC deals both with sanctions for undocumented
migrants and their rights (unpaid wages, legal procedures for bringing
complaints against unscrupulous employers, etc). A 2021 Communication
on the same directive calls on governments, among other things,
to facilitate contacts of these people with law enforcement agencies
without running any risk due to their migration status.
55. There is also the European Directive 2004/81/EC, which deals
with residence permits. It provides for the grant of a short-term
residence permit (six months renewable) to victims of human trafficking.
Directive 2012/29/EC deals with crime victims’ rights to support
and protection, which are to be guaranteed by member States in a
non-discriminatory manner, including by virtue of residence status.
56. The Convention on Action against Trafficking in Human Beings
(CETS No. 197)
and
the Committee of Ministers Recommendation CM/Rec(2022)21 on preventing
and combating trafficking in human beings for the purpose of labour
exploitation are part of the relevant Council of Europe texts. This
convention has a broad scope and covers all forms of trafficking
(national or transnational, linked to organised crime or not) and
all trafficked persons (men, women and children). The forms of exploitation
it covers are, at the very least, sexual exploitation, forced labour
or services, slavery or similar practices, servitude and organ removal.
It focuses on human rights and the protection of victims. Its preamble
defines trafficking as a violation of human rights and an attack
on the dignity and integrity of the human being. It recognises a
range of rights for trafficked persons, especially the right to
be identified as a victim as well as to protection and assistance,
a recovery and reflection period of at least 30 days, a renewable
residence permit and compensation for harm suffered.
57. GRETA (Group of Experts on Action against Trafficking in Human
Beings), which is an independent body monitoring the implementation
of the convention, provides useful insight on the efforts by national
authorities to combat trafficking for labour exploitation. For instance,
GRETA’s recent report on Greece reviews measures taken further to
the Chowdury judgment of the European Court of Human Rights as regards
the regularisation of undocumented Bangladeshi workers and calls
for further improvements, including through labour inspection missions.
58. One of the questions that arises is why a system of exploitation
of irregular migrants of such vast magnitude (without mentioning
trafficking in human beings) persists in our countries. The various
instruments for the protection of fundamental rights in Europe are
not sufficient to protect these people, who are often from third
countries. In addition to the Convention on Action against Trafficking
in Human Beings, another key instrument is the European Social Charter,
so we need to look at its wording and its implementation to assess how
to integrate populations that theoretically do not exist in our
territories but in fact are there and often subject to large-scale
mistreatment as human beings and as workers.
59. Resolution 2384 (2021) “Overcoming the socio-economic crisis
sparked by the Covid-19 pandemic” points, in paragraph 5, to “a
legal void in the European Social Charter: working migrants originating
from countries that are not bound by this treaty are excluded from
the application of certain provisions of the Charter. This loophole,
one of many, highlights the need for the Charter to be modernised
with new rights being recognised to meet the manifold challenges
that were made more visible by the pandemic.” The scope of the Charter
should therefore be extended to cover all persons who live de facto in our countries. This
would allow undocumented workers to better assert their fundamental
rights.
60. On the proposal of the Secretary General of the Council of
Europe and following the decision of the Committee of Ministers,
the process of reforming the Charter mechanism was launched in June
2022 with the creation of the Committee of Ministers’ ad hoc Working Party on improving
the European Social Charter system (GT-CHARTE). This Working Party
addresses procedural and substantive issues concerning the Charter
and is expected to consider the question of adding new rights to
it, in particular concerning rights related to atypical work (including
fixed-term work, part-time work, telework/remote work, platform
work, temporary agency work, domestic work, etc).
61. The restriction of the personal scope of application of the
Charter (that is, exclusion of persons from countries that have
not ratified it), as set out in the Appendix,
is widely considered incompatible
with the nature of the Charter as a human rights treaty. This anomaly
should be corrected to bring it into line with the state of development
of international human rights law. In addition, Article E (Part
V) sets out the principle of non-discrimination to ensure that the
enjoyment of the rights recognised in the Charter is secured “without discrimination
on any ground”.
Unfortunately,
the fact that very few Council of Europe countries have ratified the
Charter in its entirety makes its application even more complex.
The 4th Council of Europe Summit in May 2023
was a unique opportunity to make concrete proposals for action and
give a strong political impetus to the implementation of the Charter.
8. Conclusions
and recommendations
62. The issue of undocumented migrants
is particularly relevant for the Assembly because these workers’ rights
are all too often flouted, sometimes in a brutal way. This may be
down to large industrial groups or criminal organisations whose
economic activity is based on this work, which could be likened
to forced labour. It can also take on “softer” forms through working
conditions that do not comply with the minimum standards of labour
legislation for a decent life in smaller companies or the homes
of private individuals.
63. The people concerned are very vulnerable because defending
their rights is made difficult by their fear of being identified
as undocumented and thus losing their jobs and/or being deported.
All countries are aware of the presence on their soil of these workers
without rights. The estimated figure is several million women and men
who contribute not only to the economic prosperity of our countries
but also to keeping our private or public social security systems
afloat. Despite this, there is a tendency to stigmatise these people
when they are caught breaking residence permit laws.
64. Our Assembly must reiterate that undocumented workers have
rights and that continued insecurity in their lives is intolerable,
especially as there is sometimes already a second generation of
undocumented migrants, confirming the presence over many years of
people at the mercy of potential blackmail and ill-treatment.
65. Regularisation programmes activated before, during and after
Covid-19 are the surest way to restore these people’s rights, in
addition to permanent national mechanisms. The fact that they are
regularly implemented should not be seen as a sign of a pull effect
but, rather, that our continent continues to need migrant workers
to keep its economy running. The hypocrisy of stigmatising or even
criminalising hundreds of thousands of people for contravening the
laws governing residence permits and work contracts must stop. Entire
sectors of our economies must be cleaned up in the medium term by
implementing these regularisation programmes.
66. This issue concerns both migration law and labour law. The
tightening up by our countries of the legal channels for people
from third countries to come to Europe and work contributes to the
insecurity of the labour and residence rights of people who have
in some cases been living in our countries for many years. It is
clear that the main reasons for the abuse and exploitation of undocumented
migrants in particular and workers in general include an insufficiently
controlled labour market and the dehumanisation of migrants.
67. In these circumstances, civil society associations, NGOs,
trade unions and State actors are doing their utmost to restore
rights to the persons concerned, based on national legislation and
international law. One way of doing this is through regularisation.
Many States have understood this and have implemented specific programmes.
For this to have a real impact, these regularisation programmes
or standards have to meet a number of criteria, including with regard
to the common values of the Council of Europe. The time has passed when
workers were considered disposable and simply given a work and residence
permit when the labour market needed them and then sent back home.
68. Our Assembly must once again impress upon the Committee of
Ministers and the member States of the Council of Europe the need
for such regularisation programmes and monitoring mechanisms. Particular attention
should be paid to the criteria imposed (such as time spent in the
country), family situation and procedures for access to regularisation,
the latter being to avoid applicants for regularisation become subject to
financial blackmail by employers or other organisations. Administratively
simple and inexpensive procedures should be promoted, as well as
the other measures and good practice mentioned in chapters 5 and
6 of this report.
69. Access to justice is a crucial aspect of the protection of
undocumented or irregular migrants. This access is not sufficiently
guaranteed by our States, which should be encouraged to find procedures
that do not link the various courts with the migration authorities
– the main subjective or objective obstacle to undocumented migrants
asserting to their rights.
70. Our Assembly must also support undocumented migrants’ organisations
by underlining their role as key players in the discussions on,
and protection of, the rights of such persons. A dialogue between
the various parties (the State, employers, associations and trade
unions) must be included in the development of regularisation programmes,
for example. To this end, the “offence of solidarity”, whether aimed
at NGOs or private individuals in their work helping these vulnerable
people on their arrival and during their stay in our countries,
must be revoked where it exists. This will combat one aspect of
the dehumanisation of migrants and ensure they are seen as stakeholders
in our societies – as members of society, of the labour force and
as a source of well-being and prosperity for our communities. They
are neither simply “workers” nor ‘others’ on the periphery of our
lives.
71. More generally, the European Social Charter and its implementation
need to be strengthened, especially in order to close the legal
loophole that migrant workers from countries not bound by this treaty
are excluded from the application of certain of its provisions.
This loophole, among many others, highlights the need to modernise
the Charter. Its scope should therefore be extended to cover everyone de facto resident in our countries,
irrespective of their status, as this would make it easier for undocumented
workers to assert their fundamental rights.