Training on Migration: Understanding Human Rights and Current Challenges

1. csc.ceceurope.org

2. Conference of European Churches Church & Society Commission TRAINING ON MIGRATION csc.ceceurope.org

3. Conference of European Churches Church & Society Commission • About the Human Rights Concept • History of development of Human Rights • Universal Declaration of Human Rights • Submission for the Training on Migration, Dr. Torsten Moritz csc.ceceurope.org

4. Conference of European Churches Church & Society Commission • Sharing Session • Do you have personal experiences related to Migration? • Are you aware of events or cases of other persons or religious organisations related to this issue? • Which issues play a role in discussions in your society in which the wish to restrict or defend this freedom is at stake? csc.ceceurope.org

5. Conference of European Churches Church & Society Commission • Theological Reflection on the Issue of Migration • Migration has always been part of the history of humankind. • Migration is at the heart of the Bible: Abraham (Gen 12), the people of Israel (Ex). • God accompanies migrants and refugees (Ruth). • Israel’s law grants rights to the foreigners and refugees. (Lev 19). • God becomes tangible in the homeless preacher of Nazareth (Mat 8:20). • The church itself is rooted in the tradition of the wandering people of God (Hebr 13:14). csc.ceceurope.org

6. Conference of European Churches Church & Society Commission • What are the Present Challenges related to Migration • Migration for reasons of labour, study, family reunion • Migration for reasons of persecution or human rights violations • Integration and racism csc.ceceurope.org

7. Conference of European Churches Church & Society Commission • Universal Declaration of Human Rights • Article 13. • (1) Everyone has the right to freedom of movement and residence within the borders of each state. • (2) Everyone has the right to leave any country, including his own, and to return to his country. • Article 14. • (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. • (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. csc.ceceurope.org

8. Conference of European Churches Church & Society Commission • Migration • Mobility and immigration • Immigration and mobility • Reasons to leave: labour, family reunion, study, medical treatment • Position of immigrants in host-countries • Integration csc.ceceurope.org

9. Conference of European Churches Church & Society Commission • Who are Immigrants? • People travel over the world for many reasons: mobility and immigration are not new in our history. • The reasons for people to leave their homes may vary: they can leave because the situation in their country is too dangerous (war, oppression and persecution) or for economic reasons, for example, work or social security. • People also leave to be reunited with their family, to study or for medical treatment. • People leaving their countries for first reasons (war etc.) are called ‘asylum seekers’ or refugees: you can find more about them in a separate presentation. • In this presentation we will focus of immigrants leaving their countries for the latter reasons (economic and social reasons). csc.ceceurope.org

10. Conference of European Churches Church & Society Commission • Labour I • Countries of origin and host countries both have their dynamics at the basis of losing or attracting people on the labour market. • Countries of origin: • If the labour market is under pressure (unemployment) people might decide to leave. Poor working conditions or low salaries are equally important reasons to leave a country. • Unfavourable legal frameworks: changing laws and regulations sometimes make it more difficult for workers to earn their living: for example, farmers from European countries emigrate to non-EU countries with less strict rules on environment and prices. csc.ceceurope.org

11. Conference of European Churches Church & Society Commission • Labour II • Countries of origin and host countries both have their dynamics at the basis of losing or attracting people on the labour market. • Host countries • If the labour market is under pressure because of shortage of workers: • Qualified workers for specific jobs • Seasonal workers • Unqualified workers for jobs that are considered too heavy, dirty or poorly rewarded by national workers. • Unfavourable legal frameworks: changing laws and regulations sometimes make it more difficult for workers to earn their living: for example, farmers from European countries emigrate to non-EU countries with less strict rules on environment and prices. csc.ceceurope.org

12. Conference of European Churches Church & Society Commission • Labour III • All countries have their own rules and regulations regarding labour. • EU countries are required to implement EU directives and regulations, which play an important role. • For information on the global level, the United Nation’s International Labour Organisation is playing an important role. csc.ceceurope.org

13. Conference of European Churches Church & Society Commission • Family Reunion • Countries have national legislation regulating this type of immigration. • Legislation would cover: • The identification of the extent to which the right to family reunion exists, including the right of protection of family life under Article 8 European Convention on Human Rights (ECHR); • Restrictions, for example, relationships not recognised in the receiving country (e.g. polygamy) or restrictions based on public order and the protection against crimes; • Requirements, for example, being able to provide work, income, housing, medical insurance and so on. • EU countries have to implement EU legislation, which covers a broad scope of rules and policies. csc.ceceurope.org

14. Conference of European Churches Church & Society Commission Study Students travel abroad to follow studies not available in their own country, or to broaden their education by living abroad for some time. This type of migration is temporary by its nature, although students might be tempted to stay in the receiving country after their study because of the labour market or for personal reasons (relationships started during study). EU countries have to implement EU legislation. You can find relevant information on the website of the European Commission Directorate-General for Home Affairs: http://ec.europa.eu/dgs/home-affairs/. csc.ceceurope.org

15. Conference of European Churches Church & Society Commission Medical Treatment The quality of medical treatment, or its costs and availability, vary according to the part of the world or country people live in. Countries with highly-developed standards of medical care are most often not too keen on receiving migrants seeking medical care – especially if the costs of the medical treatment will burden the social security system of the receiving country. csc.ceceurope.org

16. Conference of European Churches Church & Society Commission Medical Treatment and Article 3 European Convention on Human Rights: European Court of Human Rights Grand Chamber Judgment N. v UK 27-5-2008 Mrs N came from Uganda to the UK. She suffered from HIV/aids. Her request for asylum was rejected. Because of her life-threatening condition she received medical treatment. She recovered to such an extent that her condition was satisfactory. Then the UK decided to deport her to Uganda, claiming that she could continue the necessary treatment (taking medication) which was supposed to be available in Uganda. csc.ceceurope.org

17. Conference of European Churches Church & Society Commission European Court of Human Rights Grand Chamber Judgment N. v UK 27-5-2008 f. The Grand Chamber found that it would be too heavy a burden for the States if they would be required to offer medical treatment (and residence) for the large number of people from countries in which the medical and living standards are lower than in Europe. Only in very exceptional circumstances, if a person is in the terminal stages of illness and if in the country of origin there is no medical treatment and no social community to support the person, would a State be required to offer protection. csc.ceceurope.org

18. Conference of European Churches Church & Society Commission • Integration • Over time countries have received large numbers of immigrants. • Developments in society and politics are having an important impact on the position and appreciation of immigrants. • Measures are taken aiming to ensure integration of immigrants into society. • Problems: • Unemployment; • Second generations encounter problems regarding education, employment, criminality; • Religions strange to the culture and religion of the receiving country. • Limit the number of people immigrating to a country. • More information can be found on the website of the European Commission Directorate-General for Home Affairs: http://ec.europa.eu/dgs/home-affairs/. csc.ceceurope.org

19. Conference of European Churches Church & Society Commission • For EU Member States, EU law dominates their immigration policy. • The main characteristics of EU law are: • Free movement of EU citizens, goods, capital and services; • The primacy of the law of the European Union over the law of the Member States. • Member States have to respect these two basic principles and have only limited influence on the flow of EU-migrants. • Non-EU migrants face a more and more restrictive approach – based not only on economic reasons but also on tensions related to the lack of integration of unfamiliar cultures and religions into the receiving societies. csc.ceceurope.org

20. Conference of European Churches Church & Society Commission • Irregular Migration • All countries face the problem of irregular immigration: • Immigrants do not apply for a residence permit but manage to survive by working and living in illegality; • States are aware that irregular migrants are particularly vulnerable and face abuse and modern slavery; • Irregular immigration is often a product of trafficking in human beings – which is closely related to organised crime; • Fighting irregular immigration is a challenge for countries, combating the negative effects mentioned and ensuring a human policy regarding the return of irregular migrants. csc.ceceurope.org

21. Conference of European Churches Church & Society Commission • Migration • Refugees • Refugees and asylum seekers; • The prohibition of torture, inhuman or degrading treatment or punishment (Article 3, European Convention on Human Rights); • The positive obligation not to deport people to a country where they run a real risk of violation of their rights protected by Article 3 of the ECHR. csc.ceceurope.org

22. Conference of European Churches Church & Society Commission • Who are Refugees and Asylum Seekers? • Refugees are protected by the United Nations Convention Relating to the Status of Refugees: the Refugee Convention. • Definition of the term ‘refugee’: A person who: “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. csc.ceceurope.org

23. Conference of European Churches Church & Society Commission • Characteristics of the Protection of Refugees • The definition indicates that: • Only those persons fearing persecution for a limited number of reasons (race, religion, nationality, membership of a particular social group or political opinion) can be recognised as a refugee; • Others might have good reasons to fear for their lives if returned to their country of origin but are not protected by the Refugee Convention!; • The person should be outside his country of origin (although some exceptions are possible, but rarely occur); • He is threatened by his authorities or by others; • In the latter case, the authorities should not be able or willing to protect the person. csc.ceceurope.org

24. Conference of European Churches Church & Society Commission • Limitations to Protection • The Refugee Convention does not always offer protection: • Article 1 C, the ‘cessation clause’: if the situation in the country of origin changes and the refugee no longer has a well-founded fear of persecution, (s)he can no longer enjoy the protection of the Convention; • Article 1 D: if a person can enjoy the protection of any other organ or agency of the United Nations, (s)he is not protected by the Refugee Convention; • Article 1 E: If a person has the rights and position of a citizen of another country where he lives (outside his country of origin) (s)he is not in need of protection. csc.ceceurope.org

25. Conference of European Churches Church & Society Commission • Exclusion of Persons from Protection • Article 1 F: if a person is responsible for crimes against humanity or war crimes or another serious crime, he is not worthy to be protected by the Convention.This category of persons is becoming more important now that regimes known for serious human rights violations have collapsed and former politicians, members of the government, militaries, security forces and so on apply for asylum (for example, Afghanistan, Iraq, Somalia). • Article 33 para. 2: a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country is not protected by the Refugee Convention. (If he was recognised as a refugee but was later convicted of a serious crime, he can be deported being a danger for the community.) csc.ceceurope.org

26. Conference of European Churches Church & Society Commission • Exclusion of Persons from Protection  • The Office of the United Nations High Commissioner for Refugees (the UNHCR): • has a mandate to implement the Refugee Convention; • is responsible for direct support, for example, in refugee camps, but also offers broader protection. • States are required to cooperate with the UNHCR. • More information and the text of the Refugee Convention and other relevant texts can be found at http://www.unhcr.org csc.ceceurope.org

27. Conference of European Churches Church & Society Commission • Article 3 - ECHR • We have seen that the Refugee Convention offers Protection limited to 5 grounds, excluding those persons who are responsible for international and national crimes. • However, it is still possible that a person fears for his life for other reasons. • In Europe, the European Convention on Human Rights (ECHR) offers a broader scope of protection: • Article 3 of the ECHR prohibits torture, inhuman or degrading treatment. • We will now see how this article is applied in cases of asylum seekers. csc.ceceurope.org

28. Conference of European Churches Church & Society Commission Scope of the Protection: ECHR Grand Chamber Judgement Saadi v Italy 28-02-2008 Mr. Saadi is a Tunisian citizen. He lived in Italy for some years. He was suspected of being a Muslim fundamentalist preparing a terrorist attack. He was convicted in Italy and, after his sentence, the Italian authorities wanted to deport him to Tunisia. Saadi claimed that he ran a real risk of being subjected to torture, as in Tunisia he had also been convicted of terrorism and Tunisia was known to violate Article 3-rights. Italy claimed that it was not obliged to protect Saadi as he was a threat to Italian society. The Grand Chamber confirmed its case law that REGARDLESS of the person, no matter what (s)he did or how dangerous (s)he is for society, the protection offered by Article 3 has an ABSOLUTE NATURE: no exceptions are possible! csc.ceceurope.org

29. Conference of European Churches Church & Society Commission European Union I The Refugee Convention and the ECHR are at the basis of the protection of refugees and asylum seekers. For States which are members of the European Union, new instruments have come into force, harmonizing European law in this field. For an overview of the relevant instruments and developments, you can check the page of the European Commission on Home Affairs: http://ec.europa.eu/dgs/home-affairs/. csc.ceceurope.org

30. Conference of European Churches Church & Society Commission • European Union II • The most important instruments are: • Directive on reception conditions for asylum-seekers; • Directive on qualifications for becoming a refugee or a beneficiary of subsidiary protection status; • Directive on Asylum Procedures; • The 'Dublin' Regulation, which determines which EU State is responsible for examining an asylum application. csc.ceceurope.org

31. Conference of European Churches Church & Society Commission • Unsolved Issues  • Although the European Union is harmonising asylum law, the differences between European countries as to who is protected are still considerable:  • The quality of asylum proceedings is very different and in some countries they are below minimum standards (recently Greece was severely criticised for this reason); •  The legal position of refugees is equally very different, for example:  • The duration of the residence permit (temporary or permanent); •  Some countries do not give a permit but only ‘tolerate’ the presence of a person on their territory.  • Other unsolved issues: • Access to the labour market; • Access to education; • Access to housing. csc.ceceurope.org

32. Conference of European Churches Church & Society Commission Statistics Millions of people had to leave their residence or country because of (civil) wars and other reasons. The UNHCR provides statistics on global trends and shows the distribution of refugees by country all over the world. To have an idea of the number of people regarded as asylum seekers, refugees, displaced persons in need of support and protection, please check: http://www.unhcr.org/pages/49c3646c4d6.html csc.ceceurope.org

33. Conference of European Churches Church & Society Commission • Reference Documents I • Among the most relevant international instruments on migration the following should be mentioned: • 1949 ILO Convention concerning Migration for Employment (ILO convention 97) • 1951 UN Convention and its 1967 Protocol Relating to the Status of Refugees • 1975 ILO Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (ILO Convention 143) csc.ceceurope.org

34. Conference of European Churches Church & Society Commission • Reference Documents II • Among the most relevant international instruments on migration the following should be mentioned: • 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families • 2000 UN Protocol against the Smuggling of Migrants by Land, Sea or Air, Supplementing the United Nations Convention Against Transnational Organized Crime • 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. csc.ceceurope.org