“Criminalising the irregular entry and presence of migrants in Europe corrodes established international law principles and causes many human tragedies without achieving its purpose of genuine control,” Thomas Hammarberg, the Council of Europe Commissioner for Human Rights, has said.

In an Issue Paper titled “Criminalisation of Migration in Europe: Human Rights Implications”, Mr. Hammarberg said “I have observed with increasing concern this trend as part of a policy of migration management.”

While acknowledging that “States have a legitimate interest to control their borders,” Mr. Hammarberg said “criminalisation is a disproportionate measure which causes further stigmatisation and marginalisation of migrants. Immigration offences should remain administrative in nature.”

He said in the Paper that the Council of Europe member states should establish a human rights compliant approach to irregular migration.

Mr. Hammarberg asked the member states to avoid using the term “illegal immigrant”. He said “The term is counterproductive and misleading. People are not ‘illegal’. Their status vis-à-vis state authorities may not be regular but that does not render the individual somehow beyond humanity.”

He appealed to the Council of Europe member states to be fully committed to protecting those in need of international protection. “All persons seeking international protection in Council of Europe states must be provided with their basic needs (housing, food, health care, education) while their applications are under consideration.”

Mr. Hammarberg urged them to treat with respect those whose applications for international protection have been rejected, and to ensure that they can return in dignity to their countries of origin or issue them with a preliminary residence document and permission to work.

He asked member states to issue residence permits in time, to ensure that their administrative systems are sufficiently effective, and to avoid situations whereby foreign nationals “become irregular merely because the authorities have failed to deal with an application in a timely manner.”

Mr. Hammarberg also defended foreigners’ right to work. “Where necessary, member states should ensure that their legal systems provide that so long as the authorities have failed to make a decision on a foreigner’s outstanding application which was made before the individual’s permission to reside expired, the individual is entitled to residence and economic activities until there is a final decision.”

A preliminary residence document and permission to work should be given to those who have been refused residence permit but the State has failed to ensure their departure within 30 days, he said. “States may not leave people in limbo neither permitted to be present nor expelled.”

Mr. Hammarberg has strongly criticized detention of migrants simply because they are migrants. “No one should be subject to detention of any kind on the sole basis that he or she is not a national. Every migrant’s detention should be subject to an effective judicial review. As a matter of principle, no person seeking international protection should be subject to detention.”

He asked the authorities to ensure that any place of detention provides conditions which meet the needs of the individuals and fulfils the requirements set out by the Council of Europe standards.

Mr. Hammarberg called for an end to child detention. “No migrant child should ever be subject to detention. The fact of having a dependent child must be ground for an adult not to be detained except in accordance with the lawful order of a criminal court,” he said.

When it comes to social rights of migrants, Mr. Hammarberg said that “No difference in access to social benefits should be based exclusively on nationality. The level of minimum entitlement to social benefits should not discriminate between foreigners and citizens – if a state assesses that a level of poverty is unacceptable for its citizens then the same level should also apply to foreign nationals.”

He also warned against denying irregular migrants access to social benefits, especially to emergency health treatment. “The duty of confidentiality between health professionals and their patients, educators and their students and other professionals should always be respected and never subject to reporting possibilities regarding immigration status.”

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