Immigrants in search of democracy and human rights

Author:Lucia-Stefania Avram
Pages:131-140
SUMMARY

The author of this articles analyses the main legal norms that should be taken in consideration regarding the minor immigrants and the vulnerable people among immigrants. The author will present the main international, European and national norms and will make a comparison between them to understand the differences and the most favorable and the hardest regulation.

 
CONTENT
Immigrants in search of democracy and human rights 131
Section III: CITIZENSHIP AND IMMIGRATION
IN EUROPE
IMMIGRANTS IN SEARCH OF DEMOCRACY
AND HUMAN RIGHTS
Lucia-Ștefania AVRAM1
ABSTRACT
The author of this articles analyses the main legal norms that should be taken in consideration
regarding the minor immigrants and the vulnerable people among immigrants. The author will
present the main international, European and national norms and will make a comparison between
them to understand the differences and the most favorable and the hardest regulation.
Keywords: Public Law, International and European Law, immigration, minors, vulnerable.
Introduction
The migration is the movement of a person or a group of people, to settle in
another place, often across a political or administrative boundary. It is known
historically, that people have always had migratory lifestyles, in search of new
economic opportunities and horizons, to escape armed conflict, poverty, food
insecurity, persecution, terrorism, or human rights violations and abuses or to
escape the effects of climate change, natural disasters or a combination of these
reasons2.
The democracy represents a form of government in which the supreme power
is vested in the people and exercised directly by them or by their elected agents
under a free electoral system where people’s human rights and fundamental
freedoms are respected, promoted and fulfilled, allowing them to live with dignity.
1 PhDc, National University of Political Studies and Public Administration. E-mail:
ste.avram@yahoo.com
2 The New York Declaration for Refugees and Migrants, The Resolution adopted by the UN General
Assembly on 19 September 2016, available on http://www.un.org/en/ga/search/view_doc.asp?
symbol=A/RES/71/1.
Law Review vol. III, Special issue 2017, pp. 131-140
132 LUCIA ȘTEFANIA AVRAM
It is an universally recognized ideal and one of the core values and principles of
the United Nations, regulated by the Universal Declaration of Human Rights and
by the International Covenant on Civil and Political Rights3.
The Human Rights are norms that help to protect all people everywhere from
severe political, legal, and social abuses4.
The vulnerable persons are defined by the Romanian General Inspectorate for
Immigration5 and by the Directive 2013/33/EU as minors, unaccompanied minors,
disabled people, elderly people, pregnant women, single parents with minor
children, victims of human trafficking, persons with serious illnesses, persons with
mental disorders and persons who have been subjected to torture, rape or other
serious forms of psychological, physical or sexual violence, such as victims of female
genital mutilation6.
The “unaccompanied minors”7 is defined as the „third world-country natives
or stateless persons below the age of eighteen, who arrive on the territory of
Member States unaccompanied by an adult responsible for them whether by law
or custom, and for as long as they are not effectively taken into care by such a
person, or minors who are left unaccompanied after they have entered the territory
of Member States”.
International law
The 2030 Agenda for Sustainable Development8 recognized the positive
contribution of migrants for inclusive growth and sustainable development, for the
development of countries of origin, transit and destination and the Member States
engaged to cooperate internationally to ensure safe, orderly and regular migration
involving full respect for human rights and the humane treatment of migrants
regardless of migration status, of refugees and of displaced persons.
During the New York Declaration for Refugees and Migrants were reaffirmed
the purposes and principles of the Charter of the United Nations and the Universal
Declaration of Human Rights regarding the protection of the human rights of all
refugees and migrants, regardless of status, respecting the international law and
international human rights law, the international refugee law and international
humanitarian law. The signatories of the declaration have pledged to give a special
importance to the vulnerabilities of women and children during the journey from
3 http://www.un.org/en/sections/issues-depth/democracy/index.html.
4 https://plato.stanford.edu/entries/rights-human/.
5 http://igi.mai.gov.ro/en/content/vulnerable-0.
6 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying
down standards for the reception of applicants for international protection, available on http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013L0033.
7 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0055:EN:HTML.
8 United Nations Resolution adopted by the General Assembly on 25 September 2015, available
on http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E.
Immigrants in search of democracy and human rights 133
country of origin to country of arrival, to protect them from the potential exposure
to discrimination and exploitation, to sexual, physical and psychological abuse,
violence, human trafficking and slavery. The States should take steps to reduce
stigma, discrimination and violence, to review policies related to restrictions on
entry based on health status, with a view to eliminating such restrictions and the
return of people suffering of certain diseases, to support their access to a treatment,
care and support.
The Declaration also recommended to take into consideration the diverse
needs, vulnerabilities and capacities of women, girls, boys and men, to protect the
human rights and fundamental freedoms of all refugee and migrant children,
regardless of their status, and giving primary consideration to the best interests of
the child, specially to the unaccompanied children and those separated from their
families, according to the Convention on the Rights of the Child.
The external migration policy regarding the result of the New York Declaration
will be analyzed at the EISA 12th Pan-European Conference on International
Relations that will be held in Prague, between 12 and 15 September 20189.
On 30th August 2008 Italy and Libya signed in Bengasi the Treaty of Friendship,
Partnership and Cooperation10 to combat the illegal immigration, human trafficking
and contraband and to reinforce the border security. On 2nd February 2017
Italy signed a Memorandum with the Libyan Government through which commits to
providing equipment and military, strategic and technological support to stop the
migration flow from Africa to Europe. Unfortunately, in August 2017 CNN published
a video showing some African migrants being sold as slaves in Libya11 and after more
investigations, the international and European authorities found that people are
forced to stop in a detention center governed by the Department for the fight against
illegal immigration, in inhuman condition, especially children and pregnant women
that are beaten, tortured and raped12. This facts started several manifestations13 across
the world by people asking the European Union Commission to stop financing the
Libyan Coast. Even the President of France, Emmanuel Macron defined those actions
as crimes against humanity and in November 2017 called an emergency meeting of
the UN Security Council.
Thanks to an agreement between Italy, Libya, the Organization of the United
Nations and the Episcopal Conference of Italy14, on 22nd December 2017 a group of
9 https://www.imiscoe.org/news/news-from-members/774-cfp-the-diplomacy-of-migration
-analysing-external-migration-policies.
10 http://www.camera.it/_dati/leg16/lavori/schedela/apritelecomando_wai.asp?codice=16pdl0017390.
11 https://www.youtube.com/watch?v=2S2qtGisT34.
12 https://www.avvenire.it/attualita/pagine/l-onu-contro-l-unione-europea-inumano-l-accordo-con-
la-libia.
13 http://www.lemonde.fr/afrique/article/2017/11/20/manifestation-a-paris-non-a-l-esclavage-en-
libye-liberez-nos-freres-liberez-nos-s-urs_5217718_3212.html.
14 The episcopal conference of the Italian bishops of the Catholic Church, the official assembly of
the bishops in Italy that carries out certain tasks and has the authority to set the liturgical norms for
the Mass. Episcopal conferences receive their authority under universal law or particular mandates.
134 LUCIA ȘTEFANIA AVRAM
162 refugees which included families, single mothers, unaccompanied children
and disabled people from Libya has arrived in Italy in two Italian military aircraft.
Upon arrival, all refugees went through medical checks and were given warm
clothes and a hot meal before undergoing identification procedures, following the
transfer to several reception facilities where accommodation and assistance have
been provided by the Episcopal Conference of Italy through Caritas.
The number of the refugees that will be transferred from the detention centers
of Libya to Italy is expected to reach 400, people with special needs and vulnerable,
that cannot be sent back to their home countries15.
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families is applicable during the entire migration
process of migrant workers and members of their families, which includes preparation
for migration, departure, transit and the entire period of stay and remunerated
activity in the State of employment as well as return to the State of origin or the
State of habitual residence.
European law
The Convention of Istanbul16 concerns the Conventions for preventing and
combatting the violence against women and domestic violence, adopted in 2011 by
the European Council and entered into force on 1 August 2014. The convention
fights for the prevention, the protection and the prosecution of the violence. Migrant
women, with or without documentation are particularly vulnerable to gender-based
violence, so the Convention prohibits pretexting the status of migrant or refugee in
order to discriminate in the implementation of its provisions and includes a number
of obligations aimed at adopting a conception of violence against migrant women
and gender-sensitive asylum seekers, introducing the possibility of granting migrant
women who are victims of domestic violence and whose residence status depends
on their spouse or partner and tries to continue the residence permit when the
relationship ceases. This measure allows the victim to stop the relationship without
losing his or her residence status. The Convention also fights for allowing migrant
victims who have left, without returning, the country where they had immigrated
because were forced to marry in another country, to recover their residency status.
In addition, the Convention includes provisions stating the obligation to
recognize gender-based violence against women as a form of persecution within
the meaning of the 1951 Refugee Convention and includes the obligation to ensure
a gender perspective in the refugee determination process. It is important to note
that the protection issues for women asylum seekers are different from those of
15 http://www.unhcr.org/news/latest/2017/12/5a3e3d155/ground-breaking-first-evacuation-
162-vulnerable-refugees-libya-italy.html.
16 https://www.coe.int/en/web/istanbul-convention/home.
Immigrants in search of democracy and human rights 135
men. Women may flee gender-based violence but be unable to disclose useful or
reluctant information during a refugee determination process that is culturally
sensitive. The unaccompanied women are often exposed to sexual harassment and
exploitation and are not able to protect themselves. To address the problems of
asylum seekers, the Convention of Istanbul sets out the obligation to introduce
gender-sensitive asylum procedures, guidelines and support services.
Another provision of the Convention reiterates the obligation to respect the
principle of non-refoulment to a country where their lives may be at risk and where
they may be subjected to torture or inhuman or degrading treatment or punishment.
At the international level, the Istanbul Convention is similar to The Convention
on the Elimination of All Forms of Discrimination against Women (CEDAW),
adopted in 1979 by the UN General Assembly, an international bill of rights for
women which defines what constitutes discrimination against women and sets up an
agenda for national action to end such discrimination17.
Case of siliadin V. France18
In this case, a 15 years old Togolese girl was sent to France to work as a baby-
sitter, in exchange of schooling and an immigration status. After few months, she
was transferred to another family, where she worked from 7am to 8:30pm every
day, without being paid, for 3 years. Given the Court’s decision, the defendants
were acquitted under the Penal Code because the applicant was not recognized as
being in a position of vulnerability or dependence on the motive that she could
leave the house unattended and could contact her family.
The Court examined whether the facts violated the article 4 of The European
Convention on Human Rights and noted that „slavery domestic economy”
persisted in Europe for thousands of people, but in this case, was more a question
of 'servitude' and not of ´slavery´ and does not directly refer to violence regarding
women, but the Court noted that she had no resources, she was vulnerable, isolated
and without means of subsistence other than this family and was entirely at their
mercy. She had no freedom to movement and no free time. Most of these factors
increase the vulnerability of women face violence or render them incapable to get
out of the violence, or situations of potential violence.
At the International level, The Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW) is an international treaty adopted in
1979 by the United Nations General Assembly, an international bill of rights for
women, by 189 states19.
17 http://www.un.org/womenwatch/daw/cedaw/.
18 Application no. 73316/01, ECHR, available on https://hudoc.echr.coe.int/eng#{%22itemid
%22:[%22001-69891%22]}.
19 http://www.un.org/womenwatch/daw/cedaw/.
136 LUCIA ȘTEFANIA AVRAM
The European Union Agency for Fundamental Rights (FRA) and some
institutions for the human rights started the CLARITY project (Complaints, Legal
Assistance and Rights Information Tool for You) to present the institutions,
organizations that the European citizens could call regarding their fundamental
rights. This tool best suits to the intermediary institutions and non-governmental
organizations guiding victims of discriminations or any other fundamental right
that are non-respected20.
The human rights of the immigrants are also protected by the Directive on the
right to family reunification21, which establishes common rules for exercising the
right to family reunification in 25 EU Member States (excluding the United
Kingdom, Ireland and Denmark). It determines the conditions under which family
reunification is granted, establishes procedural guarantees and provides rights for
the family members concerned.
Once admitted in the Member State, family members receive a residence
permit and obtain access to education, employment and vocational training on the
same basis as the sponsor. A sponsor is the alien holding a residence permit or a
Blue Card of the European Union issued by the Immigration Office, who requests
family reunification or whose family members request family reunification with
him22. The EU Blue Card is a special residence permit issued by the Questor (Police
Commissioner at Provincial level) to highly qualified foreign workers, if they have a
job contract or a binding job offer and are the holders of a residence permit for
work reasons. After a maximum of five years of residence, family members may
apply for an autonomous permit.
A Case-law of the Court of Justice23, the European Court of Justice has
underlined that Member States must apply the rules of the Directive in a manner
consistent with the protection of fundamental rights, notably regarding the respect
for family life and the principle of the best interests of the child24.
This subject is treated differently in England, by the UK Immigration Law,
which states a minimum of annual earnings of 18’600£ for the family member that
makes a demand for the family reunification for his spouse. An additional amount
of 3’800£ for the first child and 2’400£ for each additional child. This rule is very
difficult to be accepted by the citizens that doesn’t earn that much and are obliged
to live separately from their beloved once. This is a vulnerable category of people
20 https://fra.europa.eu/clarity/en.
21 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32003L0086.
22 Article 2 of the Emergency Ordinance no. 194/2002 on the regime of aliens in Romania.
23 C-540/03, European Parliament v Council of the European Union. Immigration policy, 27 June
2006, available on http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62003CJ0540
&from=EN.
24 Article 28.3 - Legislative Decree no. 286 of 25th July 1998, concerning the immigration rules and
rules on the status of a foreigner: „In tutti i procedimenti amministrativi e giurisdizionali finalizzati a dare
attuazione al diritto all'unita' familiare e riguardanti i minori, deve essere preso in considerazione con carattere di
priorita' il superiore interesse del fanciullo, conformemente a quanto previsto dall'articolo 3, comma 1, della
Convenzione sui diritti del fanciullo del 20.11.1989, ratificata e resa esecutiva ai sensi della legge 2.05.1991, no. 176”.
Immigrants in search of democracy and human rights 137
and the ones that suffer the most are children, because in this case the principle of
the best interest of the child is not respected25.
A similar law rules in Italy (ricongiungimento familiare), the Decree 5/200726, in
line with the Directive 2003/86/CE, which states the minimum income for the
family member in charge.27 For example, for two children aged less than 14, the
income is 11’649.82 euro.
Romania also ruled a new law regarding this subject28, stating that the gross
average wage, one of the conditions to be fulfilled by foreigners requesting the
extension of the right to temporary stay for work, was increased from 3’131 to 4’162
lei29. According to the Art. 56 para. (1) of GEO 194/2002 on the aliens’ regime in
Romania30, to the foreigners entering Romania for employment shall be extended the
right of temporary residence for work purposes if they submit the individual full-time
employment contract, registered in the general register of employees, which shows
that the salary is at least the gross average earnings. In the case of highly qualified
workers, the salary must be at least 4 times the gross average earnings.
The case of a disabled person
Mujeen Mustafa, an 18 years old Syrian refugee with cerebral palsy, from
Aleppo, crossed the Mediterranean Sea to arrive in Germany, in a wheelchair. She
wrote a book, „The girl from Aleppo”, about her long journey, about her life before
the war, about her journey and about how she became a „a thing to be carried on
board” and, specially, about her new life in Germany, the way she integrated and
where she is living a normal life as a student, but also about her regrets because
she misses her country, where she could never go back and the fact that her
family’s status is not recognized in Germany and instead of having a job according
with their studies in Syria, they have to go to school and learn German.
This is an example of vulnerable people struggling for their life, for the respect
of their dignity and democracy.
The unaccompanied minors
On May 14, 2008 the Council of the European Union took a Decision to establish
the launch of a European Migration Network (2008/381/EC)31, for responding to the
information needs of both EU and national institutions by providing up-to-date,
25 http://www.politics.co.uk/comment-analysis/2017/08/03/legal-victory-provides-lifeline-to-
families-torn-apart-by-th.
26 http://www.stranieriinitalia.it/news/ricongiungifam.htm.
27 http://www.stranieriinitalia.it/attualita/attualita/primo-piano/ricongiungimento-familiare-
il-reddito-minimo-per-il-2017.html.
28 http://igi.mai.gov.ro/ro/comunicat/modificari-legislative-0.
29 https://legeaz.net/monitorul-oficial-5-2018/lege-3-2018-legea-bugetului-asigurarilor-socia le.
30 http://www.refworld.org/docid/544676df4.html.
31 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:131:0007:0012:EN:PDF.
138 LUCIA ȘTEFANIA AVRAM
objective, reliable and comparable information on migration and asylum32. The
purpose of this research is to deepen the knowledge of policies regarding
unaccompanied minors within the European Union; to provide suggestions for
possible improvements in reception and integration procedures within the Member
States; and to highlight and allow the sharing of good practices regarding the
sustainable return of unaccompanied minors to their countries of origin.
According to this research, most of the unaccompanied foreign minors come
from the periphery of the world economic system. The testimonies of the minors
themselves and the analysis of the living conditions in their countries of origin
suggest that migration is perceived as one of the most important ways to improve
their future as well as their families’ socio-economic conditions. When they request
the asylum status, the minors are subjects of an age-test, in order to establish the
real age. Most of the immigrants pretend to be minors, but after the finger prints
and X-Ray exam many of loose their rights to benefit from minors regulations and
are forced to leave the host countries.
Minors rights are guaranteed by the New York Convention on Children Rights of
November 20, 1989 and the European Convention on Children’s Rights (Strasbourg,
January 25, 1996). The „Committee for Foreign Minors” is the appropriate body in
charge of overseeing the residence conditions of foreign minors who are temporarily
admitted on the national territory, as well as coordinating the activities of the
involved administrative bodies.
In Romania, according to the LAW no 122/2006 on asylum in Romania33, the
asylum application of an unaccompanied minor is analyzed with the highest
priority by the National Refugee Office, who takes steps to appoint, in the shortest
period possible, a legal representative who will assist him throughout the asylum
procedure.
In case if the unaccompanied minor cannot prove his/her age and there are
serious doubts regarding his/her minority, the National Refugee Office will request a
legal examination to evaluate the age of the applicant, with the prior written
approval of the minor and his/her legal representative. According to the same law,
unaccompanied minors can benefit from the same protection offered to Romanian
minors who are in a difficult situation.
In order to guarantee the democracy and the protection of their Human Rights,
the family reunification in the case of unaccompanied minors who are the
beneficiaries of a form of protection is done according to the best interests of the
child. The Romanian Refugee Office will automatically begin the family reunification
procedure with the agreement of the minor and the legal representative is requested.
In the case in which the family of the unaccompanied minor has been found, the
32 Unaccompanied Minors: Quantitative Aspects and Reception, Return and Integration Policies.
Analysis of the Italian Case for a Comparative Study at the EU Level, Edited by the Italian National
Contact Point within EUROPEAN MIGRATION NETWORK EMN, IDOS Research Centre, Rome, 2009.
33 http://prorefugiu.org/wp-content/uploads/2011/03/Law-no.-122-from-2006.pdf.
Immigrants in search of democracy and human rights 139
officials of the National Refugee Office specially designated for this purpose will
analyze the possibility and conditions to carry out the reunification and issue a
decision that is motivated in this sense, that is subject to means of appeal.
Conclusion
The immigrants could search the democracy and the human rights differently
from country to country, depending from where they come and where they go,
depending of the conditions of each country, if it is a democratic country, a
communist one or one confronting the war.
The vulnerable people can depend on their parents’ conditions of staying in
the host country or can be unaccompanied, skipping the war or famine or any bad
condition.
The legislation changes very often, in order to correspond to the reality and
with the flow of immigrants.
Each State has its own law and legal system but they are bound by European
Union and/or international law, in order to insure the respect of the principles
regarding the respect of the human rights and the democracy.
During the 4th Annual International Conference, named „Law and
Administrative Justice from an Interdisciplinary Perspective” held at the National
School of Political Science and Public Administration in Bucharest, Romania, I had
the opportunity to listen many opinions and learn many interesting facts about the
immigrants, the vulnerable people among them, especially the refugees, the situation
from different points of view, people from different departments that analyzed the
situation from different countries. This conference helped me to enlarge the
knowledges and meet people which whom I could collaborate regarding the
immigration subject.
Each person leaves his country hoping for a better life, for less discrimination,
less violation, better life and health insurance, better schooling and respect of the
human rights and dignity. Unfortunately, most of the time, the reality is different
of what they imagination and they have to struggle and keep going, accepting the
situation and doing their best to integrate and to adapt themselves.
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