[ALBSA-Info] HRW on Greek Immigration Law

[Agron Alibali]

  HUMAN RIGHTS WATCH COMMENTS ON GREEK IMMIGRATION
BILL

 
 
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31 January 2001



RE: HUMAN RIGHTS WATCH COMMENTS ON GREEK IMMIGRATION
BILL

Sent via fax 

Dear Member of Parliament:

Human Rights Watch is writing in regard to the
immigration bill currently
under consideration by the Greek parliament. We
recognize that the bill's
intent is to improve upon past laws regarding the
residence and employment
of foreigners in Greece, and to meet the challenge of
managing migration
into the country. However, we are deeply concerned
that provisions of the
draft bill are in violation of Greece's international
and regional human
rights obligations.  We are also concerned that the
transitional provisions
providing for a second "regularization process" for
undocumented migrants
may result in serious fundamental rights violations
related to procedural
guarantees and the detention of foreigners.  Human
Rights Watch includes in
this letter a critique of key provisions of the draft
bill and suggests
amendments and changes to the draft that bring the
bill into conformity
with Greece's obligations under European and
international law.

 
·	Prohibition against discrimination. In its current
form, the draft
immigration bill does not include an
anti-discrimination provision. We
understand that prior drafts of the bill included
provisions prohibiting
discrimination against migrants on grounds of race or
religion, and
guaranteeing migrants legally residing in Greece equal
treatment with Greek
nationals in access to vocational training and the
right to freedom of
association. These provisions were deleted from the
current draft. We urge
that a provision guaranteeing non-discrimination with
respect to the rights
enumerated in the draft law be included in the final
bill in conformity
with the well-established international norm
prohibiting discrimination
based on race, ethnic origin, religion, and other
status. The inclusion of
an anti-discrimination provision also complies with
Greece's obligations as
a member of the European Union under Council of the
European Union
Directive 2000/43/EC (Race Directive) implementing
the principle of equal treatment between persons
irrespective of racial or
ethnic origin. The directive, now part of the "acquis
communautaire"-the
body of law governing membership in the European
Union-requires all member
states to conform their legislation to implement the
directive's
anti-discrimination principles within three years. The
directive prohibits
direct and indirect discrimination in both the public
and private sectors
based on race or ethnic origin and applies to access
to employment;
vocational training and working conditions; membership
in trade unions;
social advantages; social security and health care;
education; and to the
provision of goods and services available to the
public, including housing.
The directive specifically includes third country
nationals within its
scope, notwithstanding a government's right to
differential treatment based
strictly on legal status.

·	Article 1: Stateless Persons.  Article 1 of the
draft bill defines those
persons to whom the law applies, including those
without a nationality
(stateless persons). Human Rights Watch strongly
recommends that Article
1(a) be amended to state that "An alien is every
person who does not hold
the Greek nationality or a person that does not have a
nationality
(stateless), in accordance with the 1954 Convention on
the Status of
Stateless Persons."

·	Article 5: Entry of Refugees/Asylum Seekers.  The
draft bill requires
that all persons seeking entry into Greece carry valid
documentation,
including a passport, other recognized travel
document, and, where
required, a visa. Article 5(5) provides for
"exceptional cases" in which
authorities at entry points may provide a visa upon
authorization by the
Minister of Public Order, but makes no specific
reference to refugees and
asylum seekers, many of whom are forced to leave their
countries under
urgent and extreme circumstances and are often unable
to obtain travel
documents prior to departure. For purposes of
clarification, the article
should state that persons with a well-founded fear of
persecution if they
are returned to their country of origin and those in
need of international
protection should be exempt from the requirement to
provide such
documentation. This exemption brings the draft bill
into conformity with
Article 31 of the 1951 Convention Relating to the
Status of Refugees which
prohibits the punishment of refugees for illegal entry
into the country of
asylum if the refugee travels directly from his or her
country of origin
and reports to the authorities in the country of
destination without delay.
The article should also contain specific reference to
the fact that asylum
seekers may lodge an application for asylum at any
entry point (including
in transit zones per Article 6 of the draft bill) as
provided for in
Presidential Decree 61/1991. Clarification regarding
the rights of refugees
and asylum seekers with respect to proper
documentation and applying for
asylum should also be incorporated at Article 7:
Denial of Entry. Moreover,
Human Rights Watch strongly recommends that Law
1975/1991 and Presidential
Decree 61/1991 are reviewed and, if necessary,
strengthened to comply in
full with the 1951 Refugee Convention and relevant
UNHCR guidelines.

·	Article 19: Granting of Labor Permits.  Human Rights
Watch urges that
work permits not be tied to a specific employer as
required by the draft
bill at Article 19(1).  We have documented cases of
serious abuse in labor
sectors where such an exclusive relationship exists
between employee and
employer. For example, in November 2000, we
interviewed numerous migrant
women who worked as domestics in Greek households.
Many women held a work
permit that allowed them to work only for one
employer. Yet many of these
women had experienced severe abuse (e.g. physical and
verbal abuse;
restrictions on freedom of movement; labor rights
violations, including
nonpayment of wages, long hours, and poor working
conditions) at the hands
of their employers. The women did not feel that they
could leave their jobs
because they were authorized only to work for one
employer and feared they
would not be able to acquire documents to work for
another. In many cases,
the abusive employer had confiscated their documents,
leaving them
vulnerable to deportation as undocumented migrants. We
therefore recommend
that work permits be keyed to particular labor sectors
where there is a
documented need for migrant labor (e.g. domestics)
thus allowing migrants
to change employers if their work conditions are
abusive.

·	Article 28: Family Reunification.  Article 28(1) of
the draft bill
requires that aliens must reside legally in Greece for
two years before
applying to have family members join them. Article
12(1) of the European
Convention on the Legal Status of Migrant Workers
(1977)-to which Greece is
a signatory-states that the waiting period required
before family
reunification may commence "shall not exceed twelve
months." The October
2000 European Commission proposal for a Council
Directive on Family
Reunification also adopts the twelve month waiting
period. We urge that the
draft immigration bill adopt one-year as the maximum
residency requirement
for migrants wishing to exercise their right to family
reunification. With
respect to Article 28(2) of the draft bill, we also
urge that the
categories of family members eligible for family
reunification with a third
country national legally resident in Greece be
expanded to cover a broader
range of persons in order to ensure that family
integrity is authentically
preserved. To this end, we recommend that the draft
bill be amended to
state that a migrant's family members for the purposes
of reunification
include her/his spouse or partner in a relationship
producing the effect of
marriage, and that family members in the ascending
line who are dependent
financially and emotionally on the migrant be eligible
for reunification.

·	Chapter VIII-Employment in Entertainment Centres:
Nexus with Trafficking.
 Chapter VIII of the bill, although couched in
language related to
"artists" and their employment in "entertainment
centres", includes within
its scope the employment of migrant women in bars,
nightclubs, and other
venues. This chapter, however, makes no mention at all
of the increasingly
serious problem of trafficking of women and children
into Greece for forced
prostitution and other forms of forced labor. In our
view, the entire
chapter should be reconstructed taking into particular
consideration the
phenomenon of trafficking. Trafficking in women for
forced prostitution in
Greece has increased sharply in recent years, yet
Greece has no laws
specifically criminalizing trafficking in persons.
Trafficking primarily
affects migrant women. Traffickers often deceive women
about the conditions
of the work they will do once they arrive in Greece,
and in some cases club
owners threaten migrant women with forced deportation
and violence if they
do not cooperate.  While some women trafficked into
Greece know that they
will work in the sex industry, they do not know and
cannot know that they
will be forced into debt bondage and servitude. Human
Rights Watch's
November 2000 research mission to Greece uncovered
serious trafficking
abuses. We also discovered, however, that the absence
of laws on
trafficking, coupled with a profound lack of
coordination among government
law enforcement agencies, failed to provide
trafficking victims with any
consistent, effective protection from traffickers and
their networks, which
often include the very entertainment centers referred
to in the draft bill.
Human Rights Watch strongly recommends that Chapter
VIII be rewritten to
include explicit reference to anti-trafficking
initiatives; provisions for
the effective prosecution of migrant traffickers; and,
in particular,
special protective measures for trafficking victims,
including witness
protection for persons who agree to testify against
traffickers, safe
passage home to their country of origin if possible,
the ability to apply
for asylum, and the possibility of permission to stay
in Greece for
humanitarian reasons or victims of trafficking who
have suffered the most
severe forms of abuse at the hands of traffickers. 
The inclusion of such
measures would indicate that Greece is in step with
the December 2000
proposals by the European Commission to combat
trafficking in human beings
and the sexual exploitation of children; the November
2000 Organization for
Security and Cooperation in Europe (OSCE) Ministerial
Decision calling for
enhanced efforts at the OSCE level to combat
trafficking in human beings;
and global efforts to address trafficking via the
United Nations Convention
Against Transnational Organised Crime and its Protocol
on Trafficking in
Human Beings.      

·	Article 39: Granting a Residence Permit. Article
39(4)(b) should make
explicit reference to the provision in Greek law for
temporary protection
status for those in need of international protection.
Relevant provisions
of law 1975/1991 and Presidential Decree 61/1991
providing for temporary
protection status will remain in force when the new
immigration bill
becomes law (see also general recommendation regarding
review of refugee
protection legislation in Greece under "Article 5"
above).  

·	Article 41: Rights of Aliens.  Article 41 states
that "[a]liens legally
residing in Greek territory enjoy fundamental human
rights provided for by
domestic law, international conventions, and general
principles of law."
Human Rights Watch strongly urges parliamentarians to
recognize that most
fundamental human rights, as articulated by the
Universal Declaration on
Human Rights (UDHR) and guaranteed by the
International Covenant on Civil
and Political Rights (ICCPR) and the European
Convention on Human Rights
(ECHR), apply to "all persons" despite their
nationality or legal status
within a particular country.  Thus, in conformity with
Greece's
international and regional obligations, it is critical
to add language to
this article acknowledging that all migrants-those
legally resident and
those with an irregular status-enjoy fundamental human
rights guarantees
which the Greek state is required to protect. These
rights include, but are
not limited to, the right to life; freedom from
torture, cruel, inhuman and
degrading treatment; the prohibition against slavery
and servitude;
security of person; procedural guarantees; the
prohibition against
arbitrary detention; freedom of religion and
expression; and the
prohibition against discrimination. The free exercise
of these rights and
protection against basic human rights violations are
essential for migrants
in cases of police abuse, racist and xenophobic
violence, and ill-treatment
in detention. In cases where such abuses occur, any
migrant-including
undocumented migrants-should enjoy the full protection
of the Greek state
and have effective recourse in the criminal justice
and judicial systems
for abuses suffered. All too often, migrants
attempting to bring claims
before public authorities for human rights violations
are detained as a
matter of first course and deported at the state's
earliest convenience
without any consideration at all of their claims of
abuse. 

·	Article 42: Access to Education.   This provision
requires that migrant
children seeking to enter public school must provide
documentation
equivalent to that required for attendance by Greek
nationals. Exceptions
are made for refugee children, children of asylum
seekers, and "those
coming from areas where an irregular situation is
prevalent."  The
requirement of valid documentation is an effective bar
to school attendance
for children of undocumented or irregular migrants.
This provision is a
direct violation of Greece's obligations under the
1989 U.N. Convention on
the Rights of the Child which requires that states
parties take measures to
ensure that children are not discriminated against on
the basis of the
status of their parents (Article 2) and that states
parties "make primary
education compulsory and available free to all"
(Article 28).  Moreover,
the exceptions noted above should be more precise and
thus include child
asylum seekers who are unaccompanied minors, children
with special
humanitarian status, and children under the temporary
protection regime in
accordance with Article 25(6) of Law 1975/1991.

·	Article 46: Administrative Expulsion.  There should
be explicit reference
in this provision to the situation of migrants who
cannot be returned to
their home countries due to on-going conflict, lack of
diplomatic
relations, and other obstacles to speedy return. This
provision should
include language to the effect that deportation orders
for migrants who
cannot be deported shall be suspended pending periodic
review of conditions
in the deportee's home country and the possibility of
executing the
deportation order in the future (see also section
below at "Article 50"
regarding alternatives to detention for migrants who
cannot be deported).

·	Article 48: Prohibitions Against Expulsion. This
article should
explicitly prohibit collective expulsions and state
that each deportation
order must be issued and reviewed individually in
conformity with
internationally recognized procedural guarantees.


·	Article 50: Aliens' Detention Places.  This
provision should include
language indicating that detention conditions for
aliens must comply with
international and regional standards for the treatment
of detainees,
including the U.N. Standard Minimum Rules for the
Treatment of Prisoners,
Body of Principles for the Protection of All Persons
Under Any Form of
Detention, and the European Prison Rules. Human Rights
Watch registers
particular concern for those migrants held in
detention who cannot return
to their home countries due to conflict, lack of
diplomatic relations, and
other obstacles to speedy return. Their indefinite
incarceration is a
violation of the prohibition against arbitrary
detention and it is
incumbent on the Greek government to establish
alternatives to arbitrary
detention. The rights of aliens in detention should be
posted in each
detention facility in a variety of languages and
should be explained to
those detainees who cannot read. Moreover, it should
be added that, in
general, asylum seekers should not be detained. Asylum
seekers should only
be detained in exceptional circumstances, on a
case-by-case basis, in
accordance with the United Nations High Commissioner
for Refugees'
Guidelines on Applicable Criteria and Standards
Relating to the Detention
of Asylum Seekers. It should also be stated that
detained asylum seekers in
Greece enjoy the right to contact UNHCR.

·	Article 51: Unwanted Aliens. The Ministry of Public
Order maintains a
list of "unwanted aliens" who are presumptively denied
legal entry or
residence in Greece.  The criteria for inclusion on
the list are not
published and not known. There also appears to be no
official review
process whereby a person whose name is included on the
list can seek
information regarding the criteria or challenge the
inclusion of his or her
name based on mistake or any other reason. When Human
Rights Watch met with
the Minister of Public Order in November 2000, he
stated that any person
aggrieved by the inclusion of his name on the list
could simply write him a
letter and he would look into it. The process
surrounding establishment and
maintenance of the Greek national list should be
formalized and
transparent. Thus, criteria for inclusion on the list
and an official
review process should be included in the bill. 
Moreover, the list should
not be used to obstruct a person's right to seek
asylum in conformity with
Article 14(1) of the Universal Declaration of Human
Rights which endorses
the right of any individual to seek and enjoy asylum
from persecution.
Refusing entry to asylum seekers could exclude them
from the international
protection they need and may amount to a violation of
the fundamental
principle of nonrefoulement-the duty of states not to
return any person to
a country where their life or freedom is at risk. 

·	Article 53: Public Sector Sanctions.  Article 53(1)
of the draft bill
states that public sector employees "are obliged not
to afford their
services to aliens unable to prove legal residence
status in Greece" and
levels disciplinary and criminal penalties against
those who do provide
such services. Hospitals, clinics and treatment
facilities are exempt from
this prohibition in cases where aliens require
emergency treatment.
However, "emergency treatment" is not defined and
leaves open the
possibility that persons in need of routine health
care (e.g. pregnant
women and children with serious conditions that could
hinder development)
that provides a critical preventive function or the
maintenance of a
potentially life-threatening condition may be denied
such care based on
their irregular status.  Furthermore, Article 6(2) of
the 1989 U.N.
Convention on the Rights of the Child (CRC) requires
that states parties
"ensure to the maximum extent possible the survival
and development of the
child." Article 24 of the CRC guarantees children
access to "facilities for
the treatment of illness and rehabilitation of health"
and mandates that
governments "strive to ensure that no child is
deprived of his or her right
of access to such health services." Article 53 of the
draft law should thus
contain language guaranteeing that any restrictions on
access to health
care or medical treatment must be in conformity with
the most basic of
human rights guarantees-the right to life. It should
also explicitly exempt
all children from any restrictions on their access to
health care and
medical treatment. In addition, the article prohibits
"legal persons of
public law" from affording migrants their services. It
is unclear precisely
what legal actors are included in this category. This
provision should
explicitly provide that migrants (whatever their
status) have equal access
to the criminal justice system and criminal and civil
courts for recourse
for crimes committed against them and the right to
lodge civil claims for
labor rights violations (e.g. nonpayment of wages for
work completed). Such
claims should be heard in the courts or before
administrative tribunals
before an order of deportation is executed against an
undocumented migrant.
   

·	Article 56: Private Sector Sanctions.  Although
hospitals, clinics, and
treatment facilities may provide emergency care to
persons without valid
documentation, Article 56(2) requires directors of
hotels, resorts, clinics
and treatment facilities, and "any other personnel in
any way providing
shelter to an alien" to inform the police if an alien
is residing in their
facilities. This reporting requirement could serve as
a bar to persons in
need of emergency shelter or specialized (i.e.
life-saving) medical
treatment and could result in threats to their safety
and health. It also
has serious implications for charitable, humanitarian
and nongovernmental
organizations that provide essential services (e.g.
the provision of food
and shelter) to the disadvantaged, including
undocumented migrants. Private
actors should not be enlisted by the state to act in a
migration control
capacity and this reporting requirement should be
struck from the draft bill.

·	Article 57: Carriers' Sanctions.  The United Nations
High Commissioner
for Refugees and many nongovernmental organizations,
including Human Rights
Watch, have expressed concern that the imposition of
sanctions on carriers
for bringing in passengers without valid passports and
visas has the effect
of engaging private companies in the exercise of
immigration control
functions.  Private transport companies in fear of
heavy penalties are put
in a position where they-not the state-are making
determinations about the
validity of passengers' documents. Personnel of
carrier companies thus
serve as proxies for border and passport control
personnel without any
obligations to protect human rights, or the benefit of
any training or
expertise in migration control or human rights and
refugee protection. The
carriers' sanctions regime thus has serious
implications for the right of
refugees to international protection and the right to
seek asylum. As noted
above, many asylum seekers flee their countries under
extreme circumstances
which compel them to travel without valid documents.
Article 31 of the 1951
Refugee Convention recognizes that asylum seekers
often will not possess
valid travel documentation and prohibits the
punishment of refugees for
illegal entry into the country of asylum if the
refugee travels directly
from his or her country of origin and reports to the
authorities in the
country of destination without delay. Carriers'
sanctions thus can serve as
an effective bar to the right to leave one's country
and to seek refuge
from persecution in another country. Thus, Human
Rights Watch strongly
urges that Article 57 be omitted from the final
version of the immigration
bill.  

·	Chapter XV: Transitional Provisions.  Human Rights
Watch acknowledges
that the transitional provisions (i.e. regularization
process) of the draft
law will provide an opportunity for some undocumented
migrants now
illegally residing in Greece to gain legal status. 
However, these
provisions contain many requirements-for example,
proof of continuous
residence for two years up to November 15, 2000-that
most irregular
migrants currently in Greece will not be able to
provide.  Minister of the
Interior Vasso Papandreou has stated publicly that
those migrants who
cannot meet the requirements of the regularization
process "will simply
have to leave." Human Rights Watch is concerned that
the government's
demand that migrants who cannot utilize the
regularization process can
simply depart Greece is not only unrealistic but may
give rise to abuses in
the government's future migration control efforts.  In
its 2000 World
Report, Human Rights Watch reported that the Greek
police routinely
conducted discriminatory "sweeps" of areas where
immigrants live and
gather, detained large groups of foreigners-including
those with valid
residence permits and asylum seekers-and detained them
in police stations
or sports facilities for long periods of time.
Undocumented migrants were
summarily expelled from Greece. In a personal meeting
in November 2000, we
expressed our concerns to the Minister of Public Order
regarding the
indiscriminate targeting of foreigners and the
procedural violations that
characterized these sweeps (which, according to local
nongovernmental
organizations, continue). The Minister's responses
were unsatisfactory. He
admitted that the sweeps took place in precisely the
manner as reported by
nongovernmental organizations and that hundreds of
Albanian migrants were
expelled in a July 1999 "sweep." He failed to
recognize the indiscriminate
nature of the operations or the fact that collective
expulsions violate
individual procedural guarantees. Moreover, in
December 2000, Human Rights
Watch sent an urgent memorandum to the Greek
government detailing the
appalling conditions of detention for foreigners
awaiting deportation in
Greek police stations. Conditions of detention at the
Alexandras Avenue
detention facility for foreigners violated nearly
every international and
regional standard for the treatment of detainees.
Human Rights Watch thus
urges the Ministry of Public Order and the Ministry of
the Interior to
address the issue of irregular migration by strictly
adhering to Greece's
international and regional human rights obligations.
In particular, we call
for a halt to discriminatory police sweeps; the
protection of procedural
guarantees for those detained under the laws
pertaining to aliens; the
enhanced protection of asylum seekers and refugees;
and adherence to basic
minimum standards of treatment for foreign detainees,
including the
prohibition against arbitrary detention.

	Human Rights Watch will be monitoring the immigration
bill as it proceeds
to passage. We would be happy to discuss our concerns
with you at your
convenience.

Sincerely,

 

Holly Cartner
Executive Director
Europe and Central Asia Division

 


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