by Antonio Cruz
NGOs in favour of open borders are firm believers of the theory of equating supply and demand. When it comes to labour migration they argue that when demand ceases, in particular for candidates of “dirty jobs”, so will supply. This excessively simplified presentation of reality does not take push factors into account and only considers pull factors partially.
Rare are the irregular migrants who write home to express their profound regret for leaving. On the contrary, even those with a miserable existence and uncertain future will write to friends and relatives and say that all is well and those with a job will give an idea of earnings without giving details of the cost of living. Just like two centuries ago the motives for emigrating can vary considerably from fear of danger, be it imminent or foreseeable, over fleeing poverty, to seeking a better life. However, today, potential migrants in developing countries neither have the “New World” to flock to, nor other “discovered” territories.
Since legal migration is limited to family reunion and highly skilled workers, those not in these two categories generally have three options: enter as a tourist and overstay, cross the frontier clandestinely or apply for political asylum upon arrival. These three options are not exclusive and can overlap, with the persons concerned possibly ending up in the asylum procedure.
The unpleasant reality
There is no insinuation here that most asylum-seekers are not “genuine” refugees. However, given the ever increasing gap between rich and poor nations, a person fleeing to a poor country would be regarded as a “genuine” refugee whereas the same person fleeing to a rich nation would be accused of “asylum shopping”.
The search and acquisition of protection through spontaneous arrival has, in fact, turned into a sort of “game” in which refugee status is often not awarded to those most in need, but to those with imagination and funds to overcome the obstacles placed in their way, such as entry visas, carrier sanctions, airport liaison officials, having the best and most convincing stories of persecution to tell.
The reality, however unpleasant, is that for an irregular migrant seeking a better life due to a lack of economic opportunities, poverty, persecution and/or discrimination in the home country his or her best chances of eventually securing a residence permit is through the asylum channel. Remaining a clandestine immigrant for years hoping for an “amnesty” is rather futile. In the event of an amnesty, those in or having been in the asylum procedure stand a better chance.
This is especially true for families who are often offered accommodation, be they in an asylum procedure or under an expulsion order. As for childless couples or single persons, they are literally “parked” in small places by unscrupulous proprietors, paying exorbitant rents but lacking the most basic facilities of comfort and sanitation. Aptly described as “merchants of sleep” in the French language, such profiteers have also included an official of the EU’s Commission who happened to work for the division on Justice and Home Affairs, responsible for putting forward proposals on, inter alia, combating irregular migration.
This official, arrested in May 2003, was, in addition to his full-time job at the Commission, attending to no less than 58 tenants, all irregular migrants, in five buildings which he owned. Since facilities such as heating, electricity, running water were rather rudimentary and, in some cases, non-existent, his additional “job” probably consisted of no more than collecting monthly rents for the cubicle dwellings.
The following four examples provide an insight into the experiences of irregular migrants, all of whom headed for Belgium for economic reasons. There were probably some merits in the allegations of discrimination made by those who claimed asylum, but not enough to amount to persecution that puts their lives and/or physical integrity at risk.
The Jakupovićs are a seven-member family of Roma origin with Yugoslav nationality who arrived in Belgium more than 10 years ago and applied for political asylum. Hasadur is an unmarried Turkish national of Armenian origin, who also applied for asylum more than eight years ago, claiming to be a victim of Turkish persecution. Marcus was a Brazilian youth aspiring to play professional football in Belgium, but had to content himself as an unskilled labourer. He never applied for political asylum. And Omar is an unmarried Columbian national who arrived in Belgium in the mid-1990s. He is father of a child who is a Belgian national, and also never applied for political asylum during all the years he spent living here, as an irregular migrant.
Upon their arrival in Belgium in 1999, the Jakupović family claimed to be victims of discrimination in ex-Yugoslavia, which was not entirely true. Before coming to Belgium, they had lived in Italy for a number of years where all five children were born and in fact, hold Italian birth certificates. Their application for asylum was turned down within a year, which was relatively rapid at that time when the refugee-status-determination procedure could drag on for many years. Like most rejected asylum-seekers, they appealed all the way to the Supreme Administrative Court (Conseil d’État) which has been overburdened by the flood of asylum cases for decades. The ulterior motive was to buy time in the hope that they would eventually be allowed to remain on humanitarian grounds.
Forced repatriation would, in any case, be difficult since not one of the children had ever had an official Yugoslav document. The children do have some notion of Serbo-Croat, but they are now predominantly francophone and their second language is Italian. An appeal pending before the “Conseil d’État” does not have suspensory effect. However, after the dismissal of the first appeal (second instance), social welfare payments stopped. For a number of years, they lived in a 50 m² apartment of the mother’s cousin whose wife had passed away. By Western European standards, eight persons squeezed into such a small space seem unimaginable, but for the Jakupović family, it meant a roof over their heads in a heated apartment. In a country with at least six months of cold weather, what they had amounted to comfort.
Without social welfare allowances, the family managed to survive through the Roma information and solidarity network, and the sale of new and second-hand goods in flea markets, which are numerous in Belgium, particularly Brussels. Urgent medical care expenses were covered by the local social welfare office which has a budget to assist the destitute. The family’s fortune appeared to take a turn for the worse when the mother’s cousin, with his temperamental and arbitrary moods, decided that he had had enough of so much company in his home and threatened to call the police if they did not leave voluntarily within a month.
By a strange twist of irony, what could have been a bad development for the family led to a very substantial improvement of their living conditions. Destitute and homeless, the Jakupović family thus came under the responsibility of a government agency, Fedasil, which, by law, had to offer them accommodation. In a 2003 ruling, the Court of Arbitration in Belgium pointed out that depriving under-aged “illegal migrants” of social welfare is a violation of the UN Convention on the Rights of the Child.
Whilst the choice of the reception centre was not to their liking since the family wanted to remain in Brussels for various reasons – friends, flea markets, casual jobs opportunities, the centre to which they were assigned, located near a small town in Southern Belgium offered them the kind of comfort they had never known, such as spacious rooms, recreational hall, hot meals. Moreover, after more than 10 years in Belgium, the Jakupović family fulfilled most of the criteria of a one-month regularisation (1) scheme for asylum-seekers and irregular migrants, which ended on 15 December 2009.
Let’s turn to Hasadur, the Turkish asylum-seeker who claims to be able to speak only Armenian and not Turkish and has no official documentation to prove his identity or nationality. His application was lodged in 2000, at a time when the Belgian authorities were still overwhelmed by a strong influx of asylum-seekers. He managed to slip through the admissibility procedure, but not the one examining the merits of his claims, which were subsequently dismissed for lack of credibility.
Hasadur filed an appeal and, fortunately for him, his appeal’s process dragged on for a few years, during which he was entitled to social welfare allowances. During all those years, Hasadur, a skilled construction worker, had no difficulties at all in finding temporary jobs that largely supplemented his social welfare benefits. He was also able to count on the support of members of the Turkish Armenian community who supplied him with the tools of the trade.
Hasadur’s appeal was eventually turned down, but as he had sufficient financial means thanks to his activities in construction, he took his case to the “Conseil d’État” which declared his application admissible pending a more detailed examination of its merits. The time passed and by spring 2005, Hasadur had satisfied the conditions for regularisation under a certain provision of the Aliens Act (2) favouring asylum-seekers still in the refugee-status determination procedure after five years.
Today, Hasadur is doing rather well in Brussels. With his skills in construction work, he has had no difficulties in remaining in regular employment, in spite of the sharp economic downturn. The disadvantage for him is that he is now paying taxes and his net income is thus lower than what he earned in undeclared work. He is nevertheless aware that to ensure security of residence in Belgium, he would have to stay off social security, all the more since he has skills in demand and is young (in his late 20s).
Marcus was a Brazilian youth, who arrived in Belgium in 2004 when he was 20 years old, hoping that his talents as a footballer would one day be recognised by a Belgium club. While waiting for such a day to come, he took on poorly paid undeclared jobs in construction, in restaurants and as a cleaner.
Marcus’ dream never came true. Not because he was not talented or no football clubs paid any attention to him, but because he simply could not stand by idly one cold day in March 2006 when he saw a Belgium woman jump into a canal in central Brussels, so heavily polluted and filthy that there has not been a single fish alive in those waters for decades. Ignoring the filth and the freezing temperatures, the young Brazilian jumped into the canal and was quickly overcome by the cold water.
Seeing two persons in the canal, a passing street cleaner, well-built and strong jumped into the canal and gave priority to saving the woman, who wanted to die. By the time he reached Marcus, the youth was already unconscious and in a critical state of hypothermia. He never regained consciousness.
The worst was yet to come and Marcus’ surviving parents learnt shortly afterwards that he could not have chosen a more callous place for his act of bravery. Whereas the street cleaner’s act of heroism was rightly recognised and rewarded, Marcus received nothing, not even a bouquet of flowers at his funeral from the local council of Brussels-Centre where he died. There were only three Belgians at his funeral, all journalists, scandalised and indignant at the indifference of the Brussels authorities.
The parents’ pain would have been far greater had they known that exactly five months after their son’s death, a Honduran woman, residing unlawfully in Italy, died in similar circumstances, after saving an 11-year old Italian girl from drowning off the Tuscany coast. Unlike Marcus, the 27-year old Honduran woman was granted a hero’s funeral and large crowds, among them many local politicians, attended. President Giorgio Napolitano awarded her the gold medal of honour, the highest for a civilian. Moreover, her mother, also an irregular migrant in Italy, and her three brothers in Honduras were offered the right of residence in Italy.
Marcus’ ultimate sacrifice was not fully in vain. At the time of his death, the law granting compensation to those who died on Belgian territory while assisting others was limited to those who were “financially dependent on the victim” (surviving spouse and children). Thanks to the tireless efforts of an Ecologist politician, the Minister of Justice agreed before the end of 2006 to amend the law with retroactive effect so as to enable the parents to receive financial compensation.
Omar is a Columbian whose stay in Belgium exceeded the periods of all the others - at least 12 years. Since he left Columbia for economic and not political reasons, it never occurred to him to apply for political asylum. He had a relationship with a Belgian woman and the couple has a child, but separated a few years after their son’s birth. The boy bears his name and, while in Belgium, he did assume some financial responsibility, albeit quite limited due to his modest and irregular income. Attempts to regularise his situation in Belgium were all in vain. He never thought of hiring a lawyer, but it was also beyond his financial means to pay for one. This could have led somewhere because the governing parties, after a great deal of horse-trading, finally agreed in 2008 to organise an amnesty, but the conditions were not decided until the autumn of 2009. Thus irregular migrants and rejected asylum-seekers were given one month, as from 15 November 2009, to apply for a residence permit.
Omar could not and did not wait so long. He could have stayed in the home of his Belgian partner but casual jobs were becoming very scarce and patience was wearing thin after so many years of being in limbo. His compatriots in Spain who managed to receive a residence permit continued to encourage him to join them. He was also hoping that his latest partner, also a Belgian woman, would marry him, but she refused.
In 2008, it became evident that one of the criteria for a residence permit would be a stable job but how could an irregular migrant provide proof of a stable job when, by definition, s/he is not authorised to work. An offer for a secure employment would also be taken into consideration, but rare are employers who agree to inform the authorities of their willingness to offer a contract to an irregular migrant.
Convinced that he was getting nowhere, Omar finally decided at the end of 2008 to leave for Spain. But when he arrived, migrants were leaving because of the severe recession. He soon realised that he had probably jumped from the frying pan into the fire. The weather was the only improvement that he felt since his arrival in Madrid. Few odd jobs, if any, have been on offer, except those in illicit activities and he is well aware that such a path could very well close off all possibilities of regularisation for as long as he remained in Europe. He felt reduced to the life of a tramp, squatting in the homes of various friends. Back in Brussels, he at least had had some privacy in his partner’s home and did not have to worry about where his next meal would come from.
As in many countries, the Madrid branch of the Geneva-based International Organisation for Migration (IOM) has a programme of voluntary repatriation that covers the costs of return plus a small resettlement grant. The majority of candidates have been South Americans with Bolivians and Argentines making up more than 40% of the almost 900 repatriated migrants in 2009. Columbians only numbered 25 last year and Omar is seriously considering entering the statistics on departures and putting an end to the chapter of his life in Europe.
1 What I mean by the process of “regularisation” is the conduct after the introduction of an exceptional law only valid for a fixed period of time (in Dtl: Altfallregelung). In this case a law granting migrants without a valid authorisation of stay, including the ones whose initial authorisation expired (ie: rejected asylum seekers, “overstaying” tourists, “overstaying” student) the entitlement to apply for a residence permit provided they satisfy a given set of criteria. In Anglophone countries the term “amnesty” is generally used equivalently. However, the word “regularisation” is more neutral in the context of migration towards persons committing the crime of living in a country without legal authorisation. See UNHCR- the UN Refugee Agency, European Council on Refugees and Exiles July 2009: Complementary Protection in Europe
2 The Aliens Act was amended on 15. September 2006 and includes the “regularisation for exceptional circumstances” for aliens who may claim a leave of stay due to exceptional circumstances, as long as they can prove their condition to be exceptional. There is no law defining which circumstances may be considered “exceptional”. Due to administrative practices following examples are indicators constituting “exceptional” circumstances: (impossibility of return, protracted asylum procedure, after years rejected asylum application with now strong ties in the host county, parents of a child with Belgian nationality, stateless persons)
* None of the views expressed in my article are intended to reflect the position of the Migration Policy Group and similarities are purely coincidental.
António F. Cruz produces the monthly digest “Migration News Sheet” of the Brussels-based Migration Pol-icy Group, and has been its editor since April 1985.