States frequently use migration control as an excuse to justify practices that do not respect human rights or to deny access to certain basic services to those who do not have papers.

We are seeing this clearly in the highly questionable response of many European states (and of the European Union itself) to the refugee "crisis." The acting government in Spain has also appealed for migratory control in order to justify practices contrary to human rights, from excluding migrant people with irregular administrative status from access to health care to summary returns from Ceuta and Melilla.

Human rights above all

Some claim that there is an irresolvable tension between the legitimate right of states to control their borders and their human rights obligations under numerous international legal instruments. According to this logic, the balance would sometimes shift towards border control and other times towards the rights of undocumented people.

It is important to make it clear that this conflict is a fallacy: it simply does not exist, because it is a matter of two values that are not comparable in nature. Human rights are far above any other legal object, including the control of migration.

As the UN Human Rights Commission has established, "the enjoyment of rights recognized by the [International Covenant on Civil and Political Rights] is not limited to the citizens of the signatory States, but rather must be accessible to all individuals, irrespective of their nationality or their condition as stateless persons, including asylum seekers, refugees, migrant workers and other persons within the territory or under the jurisdiction of the Signatory State."

The question of the respect for the human rights of migrant persons has received special attention from international organizations focused on combating racial discrimination, as many state practices in the field of "migration control" may cause discrimination against persons on the basis of their ethnic or national origins.

These organizations have provided guidelines to states in order to remind them of their obligations to the persons under their jurisdictions. The UN Committee on the Elimination of Racial Discrimination offered such guidelines a few years ago with its General Recommendation Number 30 on discrimination against non-citizens, and the European Commission against Racism and Intolerance (ECRI), an organization under the auspices of the Council of Europe, has recently done so with its General Recommendation Number 16 on safeguarding irregularly present migrants against discrimination.

These guidelines by the ECRI are probably the clearest and most complete that exist to date on this question. In addition to requesting that states respect and guarantee the exercise of human rights (including health care and decent working conditions) by migrants in irregular situations, it also urges them to separate state agencies responsible for the control of migration from those agencies responsible for assistance and the provision of services to migrants.

This would entail relieving all the authorities or entities that provide services (education, health care, housing, social security, legal assistance, justice, etc.) of all "interference by the policies and institutions of migration control."

Moreover, to fulfill General Recommendation 16, states should adopt laws that prohibit public or private organizations from sharing personal data or the possible status of irregularity of migrant persons with authorities except in very exceptional circumstances defined by law, and only when this sharing of information is subject to legal review.

Prohibit 'abuse of migration control'

The recommendation also requires that states prohibit migration control operations (like identity checks) near spaces such as schools, health centers, subsidized housing, food banks or religious establishments.

With regards to policing and legal matters, the recommendation calls on states to prohibit "the abuse of migration control or other law enforcement activities to justify racial profiling" and to "guarantee effective and independent supervision of all police practices."

Likewise, it encourages states to "establish safeguards that guarantee that irregularly present migrant persons who are victims of crimes be aware of their rights and be able to report crimes to law enforcement agencies, testify in court and enjoy justice and effective reparations without ever facing the risk that their data be shared with the authorities responsible for migration control."

Ethnic profiling in Spain

Spanish authorities should take note of these guidelines provided by the ECRI. Here the use of ethnic profiling is very common, as police run identity checks for the purposes of controlling migration. This kind of check is habitually carried out around schools or near Cáritas centers, as the NGO itself reported.

It is also suspected that the National Police Corps is using data from the Municipal Registry of Inhabitants and cross checking that information with data on residency permits, thus seeking out migrants in irregular administrative situations in their own homes, and then initiating processes for penalizing them.

Being added in the Municipal Registry of Inhabitants is the key step in accessing public services, such as health care. Spanish authorities also clearly fail to fulfill the recommendation that calls for avoiding the risk that the personal data of persons without papers be used against them when they report crimes they are victims of.

Reporting crime is risky

The police are not only empowered to initiate migration-related procedures, they are also the body to which crimes are reported. Thus — except in cases of gender violence — persons without papers expose themselves to a very real risk of deportation if they turn to a police station to report having been the victim of a crime, placing them in a situation of extreme vulnerability.

It is therefore urgent that measures be taken to put an end to these practices, which appear legal but are in practice discriminatory and frustrate the effective exercise of human rights by migrant persons in irregular administrative situations.

This article was originally published in the section “Contrapoder” of the newspaper Eldiario.es.