Irregular Migrants and Human Rights: Random Notes

Notes taken while doing my self-collected readings:

1. Rejecting the term "illegal migrant"; questioning immigration law: No one is illegal (Cohen 2003). Only acts, not people, can be criminalized or declared or made illegal. And irregular migrants are not necessarily criminals either. The suggestion that migrants themselves are illegal eerily resonates with the process of legal dehumanization (Bauman 1989) that has historically been applied to the Jews and culminated in the Holocaust.

"Illegal migration" too doesn't quite stand up to scrutiny. Ultimately, what is illegal in "illegal migration" is the fact that it violates immigration law or regulation (pertaining to visa conditions, for example). The status (or importance in the system of laws) of immigration law, however, differs from country to country. More importantly, immigration law may sometimes run afoul of international human rights law, in which case, the illegality of some forms of "illegal migration" can even be questioned in reference to legal norms of presumably greater importance. (Question: What is the relationship between migration law and international human rights law? Answering this question in itself can generate a legal history of human rights activism against immigration law in the fom of a survey of human rights jurisprudence in which the validity of immigration law or regulation was challenged. I am guessing Steve Cohen must have gone to ECHR a number of times.) Advocates have also used human rights norms discursively to deligitimize certain immigration law and regulations. For example, migrants' rights advocates in Canada have shown how immigration regulations restricting migrant live-in caregivers to change their employers have resulted in women being trapped in a contractual relationship with abusive employers to the detriment of their well-being. (find source) This argument can be generalized to argue against blanket immigration regulations restricting the freedom to chose employers. (has been done in Japan re. trainees - find source) Women's rights advocates have also pointed out that allowing women married to high-skilled migrants to legally reside in the host country but preventing them from working there has the effect of making or keeping women dependent on their husbands. (look for that Korean author re. H1B visa in the US) Immigration law and regulations can therefore have human rights implications from migrants that are too often unexamined. Because it is highly problematic to simply accept immigration law as the having the final say on the legality or illegality of migration, "illegal migration" is a highly problematic term.

1.1. the right to mobility and the "heirarchy of mobility" (Bauman, 2000 cited in Duvell, 2008): Mobility or the freedom to cross borders, reside and find a living in a country other than one's own is a resource that is currently allocated through the overlapping migration laws and policies of states. While citizens of Western countries typically can move around and settle pretty much anywhere they fancy, citizens of the global South are typically denied this right. (Does this not establish a system of discrimination based on national citizenship which is incompatible with human rights?)


2. The term "irregular migrant" is the preferred term of researchers who adopt an explicit human rights perspective (both from the liberal "open borders"/anti-deportation activist variety, as well as by international organizations like UNHCR, IOM, Council of Europe, etc.). "Migrant workers in an irregular situation" is the expression adopted in the CMW. (Basok (2008) points out three strands of "migration without borders" discourse engaged in by academics and activists alike.)

It is also the preferred term of migration scholars who are dissatisfied with the lack of descriptive fit between the dichotomy "legal/illegal migration" and the much more complex reality of migrants who do not have authorization to leave (their country of origin), enter (another country), or reside or work in their host country. Duvell (2008, p. 488) explains this very well by simply listing down all the possible concatenations of legal/illegal exit, entry, residence and work. For example, not all "illegal migrants" illegally entered, are illegally residing and illegally working in the host country; some may have legally entered but residing illegally in the host country (e.g., visa overstayer) and may or may not be working; some may be legally residing in the host country but are not allowed to work or are allowed to work only up to a certain maximum number of hours per week and are working despite or beyond such restriction; some may have legally entered and are authorized to work but only for a particular employer or line of work and violate this restriction; some may not have entered the host country at all but were born there to parents who illegally entered the country; and some may not have had permission to leave their country of origin (i.e., exit visas). It is much better to call the lack of one or more form of authorization (to exit, enter, reside or work) as an irregularity, and view these migrants as falling into a kind of continuum of irregularity, rather than to draw a black and white "legal/illegal" dichotomy and lump all irregular migrants under the category "illegal".

3. If irregular migrants have human rights, what are they? How are they recognized recognized by states, or how will they be recognized by states, or will they?

3.1. O'Byrne: human rights discourse (in the singular) as a social reality (as opposed to religious or philosophical idea) only took off with the UDHR, and depended on the state-system (Freeman: human rights will have to be implemented within the existing Westphalian system of states). Risse, Ropp and Sikkink (1999): Human rights norms are diffused into the state system through a process of socialization of states. Basok's concept of counter-hegemonic human rights discourses: migrant's rights discourses are counter-hegemonic human rights discourses which challenge or even undermine the Westphalian system of states as well as the political economy which depends on the exploitation of migrant labor; therefore, their recognition by states through socialization are more problematic. Civil society's role is key. (To what extent are the human rights norms that have been adopted by states any less "transformational" than migrants' rights norms? In any case, migrants rights (CMW version) accommodates the nation-state, does it not?)

3.2. civil society interventions in support of migrants. In Japan, migrant support NGOs are typically divided between women NGOs and labor unions. (Roberts in Douglas and Roberts (2003)) Labor unions have represented irregular workers against abusive employers, though it can be imagined that this is a very atypical scenario as irregular workers who openly challenge abusive employers attract attention to themselves. Women NGOs have also sheltered and helped irregular migrant women access welfare benefits and legal recourse against abusive partners or human traffickers.

Labor unions and grassroots campaigning organizations intervening in support of irregular migrants in the US (and Canada, but not unions) are reported in Basok (2009). AFL-CIO reversed its long-standing opposition to irregular migrants in the labor force in February 2000 and the CIO executive council is calling for whistleblower protections for irregular workers who complain about abusive work conditions. (Basok, 2009, p. 193) In the US, with union support, irregular migrant workers have even marched in the capital to demand regularization (Immigrant Workers Freedom Ride of 2003 reported in Moberg (2003)) Also, in France. (McNevin, 2006)

It can be imagined that NGO support for irregular migrants are influenced by the legal and policy environment, i.e., how much space the laws allows for such maneuvering (e.g., to what extent the firewall principle is adopted), whether they are able to frame the situation as human trafficking rather than labor migration, etc. Gibney (2000) suggested that European NGOs that assist or advocate for refugees and immigrants may have an interest in silencing irregular migrants in that involvement with them “might tarnish the causes of their main constituency”. (p. 2) This may well be because the space for legitimately espousing for irregular migrants' welfare has shrunk as a result of the present legal and policy environment. Perhaps the social environment (e.g., an aggressively anti-migrant media) too is to blame. But civil society does not only react to its environment, it is also a catalyst for legal and social change, or at least, should be. (So perhaps we need to conceptualize civil society's role in defining, developing, and promoting respect for migrants' human rights.)

(A satisfactory conceptualization of will have to be able to account for the discourse on "urban citizenship" or "local citizenship" which creates spaces of political belonging for the irregular migrants even as the nation-state system increasingly excludes them from the body polity.) "Don't Ask Don't Tell" campaign in Toronto used as a model the municipal policy of 28 US cities. (Basok, 2008)

3.1. humanitarianism or human rights? Civil society's concern for irregular migrants is not always framed in terms of human rights; sometimes it is framed in terms of humanitarianism or compassion. It may be because some migrant support NGOs do not consider irregular migrants as having legal rights.

But the fact that irregular migrants have basic human rights is quite clear. Proceeding from analyses of different legal sources, Katsuko Terazawa (in Douglas and Roberts, 2003) (japanese law) and Ryszard Cholewinski (2006) and the Council of Europe (2006) (EU and international law) point to the legal rights that irregular migrants are entitled to. Joseph Carens (2008) makes a broader normative analysis which assumes the state's prerogative to control migration but nevertheless arrives at a similar enumeration of rights for irregular migrants as well as the firewall principle necessary to safeguard these rights.

(To what extent do NGOs feel constrained by the fact that migrant-receiving countries have not signed up to the Convention on the Rights of Migrants Workers and their Families (CMW)? Are they even aware of it?)

1. Some terms used to refer to Filipino irregular migrants:

"TNT" - a term used in the Philippines to refer to Filipinos in other countries (most commonly in the US) who constantly hide ("tago ng tago") from authorities to avoid deportation;

"bilog" - Filipino term for visa overstayers ("O" for overstaying) in Japan, commonly entertainers whose visas were not renewed, but also visitors who stayed on to work;


TO BE CONTINUED

Tanya Basok (2009), Counter-Hegemonic Human Rights Discourses and Migrants Rights Activism in the US and Canada, International Journal of Comparative Sociology, vol. 50 (2): pp. 183-205.

Parliamentary Assembly of the Council of Europe, Human rights of irregular migrants, May 4, 2006.

Ryszard Cholewinski, Irregular migrants: access to minimum social rights (2006)

Steve Cohen (2003) No one is illegal: asylum and immigration control, past and present, Stoke and Trent: Trentham Books.

Micheal Douglas and Glenda Roberts (2003), Japan and Global Migration: Foreign Workers and the Advent of a Multicultural Society (University of Hawaii Press)

Franck Düvell (2008), "Clandestine Migration in Europe", Social Science Information vol 47 (4): pp. 479-497.

Gibney, M.J. (2000) Outside of the Protection of the Law: the Situation of Irregular Migrants in Europe, Working Paper 6. http://www.rsc.ox.ac.uk/PDFs/workingpaper6.pdf. Oxford: Refugee Studies Center, University of Oxford.

McNevin, A. (2006) Political Belonging in a Neoliberal Era: the Struggle of the Sans Papiers, Citizenship Studies, 10(2), pp. 135-151.
David Moberg (2003) The Road to Citizenship: Immigrants and unions get on the same bus, In These Times, 23 September, available at http://www.inthesetimes.com/article/624/