by François Crépeau
What politicians say about irregular migrants depends on the audience they are addressing. To conservative voters and security agencies, they toe the “law and order” line and vow to expel these “criminals.” To employers’ associations, they promise to recruit the labour force needed in our economy. To social workers and NGOs, they insist on the dignity and rights of individuals.
Stephen Legomsky has shown how these varying discourses give rise to two opposing views of irregular migrants.1 The first image is of hordes of faceless “illegal” migrants, intent on taking jobs from worthy citizens and engaging in dangerous criminal activities. The insecurity thus created must be firmly repressed through detention and deportation. The second typically takes the form of individual stories, giving migrants an identity and a voice. It insists that irregular migration is a crime neither against persons nor against property, noting that irregular migrants perform tasks that citizens don’t want to do. Hence they should be given a chance to gain access to residence and citizenship.
In this article, I take the second view: a humane approach to irregular migration.2 Although states retain the power to decide who can enter and reside in their territory, there are democratic bodies within the state that may not want to include immigration status as a relevant criterion to define their constituency.
Why should this be? The answer is based on four points:
As migration is a constant of civilization, we are all migrants.
Over the past 30 years, there has been a transition from seeing irregular migration as a social phenomenon that responded to the economic needs of postwar growth to seeing it as a threat to national security.
Nevertheless, migrants do have rights, and respecting, protecting and promoting migrants’ rights and working out how they compare to the rights of citizens is the next frontier in the development of human rights policies.
As a result, we may need to reconceptualize citizenship and residence, at least locally, to recognize everyone’s human dignity over and above their administrative status.
We are all migrants
Migration is a complex phenomenon that defies caricature. It is a constant of civilization: the history of humanity is that of an endless journey on the various continents of our planet. Over time, it is also a generational phenomenon, triggered by a huge array of political, economic and social factors that cannot meaningfully be altered by short-term politics. It is multifaceted: it may be at once an economic transfer, a vector of social transformation, a challenge to territorial sovereignty, a security concern, a clandestine phenomenon, a key to cultural pluralism and more. It is also a personal trajectory through different social spaces: even though migration is described in terms of “flows” or “waves,” we should never lose sight of the individual voicing her or his hopes and fears.
Humanity is on an ongoing endless journey. We have always been migrants, since our species appeared around 200,000 years ago in Africa and then colonized all continents. Migration is at the heart of many civilizations, as exemplified by the book of Exodus in the Bible, the Kadesh treaty (1275 BCE) between the Pharaoh Ramses II and the Hittites, Homer’s Odyssey, the parable of the Good Samaritan in the New Testament and the Hijra in Islam, just to name a few.
Our settling on the land is recent and unstable. Nomadic populations, such as the Roma, still exist. Pilgrimages remain important traditions. Rural exodus, urbanization and seasonal agricultural work all include elements of migration. “Expats” and “snowbirds” are migrants too. And we dream of outer space.
Migrants have represented about 3 per cent of the world population throughout the last century, although numbers have hugely increased, to more than 210 million migrants worldwide today. Migration has always taken place from areas of poverty and violence, which create push factors, toward regions of prosperity and stability, which create pull factors. We can slow migration in the short term but cannot stop it in the long term, as it responds to a basic human need: the ability to imagine a future for oneself and one’s children. Faced with the same choices as the 210 million, most of the rest of us would try to migrate too.
Global North states design policies intended to control migration in various ways. In countries like Canada, Australia and the United States, immigration policies are mainly used to realize demographic objectives. In contrast, continental European states’ policies have been designed to manage unskilled foreign populations, often considered as cheap labour. But both share common policies, such as the repression of irregular migration and resurgent temporary migrant workers’ schemes. These policies create spheres of vulnerability. Temporary migrant workers and irregular migrants are often left at the mercy of employers who can trigger their deportation. In Canada, for example, this is the case for migrants who come under the seasonal agricultural workers program or the live-in caregivers program. This power over migrants’ lives generally silences them and creates a huge potential for exploitation including sexual exploitation – a modern form of slavery.3
Irregular migration results from the interplay of three factors: our hidden low-skilled labour needs, the needs of those seeking to emigrate from countries in the South, and our repressive border policies which interfere with the effective interplay of push and pull factors.
Thus, the plight of the migrant illustrates the conflict between the two basic paradigms in international law and policy. Under the traditional territorial sovereignty paradigm, the host state decides who enters and stays in the country and who is a member of the political community. But according to the more recent human rights paradigm, every person has fundamental rights that should be respected by any authority. The conflict sets states asserting their power of exclusion against migrants who try to resist through their rights.
It is also important to realize that irregular migrants do not constitute a homogeneous community. Although they used to be generally young, able-bodied, male and unskilled, this picture is becoming more diversified.
The irregularity of their administrative status comes from very different sources. They may have arrived on a temporary tourist, student or migrant worker visa, and decided to stay on. They may have entered the country clandestinely either through “smuggling” rings or using improper identity and travel documentation. Sometimes the documents are forged altogether; sometimes they are “altered” (they are authentic but the identity is that of another person); sometimes they are entirely valid but the real reason for the travel (i.e., work) has not been disclosed. An irregular migrant may also have been stranded while transiting through the country and trying to enter another country.
Other irregular migrants may have been brought to the country as infants by their parents who have remained in an irregular situation: although schooled and socialized like any other resident, they then discover as young adults that they have no status in what they consider their country. They may have been apprehended by the authorities on the day they try to enter the country or after 20 years’ residence. They may have started a family, married a resident or citizen and have children who are born citizens of the country. Some have achieved very successful professional lives, and are integrating themselves easily into the wider community, even publicly recognized for their achievements. Others will remain in the shadows, bonding mainly with other irregular migrants or with people from their country of origin.
All this to say that there is not one pattern of irregular migration. If one takes the time to inquire and research, one will find very different life stories, as compelling and deserving of respect as any other.
Migrants and national security
In the period of postwar prosperity, irregular migration was seen as a small price to be paid to meet the soaring demand for unskilled labour. It was the oil crisis of 1973 that led to and justified the relative closure of Global North borders to foreign workers. International travel and communication were also becoming more accessible. As a result of these factors, the number of asylum claims and later of irregular migrants soared. States reacted with a strong anti-asylum discourse and with preventive and deterrence measures against irregular migration.
Deterrence measures attempt to discourage irregular migrants from entering the country by raising the cost and diminishing the benefits of migration. They focus on reducing the entitlements offered to migrants, such as the elimination of appeals in the immigration process and restriction of access to legal aid, the labour market and social protection. Migrant smuggling is increasingly criminalized. States resort more to international agreements to facilitate the return of undesirable migrants. In addition, migrants face increased detention.4
Preventive measures are designed to impede the arrival of irregular migrants on “our” territory altogether to avoid the possible intervention of NGOs, lawyers, politicians or journalists to fight deportations, since none of these actors will intervene in favour of someone who is maintained abroad. Measures include visa regimes, among which the visa obligation for Mexican and Czech nationals – directly triggered by the rise in the number of asylum claims from these two countries – is the most recent Canadian example. There are also carrier sanctions (fines imposed on transportation companies for bringing foreign individuals without appropriate documentation), which result in a partial privatization of migration controls. States also resort to interceptionmechanisms abroad to prevent irregular migration: Canada has deployed “migration integrity officers” abroad.
Immigration intelligence is widely shared without effective control on access to the personal information found on such databases. International economic cooperation arrangements – such as the Barcelona process in the Mediterranean, the Puebla process for Central America or the European Union’s development agreements with 79 African, Caribbean and Pacific countries – nowadays all contain chapters obliging countries in the Global South to implement migration control mechanisms that “protect” the Global North. Borders and seas are militarized: during the 1990s Guantánamo was used to “warehouse” Haitians picked up on the high seas before returning them home; the enduring Pacific Solution in Australia has applied the same mechanism toward migrants coming through Indonesia; the European Frontex agency is patrolling the Mediterranean to the same end. European countries have discussed the idea of an “externalization” of asylum procedures, which would only take place abroad, in such countries as Libya, Morocco, Albania and Mauritania.5
All in all, states are increasingly coordinating efforts to set their arsenal of measures for preventing irregular movements of persons (including asylum seekers and refugees) and reducing the “burden” of such migration within a coherently articulated strategy.
These measures proceed from a transformation of the political paradigm, reflected by a new public discourse on migrants. Especially since 9/11, as well as the 2004 Madrid and 2005 London bombings, migrants are considered suspect and potentially dangerous. More than before, they are associated with economic ills (unemployment, welfare state crisis), insecurity (inner cities, petty violence, organized crime, terrorism) and identity anxiety (demographic changes, identity markers). An “us and them” mentality is at work, creating discrimination and easily manipulated into hatred. Migration is now part of a new international security paradigm structured around the securitization of the public space (water security, food security, energy security, communication security, environmental security).6
But is it justified? Irregular entry is not a crime against persons or against property: it is essentially the crossing of a virtual line in the sand, which hurts no one in itself. Moreover, the use of smuggling rings is often the last resort, when all other avenues of protection are closed. In history, countless people were saved by smugglers (remember the movie Casablanca). The large majority of irregular migrants pose no security risk (the 9/11 terrorists were not irregular migrants). Although framed as a fight against international criminality, the migration control mechanisms serve more to reassure citizens that governments are taking appropriate action than to increase their security in a meaningful way.
Furthermore, measures against irregular migration are ineffective, as they never address a root cause of migration: the need for exploited labour in the Global North. The exploitation of vulnerable migrants in specific sectors of the economy (construction, agriculture, domestic workers, cleaning or catering services, for example) enhances the competitiveness of Global North economies. These “illegal employers” are an essential pull factor that is systematically forgotten in government discourse regarding irregular migration – the fact that “we” bear part of the responsibility for the phenomenon is never mentioned.7
Migrants have rights
Irregular migration is now treated as a form of “international criminality,” which implies that irregular migrants shouldn’t be recognized as having any rights. Indeed, not one state in the Global North signed or ratified the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which details the rights of all migrants.8 Its “flaw” is to extend many of these rights to irregular migrants.
In international law, as well as in most domestic legal systems, two rights are exclusive to citizens: the right to political participation, which means the right to vote and be elected to office, and the right to enter and remain on the territory. In principle, all other rights apply equally to foreigners and citizens, by virtue of their common humanity. Foreigners benefit from the right to equality and to not being discriminated against on the ground of nationality. They are protected against return to face torture and arbitrary detention. Foreign children enjoy specific protections. Foreigners must have access to remedies and due process. They benefit from guarantees even in cases of national security. In Canada, according to section 1 of the Canadian Charter of Rights and Freedoms, a differentiation between citizens and noncitizens must be “reasonable and justifiable in a free and democratic society.”9
This is what several tribunals have recently affirmed. The Supreme Court of Canada has curtailed the discretionary elements and the secrecy of long-term detention without charge of persons subject to a security certificate. The United States Supreme Court has progressively imposed a due process framework to the detention in Guantánamo Bay of suspects caught in the “war against terror.” The European Court of Human Rights has affirmed that so-called “international” zones in airports are actually national territory where human rights guarantees apply. The British House of Lords has decided that indefinite detention and discriminatory practices in a foreign airport are against basic human rights guarantees.10
In the end, once past the moral panic that followed 9/11, normal legal frameworks slowly reasserted themselves. Our common universal human rights framework was established by the World War II generation. Its legacy is that law must always prevail over executive power. This was threatened by the modus operandi established for the “war on terror.” It is heartening to see courts restricting the application of laws and policies that expanded executive powers at the expense of individual freedoms.
Political mobilization must complement legal guarantees to defend human rights. The history of the 20th century showed that majorities can be wrong and that individuals and minorities must be able to defend their rights against the majority. Marginalized or vulnerable categories of people have always had to fight for their rights: industrial workers, women, indigenous people, national minorities, detainees, gays and lesbians, among others. In modern times, they had to fight through the courts, against the executive, against Parliament and often against prevailing public opinion. Migrants are the latest such vulnerable group.
Who will defend them? The executive or the legislature cannot generally be expected to protect the rights of migrants, who are convenient scapegoats for the woes of our societies. They rarely complain and do not vote, so they are legally and politically insignificant. As nationalist populist discourse goes unopposed, public opinion is easily deflected from supporting or even taking an interest in migrants. NGOs, churches, pro bono lawyers and other concerned citizens are thus often left to carry the burden of defending their rights.
Recognizing migrants’ role in our societies
Migrants are an integral part of the city; they should be recognized as such. They would be citizens with a small c: they are not nationals, but locally they would be considered citizens on an equal footing with everyone else who lives and works in the city.
Irregular migrants all work (they can’t afford not to); their work contributes to the competitiveness of the economy in a number of sectors, such as agriculture, cleaning, construction and catering. They pay taxes on everything they buy or rent, and use public services sparingly. The absence of an administrative status that recognizes the whole range of their rights makes them vulnerable. Restoring a meaningful status to such people, even if only locally, would go a long way toward empowering them to fight exploitation and discrimination.
There are examples of how some local communities already adopt a different attitude toward vulnerable migrants. In many American cities, such as San Francisco, the police have decided to ignore immigration status in carrying out their work with fellow citizens to maintain the confidence of all segments of the population. It’s a practical matter: fighting violent crime becomes impossible when victims or witnesses do not talk to the police for fear of deportation. In Toronto, all children have the right to go to school whatever the status of their parents, in conformity with a “don’t ask, don’t tell” policy. In Massachusetts, the state hands out driver’s licences without checking immigration status, thus allowing irregular migrants to gain access to many services. In New York and Chicago, foreigners can vote in local elections. In Quebec, the H1N1 flu vaccination campaign in the fall of 2009 was available to all, irrespective of immigration status. In Paris, Médecins du Monde administers 21 medical dispensaries for irregular migrants with the cooperation of the local authorities.
Cases such as these show a potential for a different approach to the place of vulnerable migrants in many host societies. Immigration status is still an important factor at the national level, and the power of states to deport migrants in irregular situations is not at issue: it is part of the present international legal regime. However, local governments (regional or municipal) can take a different stand. They don’t have to act as enforcers of an immigration policy which is not theirs (for example, by interconnecting their databases with that of the immigration department). They can leave migrant status to be enforced by the immigration authorities so that they can focus appropriately on their own priorities, such as fostering social cohesion.
The key idea is that there should not be any special status (or non-status) for migrants at the local level: there would be only one status for all inhabitants of the city or local community. All people who reside there and participate in the economic and social workings of any society should enjoy a status that allows them to benefit from services commensurate to their contribution and participate in local political decision-making.
1 Stephen H. Legomsky, “Portraits of the Undocumented Immigrant: Epiphany through Dialectic,” (2009) 44 Georgia Law Review, retrieved March 5, 2010, from http://sssrn.com/abstract=1372171
2 This article takes up ideas presented in greater depth in several previous papers: François Crépeau, Delphine Nakache and Idil Atak, “Introduction,” in François Crépeau, Delphine Nakache and Idil Atak, eds., Les migrations internationales contemporaines: Une dynamique complexe au cœur de la globalisation (Montreal: Presses de l’Université de Montréal, 2009); François Crépeau, Droit d’asile: De l’hospitalité aux contrôles migratoires (Brussels: Bruylant/Éditions de l’Université de Bruxelles, 1995), pp. 29–38; François Crépeau and Delphine Nakache, “Controlling Irregular Migration in Canada: Reconciling Security Concerns with Human Rights Protection,” IRPP Choices, Vol. 12, No. 1 (2006); Delphine Nakache and François Crépeau, “Le contrôle des migrations et l’intégration économique : Entre ouverture et fermeture,” in Vincent Chetail, ed., Mondialisation, migration et droits de l’homme: Le droit international en question (Brussels: Bruylant, 2007).
3 On the new forms of slavery see, for example, Siliadin v. France, no 73316/01, ECHR, 2005-VII.
4 Migreurop, “‘The Encampment’ in Europe and around the Mediterranean Sea” (2009), retrieved November 23, 2009, from www.migreurop.org/IMG/pdf/L_Europe_des_camps_2009.pdf
5 Derek Lutterbeck, “Policing Migration in the Mediterranean,” Mediterranean Politics, Vol. 11, No. 1 (2006), p. 69; Sophie Huguenet, Droit de l’asile: Le projet britannique d’externalisation (Paris: L’Harmattan, 2004).
6 See: Thomas Faist, “The Migration-Security Nexus: International Migration and Security before and after 9/11,” Malmö University School of International Migration and Ethnic Relations, Willy Brandt Working Papers, 2004, retrieved November 26, 2009, from www.dspace.mah.se/bitstream/2043/686/1/Willy%20Brandt%202003-4.pdf
7 See International Labour Office, Towards a Fair Deal for Migrant Workers in the Global Economy, Report VI (International Labour Conference, 92nd Session), Geneva, 2004, p. 48, retrieved December 20 , 2009, from www.ilo.org/wcmsp5/groups/public/—-dgreports/—-dcomm/documents/meetingdocument/kd00096.pdf; Global Commission on International Migration, Migration in an Interconnected World: New Directions for Action, Global Commission on International Migration, 2005, pp. 32–40, retrieved December 20, 2009, from www.gcim.org/attachements/gcim-complete-report-2005.pdf
8 As of March 5, 2010, 42 states had ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (December 18, 1990): United Nations Treaty Collection, “Chapter IV: Human Rights 13: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families,” retrieved March 5, 2010, from www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en
9 Canadian Charter of Rights and Freedoms, part I of the Constitution Act, 1982 , ss. 1–15.
10 Charkaoui v. Canada (Citizenship and Immigration), 1 S.C.R. 350; Boudemiene v. Bush, 553 U.S. (2008); Sale v. Haitian Centers Council, 113 S. Ct. 2549, 113 S. Ct. 2549, 125 L. (92-344), 509 U.S. 155 (1993); Amuur v. France, 17/1995/523/609, Council of Europe: European Court of Human Rights, June 25, 1996; A and others v. Secretary of State of the Home Department, UKHL 56; Regina v. Immigration Officer at Prague Airport, UKHL 55.