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Article Excerpt
[This article aims to identify jurisprudence which advances the standards of treatment of unauthorised migrants in the context of often hostile domestic laws and political rhetoric. Due to its universalist and humanist underpinnings, many would consider international human rights law to be a natural source of rights protecting migrant workers. However, human rights doctrine takes a chequered approach to the protection of those living or working in a foreign state without visa authorisation. Even the Migrant Workers Convention recognises states' sovereign prerogative over immigration control, and thereby fails to cater to the especially precarious position of irregular migrants who decline to assert their rights for fear o f facing sanctions under immigration laws. It is argued that we need to look to regional judicial forums to find international legal doctrine which articulates a progressive legal framework robustly protective of irregular migrants' rights. This article canvasses jurisprudence in the regional Human Rights Courts in Europe and the Americas which succeeds, in different ways, at decoupling the absolute discretion of states to regulate border control from the substantive rights of irregular migrants once present in a host state.]
CONTENTS I Introduction II The Rights of Irregular Migrants and the Promise of Human Rights Law A Arguments for the Need to Protect Irregular Migrants B The Promise of Human Rights Law III The Hesitant Approach of Human Rights Law to the Protection of Irregular Migrants A Irregular Migrants and the International Covenant on Civil and Political Rights B The Innovation Presented by the Migrant Workers Convention IV Seeking Out More Progressive Doctrine: The Regional Human Rights Courts A European Jurisprudence on the Right to Family Life B The Inter-American Court of Human Rights V Conclusion
I INTRODUCTION
International migration featured high on the United Nations' agenda in 2006, when, on 14 and 15 September, government delegations from around the world met for the UN General Assembly's High-Level Dialogue on International Migration and Development. (1) This same year saw hundreds of thousands of people lining the streets of Los Angeles with placards proclaiming 'no human is illegal'. (2) Clearly, international migration has become the subject of urgent policy debate within many countries and at the international level. It is equally evident that no single issue is more contentious than that of the movement of people without state authorisation, described in international parlance as 'irregular migration'.(3)
As the Australian Government attempts to guard against the entry of asylum seekers arriving by boat, (4) even 'fortress Australia' (5) is not insulated from irregular (or 'undocumented') migrants, in December 2005, there were approximately 46 400 visa overstayers in Australia, (6) together with an unknown number of non-citizens present in Australia with valid visas who were working in breach of their visa conditions. (7) In current Australian public debate, as in most Western countries, irregular migrants are maligned as 'economic migrants' (8)--less deserving even than refugees because the circumstances precipitating their arrival in Australia are not considered to found a legitimate claim to stay on Australian soil. (9) As irregular migrants have not been extended the privilege of entry into Australian territory, enforcement plays a dominant role in political discourse. (10) Those who advocate for the rights of undocumented migrant workers are often blocked by the hold that the mantra of border control has on the popular psyche.
This article has the practical goal of identifying jurisprudence which advances the standards of treatment of unauthorised migrants in the context of often hostile domestic laws and political rhetoric. It is hoped that this article will fuel a more sophisticated public debate about the conceptual frameworks necessary to protect the rights of undocumented migrant workers. It is also envisaged that this research will contribute to the arsenal of advocates' tools as they challenge the prevailing view that decent treatment of migrants must always be sublimated to states' wide-ranging powers over their borders and immigrant admissions. Additionally, examples of laws insisting on decent treatment of irregular migrants may form the basis for a positive framework of rights protection of this vulnerable population by courts and law-makers.
Many would consider international law to be a natural source of rights protecting migrant workers, including those living or working without authorisation. This is because undocumented migrant workers have no access to domestic electoral processes in their states of employment, and often resist reporting exploitative living and working conditions to domestic authorities (or seeking judicial redress) for fear of attracting the attention of immigration enforcement authorities. International law, somewhat insulated from domestic debates over immigration policies, might therefore be better placed to provide positive guidance on the treatment of individuals who form part of the global movement of labourers, and who have no access to their own states for protection.
However, when one examines international human rights legal principles, the result is not progressive doctrine, but rather a deep uncertainty about the legal protections afforded to irregular migrants. As states parties jealously guard control of their territory and national membership, they have adopted UN Conventions which emphasise states' sovereign control over their borders, and their absolute prerogative to control admission and deportation of unauthorised migrants. (11) By and large, comprehensive human rights instruments do not explicitly include the protection of irregular migrants; moreover, they explicitly exclude this group from certain rights afforded to authorised immigrants or nationals of the state of residence. (12) When the International Convention on the Protection of the Rights' of All Migrant Workers and Members of Their Families ('Migrant Workers Convention') (13) entered into force, the inclusion of all migrant workers in the human rights corpus was acclaimed as an unprecedented affirmation of the dignity of undocumented migrants. (14) However, as will be explored in some detail below, the Migrant Workers Convention continues to allow states the absolute prerogative to pursue any immigration control policies they see fit. Linda Bosniak has argued that this deference to state interests means that the substantive rights afforded to irregular migrants may be unenforceable in practice. (15)
It seems that, in order to find international legal doctrine which mediates state sovereignty and migrants' rights with more regard to the needs of migrant workers, we need to look to regional judicial forums. Perhaps this is because these are still more distant from the influence of states and the overriding goal of preserving territorial sovereignty. Jurisprudence is emerging in regional human rights courts in Europe and the Americas which affirms the right of states to prohibit the entry of foreigners onto their sovereign territory, but also succeeds, in different ways, at decoupling the absolute discretion of states to regulate entry at the border from the substantive rights of irregular migrant workers once present in their countries of employment. (16)
I explore this argument in three stages. Part II begins with a brief outline of some of the bases upon which it has been asserted that undocumented workers are entitled to protection in their states of employment and redress for the exploitation they experience. I then discuss why international human rights law might appear at first to be a natural repository of checks on states' discretion when it comes to the treatment of irregular migrants.
Nevertheless, in Part III, I will proceed to demonstrate that a review of treaty standards--in both the comprehensive human rights instruments and the dedicated migrant-oriented Migrant Workers Convention--disclose a deep ambivalence towards the ability of undocumented migrants to enforce their rights. This ambivalence often allows sovereign discretion over immigration control policies to trump any of the few rights which irregular migrants do hold under these treaties. I suggest that states have intentionally drafted and endorsed treaties which accord a great deal of deference to the plenary power of governments to resist unauthorised entries.
Part IV then proposes that international or regional judicial tribunals may be better placed to articulate protective measures for irregular migrants, since they are further removed from the sovereign control of states. This contention is supported by an exploration of recent case law emanating from the European Court of Human Rights ('ECHR') and the Inter-American Court of Human Rights ('IACHR'). This case law recognises that irregular migrants hold substantive rights opposable against their host state and require states to sequester migrants' unlawful immigration status from their ability to claim these rights. This judicially mediated doctrine suggests different ways in which a uniquely vulnerable class of claimants may be empowered without totally abdicating states' traditional prerogative over immigration enforcement.
II THE RIGHTS OF IRREGULAR MIGRANTS AND THE PROMISE OF HUMAN RIGHTS LAW
Irregular or undocumented migrants are people who work in a state of employment without authorisation. (17) To borrow from the internationally enshrined definition, irregular migrants may have entered without authorisation, be employed contrary to their visa stipulations, or have entered with permission but remained after their visas expired. (18) However, treaty definitions aside, it is difficult to address this topic without becoming mired in inflammatory and politically-charged terminology. (19) Individuals working in a foreign state without authorisation have been variously described as illegals, (20) criminal aliens (21) and unlawful non-citizens. (22) It has been observed that the 'collection of pejorative terms, racial slurs and denigrating epithets appear to have no end'. (23)
As an alternative, in 1994, the International Conference on Population and Development recommended the use of the term 'undocumented'. (24) However, this word does not 'cover migrants who enter the host country legally with tourist documents but later violate their conditions of entry by taking a job'. (25) In light of this, the International Symposium on Migration in Bangkok in April 1999 recommended use of the term 'irregular'. (26) This is intended to capture the fact that '[i]rregularities in migration can arise at various points--departure, transit, entry and return--and they may be committed against the migrant or by the migrant'. (27) I adopt the descriptors 'undocumented', 'unauthorised' or 'irregular' migrant worker in an effort to avoid dehumanising language. Irregular migrants have committed mere administrative violations by breaking immigration laws in their country of employment. In the words of Judge Ramirez of the IACHR, '[w]hat should be an administrative description with well-defined effects becomes a "label" that results in many disadvantages and exposes the bearer to innumerable abuses'. (28) Catherine Dauvergne has remarked that the nomenclature of 'illegal' 'names the other not only as an outsider to a particular nation, but as an outsider to any nation. As such, the other is outside the law itself, and, in a word, illegal'. (29) In sum, it is imperative to avoid labels that suggest a lack of legal existence which is both discriminatory and counterfactual.
A Arguments for the Need to Protect Irregular Migrants
Living on the fringes of society, undocumented migrants assume an extremely precarious life within their states of employment. In many parts of the world, they are among the lowest paid and hardest worked employees in the workforce. (30) Due to their unlawful status, irregular migrants live in constant fear of removal, and are thus especially vulnerable to exploitation. The Special Rapporteur on the Human Rights of Migrants has reported abusive working conditions, such as extremely long hours without breaks, refusal to pay wages due, ill-treatment and confinement, which amount, in some cases, to forced labour. (31) States around the world tend to explicitly exclude irregular migrants from access to civil and labour rights and social benefits, adopting rhetoric which conflates immigrants and asylum seekers with criminals and terrorists. For example, shortly after the attacks of 11 September 2001, the former US Attorney-General John Ashcroft was heard to declare, '[l]et the terrorists among us be warned ... If you overstay your visas even by one day, we will arrest you'. (32) It is, therefore, unsurprising that undocumented migrants often resist asserting the rights they are entitled to for fear of exposure to immigration authorities.
However, while their living and working conditions are marginal, the size of the irregular migrant worker population worldwide is certainly not. In 2005, an estimated 191 million people were international migrants. (33) The International Labour Organization has calculated the number of 'economically active migrants' around the world at over 86 million. (34) Although precise data relating to clandestine activities is impossible to ascertain, current knowledge puts irregular migration for Europe at about 10-15 percent of all cross-border movement. (35)
Clearly, some academics and many governments consider the prospect of extending substantial rights to irregular migrants extremely problematic. (36) It is outside the scope of this article to provide a fully-fledged argument for the robust protection of the rights of undocumented migrants. Nevertheless, a range of rationales for advancing the rights and dignity of irregular migrants shape the legal standards of protection that do exist in both domestic and international legal regimes. Just as influential are the tensions or presuppositions implicit in these rationales. For this reason, it is necessary, briefly, to canvass the grounds anchoring the promotion of the rights of undocumented migrants. These include normative arguments as well as those based on pragmatic expediency.
Human rights advocates predictably invoke the universal values underpinning the human rights regime. (37) Some point to the extreme social vulnerability of the undocumented migrant population, who undertake work ubiquitously described as the 'three Ds'--dirty, degrading and dangerous (38)--work that nationals and legal migrants avoid. The sectors which employ migrant workers are usually those where little or no regulatory activity upholds minimum safety, health and working conditions that should ensure 'decent work'. (39) Those who articulate claims for migrants' rights on the basis of universal values tend to recall the particular concern that the international community has shown for groups experiencing extreme social vulnerability, including the undocumented. (40)
Other arguments in favour of promoting the rights of undocumented migrants rest on structural analyses of irregular migration flows. According to one such argument, many receiving countries welcome the physical labour of foreigners, but rigidly restrict the number of legally issued visas for blue-collar workers to migrate legally, making the existence of undocumented workers inevitable. (41) According to another, even while countries overtly combat clandestine immigration, irregular migration 'is often tacitly permitted or even encouraged [by governments and employers], just because illegals lack rights and are easy to exploit'. (42) Such encouragement may result from geopolitical and transnational economic dynamics based on older colonial patterns. (43) Alternatively, encouragement may take the form of permeable borders. Although states wield extensive authority under international law to control the entry of foreigners into their territory, in practice, states often fail to exercise this control. (44) Such failures to prevent the presence of tens of millions of irregular migrants around the world could be understood as tacit invitations to enter. Analytically, these contributions reject portrayals of irregular migrants as voluntary transgressors of state immigration laws, (45) and emphasise the complicity of receiving states and local employers in the entrance and continued presence of irregular migrants.
Others argue that irregular migrant workers are, in certain respects, de facto members of the national community by virtue of their social and cultural contributions. (46) Generally, the thrust of these arguments is that states and employers should not be entitled to benefit from the labour of irregular migrant workers without according them some degree of entitlement to participate in the political and social community, including access to fundamental rights and protections. Correspondingly, 'the community should keep its end of the unwritten compact by extending the undocumented legal recognition and certain basic rights'. (47)
Consequentialist arguments, on the other hand, seek to demonstrate that guaranteeing undocumented migrants' rights serves the interests of not only the migrants, but those of the state and its citizens as well.(48) Enforcing minimum standards of working conditions, for example, wage rates, is thought to remove employers' incentives to seek out irregular migrant labour. (49) In the words of one long-time community advocate, refusing legal redress for abuses experienced by irregular migrant workers simply serves to
embolden lawbreakers who prey on immigrants, frustrate civil and criminal law enforcement generally, undermine public safety and health, entrench undocumented immigrants in a caste hierarchy, and foster an underground economy...
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