- Immigration — Migration — Citizenship — Rights holders — Arbitrary (unreasonable) & discriminatory treatment standard — Non-discrimination
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1. Basic Concept
1 Immigration is defined as the act of entering a country other than one’s country of origin and settling there permanently. Immigrants are, at least initially, aliens, that is, persons who do not possess the nationality of a given State. Immigration is distinct from travel of a temporary nature—eg for study, trade, or tourism—although many individuals may initially migrate without intending to settle permanently (Migration). Immigrants migrate for complex economic, social, and political reasons. Many immigrants are compelled to leave their homelands in search of employment, family reunification, or safety from repression (Emigration). Immigrants arrive through regular migration procedures as well as through smuggling, human trafficking, and other irregular means of entry.
2 Immigration is a process with long-term effects in both sending and receiving countries. In immigrant sending countries, for example, remittances can play a major role in the national economy. Remittances are the monies sent by individuals working abroad to family and friends back home. The United Nations (UN) reported that remittances totaled more than US$411 billion in 2011 alone. In immigrant-receiving countries, however, policies that shape integration of immigrant communities can influence the socio-economic well-being of immigrants and their descendants for years to come (Aliens, Integration).
3 Immigration is regulated by an intricate system of legal rules. Freedom of movement (Movement, Freedom of, International Protection), a central principle of the international law on the protection of human rights, provides for free movement of individuals within national borders (Boundaries) as well as for their rights to leave and return to their country. Freedom of movement does not address the entry of non-citizens into a country. Rather, each government (Governments) generally has the sovereign right to control its frontiers and determine who should be considered a member of the nation-State (Sovereignty). National rules on immigration vary considerably and address not only the entry of non-citizens into a country, but also naturalization and citizenship procedures as well as the legal status of subsequent-generation immigrants. State immigration regulations are not without limitations, however. All States must comply with treaties to which they are party as well as obligations deriving from customary international law. Accordingly, States are compelled to respect international law concerning the protection of refugees as well as uphold universal human rights standards applicable to all individuals, regardless of citizenship status (Equality of Individuals; Individuals in International Law).
2. Immigration Today
4 Approximately 3% of the world population, or roughly 215 million individuals, currently reside in a country other than the one in which they were born. In 2008, the UN reported that most of the world’s migrants lived in Europe (70 million), Asia (61 million), and North America (50 million), with one in every five immigrants living in the United States. Economic globalization has led to a growing demand for low-wage and low-skilled labour in developed countries. At the same time, low birth-rates and ageing populations in developed countries have resulted in an increased need for workers. According to the UN, between 2005 and 2010, high-income countries were projected to have the highest increases in immigration. About half of all migrants are women.
5 Immigration trends today are differentiated in three key ways from immigration trends in the past. First, rather than a handful of industrialized countries absorbing the bulk of the world’s migrants, more and more migrants today are moving from one developing country to another (Developing Countries). Second, traditional classifications of States as either ‘countries of emigration’ or ‘countries of immigration’ are progressively blurring. States are increasingly both sending and receiving migrants. Moreover, many States previously considered countries of emigration—Republic of Ireland, Italy, Republic of Korea, or Thailand, for example—are now destinations for considerable numbers of migrants themselves. Third, there is an increasing need for highly-skilled workers, particularly in the fields of science and technology. This need has prompted some States to develop initiatives aimed at stemming ‘brain drain’ as their best and brightest citizens move to take jobs in other countries.
B. Legal Framework
1. Development of Legal Rules
(a) Historical Background
6 Migration controls have fluctuated over time. Immigration patterns are largely dependent on means of transportation as well as economic and social developments across the globe, but are also affected by treaties and national laws. Consideration of legal limits on immigration can be traced back at least as far as the beginning of the 18th century when bilateral treaties between States encouraged trade and foreign investment. These Treaties of Friendship, Commerce and Navigation (‘FCN treaties’) typically secured reciprocal rights for individuals living and businesses operating in the other State’s territory (Reciprocity). FCN treaties commonly provided that States Parties would protect the personal welfare and property of the other State’s nationals. Another important development was the creation of bilateral treaties including a most-favoured-nation clause. In general, most-favoured-nation treatment was an innovation designed to create equivalent conditions for States competing for commercial gain in the same location. Most-favoured-nation clauses frequently equated the rights of all citizens of States granted favoured status.
7 The creation of the League of Nations’ Office of the High Commissioner for Refugees in 1921 is also significant (Refugees, League of Nations Offices). The office was the first international organization concerned solely with the welfare of refugees. It was established initially to assist displaced Russians and expanded its mandate to help Armenian, Assyrian, Turkish, and other refugees in Europe. The office laid the foundation for the international refugee regime that emerged after World War II (Refugees, United Nations High Commissioner for [UNHCR]).
8 Throughout most of the 19th century there were few formal restrictions on immigration. In the late 1800s and early 1900s, however, immigration controls became stricter as States took steps to tighten borders due to racism, fears of espionage, and concerns regarding employment and the labour market. The US government, for example, passed a series of laws around this time barring Chinese and Japanese immigrants completely and instituting a quota system aimed at drastically reducing numbers of immigrants from Southern and Eastern Europe—a policy which disproportionately affected Italians and European Jews (see also Racial and Religious Discrimination).
9 Following World War II, however, regulations were loosened, particularly in Western Europe. High demand for an industrial labour force in post-war Western Europe resulted in the recruitment of foreign workers (Migrant Workers). In Germany, for instance, large numbers of individuals were recruited from Italy, Turkey, and Yugoslavia as ‘guest workers’, although many ended up settling permanently. The war and post-war periods were also characterized by large-scale forced migration, including the forced repatriation of ethnic Germans and Russians (Denaturalization and Forced Exile; Forced Population Transfer; Population, Expulsion and Transfer). An increase in the number of refugees in Europe led to the creation of the UN High Commissioner for Refugees in 1950 and codification of the Convention relating to the Status of Refugees (‘Refugee Convention’) in 1951. Decolonization during this period spurred further movement of persons. As European colonies in Africa and Asia achieved independence, former colonial powers experienced an influx of migration and population movements occurred across former colonial boundaries. Around this time, immigration quota systems founded on racial and ethnic discrimination began to be replaced with systems centred on employment-based immigration, family reunification (Family, Right to, International Protection), refugee resettlement, and other factors.
(b) Ongoing Political and Legal Problems
10 Recent decades have seen further changes in immigration patterns and continuing political controversies surrounding immigration. Legitimate concerns regarding economic vitality, national security, and preservation of national identity inform the legal rules countries establish to govern population movement. When economic times are hard, however, there often develops a sense that foreigners are taking jobs away from natives and abusing the social welfare system. Numerous studies show that these threats are usually imagined or exaggerated, but anti-immigrant sentiment swells nonetheless. Xenophobia and racism—at times reflected in a country’s political discourse and legislation—can serve to deny immigrants the rights they are guaranteed by international law and leave them subject to abuse and harassment. In some contexts, such as along the American-Mexican border, fortification of frontiers results in migrants resorting to life-threatening methods of entry (see also American-Mexican Boundary Disputes and Co-operation). Undocumented, or ‘illegal’, immigrants are particularly vulnerable in such situations. Concerns of terrorism are also increasingly cited as justification for tightening immigration controls, indefinitely detaining individuals (Detention, Arbitrary), and otherwise violating the rights of non-citizens. Migrants caught in these predicaments often cannot assert their rights for fear of being arrested and deported (Aliens, Expulsion and Deportation). Further, non-citizens usually have no way of participating in the political process so as to assure legal protection. Coupled with the fact that migrants are often unfamiliar with the national language, laws, and practices—and accordingly have little knowledge regarding their rights—they are frequently left without effective means to challenge and seek remedies for violations of their human rights.
2. Current Legal Structure
(a) Naturalization and Citizenship
11 Immigration, naturalization, and citizenship laws are closely interrelated. Generally speaking, citizenship connotes membership in a community to which a duty of permanent allegiance is expected. The connections one must have with a nation (Nations) to qualify as a citizen often vary depending on the manner by which citizenship is acquired. No universal nationality rule exists. Two principles help describe the models of citizenship employed by most countries. Ius soli, or law of place, assigns citizenship based on the location of an individual’s birth. Ius sanguinis, or law of blood, ascribes citizenship by descent. In practice, many States employ a combination of the two principles. Subject to each nation’s regulations, an immigrant may also become eligible for citizenship through a period of residence and a naturalization procedure. A number of nations allow dual or even multiple nationality. On rare occasions, large numbers of migrants are granted citizenship or legal residency by the State in which they are residing. In February 2005, for instance, Spain announced that legal residency would be made available to more than 700,000 undocumented immigrants working in its territory. While not tantamount to citizenship, legal residency in Spain allows undocumented immigrants access to public services such as health care and education.
12 It has been argued that citizenship policies in which the principle of ius soli predominates better lend themselves to civic notions of nationhood and the successful integration of immigrant groups. The incorporation of immigrant groups in the US and Canada frequently feature as examples in such arguments. In contrast, citizenship policies in which ius sanguinis predominates have been criticized for reinforcing ethnic notions of nationhood and making it more difficult for immigrants to obtain social and political integration. The failures of Germany and Japan to give citizenship, even after several generations, to their Turkish and Korean minority groups have been cited in this context. In any case, the rules each nation implements to regulate immigration, naturalization, and citizenship have long-lasting consequences.
13 Each nation determines its domestic naturalization requirements. The United Kingdom of Great Britain and Northern Ireland, for example, requires individuals seeking naturalization to have five years of legal residence in the UK; travelled outside the UK no more than 90 days during the one-year period prior to application; indefinite leave to remain in the UK; an intention to continue to live in the UK or work overseas for a British corporation or the UK government; basic knowledge of English, Welsh or Scottish/Gaelic; and sufficient knowledge of life in the UK. Similarly, the US requirements for naturalization generally include a minimum five years of legal US residency, proficiency in English, being of good moral character, an attachment to constitutional principles, and an oath of allegiance to the US. Some of these requirements may be waived or reduced if one is married to a US citizen, a member or veteran of the US armed forces, child of a US citizen, or a person with a disability (see also Disabled People, Non-Discrimination of). While no racial, professional, or family-based quotas exist in the naturalization process, the US limits the number of individuals who may immigrate to the US based on family relationships, professional qualifications, and country-based yearly quotas. Historically immigration quotas based on country of origin favoured Western European nations and restricted Asian immigration to the US; however, since 1965 the distinction between western and eastern hemisphere immigration no longer exists.
14 The International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) of 1966 declares that ‘nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality’ (Art. 1 (3) CERD). In 1984, the Inter-American Court of Human Rights (IACtHR) considered in Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica whether a Costa Rican preference in the naturalization process towards those of Central American descent, Spaniards, and Ibero-Americans was discriminatory under several provisions of the American Convention on Human Rights (1969) (‘ACHR’), including Art. 24 ACHR which states that ‘[a]ll persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law’. The IACtHR in its advisory opinion adopted an approach toward discrimination taken earlier by the European Court of Human Rights (ECtHR) which explained that differential treatment is only discriminatory when it lacks an objective and reasonable justification in the naturalization process. The IACtHR stated that ‘[i]t would not appear to be inconsistent with the nature and purpose of the grant of nationality to expedite the naturalization procedures for those who, viewed objectively, share much closer historical, cultural and spiritual bonds with the people of Costa Rica’ (para. 60).
(b) Regional Agreements: Europe
15 While agreements facilitating freedom of movement exist in other regional economic areas (Economic Integration, Comparative Analysis), the system of the European Union is by far the most developed and expansive (European Integration). The 1957 Treaty establishing the European Community (European [Economic] Community) included provisions for the movement of workers between Member States. The 1985 Schengen Agreement on the Gradual Abolition of Checks at Their Common Borders and its implementing convention (‘Schengen Agreement’) simplified travel by removing internal border checks and harmonizing external border controls among ratifying European nations. In 1999, the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and related Acts effectively incorporated the Schengen system into the EU’s legal framework. EU nationals now carry a European passport with an EU insignia and can live, travel, and work in other EU States (European Citizenship)—although restrictions remain for more recent Member States. Before the Schengen Agreement, nationals of some countries were required to obtain separate visas for every European country they wished to visit, causing costly delays for visitors and businesspeople. Since the Schengen Agreement, a common visa regime requires some visitors to obtain a single ‘Schengen visa’, removing the need for separate visas to enter each country. All EU countries (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden; with Northern Ireland and the UK signing the Council Decision agreeing to police co-operation, but not signing the Council Regulations regarding asylum, visas, and border controls [The 1985 Council Decisions 2000/365/EC of 29 May 2000  OJ L131/43–7 and 2002/192/EC of 28 February 2002  OJ L64/20–3]), and four non-EU nations Iceland, Liechtenstein, Norway, and Switzerland have joined the Schengen system. Non-signatories of note include the micro-States Andorra, Monaco, San Marino, and Vatican City. In 2006, movement by citizens of EU member States was further simplified by EU Directive 2004/38/EC, permitting passportless travel and certain common provisions for residency and permanent residence within EU nations.
16 In the 2006 judgment Case C-503/03 Commission of the European Communities v Kingdom of Spain the European Court of Justice (‘ECJ’ European Communities, Court of Justice [ECJ] and Court of First Instance [CFI]) elucidates some of the challenges confronted by the Schengen system. In that case, two Algerian men married to Spanish women were identified by Germany as a security risk. When the Algerians later attempted to enter Spain, they were refused without further verification of the security risk they presented. The ECJ held that Spain is required by the Schengen Agreement to check that any security threat is genuine and sufficiently serious before refusing entry to a Schengen area. Compliance with an administrative practice of the Schengen system, such as its policy with regard to detention of the Algerians, may justify the conduct of the ‘national authorities only in so far as the application of the relevant provisions is compatible with the Community rules governing freedom of movement for persons’ (para. 35), according to the ECJ. The case illustrates the complex relationship between the Schengen Agreement, freedom of movement, and national security concerns within Europe.
(c) International Human Rights Standards
(i) Migrant Workers Convention
17 In addition to national and regional rules, international human rights standards are an important part of the legal framework governing migration. Subject to limitations imposed by treaty obligations and customary international law, States have the sovereign authority to control their borders and the migrants who enter. Once a person enters a country, however, international human rights law provides protections irrespective of citizenship status. States may make distinctions between citizens and non-citizens if they serve a legitimate State objective and are proportional to the achievement of that objective. Migrants, in turn, are obligated to obey the laws of the State in which they are present.
18 The most prominent UN treaty regarding migrant rights is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (‘Migrant Workers Convention’; ‘MWC’) of 1990. The Migrant Workers Convention is the third most recent of the nine major UN human rights treaties. The convention reaffirms basic human rights found in existing treaties and frames them in an instrument specific to migrant workers and their families. The Migrant Workers Convention provides rights for all migrant workers and their families, including those who are undocumented. These rights comprise the main principles of international human rights law—including, inter alia, non-discrimination (Art. 7 MWC), the right to life (Art. 9 MWC; Life, Right to, International Protection), freedom from slavery and forced labour (Art. 11 (I) and (II) MWC; Forced Labour/Slave Labour), and many others. The convention also delineates the rights of migrant workers who are documented and defines the rights that apply to specific categories of migrant workers, such as frontier workers, seasonal workers, seafarers, workers on offshore installations, itinerant workers, migrants employed for a specific project, and self-employed workers (Part V MWC). Lastly, the Migrant Workers Convention outlines a series of obligations of States Parties in the interest of promoting ‘sound, equitable, humane, and lawful conditions’ (Title Part VI MWC) for the international migration of workers and their families. These requirements include the establishment of rules for the recruitment of migrant workers, exchange of migration information with other States Parties, establishment of rules regarding repatriation, and measures to be taken to combat clandestine migration (Part VI MWC).
19 As of January 2013, the Migrant Workers Convention had been ratified by 46 States Parties. The ratifying States are primarily immigrant-sending countries. Many receiving countries are reluctant to ratify the treaty because they perceive it as expanding State obligations and granting new rights to ‘illegal’ immigrants. Compliance with the Migrant Workers Convention is monitored by a panel of experts serving as members of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. The committee reviews reports from those States that have ratified the Migrant Workers Convention and follows the practices of other human rights treaty bodies (Human Rights, Treaty Bodies) in posing questions to representatives of reporting States (Human Rights, State Reports) and developing concluding comments.
20 The Migrant Workers Convention is a highly significant addition to international human rights law. Nonetheless, general references to ‘persons’ or ‘everyone’ in more widely ratified human rights treaties—such as the International Covenant on Civil and Political Rights (1966) (‘ICCPR’)—also encompass migrants and other non-citizens. All too often, however, such human rights treaties are not in practice applied to the problems of migrants. Moreover, the rights of subgroups of migrants—eg asylum seekers (Asylum, Territorial), migrant workers, refugees, stateless persons, trafficked persons, etc—are frequently discussed and defined in isolation, without taking into account the similarities these human beings experience as non-citizens. Accordingly, it is useful to focus on how general human rights treaties should be applied to the rights of all categories of non-citizens.
(ii) Human Rights and Non-Discrimination
21 Human rights belong to everyone. One of the basic principles of international human rights law is the right of all human beings to non-discrimination and equal treatment. The ICCPR guarantees equal rights regardless of citizenship, subject only to narrow exceptions relating to the right to choose one’s place of residence and the right to political participation. In its General Comment No 15 of 1986, the body which monitors the ICCPR, the Human Rights Committee (‘HRC’), interpreted covenant rights to be guaranteed ‘without discrimination between citizens and aliens’ (para 2; General Comments/Recommendations). The International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) also applies generally to all individuals, regardless of citizenship, although Art. 2 (3) ICESCR provides that, ‘[d]eveloping countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals’. The CERD was interpreted in 2004 by the Committee on the Elimination of Racial Discrimination’s General Recommendation No 30 on Non-citizens to prohibit racial discrimination toward non-citizens, whatever their migratory status. The three remaining UN human rights treaties—the Convention on the Elimination of All Forms of Discrimination against Women (1979), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (Torture, Prohibition of), and the Convention on the Rights of the Child (1989) (Children, International Protection)—further define the human rights and obligations applicable to all persons, including migrants. Over the years, the UN General Assembly (United Nations, General Assembly) has adopted several additional declarations and recommendations on the fair treatment of migrants, for example, the UN Declaration on the Human Rights of Individuals Who Are Not Citizens of the Country in which They Live (1985). The declaration protects, in particular, the right to life; security of person (Security, Right to, International Protection); protection against arbitrary or unlawful interference with privacy (Privacy, Right to, International Protection), family, home, or correspondence; equality before the courts; freedom of thought and religion (Religion or Belief, Freedom of, International Protection); the right to retain one’s own language, culture, and traditions (Cultural Life, Right to Participate, International Protection); and the right to leave the country. Regional human rights treaties also provide for non-discrimination and equal treatment and recognize the right to leave and return to one’s home State. These regional treaties include the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’), the ACHR, and the African Charter on Human and Peoples’ Rights (1981).
(iii) Minority Rights
22 Since migrants are often of a different ethnic or racial origin than citizens of receiving countries, human rights norms that delineate the rights of national minorities (Minorities, International Protection) are also relevant. For example, the HRC stated in its General Comment No 15 that, ‘where aliens constitute a minority within the meaning of Art. 27 of the Covenant on Civil and Political Rights, they shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practise their own religion and to use their own language’ (para. 7). In addition, the UN Declaration on the Rights of Persons Belonging to Ethnic, National, Religious and Linguistic Minorities (1992) elaborates the rights of minorities, which are often interpreted to include migrant groups. Similarly, the Council of Europe (COE) has adopted the Framework Convention for the Protection of National Minorities (1995).
23 Unfortunately, the day-to-day reality many migrants experience falls far short of the human rights guarantees they are assured by international law. This disjuncture has worsened where discrimination, exploitation, and fears of terrorism have led to violations of migrants’ human rights. The following sampling of cases displays some of the challenges migrants face and demonstrates the applicability of human rights law in practice.
24 For example, in 1981 the HRC issued its views in Shirin Aumeeruddy-Cziffra and 19 other Mauritian Women v Mauritius. In the complaint, Mauritian women alleged that Mauritian immigration law discriminated against them in violation of Arts 2 (1) and 3 ICCPR. At issue was a law which required that if a Mauritian woman married a man from another country, her husband must apply for residence in Mauritius and may be refused. If, however, a Mauritian man married a foreign woman, his wife was entitled automatically to residence in Mauritius. The HRC did not hold that foreigners have a right to enter or reside in Mauritius. Nonetheless, it did find that Mauritius had violated the ICCPR by discriminating between men and women without adequate justification (Women, Rights of, International Protection).
25 A similar case was brought before the ECtHR in 1985. In Abdulaziz, Cabales and Balkandali v UK, three legal permanent UK residents from the Philippines, Malawi, and Turkey sought and were denied permission to be joined by their husbands. The UK government effectively refused permission to enter because immigration rules made it difficult for non-citizen women to be joined by their non-citizen husbands. It was far easier for men in similar situations, however, to be joined by their wives. The women claimed, inter alia, discrimination on the basis of sex and birth (Art. 14 ECHR) and violation of respect for family life (Art. 8 ECHR). The ECtHR found a violation of Art. 14 ECHR, in conjunction with Art. 8, on the basis of sex discrimination. The court reasoned that the immigration regulation in question—originally instituted to protect the domestic labour market—was not sufficient grounds for discriminatory treatment towards women. It found no violation of Art. 14 ECHR on grounds of discrimination based on birth because the regulation allowing UK nationals different treatment was considered legitimate and justifiable. Together, these two cases illustrate the broad powers of governments in determining who may enter their country. The cases, however, confirm that when refusal to grant an individual entry is discriminatory, it may constitute a violation of human rights.
26 Siliadin v France (2005) is another judgment of the ECtHR that explores the rights of migrants. The applicant in this case was a Togolese national who travelled to France at the age of 15. On arriving, Ms Siliadin agreed to work temporarily in the home of a friend to repay the cost of her airfare. She then intended to regularize her immigration status and attend school. In effect, however, the applicant was forced to work as an unpaid domestic worker. Her passport (passports) was taken from her and she spent more than three years working without pay. Based on the prohibition of slavery and forced labour set forth in Art. 4 ECHR, Ms Siliadin argued that French criminal law did not provide sufficient protection against ‘domestic slavery’. In its ruling, the ECtHR found a violation of Art. 4 ECHR. It also held that France had not adequately fulfilled its positive obligations to penalize slavery and forced labour. The case is notable for shedding light on contemporary forms of slavery affecting migrants and the obligations of States to address these abuses.
27 A 2004 UK House of Lords case, A and Others v Secretary of State for the Home Department (often referred as the Belmarsh Case), addressed indefinite detention of foreign terrorism suspects. Citing the UK Human Rights Act of 1998, the ECHR, and other human rights instruments, the Law Lords ruled that it was discriminatory to detain non-citizens indefinitely if they are suspected of international terrorism while UK nationals who pose comparable threats are not detained. At the heart of the case was the question as to whether, and to what extent, Art. 15 ECHR—a provision relating to derogation in times of emergency (Emergency, State of)—could limit the right to liberty (Liberty, Right to, International Protection) and security guaranteed all persons under Art. 5 ECHR, regardless of migratory status.
28 The IACtHR has also made considerable contributions to the international jurisprudence enunciating the rights of migrants. In its September 2003 advisory opinion on the Juridical Condition and Rights of the Undocumented Migrants, for example, the IACtHR held that non-discrimination and the right to equality are ius cogens—or peremptory norms of international law—and are applicable to all residents regardless of immigration status. The court reasoned that governments cannot use immigration status as a justification for restricting the labour rights of unauthorized workers, such as rights to social security (Social Security, Right to, International Protection). The IACtHR found that governments do have the right to deport undocumented migrants and refuse to offer jobs to people who do not possess employment documents, but held that once an employment relationship has been initiated, unauthorized workers become entitled to all the employment and labour rights that are available to authorized workers. In the context of the Americas, this opinion is particularly instructive regarding the situation of millions of undocumented Mexican workers in the US.
C. Monitoring and Consultative Processes
1. Monitoring Bodies
29 As the number of migrants globally has increased, so has awareness of the human rights of migrants. In recent years it has become increasingly common for the UN human rights treaty bodies that monitor the seven major treaties to take into consideration the experience of migrants and other non-citizens as they interpret and apply their respective treaties. This practice plays a valuable role in defining the specific challenges faced by migrants and mobilizing human rights law to address them.
30 In addition to the human rights treaty bodies, several international regulatory bodies have emerged to monitor, assess, and develop standards for migrant rights. The International Labour Organization (ILO), for example, is the UN specialized agency which formulates and implements international labour standards relating to migrants and other workers (Labour Law, International). The Preamble to the ILO Constitution of 1919 emphasizes the ‘protection of the interests of workers when employed in countries other than their own’ (para. 2). Although all of the fundamental ILO conventions apply to migrant workers regardless of their legal status, three conventions address migrant workers’ rights explicitly. Migration for Employment Convention (Revised), 1949 (No 97) (‘ILO Convention No 97’) focuses on the standards applicable to the recruitment of migrants for employment and their conditions of work in the host country. Migrant Workers (Supplementary Provisions) Convention, 1975 (No 143) (‘ILO Convention No 143’) focuses on clandestine migration and is the first multilateral treaty to address the rights of irregular migrants directly. Domestic Workers Convention, 2011 (No 189) (‘ILO Convention No 189’) focuses on the rights of migrants working as domestic workers. All three conventions promote the principle of equality of treatment between migrants and national workers. Undocumented migrants, however, receive substantially less protection under these conventions. ILO Convention No 97 protects only migrants lawfully present in the host country. ILO Convention No 143 guarantees equal treatment for undocumented migrants, but only with respect to rights arising out of past employment ‘as regards remuneration, social security, and other benefits’ (Art. 9 (1) ILO Convention No 143). ILO Convention No 189 requires effective access to courts, but has no provision expressly punishing employers who retaliate against undocumented migrants by reporting them to immigration officials. Conventions Nos 97, 143, and 189 are not broadly effective because so far they have only been ratified by 49, 23, and 4 nations, respectively. For Conventions Nos 97 and 143 this situation is unlikely to improve, as there has been little active promotion in the last two decades.
31 A number of other UN and intergovernmental entities also monitor and advocate for the fair treatment of migrants. In 1997, the UN Commission on Human Rights (United Nations Commission on Human Rights/United Nations Human Rights Council) established the Working Group of Intergovernmental Experts on the Human Rights of Migrants (‘Working Group on Migrants’). The Working Group on Migrants gathered information from governments, non-governmental organizations, and other sources on the obstacles existing to the protection of the human rights of migrants (Human Rights, Role of Non-Governmental Organizations). Since 1999, the UN Special Rapporteur on the Human Rights of Migrants (‘Special Rapporteur on Migrants’) has replaced the Working Group on Migrants and examines ways to improve the protection of migrants, particularly migrants in undocumented or irregular situations. The Special Rapporteur on Migrants now reports to the UN Human Rights Council. In 2003, the UN Secretary-General and a number of governments initiated the Global Commission on International Migration that holds hearings to assess gaps in current policy and makes recommendations for improvement.
2. Intergovernmental Consultative Processes
32 In most regions of the world there are periodic intergovernmental consultative processes on migration (Consultation). These forums aim to improve management of migration at regional and global levels. Regional consultative processes on migration include the Commonwealth of Independent States Process (Commonwealth of Independent States [CIS]), the Conference on Migration Policy in Central Asia, the Dakar Process, the Migration Dialogue for Southern Africa, the Puebla Regional Consultations on Migration and Asylum, and the South American Conference on Migration. The consultations bring together governmental representatives of immigrant sending and receiving States and allow for discussion and exchange of information. It should be noted that such processes have been criticized for tending to exaggerate the threat migration poses to national security and for focusing on border control and secret intelligence co-operation instead of human rights and other social concerns (Regional Co-operation; Transboundary Co-operation between Local or Regional Authorities). A more expansive model can be found in the Berne Initiative. A consultative process commenced by the Swiss Federal Office for Refugees in 2001, the Berne Initiative seeks to establish a dialogue between governments on migration issues and is managed by the International Organization for Migration (IOM). In September 2006, the first High-Level Dialogue on International Migration and Development took place at UN headquarters in New York (International Organizations or Institutions, Headquarters). The two-day event focused on the complex interconnection between the movement of people and international development goals (see also Development, Right to, International Protection). A second High-Level Dialogue is scheduled for 2013.
33 Regrettably, some governments continue to ‘deal’ with immigration by restricting entry, allowing socio-economic isolation of migrant groups, arbitrarily detaining non-citizens, denying migrant groups cultural and religious rights, or otherwise marginalizing or abusing migrants. International human rights standards offer a normative framework for improving national immigration policies and practices.
34 As the global numbers of migrants rise, two challenges to realizing the human rights of migrants are especially urgent: a) protecting migrant women, and b) achieving mutually beneficial integration of migrant groups. First, migrant women are especially likely to be subjected to discrimination and abuse due to their status as both women and migrants. Women migrants frequently have no option but to take work as domestic workers, sweatshop labourers, or sex workers. In addition, many migrant women lack the legal status or information necessary to challenge abusive practices by co-workers, employers, or others. States should take into account the particular vulnerability of migrant women when shaping their immigration laws and policies. Second, success or failure in integrating migrants within a host society affects not only the migrants themselves, but also generations of their descendants. In many countries it is not uncommon for minimal levels of education, income, and political representation to persist for generations in immigrant communities, further isolating and alienating the group. Integration regulations and programmes for immigrants should promote mutual cultural respect and be guided by the principles of equal treatment and non-discrimination.
35 These challenges are substantial. It must not be forgotten, however, that immigration also offers extensive benefits in both sending and receiving countries. With remittances to sending countries now far surpassing international aid expenditures globally, and receiving countries experiencing remarkable gains from migrant labour, entrepreneurship, and cultural exchange, there is significant potential for immigration to play a leading role in reducing global poverty and improving individual lives.
- RB Lillich The Human Rights of Aliens in Contemporary International Law (Manchester University Press Manchester 1984).
- B Piatt Immigration Law: Cases and Materials (Michie Charlottesville VA 1994).
- DA Martin ‘The Civic Republican Ideal for Citizenship, and for Our Common Life’ (1995) 35 VaJIntlL 301–19.
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