La Strada Documentation Center

The Human Rights of Irregular Migrants in Europe

Document number
1357
Date
2007
Title
The Human Rights of Irregular Migrants in Europe
Author/publisher
The Commissioner for Human Rights, Council of Europe
Availability
View/save PDF version of this document
Document type(s)
Meeting Documentation/Conference Reports, Research/Study/Analysis,
Keywords
Irregular Migration, Migration policy, Asylum, Root causes, Residency, Regularisation, Labour migration, Migrants rights, Protection, Push factors, Pull factors, Sending/Receiving countries,
Summary
This paper deals with a category of migrants who are in another country without the state’s consent. ‘Irregular migrant’ refers to non citizens who have no valid leave to enter and / or remainwithin a state. ‘Host’ states tend to see them as non citizens who are illegally in the country, and should be removed at the earliest opportunity. From a human rights perspective, migrants are entitled to protection under international law, regardless of any irregularity under national law. In practice, many irregular migrants are in fact outlaws in the original sense of that term: they live outside the law, and outside its protection, in ways which are described in this paper.Who are irregular migrants? Irregularity is defined by national immigration rules, and is not a fixedcondition. Irregularity arises in a number of ways. Migrants may enter a country illegally, without valid visas, by avoiding border controls or with false documents. Those who enter legally but overstay their visas, become illegal; this is likely to account for most irregular migration, including those who are trafficked. Migrants may also enter on a non-working visa, then work, and this may make the entry illegal retroactively. The challenge for the state is to strike a proper balance between protecting the rights of all those who are inside or at its borders, and maintaining control of the borders.Migrants are at particular risk in four situations:• During the journey and at the border: loss of life and serious injury to migrants as a result of(a) the actions of private individuals in the course of trafficking and smuggling by land or atsea; and (b) excessive use of force by law enforcement officials charged with border control.• During periods of illegal stay: through discrimination, denial of access to basic rights such asemergency health care, exploitation by private employers without safe means of escape orcomplaint;• In detention: inhuman or degrading conditions; lack of access to legal means to challengedetention; the detention of children;• In the course of expulsion procedures.The focus of this paper will be the European and international law which binds the 47 Council ofEurope member states. It will look firstly at the national and international factors which underlieirregular migration. It will secondly review the special vulnerability of irregular migrants to human rights abuse. Thirdly, it will outline the rights which irregular migrants enjoy under European andInternational law, and set out the protection duties of states. Fourthly, it will identify some obstacles which prevent these rights from being enjoyed, as well as some best practices. Finally, it will draw anumber of conclusions.
Related documents