Migrants face very specific human rights challenges. Vulnerable groups, such as women, aboriginals, ethnic minorities, LGBTQs and prisoners have won formal citizenship. They now fight for their rights from their position as citizens. Migrants are not citizens: they don’t vote or get elected. They fear being arrested, detained or deported; they rarely mobilise or protest. Some migrants have more resources to defend themselves: the highly skilled labourer and permanent resident are often treated as a citizen. But for many others, including ‘low-skilled’ labourers and irregular migrants, when something bad happens (an employer refuses to pay them, for example), their best option seems to be ducking and moving on, as they have learned to fear encounters with authorities.
Migrants rarely participate in public debates on migration policies: they are the objects of debate, rarely subjects or recognised interlocutors. Migration is one policy area where politicians can make outrageous statements without facing any consequences at the polls – indeed they may benefit from them. Despite years of research to the contrary, repetition by politicians and the media means the public still believes that migrants take jobs from locals, create unemployment, bring crime and illnesses, or come to the global north with the intention of syphoning social budgets. The culture of impunity around anti-migrant rhetoric remains because migrants are not, and will never be, politically represented at the national level, as they are not citizens. Migrants face a structural limitation of electoral democracies. Politicians, even those with a moral compass, have little incentive to protect migrants’ rights, if by doing so they risk losing the polls. The toxic immigration debate in many parts of the world reveals the extreme instrumentalization of migration and the malleability of an uninformed, often hostile public opinion.
Yet migrants have rights. With two narrowly defined exceptions (the right to vote and be elected, and the right to enter and stay in the country), under international human rights law (and often constitutional law), migrants – including irregular migrants – benefit from the same human rights guarantees as do citizens, by virtue of their common human dignity. Human rights are not only citizens’ rights – they are for ‘everyone’. The two international covenants on human rights explicitly include ‘national origin’ among the prohibited grounds of discrimination in the enjoyment of civil, cultural, economic, political and social rights. Enforcing this prohibition in law and practice is a key challenge in ensuring the protection of the human rights of migrants at the national level. This does not imply that migrants have the benefit of all the same government entitlements that citizens or even long-term residents, as not all benefits represent the implementation of a fundamental right. The question is whether the distinction between individuals can be justified, and immigration status does not justify just any distinction.
Migrants face an increasing culture of systemic rights violations by states in both the global north and south. Because migration is related to borders and is politically sensitive, states consider migration policies to be a component of their discretionary powers relating to territorial sovereignty, and accept very little control or oversight over their policies and practices. The past decade has witnessed the securitization of border controls and migration policies. Even though crossing an international border without proper documentation is at worst an administrative offence and should never be considered a crime, irregular migrants face arrest, deportation and detention, often in appalling conditions. The procedural maze facing the migrant on any legal issue is generally undecipherable without help, and judicial assistance is rarely available. States have often set up systems of administrative detention for migrants that result in long-term detention, with scant or pro forma periodic review. Facilities range from purpose-built centres to ad-hoc camps, police stations and even containers, and are often not well regulated, supervised or monitored. Alternatives to detention are almost nowhere available.
Migrant children, unaccompanied or not, are often detained and deported like adults, with no legal guardian, or legal representative. They rarely undergo a proper ‘best interests of the child’ determination, and access to school or health care is often illusory.
Victims of human trafficking (for the sex trade or forced labour) are often treated as irregular migrants, without benefiting from the specific protections they are owed under international law.
Temporary migrant workers should have the security of regular status and a work contract. However, their foreignness, lack of language skills, social isolation and categorization as ‘low-skilled or unskilled’ make them vulnerable to exploitation such as confiscation of identity or travel documentation, wage theft, poor housing, dirty, difficult and dangerous working conditions, lack of health care and so on. Additionally, unscrupulous recruitment agencies can request egregious fees, forcing them into long-term debt.
State policies often increase vulnerability. Some work permits are tied to the immigration sponsor, who then wields enormous power, as he can have the migrants deported the moment he terminates their contract. Most countries have unrecognised labour needs and do not adequately repress ‘irregular employment’, tolerating underground labour markets where undocumented migrants are exploited. Access to citizenship is often denied, even to long-term residents, often resulting in statelessness.
Like all human beings, migrants need a strategy of empowerment to fight for their own rights. In particular, meaningful access to justice (courts, administrative tribunals, national human rights institutions, ombudspersons, labour inspectors and so on), freedom of association and the right to organise and join unions, and support from civil society organisations are crucial elements of such strategy. Public discourse relating to migration also needs to change: the media must be much more accurate on migration issues, politicians need the courage to reject the scapegoating of migrants, and public opinion needs education about migrants’ rights and the benefits of diverse societies.
The author thanks Anna Purkey and Bethany Hastie for comments on an earlier version of this article.