At the Border and Between the Cracks: The Precarious Position of Irregular Migrant Workers Under International Human Rights Law

Abstract

[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. …