Experience of Marginalization in Noncooperative Spaces: The Case of Undocumented Migrant Workers in Italy

Mobilizing public opinion for/against foreign labor policies in Korea, 1995–2005: NGOs, trade unions, and employers’ associations in contested terrain

This chapter summarizes Mexico's questions concerning de jure discrimination prejudicial to labor rights of undocumented migrant workers. It then analyzes leading cases of de jure discrimination in U.S. domestic remedies for undocumented migrant workers- Sure-Tan v. National Labor Relations Board and Hoffman -as well as the intervening Immigration Reform and Control Act of 1986. The chapter then considers the state of applicable international law prior to the Court's Advisory Opinion: (1) Fundamental international labor rights of all workers, including undocumented workers. (2) Treaties specifically protecting undocumented workers, but only in a relatively few states parties. (3) Whether discrimination against migrant workers, based on their undocumented status, was limited by international norms of equality and non-discrimination. (4) Whether denial of certain remedies for undocumented workers violated their internationally protected rights. (5) The progressive development of the internationally protected rights of migrant workers. (6) Whether norms of equality and non-discrimination are jus cogens . Keywords: court's advisory opinion; de jure discrimination; international law; labor rights; Mexico; non-discrimination; undocumented migrant workers

BackgroundA high burden of physical, mental, and occupational health problems among migrant workers has been well-documented, but data on undocumented migrant workers are limited and their well-being has rarely been compared to that of the general population.MethodsUsing data from a cross-sectional survey of non-professional migrant workers in South Korea in early 2021, we described their physical, psychological, social well-being and health behaviors across a wide range of outcomes, including self-rated health, occupational injury, cigarette smoking, heavy alcohol consumption, meal pattern, happiness, mental illness, social support, and social participation. The outcomes were first compared between documented and undocumented migrant workers in generalized linear regressions adjusting for potential confounders. Then, the well-being of the migrant workers was compared against that of the general population using data from the Korean Happiness Survey, which is a nationally representative survey of the South Korean general population conducted in late 2020. The parametric g-formula was performed to adjust for potential confounders.ResultsAfter adjusting for potential confounders, the undocumented migrant workers were less likely to be happy or participate in social communities, and much more likely to have anxiety or depression, smoke cigarettes, or engage in heavy alcohol consumption than the documented migrant workers. When compared to the general South Korean population, an evident social gradient emerged for happiness and mental illness; the undocumented experienced the worst outcome, followed by the documented, and then the general population. Also, the undocumented migrant workers were more likely to smoke cigarettes than the general population.ConclusionThe undocumented migrant workers face considerably greater challenges in terms of mental health and happiness, demonstrate higher rates of risky health behaviors such as smoking and heavy drinking, and experience a lack of social support and community integration. A stark social gradient in happiness, mental illness, and cigarette smoking exists among the documented, undocumented migrant workers and the general population in South Korea. Socio-structural factors are likely to play a crucial role in contributing to the suboptimal level of overall well-being of undocumented migrant workers. Policy-level interventions as well as interpersonal efforts are in urgent need.

Prevailing socio-legal structures create a state of personhood limbo for undocumented workers, where broader society undermines various aspects of their personhood in a way that prevents them from fully representing and embracing all dimensions of their selves in and around the workplace. But how do undocumented workers cope with personhood limbo? Drawing on interviews with undocumented workers and civil society workers in Italy, we identify specific forms of what we call “personhood anchoring work” that undocumented workers engage in to claim aspects of personhood that are meaningful to them. Our theorization suggests that workers’ experiences of personhood are influenced not only by socio-legal structures, but also by their own agentic acts in response to external conditions, as well as their aspirations, past experiences, and future plans. A key finding of our study is that these practices do not aim to create or disrupt social orders, even in subtle or hidden forms of resistance. Instead, they enable undocumented workers to temporarily position themselves within the social order. In doing so, we also introduce a new way of conceptualizing the integration of undocumented workers that can account for the possibilities and limits of retaining rather than redefining personhood in the face of prevailing constraints.

불법파견의 심각성은 익히 잘 알려져 있으나, 특히 미등록 이주노동자들에 대한 불법파견은 더욱더 광범위한 위험회피수단으로 악용되고 있다. 사용사업주는 퇴직금 미지급, 산업재해 발생에 따른 산재보험료 인상 위험을 파견사업주에 떠넘길 수 있는데, 미등록 이주노동자의 경우 이에 더해 출입국사무소 단속 시의 위험까지도 파견사업주에 전가하고 있다. 이러한 간접고용으로 인하여 실제로 노동력을 제공받아 이익을 누리는 사용사업주에게 그에 합당한 책임을 부과하는 제도가 구축되어 있지 않다. 피해를 본 미등록 이주노동자는 실제로 자신에게 업무 지시한 사용사업주 대신 영세한 파견사업주를 상대로 해야 하므로 자신의 권리를 제대로 보호받기 곤란한 경우들이 많다. 이러한 폐해를 막기 위해서는 사회 전반에 퍼져있는 간접고용을 직접고용으로 전환하도록 하고 불법파견을 철저히 단속해야 할 것이다. 미등록 이주노동자의 가장 기본적인 권리인 퇴직금마저 주지 않으려는 사업주들의 얄팍한 행동을 묵과해서는 안 될 것이다. 노동자는 국경, 민족 구분이 없듯이 미등록 이주노동자에 대한 불법파견을 막는 것이 결국 내국인 노동자들의 노동인권도 향상시키는 일이 될 것임을 믿어 의심치 않는다.The seriousness of illegal dispatch is well known. In particular, illegal dispatch of undocumented migrant workers has been abused by employers as a further extensive means to avoid risks; employers can transfer the risk of a raise in industrial accident compensation insurance premium rate due to unpaid severance pay and industrial accidents to dispatching companies. Furthermore, even the risk of crackdown on undocumented migrant workers by the immigration office is passed onto dispatching companies. No system has been established to impose reasonable responsibilities on the employers, who benefit from indirect employment. In many cases, undocumented migrant workers’ rights are hardly protected, as those workers have to deal with small dispatching companies instead of the employers who gave them work orders. In order to stop the abuse, it is necessary to convert indirect employment spread across the entire society into direct employment and strictly regulate illegal dispatch of workers. We should not tolerate employers’ shallow conduct of ignoring severance pay, which is the most essential right of undocumented migrant workers. There is no doubt that, as there is no border or ethnicity among laborers, preventing illegal dispatch of undocumented migrant workers will eventually improve the labor rights of domestic workers as well.

IntroductionThe COVID-19 pandemic has exposed various health risks and inequities experienced by international migrant workers. The number of migrant workers in the Republic of Korea (ROK) is rapidly growing and is expected to continue growing. Health related research on migrant workers in ROK is limited, especially among undocumented migrant workers who were more vulnerable to the pandemic. This study aims to examine the experiences of migrant workers and their knowledge and awareness of treatment and immigration policies during the pandemic.MethodsWe used data from the International Migrant Workers’ COVID-19 Health Literacy and Access to Medical Care project, a cross-sectional survey conducted with international migrant workers residing in ROK in 2021 (n = 537). Descriptive statistics and multivariable regression models were employed to understand different demographic, occupational, and immigration factors affecting migrant workers’ knowledge and awareness of treatment and immigration policies.ResultsUndocumented migrant workers had a longer length of residence in ROK and earned less compared to workers with work visa status. None of the undocumented migrant workers had access to health insurance since they were ineligible to enroll in the national health insurance scheme. In the early days of the pandemic, most undocumented migrant workers experienced a decrease in their average income. After adjusting for demographic differences and language proficiency, undocumented migrant workers (AOR: 0.41, 95% CI: 0.21, 0.78) were less likely to be aware of the policy allowing foreigners, including undocumented individuals, to access COVID-19 testing and treatment without the risk of deportation. Workers with a longer length of residence (AOR: 1.29, 95% CI: 1.09, 1.53) were more likely to be aware of this policy.ConclusionUndocumented migrant workers were often less informed about COVID-19 policies. While most of the survey respondents were knowledgeable about governmental policies regarding COVID-19 treatment and immigration, our results reveal multiple occupational and health insurance vulnerabilities of undocumented migrant workers living in ROK. More attention is needed to understand healthcare service barriers and how to provide adequate resources for this vulnerable population.

This article considers recent legal developments on undocumented migrant workers, finds the acceptance of international legal standards unsatisfactory and argues that the private law rights derived from the “semi-legal” employment contract between the employer and the undocumented migrant worker generates a solid base for significant legal claims. It further monitors the promotion of the position of the undocumented migrant workers under recent EU law and calls for a refocusing on the employment contract in the reading of a relevant EC Directive, with a particular emphasis on the issue of access to justice for the migrant workers. The increased number of undocumented migrants who leave their countries of origin for reasons outside the scope of the asylum procedure, as well as the circumstances under which this migration is undertaken and the working conditions of these individuals in the host countries, have brought about legal activities from governments and institutions such as the EU. The aim has in general been to establish sanctions against employers of undocumented migrant workers, but a shift towards a compensatory, employee protective, attitude has recently emerged, both in EU legislation and in a broader perspective in US case law. The article concludes that such a development must be massively supported in relation to access to justice in order to fulfill the ambition. The poor legal position of the undocumented migrant workers is significantly connected to issues of legal representation, trade union participation and the threat of repatriation.

This article studies the effects of the Israeli migration regime on the prospects for the emergence of a politics of claims‐making by labour migrants, comparing the structures of constraints and opportunities to establish organisational frameworks faced by documented contract workers and undocumented spontaneous migrant workers. In spite of the exclusionary character of this migration regime, some groups of migrant workers have succeeded in establishing associations that attempt to place demands on the public agenda. Paradoxically, these organisations were established by the migrant workers that hold the most insecure and vulnerable status in the country: the undocumented spontaneous migrants. The paradox is explained by the differences between the institutional arrangements that shape the incorporation of documented and undocumented migrants. While the control mechanisms exercised both by state agencies and the employers upon the documented migrant workers impede their collective organisation and articulation of demands, the relative ‘autonomy’ enjoyed by the undocumented migrants allows them to establish associations that function as vehicles for claims‐making. The article further analyses the strategies employed by these migrant organisations to gain access to Israeli state agencies and public opinion. It is shown how these strategies as well as the content and the discursive framing of the demands are affected by the exclusionary principles of the Israeli migration regime.

The article by Weathers and her coinvestigators in this issue titled “Health Services Use by Children of Migratory Agricultural Workers: Exploring the Role of Need for Care”1 is only the fourth article published on the health care of migrant farm worker families in Pediatrics since 1948, excluding policy statements by the Committee on Community Health Services.2,3 During the past 54 years the only clinical or health services research on children of farm workers published in Pediatrics included 1 article in 1972 and another in 1974 on lead exposure and toxicity.4,5 A third article, published in 1962, did not report findings of a research study but called on medical schools and pediatricians to become more actively involved in the study of the health problems of migrant farm worker children.6 The small number of publications describing clinical and health services research related to migrant farm worker children in Pediatrics is consistent with the experience of other peer-reviewed journals and is a reflection of the very limited number of research studies that have been conducted in this high-risk vulnerable population. As referenced in the Weathers article, a 1998 Institute of Medicine report highlighted this concern by stating that there is “a glaring and significant gap in the scientific literature” for research on children of migrant farm workers, especially undocumented workers.7 In setting research priorities, funders usually consider the magnitude of the problem, the ability of the research to contribute to better health outcomes through improvements in care and/or better health policy, and a sense of fairness or social justice … Address correspondence to Steve Berman, MD, Children’s Hospital 1056 E 19th Ave, B032 Denver, CO 80218. E-mail: berman.stephen{at}tchden.org

[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. …

Subjective assessments of well-being are becoming routine indicators, considering that material resources are insufficient to capture people’s satisfaction with life. Examining the unique situation of undocumented migrant workers, driven by aspirations for a better life but constrained by their limited rights in the country of destination, we assess their satisfaction with life and the factors that matter in their evaluations. Data were collected in Geneva (Switzerland), in a study comparing those who have just received a residency permit or about to obtaining it after submitting a regularization request (n = 195) with those who were still undocumented and/or had not submitted a regularization request at the time of our study (n = 231). In addition, comparisons were made with a sample of regular local residents (n = 175). Data obtained through standardized questionnaires include a range of material and non-material determinants, some unique to migrants and others common to the three populations. Satisfaction with life is significantly lower among undocumented migrant workers while those who are regularized and regular local residents report similar levels of well-being. Social participation, self-reported health and discrimination are associated to satisfaction with life among undocumented migrant workers. Among those being regularized, having been longer in the country of destination is associated with lower well-being. Among regular local residents, the only significant factor for a better satisfaction with life is having a partner. Material determinants, while distributed in vastly different levels, do not influence satisfaction with life. Despite the high satisfaction expressed by those who have recently been regularized, policy intervention still have to pay attention to their persisting difficult socioeconomic circumstances amidst a context of overall affluence.

The aim of this article is to shed light on the situation of refugees (formally designated as asylum seekers) and undocumented migrant workers, who are among the most vulnerable inhabitants of Europe. Both groups face the threat of detention and deportation. The normative framework, which consists of legal standards and residential institutions, will be critically examined. Despite international standards for respecting the human rights of refugees and undocumented workers, policies of detention and deportation and the mass rejection of asylum claims leave little hope for the empowerment, autonomy and social inclusion of these persons. Instead of a straight-forward argument for closing down all detention centres and putting an end to forcible deportations, the article investigates small scale structural possibilities for inclusive – non-selective – responses to these non-citizens.

The safeguarding of fundamental rights for undocumented migrant workers represents a critical challenge that necessitates immediate attention. This article addresses the oversight within the human rights discourse regarding the fundamental rights of undocumented migrant workers. Through empirical normative research, incorporating a comprehensive review of normative literature, this study critically examines the regulations affecting migrant workers through the lens of human rights. It identifies a significant correlation between the lack of protective guarantees for undocumented migrant workers and the various cases and consequences that ensue. From a human rights perspective, regulations prioritize equality before the law, protection, and anti-discrimination. This stance contrasts with existing laws that govern Indonesian migrant workers, wherein protection is exclusively extended to those legally recognized. Such exclusivity denies undocumented migrant workers the assurance of their fundamental rights. Arguably, the provision of basic rights and protections should be indiscriminately extended to all migrant workers, irrespective of their legal status. While the specifics of migrant worker placement can still be regulated concerning requirements, processes, involved parties, and responsibilities, these regulations must not infringe upon the fundamental human rights of individuals. Consequently, this paper advocates for a thorough evaluation of current legislation with respect to its content, the comprehension of involved stakeholders, and the practical implementation of regulations concerning the management of migrant workers.

In 2017, there were nearly 80,000 asylum seekers and undocumented migrant workers in Israel, most of whom did not have health insurance. We evaluated trends in medical visits of asylum seekers and undocumented migrant workers who presented to Terem Refugee Clinic (TRC), a large clinic in Tel Aviv available only to uninsured residents of Israel. Data were collected from electronic medical records at TRC from 2013–2017. Diagnoses were grouped into categories using ICD-10-equivalent diagnosis codes. We used a chi-squared test for trends to test the significance of trends 2013 to 2017. There were 99,569 medical visits from 2013 to 2017 at TRC. Visits were lowest in 2013 (11,112), and relatively stable from 2014–2017 (range: 19,712–23,172). Most visits were among adults aged 18–35 (41.2%) and children <2 years old (23.7%). Only 3% of visits were from patients aged >50. The percentage of infectious disease diagnoses decreased over the study period, from 9.4% of all diagnoses in adults in 2014 to 5.2% in 2017, and from 32.0% of all diagnoses in children in 2013 to 19.4% in 2017. The annual percentage of respiratory diagnoses in children and adults 18–35 years of age, musculoskeletal in all adults, and digestive in adults except women ≥35 years old increased. Over time, asylum seekers and undocumented migrant workers visited TRC with fewer infectious diseases diagnoses overall but more respiratory diseases, including acute respiratory infections and more musculoskeletal diseases.

Undocumented Migrant Workers violate immigration rules and can be detrimental to the host country. On the other hand, their illegality is often exploited by employers who exploit them. The two problems examined in this study are how the protection that International Law provides them and what solutions can be offered to migrant countries to cope with undocumented migrant workers. This research is normative research, with qualitative analysis. The results of this study show that International Law protects the rights of undocumented migrant workers who have carried out their work without discrimination. In the face of undocumented migrants’ preventive measures are better taken by the state than enforcement.&#x0D; Keywords: migrant workers, illegal, non-discrimination