The economic, social and cultural rights of migrants in an irregular situation

This publication aims to fill a significant knowledge gap on the human rights of irregular migrants. While acknowledging the range of human rights concerns related to irregular migrants, it specifically sets out the legal and policy frameworks in relation to the economic, social and cultural rights of irregular migrants, highlighting the guidance provided by international human rights law, as well as related legal frameworks such as international labour law.

The publication seeks to describe barriers faced by irregular migrants in the exercise of these rights as well as trends and national policies, highlighting where possible examples of promising practice from around the world.

Key findings:

With very few narrowly defined exceptions, all migrants, including those in an irregular situation, have the same human rights, including economic, social and cultural rights, as anyone else; all restrictions based on their legal status must pursue a legitimate aim and be proportionate to the achievement of this aim. The tests of equality and non-discrimination apply to the treatment of migrants, including irregular migrants, as they do to others. Nevertheless, migrants, and especially irregular migrants, are in practice often prevented from effectively enjoying their rights by many legal and practical barriers. One prominent barrier is the duty of public service providers to report the presence of irregular migrants. Others are administrative obstacles (such as requirements for identity documents, social security numbers and proof of address that irregular migrants cannot obtain), complex administrative, judicial and other systems, lack of information and training (both for service providers and irregular migrants), financial barriers, linguistic hurdles, and fears that accessing services will result in detention or deportation or more generalized fear of making contact with the authorities.

Recommendations:

Adopt legal and practical measures to prevent discrimination against irregular migrants. Remove rules that make access to basic services conditional on the production of documents that irregular migrants cannot obtain. Remove any obligations on service providers to report individuals to the authorities on the grounds that they are irregular migrants and explicitly inform service providers that they are not required to report the presence of persons in an irregular situation.

Improve the collection of data in order to effectively monitor the human rights situation of irregular migrants, ensuring that such data are disaggregated by sex, age, nationality and sector of work. Ensure that international rules on data protection and the right to privacy are scrupulously respected in the collection, storage and use of such data, and that effective firewalls are put in place to protect migrants from immigration enforcement on the basis on such data.

Do not return or expel any migrant to a situation where he or she risks denial of access to economic, social and cultural rights or destitution which reaches the level of inhuman or degrading treatment, which would be in contravention of the principle of non-refoulement. Ensure that irregular migrants have full, non-discriminatory access to appropriate administrative and judicial remedies. Provide irregular migrants with information on their rights.

Develop specific national strategies or plans of action to realize the rights to health, housing, education, social security and decent work of all migrants, ensuring that they pay due attention to the situation of irregular migrants. Ensure that all migration policies and policies relevant to the situation of migrants are human rights-based; inter alia, refrain from criminalizing irregular migration, delink the immigration status of migrants from a specific employer and consider measures to regularize the situation of irregular migrants.