Immigration & Refugee Law
François Crépeau
United Nations Special Rapporteur on the Human Rights of Migrants
Hans &Tamar Oppenheimer Professor of Public International Law
McGill University
McGill 2014
Outline
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A Constant of Civilisation
Territorial Sovereignty Matters
Irresponsible Political Discourses
Migrants have rights
The Rational Human Rights Discourse on Migration Doesn’t
Convince
Discreet and Tightly Controlled Regional Consultative Processes
The Inception of a Universal Dialogue
Conclusion: Migration is not an anomaly
Crépeau McGill 2014
Section 1
A Constant of Civilisation
A complex phenomenon
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An economic transfer
A development driver
A demographic objective
A source of acculturation
An object of political discourse
A security issue/fantasy
A challenge to territorial sovereignty
A clandestine phenomenon
An individual and collective enterprise
Crépeau McGill 2014
Migration is not an anomaly
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We are all migrants
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Migration is the normal human condition, not an anomaly.
Migration is at the heart of many civilisations (Exodus, Odyssey,
Hegira), linked to the traditional law of hospitality.
Settlement is recent and unstable: rural exodus, pilgrimages,
“snowbirds”, seasonal workers, expats, foreign students, retirees
3.1 % of world population : ±214M in 2011.
Migration from poverty and violence towards prosperity and
stability is mankind’s history:
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We can slow it temporarily;
We can’t stop it in the long term;
We would do the same in their place: we don’t have the moral
highground
Crépeau McGill 2014
Crépeau McGill 2014
Humans Spread Across Globe
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Hominids
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Homo-Sapiens
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As a species arose c. 200,000 years ago
Arose in East Africa, The Horn of Africa
Hunter-Gatherer Society
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Arose in Africa 2 million years ago
Migrated throughout Eurasia
Nomads followed game, gathered seeds
Conduits across Strait of Gibraltar, Sinai
Southwest Asia reached c. 70,000 BCE
East Asia reached c. 60,000 BCE
Australia reached c. 50,000 BCE
Europe reached c. 40,000 BCE
North America reached c. 20,000 BCE
South America reached c. 15,000 to c. 12,000 BCE
All Pacific Islands not reached until c. 1000 CE
Proof
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We use DNA, genetic drift, chromosomes, archaeology as proof
We look at languages and linguistics
Crépeau McGill 2014
Genographic Project
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DNA studies suggest
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Project to chart new knowledge on migratory history of human
species through 2014
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Led by National Geographic and IBM with cutting-edge genetic/computational
technologies
Components of project
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All humans come from group of African ancestors who began moving out of
Africa about 70,000 years ago
Gather field research data from indigenous and traditional peoples
Invite general public to join
Use proceeds to further field research and support indigenous conservation and
revitalization projects
Project is anonymous, non-medical, non-political, non-profit
and non-commercial and all results will be placed in public
domain following scientific peer-reviewed publication
Crépeau McGill 2014
Multiple Factors
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“Push Factors`:
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“Pull Factors” :
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Fleeing from poverty and violence, resulting from global
economic and social imbalances
Individual and collective aspirations: migration is always an
individual trajectory in multiple social spaces
Economic labour needs
Free movement of goods, services and capital
“Golden legend”
Irregular Migration results from:
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Unrecognised labour needs in countries of destination
Emigration needs in home countries
Lack of legal avenues to cross borders and strict border
controls
Crépeau McGill 2014
Push Factors
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Pull Factors
Not enough jobs
 Job opportunities
(recognised or not)
Few opportunities
 Better living conditions
"Primitive" conditions
 Political and/or religious
War / generalised violence
freedom
Political fear
 Human rights guarantees
Human rights violations
 Access to justice
Slavery / Trafficking
 Enjoyment
Religious oppression
 Education
Oppression by landlords
 Better medical care
Loss of wealth
 Security
Loss of land
 Family links
Poor medical care
 Better chances of finding
Poor housing
courtship
Poor education
 “Get rich easily”
Poor chances of courtship
Natural disasters
Crépeau McGill 2014
Pollution
Immigration Demand
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Permanent migration (sometimes)
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Temporary migration (more and more)
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Low skilled, unskilled
Major trend in past ten years
Labour « flexibility » implies status vulnerability
Irregular migration (always)
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Highly skilled, skilled, rich
Competitive sectors with low profit margins
Agriculture, hospitality, domestic, caregivers, construction...
Little sanction of « clandestine employers »
For irregular and vulnerable migrants, the precariousness of
their status is central to their exploitation:
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Creates the fear of being arrested, detained and deported.
Creates a « competitive advantage » for the employer
Crépeau McGill 2014
Sociology of Migration
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Economic factors are main cause
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Counter-migration
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Migrants moving long distances choose big-city destinations
Urban residents less migratory than rural residents
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Urbanization is the most common
Moving for a job locally is another
Urbanization
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Every migration flow generates return migration
Many people go abroad to work, study temporarily
Majority of migrants move short distance
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Lose of job or job opportunities
Better pasture, farm land; more pay
Cities offer too many opportunities and benefits
If one immigrates, one tends to go urban to urban not to rural
The youth migrate
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Families less likely to make international moves than young adults
Rare to see whole family migration
Crépeau McGill 2014
Mapping migration since 1945
Crépeau McGill 2014
Sovereignty v. Human Rights
The migrant illustrates the conflict between:
 Territorial sovereignty paradigm (old, situated)
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Host State decides who enters and stays, who is a
member of the group (citizens);
The foreigner has no rights a priori in the host
State, only in the home State (citizenship);
Host State treats the foreigner as it wishes
(administrative discretion), under the rule of
reciprocity.
Crépeau McGill 2014
Sovereignty v. Human Rights
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Human rights paradigm (recent, universal)
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Anyone has inherent rights opposable to any
Power;
Host State must respect the rights of all,
everywhere, at any time;
The writers of the international system of HR did
not think migrants would use them: States are
feeling “trapped” by their international
commitments.
Crépeau McGill 2014
Equal Paradigms
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In democratic domestic law, human rights now
prevail over parliamentary sovereignty through
constitutional guarantees and an independent
judiciary
In international law, no normative hierarchy
has been established and the balance depends
on persuasion and events.
Crépeau McGill 2014
Section 2
Migrants have rights
The international HR regime
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A complex regime of standards and institutions
Universal and regional mechanisms
National constitutions, NHRIs and judiciary
Vienna Declaration, 1993: « All human rights
are universal, indivisible and interdependent
and interrelated »
Rights belong to « everyone »
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« Charte des droits de l’homme »
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Déclaration universelle des droits de l’homme
de 1948
Pacte international relatif aux droits civils et
politiques de 1966
Pacte international relatif aux droits
économiques, sociaux et culturels de 1966
Crépeau McGill 2014
Les régimes proches
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Convention pour la prévention et la répression
du crime de génocide, 1948
Conventions de Genève relatives au droit
humanitaire, 1949, et leurs protocoles de 1977
Convention relative au statut des réfugiés,
1951, et son protocole de 1967
Crépeau McGill 2014
Les conventions spécifiques
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Convention internationale sur l'élimination de toutes les
formes de discrimination raciale, 1965
Convention sur l'élimination de toutes les formes de
discrimination à l'égard des femmes, 1979
Convention contre la torture et autres peines ou traitements
cruels, inhumains ou dégradants, 1984
Convention relative aux droits de l'enfant, 1989
Convention internationale sur la protection des droits de
tous les travailleurs migrants et des membres de leur
famille, 1990
Convention internationale relative aux droits des personnes
handicapées, 2006
Convention internationale pour la protection de toutes les
personnes contre les disparitions forcées, 2007
Crépeau McGill 2014
Two rights belong to the citizen only
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International Covenant on Civil and Political Rights
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Article 25: The right to take part in the conduct of public
affairs, to vote and to be elected;
Article 12 (4): No one shall be arbitrarily deprived of the
right to enter his own country.
Canadian Charter of Rights and Freedoms
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Article 3: Right to vote and be elected;
Article 6: Right to enter and remain in Canada;
A Canadian exception, article 27: The right to education
in the language of the minority.
Crépeau McGill 2014
All other rights enjoyed by all
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International Covenant on Civil and Political Rights
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Article 2(1): “[...] to respect and to ensure to all
individuals within its territory and subject to its
jurisdiction […] without distinction of any kind […]”.
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Canadian Charter of Rights and Freedom
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Article 1: guarantee of rights and freedoms of
“everyone”, “subject only to reasonable limits prescribed
by law as can be demonstrably justified in a free and
democratic society.
Crépeau McGill 2014
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In Singh v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, “everyone” has been interpreted as
encompassing “every human being who is physically
present in Canada and by virtue of such presence
amenable to Canadian law.”
A whole chapter of the Immigration Act was declared
unconstitutional following the request of an asylum
seeker.
Jeffrey Simpson, a columnist at the Globe and Mail,
never got over it!
Crépeau McGill 2014
HR for ALL
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In the international HR system, all migrants
have
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Right to equality and freedom from discrimination
Freedom of expression, association, ...
Right to an effective remedy
Right not to be sent back to torture
Children’s rights
Decent work conditions
Even in a security context: Juge Noël (FC)
Crépeau McGill 2014
The foreigner has the right to equality
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International Covenant on Civil and Political Rights
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Canadian Charter of Rights and Freedoms
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Articles 2 & 26: “without distinction of any kind, such as […] national
or social origin”.
Article 15: “every individual […] has the right to the equal protection
and equal benefit of the law without discrimination […] based on race,
national or ethnic origin”.
The interpretation of this right is difficult and courts
tend to avoid complex analysis, and often refer to the
saying considering immigration as a privilege.
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Andrews v. Law Society of British Columbia, [1989] 1 SCR 143
Regina v. Immigration Officer at Prague Airport, [2004] UKHL 55.
Crépeau McGill 2014
The foreigner has the right to a remedy
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International Covenant on Civil and Political Rights
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Article 2 (3) a): “any person whose rights or freedoms as
herein recognized are violated shall have an effective
remedy”.
Canadian Charter of Rights and Freedoms
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Article 24: “Anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in
the circumstances.”
Crépeau McGill 2014
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Almost every de jure appeals of the
Immigration and Refugee Protection Act have
been replaced by judicial controls, on
permission.
One still cannot appeal a refugee status
determination decision, very often based on
facts or credibility, whereas consequences
might be more serious than those of a criminal
trial.
Crépeau McGill 2014
The foreigner cannot be send
back to persecution or torture
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Convention relating to the status of refugees (1951)
 Article 33(1): Prohibition of “refoulement” ;
 Article 33(2): Security exception.
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Convention against Torture (1984)
 Article 3: Prohibition of refoulement of any person
where he would be in danger of being subjected to
torture;
 No exception, even during wartime.
Crépeau McGill 2014
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In Europe, deportation to torture is absolutely
prohibited: ECHR, Saadi v. Italy, request no.
37201/06, 28 Feb. 2008.
Canada was horrified of being condemned for
“torture”: Khan v. Canada, Communication No.
15/1994: Canada. 18/11/94, CAT/C/13/D/15/1994.
Canada permits deportation to torture in “exceptional
cases”: Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3.
“Maybe” Canada deports to torture: Dadar v.
Canada, Communication No. 258/2004: Canada.
05/12/2005, CAT/C/35/D/258/2004.
Crépeau McGill 2014
The foreign child is protected
against discrimination
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Convention on the Rights of the Child (1989)
 Article 2(1): “respect and ensure the rights set forth in the
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present Convention to each child within their jurisdiction
without discrimination of any kind, irrespective of the
child’s […] national origin […] or other status”
Article 2(2): “the child is protected against all forms of
discrimination or punishment on the basis of the status
[…] of the child’s parents”
Article 3: “In all actions concerning children, […] the best
interests of the child shall be a primary consideration.”
Crépeau McGill 2014
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In Montreal, as opposed to Toronto, schools’
administrations do not ask for the parents’
immigration documents.
In a pediatric hospital of Montreal, the
managers asked the medical staff to give
undocumented migrant families away to the
immigration enforcement agency.
Crépeau McGill 2014
The migrant worker has the right
to dignity
International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families (1990)
 Opened for signature in 1990, entered into force in 2003.
 Not ratified by any of the “Global North” states.
 Yet, it very often simply specifies the application of already
existing protections contained in other general instruments to
migrant workers.
 Its principal “flaw” is to specify the rights of undocumented
workers, rights that States do not recognize even if
undocumented work is part of economic competitivemess
strategies.
Crépeau McGill 2014
The migrant has rights even in a
securitized context
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1
S.C.R. 350:
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“Many of the principles of fundamental justice were developed in
criminal cases, but their application is not restricted to criminal
cases: they apply whenever one of the three protected interests is
engaged. Put another way, the principles of fundamental justice
apply in criminal proceedings, not because they are criminal
proceedings, but because the liberty interest is always engaged in
criminal proceedings.”
“The overarching principle of fundamental justice that applies here
is this: before the state can detain people for significant periods of
time, it must accord them a fair judicial process […]”
Crépeau McGill 2014
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In two recent decision related to Mr Harkat’s case
(2009 FC 553, 28 May 2009; 2009 FC 659, 23 June
2009), Justice Noël severely rebuked the authorities
for unacceptable behaviors:
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The Canadian Security Intelligence Service “forgot” to
mention that an important source in this case was poorly
reliable, when ne cross-examination is possible;
A few weeks later, an early search of Mr Harkat’s premises
was found abusively intimidating.
Justice Noël does not treat the foreigner in a different
manner. His “cold anger” with the authorities’ abuses
of power is impressive.
Crépeau McGill 2014
The judiciary as only defense line
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In the absence of political mobilisation, Courts are the
ultimate defender of migrants’ rights:
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No electoral pressure
Legitimacy based on the logic of law
In many cases, the protection of the rights of vulnerable
populations did not come only from governments, but also
from tribunals: factory workers, women, aboriginal
peoples, minorities, detainees, gays & lesbians, etc.
Foundational tripod of democracy: Representation –
Human Rights – Rule of Law
Crépeau McGill 2014
Section 2
Territorial Sovereignty Matters
Nation State Implies Closure
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Part of our foreseeable future
Criteria: people, territory, government
Territorial and Social Closure
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Government of population includes identification
and exclusion of Outsider, Foreigner, Non-Citizen
Citizenship is social modus: jus sanguini/soli,
multiple citizenship…
Physical separation is territorial modus: border
controls, diversification of the concept of border…
EU shows a way forward
Crépeau McGill 2014
Migrants Selection
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Selection of migrants is an attribute of
sovereignty
Choices are possible: permanent residents,
TMW, family members, refugees selected
abroad…
Increasing constraints: nuclear family,
refugees and asylum seekers, HR guarantees,
...
Crépeau McGill 2014
The anti-immigration “arsenal”
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States have established an arsenal of
mechanisms to “fight” irregular migration:
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Deterrence measures
Containment measures
Irregular migration is now part of the global
security discourse:
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Domestic security since 1990: Schengen
International security since 2001
Crépeau McGill 2014
Deterrent measures
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Acceleration of asylum processes;
Elimination of appeals;
Restricted access to work permit;
Reduced legal aid and social safety;
Criminalization of humanitarian aid to irregular
migrants;
Excessive penalties for migrant smuggling;
Safe third country agreements;
Increased detention.
Crépeau McGill 2014
Deterrent measures
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Acceleration of asylum processes;
Elimination of appeals;
Restricted access to work permit;
Reduced legal aid and social safety;
Criminalization of humanitarian aid to irregular
migrants;
Excessive penalties for migrant smuggling;
Safe third country agreements;
Increased detention.
Crépeau McGill 2014
Containement measures
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Visa regimes;
Carrier sanctions;
Border agents’ training;
“International zones” in airports;
Interdiction and interception mechanisms abroad;
Immigration security intelligence;
Exchange between nominative databases;
Regional economic cooperation conditionality;
Militarization of borders and seas;
Externalization of asylum procedures;
Rejection of international human rights law.
Crépeau McGill 2014
Exercising power over irregular migrants
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Deterrence measures aim at limiting the
empowerment of migrants:
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Make life difficult in order to increase subjection.
Maintain the vulnerability through the absence of status.
Preventing “undesirable” migrants to access the legal,
social and political tools that could limit the capacity
of State authorities to wield a large discretionary
power over irregular migrants.
Hope that this vulnerability will deter other
candidates to irregular migrantion … but not too
much, since the economy needs them.
Crépeau McGill 2014
A migrant without dignity
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Dignity is the capacity to be an agent of one’s
destiny, to have the freedom to exercise options
regarding one’s life
Respecting the dignity of a person means protecting
one’s capacity to make choices for oneself,
recognising the individual as a subject (not simply an
object) and as a rightsholder
Kant’s categorical imperative
Sen-Nussbaum’s capability approach to agency
Issue: if the irregular migrant’s dignity is protected,
the value of competitive advantage is lost
Crépeau McGill 2014
Section 3
Migrant workers’
precariousness is “constructed”
Crépeau McGill 2014
Migrant workers’ precariousness
is “constructed”
Temporary labour migration (regular or not) can
be beneficial for all
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Migrants come because there’s a labour
market (underground or regular) for them
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The competitiveness of several economic
sectors rests on using “cheap labour”:
agriculture, construction, hospitality, caregiving, extraction, fisheries…
Crépeau McGill 2014
Migrant workers’ precariousness
is “constructed”
But policies often create a dangerous employment
relationship: migrant workers accept working conditions
that residents would refuse:
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Temporary migrant workers: Kafala, sponsorship
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Irregular migrants employed by “illegal
employers”?
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Exploitation? Trafficking?
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“Vulnerability” vs. “precariousness”
Crépeau McGill 2014
Migrant workers’ precariousness
is “constructed”
Need to empower migrant workers, in order to reduce
precarity:
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Recruitment practices streamlined: debt-free, informed, registered contract
Identity and travel documents retained
Residence permit not tied to labour contract or employer
Complaint mechanisms and recourses, without fear of retaliation, detection,
detention or deportation
Bank accounts verified
Labour inspections focussed on working conditions
Support for lawyers, NGOs and unions
Pathways to citizenship after a nember of years
Regularisation for irregular migrant workers who have worked a long time
Crépeau McGill 2014
Section 3
Irresponsible Political
Discourses
Crépeau McGill 2014
No accountability
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Politicians aren’t accountable for what they say about
irregular or vulnerable migrants
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They don’t vote: politically insignificant
They don’t complain: legally insignificant
Good discursive scapegoats
No negative political consequences of pointing
fingers at migrants and making outrageous claims
In electoral democracies, there’s no incentive for the
executive or legislative powers to protect migrants’
rights
Actually, there’s electoral pressure to the contrary.
Crépeau McGill 2014
Paradoxical representations
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One lumps together:
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Identity, territory, nation, culture, values, civilisation…
Foreigner, risk, criminality, terrorism, multiculturalism...
Schengen (1990): defines international criminality as
including drug trafficking, arms trafficking, terrorism,
mafia-type criminality ... and irregular migration
“Liquid”, “fungible” langage :
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“Flux”, “waves”, “flows”, “tsunami”, “floods”, “trickling”,
“containment”
Images of an undetermination: no individual identity
Evokes age-old fears: invasions, floods, toxic waste...
Crépeau McGill 2014
Politicians play on perceived threats
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Our electoral democratic systems drive politicians to
hyberboles that remain unchecked:
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F: “2M immigrants, 2M unemployed”
CH: Minarets as nuclear warheads
AU: people in the boats could be terrorists
Security policies disproportionately affect foreigners as
terrorism is mentally externalised
No alternative policy discourse, due to the absence of any
political mobilisation in favour of migrants
Crépeau McGill 2014
The agenda of securitising migration
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“Reappropriation of the border” in the political
discourse:
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Heightened tension around border controls
Alarmist discourse on the threats that lie beyond
the border
“Us & Them”: defending “National Identity”,
“Canadian values”, “Britishness”
Maintains precariousness of status for many
migrants: pliant workforce
Migration is part of a new international
security paradigm, even before 9/11.
Crépeau McGill 2014
The agenda of securitising migration
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Migration controls are part of the phenomenon of
“securitisation of the public space”: water security,
communication security, food security, environmental
security, energy security, economic security,
migration security…
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Many unacceptable measures are justified by
security:
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Exchange of personal data btw immigration security
intelligence services.
Long term detention w/o judicial review.
Many administrative practices are beyond any control
by judges, NGOs and medias.
Crépeau McGill 2014
Criminalising a non criminal activity
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State authorities have increasingly used the language of crime
when discussing irregular migration, when in fact:
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Crossing borders without the requested documentation may be
in violation of migration or administrative laws, but per se not
a crime:
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99,9% of irregular migrants present no security threats
9/11 terrorists were not irregular migrants
Not a crime against persons: no one’s hurt
Not a crime against property: nothing’s stolen or broken
Not a crime against national security
Smuggling is a direct consequence of the mismatch btw the
migration needs and the absence of official channels:
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“Nasty business but saves lives” (CCR)
They’ve always existed : Casablanca!
Distinguish from human trafficking: low “dangerousness”
Co-responsibility is never acknowledged
Crépeau McGill 2014
“Sealing the border” is a fantasy
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It implies levels of violence incompatible with liberal
democracy and rule of law
Irregular migrants respond to market demands:
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Huge unrecognised labour market offering jobs at exploitative
conditions
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No migration to countries that do not offer jobs
All irregular migrants do work: no death from hunger.
They fulfil essential economic and social functions: agriculture,
health services, hotels, domestic work, etc.
This cheap labour enhances the competitiveness of Global North
economies
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Employers are generally not targeted in the fight against
illegal employment.
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Yet, many politicians continue to claim this as their objective.
Crépeau McGill 2014
Political discourse and public debate

But the discourse criminalising migrants has political/electoral
advantages:






Complexity of migration issues make them unsuitable for mediadegradable discourse
Politicians can’t recognise publicly the porousness of democratic
borders
Creating the discourse implies defining the terms of debate: far-right
has dominated the policy debate: “good questions” (Laurent Fabius)
Creating anxiety by stressing territorial sovereignty in a nationalist
discourse and appearing to offer “reasonable” responses (although they
are disconnected from reality)
No “pushback”, as there’s no mobilization from migrants, not in favour
of migrants: they are not a constituency.
The phenomenon of “otherisation” of the foreigner allows for measures
that would horrify us if they were applied to our children.
Crépeau McGill 2014
Root causes remain

Democratic anti-immigration policies will fail
as they don’t address the root causes :





Global social inequalities
Contradictions of Global North capitalism
Failure of development policies
Migration is in itself a development policy
Failure to acknowledge and recognise the
individual migrant’s agency: one’s ability to
imagine and craft a future for oneself and one’s
children
Crépeau McGill 2014
Courts and treaty bodies
have taken up the issue
National courts defend migrants’ rights
 CAT and HRCttee are discussing migration
issues, when examining either periodic reports,
or individual communications.
 The ECHR, ECJ and IAHRCom and Court
have also been increasing pressure on States in
relation to migration issues.
Section
5
 They have raised the awareness about
The
Rational
Human
Rights Discourse
migrants’
rights
in international
circles. on

Migration Doesn’t Convince
Crépeau McGill 2014
Jonathan Haidt’s six moral senses







Care
Fairness
Freedom
Authority
Loyalty
Sanctity
Jonathan Haidt, The Righteous Mind - Why Good People are Divided by Politics and Religion,
2012.
Helped me understand why a reasonable human rights discourse could be experienced as
irrelevant
What follows is a free interpretation by a non-psychologist. Please be indulgent!
Crépeau McGill 2014
Emotion generally rules reason

We form our moral judgment in a way that
resonates with the moral senses we “feel”:
we are not as “rational” as we think we are.



Elephant-Mahout analogy
Liberals use the three first moral senses:
care, fairness and freedom.
Conservatives use all six senses.

This may explain why conservatives are mostly
impervious to the human rights discourse on
irregular migration.
Crépeau McGill 2014
The Authority Principle

States are sovereign and have the authority to decide who
enters and who stays on their territory.


Analogy w. private property, house: front door, back door...
Not the image of the city, where anyone can come
Irregular migrants do not respect the authority of the State.
 Deep seated fear of lawlessness, of losing out
 Temporary migrant workers should be happy with what they
are offered: if not, they can go back home.
 Court judgments in favour of irregular migrants’ rights fuel
more anger by appearing to sanction a “criminality” than they
convince through the logic of their “rational” human rights
reasoning:



Political backlash against “unelected” judges accused of ruling
contrary to the moral feelings of the “majority”.
Unsaid:

Sovereignty trumps human rights
Crépeau McGill 2014
The Loyalty Principle

Citizenship implies loyalty:




Citizenship oath
Debates on multiple citizenship
Respect for local values.
It is for the migrant to adapt to the host society, not the reverse:



Demonisation of “multikulti”.
Citizenship presented as a family: Le Pen’s discourse on sisters and
cousins
Only the citizens can be presumed to be loyal:
Foreigners often presumed to only seek to benefit from welfare
 Foreigners must show themselves worthy of being admitted in
the “private club”.
 If not, it is only normal to throw them out.
 “Us & Them” discourse: no feeling of kinship, of human
community: hence no feeling of responsibility for such “others”.
 Unsaid:
 Human rights are actually citizens’ rights

Crépeau McGill 2014
The Sanctity Principle


However, conservatives and the faith-based
organisations which they support are often
mobilised in favour of refugees.
When the sanctity of life and human dignity
are at stake, their religious fiber may trigger
a feeling of responsibility.


This is especially true when women and children
are victims: the human trafficking and
prostitution debate,
This is not contradictory with the two
previous principles:

Protection is based on charity, not rights.
Crépeau McGill 2014
Section 6
Discreet and Tightly Controlled
Regional Consultative Processes
Crépeau McGill 2014
History

Migration is part of the sovereign jurisdiction (“domaine
réservé”):

No tradition of multilateral discussions:



Bilateral/plurilateral agreements on specific borders



CDN-US Safe Third Country Agreement
Readmission agreements
Many regional cooperation frameworks to control irregular
migration


States have traditionally rejected any multilateral negotiation on an
issue they consider being of purely national interest
More openness after 9/11: still reticent
“Private clubs”, controlled by States, discreet or secret on their actions
and on the results.
UE and Mercosur Freedom of Movement areas are exceptions
Crépeau McGill 2014
Regional Processes

History:




Fifteen regional initiatives at present:



Closure of borders of the Global North following the oil crisis of 1973
Increase in asylum claims 1978-1984
Schengen Convention negotiated 1985-1990
“to provide an inter-governmental regional migration forum for the exchange
of information, experiences and best practices, and overall consultation to
promote regional cooperation on migration within the framework of economic
and social development for the region” (Puebla Process).
“aimed at developing comprehensive and sustainable systems for orderly
migration. Its purpose includes exchanging information and experiences on
topics such as: regular and irregular migration, asylum, visa, border
management, trafficking in human beings and smuggling of migrants,
readmission and return” (Budapest Process)
IOM tries to coordinate since 2005
Crépeau McGill 2014
Europe and the Former Soviet Union

Inter-Governmental Consultations on Asylum, Refugee and Migration
Policies (IGC) (1985)




Budapest Process (1991):



49 States of Europe + Central Asia + 6 Silk Route countries + 7 observers + 16
IGOs (ICMPD sec.)
Priorities: 1) prevention and fight against irregular migration, 2) return and
readmission and 3) asylum: in Eastern Europe & Central Asia
Söderköping Process (Cross-Border Cooperation Process) (2001)



North America, Europe, Australia
“informal, non-decision making forum for inter-governmental information
exchange and policy debate on all issues of relevance to the management of
international migratory flows.”
Private website: for member states’ officials only
14 States + 3 IGOs + NGOs (+ Sweden sec.)
Central & Eastern Europe
CIS Conference (1996-2005)
Crépeau McGill 2014
Americas and the Carribean

Puebla Process (Regional Conference on Migration)
(1996)



11 States + 5 observers + 8 IGOS (IOM sec.)
Regional cooperation on migration
South American Conference on Migration (Lima
Declaration Process a/k/a South American Meeting
on Migration, Integration and Development) (1999)


12 States + 8 observers + 6 IGOs (IOM sec.)
Development; diasporas; rights of migrants; integration;
information exchange; migration statistics; and trafficking
and smuggling
Crépeau McGill 2014
Western Mediterranean

Dialogue on Mediterranean Transit Migration (MTM) (2003)



37 States (including all EU) (ICMPD sec.)
“aiming to build common understandings and to jointly develop
evidence-based comprehensive and sustainable migration management
systems”.
5 + 5 Dialogue on Migration in the Western Mediterranean
(2002)


10 States + 3 IGOs (IOM sec.)
“forward-looking agenda on information exchange, joint management
of international borders, agreed forms of labour migration, migration
for development, and protection of the rights of migrants”
Crépeau McGill 2014
Africa

Inter-governmental Authority on Development - Regional Consultative
Process on Migration (IGAD-RCP) (2008)



Migration Dialogue for Southern Africa (MIDSA) (2000)



6 States of East Africa + 15 + 5 IGOs
“promote the common position of IGAD Member States and African Union as
provided in the AU's Migration Policy Framework and facilitate regional
dialogue and co-operation in migration management”
15 States of Southern Africa + 9 observers + IGOs + UN + NGOs (IOM Sec.)
“MIDSA workshops bring together senior government officials from SADC
countries to discuss and agree upon migration-related issues of regional
concern”.
Migration Dialogue for West Africa (MIDWA or Dakar Follow-up) (2001)


15 States of West Africa + 10 IGOs (IOM Sec.)
Border management, data collection, labour migration, irregular migration,
development, remittances, migrants' rights, trafficking and smuggling, return
and reintegration
Crépeau McGill 2014
Asia & Oceania

Ministerial Consultations on Overseas Employment and Contractual Labour
for Countries of Origin and Destination in Asia (Abu-Dhabi Dialogue) (2008)



11 Colombo Process countries of origin + 9 Asian destination countries + 7
observers + EU
Developing and sharing knowledge on labour market trends, skills profiles, workers
and remittances policies and flows; building capacity for more effective matching of
labour supply and demand; preventing illegal recruitment; promoting welfare and
protection measures for contractual workers; developing comprehensive approach to
managing the entire cycle of temporary contractual work that fosters the mutual
interest of countries of origin and destination.
IOM Regional Seminar on Irregular Migration and Migrant Trafficking in East
and South-East Asia (Manila Process) (1996-2011)


16 States + IOM
Irregular migration and trafficking; root causes of regular and irregular migration;
return and reintegration; entry/border control; remittances; migrants' rights; capacity
building; information sharing
Crépeau McGill 2014
Asia & Oceania

Inter-Governmental Asia-Pacific Consultations on Refugees, Displaced
Persons and Migrants (APC) (1996)



34 States + 2 IGOs (IOM+UNHCR)
Nature, causes and consequences; data collection and information-sharing;
prevention and preparedness; reintegration and its sustainability; comprehensive and
durable solutions to refugee situations; trafficking in women and children; illegal
immigrants/workers; people smuggling and irregular migration; emergency
response and contingency planning
Bali Ministerial Conference on People Smuggling, Trafficking in Persons
and Related Transnational Crime (Bali Conference/Process) (2002)


43 A+P States + 18 Global North partner States + 16 IGOs & NGOs
Cooperation on : information and intelligence sharing; regional law enforcement
agencies; border and visa systems to detect and prevent illegal movements;
increased public awareness in order to discourage; return as a strategy to deter
people smuggling and trafficking; cooperation in verifying the identity and
nationality; legislation to criminalise people smuggling and trafficking in persons;
protection and assistance to victims of trafficking; opportunities for legal migration;
best practices in asylum management.
Crépeau McGill 2014
Asia & Oceania

Ministerial Consultations on Overseas Employment and Contractual
Labour for Countries of Origin in Asia (Colombo Process) (2003)


11 Asian States + 8 countries of destination + 7 IGOs + DIFID (IOM sec.)
Protection of and provision of services to migrant workers; development of
new overseas employment markets, increasing remittance flows through formal
channels and enhancing the development impact of remittances; capacity
building, data collection and inter-state cooperation.
Crépeau McGill 2014
IOM’s Role

States only want to discuss with IGOs that are
susceptible to help them reaching their goals:



IOM, ICMPD
UNHCR is unavoidable for refugees
IOM tries to establish a coordination since 2005:


Global RCP Meetings: 2005, 2009, 2011
Site web: http://www.iom.int/jahia/Jahia/policyresearch/regional-consultative-processes/about-rcps
Crépeau McGill 2014
Evaluation of RCPs


The discretion State observe on this cooperation reflects the
administrative discretion that States try to jealously preserve in
migration issues.
The choice of institutional partners shows a clear choice to
avoid debating with



Evaluation of RCPs is sketchy:



Civil society
On migrants’ rights
Cooperation is optimal if partners are few, have clear objectives
(essentially on technical cooperation) and show political resolve.
Too big operations are “talk shops”.
Migrants’ human rights are rarely a priority
Crépeau McGill 2014
Section 7
The Inception of a Universal Dialogue
Crépeau McGill 2014
No tradition

Migration is part of sovereign jurisdiction of States




No tradition of multilateral discussion
At best, bilateral agreements
UNGA 1988: first resolution on domestic workers
1990: International Convention on the Rights of all
Migrant Workers and their Families.



Came into force in 2003
45 ratifications today
“G77 Convention”: No participation from any country of the
Global North
Crépeau McGill 2014
Reticent (United) Nations









States don’t want the UN to take over the issue
9/11: window of opportunity for multilateral dialogue
UE: progressive communitisation of migration issues
Free movement of persons in Mercosur since 2002
UN: SG initiates debate
UN Population and Development Conference, Cairo 1994
ILO: Protection of migrant workers
UNHCR: distinguishes refugees and migrants
IOM: “travel agency”, but expertise on trafficking
Crépeau McGill 2014
From governance to “management”

Commission on Global Governance, 1995



Bimal Ghosh, Managing migration: time for a new
international regime?, 1993
New International Regime for Orderly Movements of
People: NIROMP Project, 1997
Consensus on new principles:




“Balanced approach”: flows
“Regulated openness”: not closure
“Triple win”: migrant, host country, country of origin
Importance of non-State actors: IGOs, NGOs
Crépeau McGill 2014
The Special Rapporteur

1999: Creation of the mandate of the UN Special
Rapporteur on the Human Rights of Migrants:
(a) Examine ways and means to overcome the obstacles existing to the full and
effective protection of the human rights of migrants, and particular vulnerability of
women, children and undocumented;
(b) Request and receive information from all relevant sources, including migrants
themselves, on violations of the human rights of migrants and their families;
(c) Formulate appropriate recommendations to prevent and remedy violations;
(d) Promote the effective application of relevant international law;
(e) Recommend actions and measures applicable at the national, regional and
international levels to eliminate violations;
(f) Take into account a gender perspective, occurrence of multiple discrimination and
violence against migrant women;
(g) Identify best practices and concrete areas and means for international cooperation;
(h) To report regularly to the Council and to the General Assembly.
Crépeau McGill 2014
Main function: work on discourse,
perceptions and good practices

SR reports become a reference:



Quoted by other IGOs and NGOs
Enrich the debate
Example: CRC DGD September 2012: Preparation of General
Observation on “Children on the Move”



The SR can:




Work on document by UNICEF and OHCHR
Common document with SR Violence against Children and Save the
Children
Define a vocabulary
Define issues
Underline “best practices”
Objective: transform perceptions
Crépeau McGill 2014
Global Commission on
International Migration (GCIM)



Created by SG in 2003
Long consultation of States / stakeholders
2005 Report not really innovative:




Territorial Sovereignty is affirmed
Innovative proposals are withdrawn under States’ pressure
No normative or institutional proposal
Two consequences in 2006:


Creation of Global Migration Group
High Level Dialogue on Migration and Developement, first
UNGA meeting dedicated to migration issues
Crépeau McGill 2014
SRSG + HLD 2006


SRSG on Migration and Development: P. Sutherland
SRSG has




Written the SG’s 2006 Report on Migration and
Development that was presented to 2006 HLD
Organised the 2006 High Level Dialogue
Been a driving force behind the GFMD since 2007
SRSG prepares the next 2013 HLD
Crépeau McGill 2014
Global Migration Group

UN interagency coordination group:





Chair changes every 6 months: erratic
Uneven participation, but some interesting outcomes:



15 UN agencies + IOM
Overcome the reluctance of agencies to debate an issue that
is complex and marginal to their mission
Disseminates information on practices
2010: Irregular migration
2011: Migration and Youth
Reforms under way
Crépeau McGill 2014
GFMD: Global Forum on
Migration & Development

Direct result of 2006 HLD



SRSG was initiator:



“Government-led, informal, non-binding and voluntary process”
Structured outside UN: IOM will offer secretariat
Initially, no mention of HR + NGOs excluded
Today, HR and NGOs are part of the process
Themes for 2011 regional meetings:







trade and labour mobility;
recruitment of workers for overseas employment ;
care and domestic workers;
cooperation strategies among states to address irregular migration;
rural co-development;
migration profiles as tools for evidence‐based migration policies;
best practices.
Crépeau McGill 2014
HLD 2013




Second UNGA meeting on migration issues
SRSG is looking for themes and proposals that could
mobilise States
Wants concrete institutional, normative and
programmatic results: deliverables
We don’t know yet if:


There will be an outcome document
If so, whether it will be creative or not
Crépeau McGill 2014
Towards a multilateral dialogue





There is some movement at universal level
States remain very reluctant
But sovereignty is slowly eroded
Demonstrated by the speed and modalities of
the adoption of the 2011 ILO Convention
Concerning Decent Work for Domestic
Workers
At least, States are discussing their objectives
and practices
Crépeau McGill 2014
Conclusion.
Migration is not an anomaly
Crépeau McGill 2014
Solution 1: Mainstreaming Migrants’ Rights

Need to fight the divorce between



Migration should be mainstreamed in the larger discourse on
human rights and social diversity.




the State’s sovereign powers to exclude and
our human rights regimes (national, regional, universal)
Diversity, multiculturalism, anti-racism and anti-discrimination policies
are key tools
Fighting exclusion, discrimination, marginalisation, stigmatisation,
racialisation and violence for ALL
Human rights should be mainstreamed inside national
migration policies and international migration cooperation
agreements
Need to overcome the absence of political mobilisation
Crépeau McGill 2014
Solution 1: Normative Mainstreaming

Need for migration policies to be buttressed by all the
normative and institutional gains we have made over a century
of democratization:




Reduce administrative discretionary powers
Fight the idea that immigration is only “a privilege”
Fight “State of exception” (Agamben)
Empower the marginalised to use legal tools:



Empowerment will come from effective access to justice
Without fear of being arrested, detained or deported
Democracy = Representation + Human rights + Rule of Law

Fight populist attacks on the illegitimacy of “unelected judges” faced
with majority choices
Crépeau McGill 2014
Solution 1: Institutional Mainstreaming

Institutions (courts, administrative tribunals, NHRIs, labour
inspectors…) must all mainstream migration in their practice and
combat stereotypes:




CDPDJQ has embraced migration in 2009
FRA has taken up the issue
Need for well-trained HR-sensitive immigration enforcement corps
Need to create “firewalls” that allow all migrants, including
irregular migrants, to access public services (social rights):



without fear of being arrested, detained and deported,
without civil servants being made auxiliaries of immigration
enforcement: police, labour inspectors, health and safety inspectors,
school personel, health care providers, etc.
without the information collected by civil servants being accessible to
immigration enforcement
Crépeau McGill 2014
Solution 1: International Mainstreaming


At regional level, need to develop and interconnect freemovement-of-persons areas: EU, Mercosur, Ecowas…
At international level, need to mainstream migration and
HR in various agendas:




Post-2012 Rio+20 sustainable development agenda: “address
international migration through international, regional or
bilateral cooperation and dialogue, and a comprehensive and
balanced approach, recognizing the roles and responsibilities of
countries of origin, transit and destination in promoting and
protecting the human rights of all migrants, and avoiding
approaches that might aggravate their vulnerability” (outcome
document).
Post HLD 2013 migration & development agenda
Post-2015 sustainable development goals agenda
International cooperation on migration issues should rest
on formal commitments, allowing individuals to access
justice and accountability mechanisms for all HR
violations.
Crépeau McGill 2014
Solution 2: Free Movement

The European Union constructed a free movement
regime for workers and individuals within its
territory.





Long-term integrated conception of the Common Market
Control of persons at internal borders is transferred to
external borders
Successive enlargements.
Similar experiences in Mercosur, Ecowas: regional
needs for free movement of persons
Other free trade regimes do not include free
movement of persons: NAFTA, Pacific Alliance,
ASEAN
Crépeau McGill 2014
Solution 3: Local Citizenship

Migrants should be considered as local citizens,
like any person who lives and works in the city:





They all work and contribute to the economy;
Their exploitation contributes to the competitiveness of
several sectors of our economy;
They pay taxes on everything they buy or rent;
The lack of administrative status recognizing their rights is
the cause of their vulnerability.
To give them a coherent status would help them
to better fight against exploitation.
Crépeau McGill 2014
Solution 3: Local Citizenship

Some contemporary examples:
 San Francisco: the police does not control the immigration status of citizens in
order to be able to enforce its “law & order” agenda (collaboration with the
public is key);
 Toronto: “don’t ask, don’t tell” policy in schools;
 Massachusetts: the state issues driver licenses without verification of the
immigration status;
 Portugal: irregular migrant children are registered with the ministry of social
affairs, to allow them to access schools and hospitals, but a firewall prevents
immigration enforcement from accessing this information.
 Paris: 28 health centers for irregular migrants, administered by “Médecins du
Monde”. Now one in Montreal.
 Québec: The vaccination campaign against AH1N1 was for everyone, without
checks on whether one was part of the public health insurance mechanism.
 Local voting rights: six districts of Maryland; two cities of Massachusetts
(Amherst and Cambridge); in New York, Chicago and Arlington (VA) for
school board elections; in New-Zealand for all elections.
Crépeau McGill 2014
Solution 3: Local Citizenship

Another conception of the vulnerable migrant is
possible:




at the local level, one status for all residents, which gives
access to all services.
Vulnerability is not a fatality, but a social choice
Some American States try to limit the local
citizenship movement: Arizona, Alabama...
As for other marginalised groups in history, the
discourse of “Us and Them” must become a discourse
of “I and We”
Crépeau McGill 2014
No man is an island,
entire of itself;
every man is a piece of the continent,
a part of the main.
If a clod be washed away by the sea,
Europe is the less,
as well as if a promontory were,
as well as if a manor of they friends's or of thine own were.
Any man's death diminishes me,
because I am involved in mankind.
And therefore never send to know for whom the bell tolls;
it tolls for thee.
John Donne (1572-1631)
Crépeau McGill 2014
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Controlling irregular migration in Canada