Address by Ms. Navi Pillay, High Commissioner for Human Rights to the Graduate Institute of International and Development Studies, Geneva - 14 December 2011

Equal rights for all migrants:
A call for ratification of the International Convention on the Protection
 of the Rights of All Migrant Workers and Members of Their Families

Ladies and gentlemen,

As you will know, in 2000 the United Nations General Assembly proclaimed 18 December as International Migrants’ Day, and invited States and other stakeholders to share information on the human rights and fundamental freedoms of migrants, as well as on the actions undertaken to ensure the protection of migrants.

The resolution that made this proclamation also referred to the Universal Declaration of Human Rights which says that “all human beings are born free and equal in dignity and rights, and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind.”

Looking at the situation of migrants in countries around the world today, the promise of this resolution sounds hollow.

While all migrants can be vulnerable to human rights violations, those who are in an irregular situation can be particularly vulnerable to discrimination, exclusion, exploitation and abuse at all stages of the migration process. In 2010, under my leadership, the Global Migration Group (GMG) which is an inter-agency group comprising 16 UN and other international entities concerned with migration, came together to express its deep concern about the situation of this particularly vulnerable group of migrants, noting that the irregular situation in which international migrants may find themselves should not deprive them either of their humanity or of their human rights.

Ensuring the realisation of human rights in the context of migration is a thematic priority for the OHCHR. My Office believes that migrants whose rights are protected are able to live in dignity and security and, in turn, are better able to contribute to society both economically and socially than those who are exploited, marginalised and excluded. An important part of our strategy on migration is to advocate for the effective protection of all migrants, wherever they are and regardless of their legal status.

Research tells us that the majority of irregular migrants will have entered the country of destination legally and only subsequently will have fallen into an irregular situation. Some will have overstayed their permits having been unable to maintain a legal presence, while others will have lapsed into irregularity due to bureaucratic obstacles or will have been driven into irregularity trying to escape exploitation and abuse by their employers. Some irregular migrants will have protection needs that they have been either unable or unwilling to articulate to State authorities, or that have been dismissed in flawed asylum procedures.

Yet public discussion on irregular migration is overwhelmingly framed around issues of risk and border control, law enforcement, security threats and expulsion. Little attention is given to the fact that, in the absence of sufficient legal channels, migrants are often compelled to enter or stay in irregular conditions. Irregular migration has increased and thrived not only because of push factors in migrants’ countries of origin such as economic deprivation, discrimination, violence or abuse, but also because of a lack of coherence in immigration mechanisms and procedures in countries of destination.

Such incoherence can have profound impacts on the life and dignity of migrants. At borders around the world, migrants are confronted by violence, discrimination and other human rights violations, they fall prey to traffickers, and can even lose their lives. Yet, as I have stressed in the past, crossing a border or residing in a country without the legal permission to do so should at most be considered an administrative offence. Irregular migration is not a crime.

Criminalizing irregular migration tends to have a disproportionately negative effect on the rights and well-being of migrants and their families and, in addition, most policies of criminalization fail to reach their objective of deterrence. In May 2011, a Global Roundtable organised by my Office and the United Nations High Commissioner for Refugees on the issue of alternatives to immigration detention concluded that there is no empirical evidence that this detention deters irregular migration, despite the often significant cost to States of maintaining such a detention infrastructure.

The Global Migration Group statement further affirmed that migrants in an irregular situation are often prevented officially from being able to access adequate healthcare, from renting decent accommodation, or from exercising their right to freedom of association. Others will not report that they have been victims of crime to the police or will not send their children to school, out of fear of being detected and deported.

We are also witnessing a trend to penalize those who engage with irregular migrants, whether they are public officials such as healthcare personnel, the police or teachers who are placed under a “duty to denounce”, or private individuals such as landlords who can be at risk of criminal penalties for renting housing to irregular migrants. Non-governmental organisations can be subject to punitive fines and even criminal charges for providing humanitarian or legal assistance to such migrants. The unacceptable message which is sent is that contact with migrants is a risk that is to be avoided.

It is my Office’s firm belief that the discussion on irregular migration is not simply a matter of strengthening border controls or combating crime. Also deeply implicated in this discussion are the demands of the economy and markets for migrant labour, as well as the debate on social integration and identity at the regional, national and local levels. But we would argue that the most fundamental, yet most neglected, part of this discussion is the human rights framework.

In September 2011 at its 15th session, the UN Committee on Migrant Workers held a Day of General Discussion on the human rights of migrant workers in an irregular situation and members of their families, as the first phase in elaborating a General Comment. The Day of General Discussion was attended by more than 50 representatives from Governments, UN agencies, and inter-governmental and non-governmental organizations, and it focused on an analysis of international treaty norms for the protection of the rights of irregular migrants, their practical application, international cooperation in protecting those rights, and criminalization and detention of irregular migrants.

While recognising the sovereign prerogative of States to manage their borders, it is important to note that human rights law provides that all persons, without discrimination, must have access to all fundamental human rights provided in the two human rights Covenants, with narrow limitations related to political rights and freedom of movement. States are further obliged to ensure that any differential treatment, between citizens and non-citizens or among different groups of non-citizens, is undertaken for a legitimate objective, and that the course of action taken to achieve this objective is proportionate and reasonable.

The International Covenant on Civil and Political Rights in article 26 affirms for example the important principle that “all persons” are equal before the law and are entitled without any discrimination to equal protection of the law. This is an important protection standard for migrants in an irregular situation who are vulnerable to xenophobic violence, hate crimes and hate speech.

The International Covenant on Economic, Social and Cultural Rights stipulates, in addition, in relation to the right to health that “everyone” is entitled to the highest attainable standard of physical and mental health. The Committee on Economic, Social and Cultural Rights has further clarified that the obligation to respect the right to health requires that States refrain from denying or limiting the equal access of migrants in an irregular situation to preventative, curative and palliative health services.

While it is thus clear that international human rights law protects all migrants regardless of their status, the legal framework recognises also that lawful presence in a country can be an important pathway to greater protection of rights. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families in its article 69, urges States Parties to consider regularization of migrants in an irregular situation, particularly taking into account the circumstances of the migrant’s entry and length of residence, as well as his or her family situation in the host country.

The Migrant Workers Convention emphasizes the link between migration and human rights, recognizes the specific vulnerabilities of migrant workers and provides guidance on national migration policies. The Convention looks at the specific situation of migrant workers, and provides protection against such violations as unlawful expulsion, arbitrary detention, and the unauthorised confiscation of the identity documents of migrant workers and members of their families.

Yet the Convention does not conjure up more rights or new rights for migrants. It does not oblige States to regularise the situation of irregular migrant workers. It does not reach above general international human rights standards which protect all human beings, but it does give specific form to these standards so that they are meaningful in the particular context of migration.

More than 20 years ago, States recognised that migrants needed specific protection and brought the Convention into existence. On the international day to commemorate the rights and dignity of migrants, it is high time that these same States now unblock the political will to ratify and effectively implement this important treaty.

Human rights are not mere aspirations. They can be powerful programmatic and methodological tools; the rights contained within the Migrant Workers Convention and other core international human rights instruments constitute a framework of action as well as a set of guidelines for migration policy-makers. There are a number of good practice examples in different regions of the world as to how national and local governments can fulfil their obligations under human rights law; such as decriminalizing irregular migration, or ensuring that the functions of public service providers such as nurses or teachers are kept strictly separate from those of the immigration authorities.

Human rights are not a matter of charity, nor are they a reward for obeying immigration rules. Human rights are inalienable entitlements of every human being, wherever they are and whatever their status.

I thank you for your attention.