CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE HUMAN RIGHTS OF MIGRANT WORKERS IN THE CONTEXT … the time limit of their visa, visa-free access or residence permit. It is also possible to enter irregularly in Europe and be counted within the irregular border crossing, but, when applying for asylum, be counted in the category or stock of people staying legally in the EU. 42 Irregularity is a relative and transient situation. It refers to the status of an individual at a certain moment in time or during a certain period, not to the essential nature or characteristics of the person. Irregularity is not an absolute and permanent status, as migrants can go “in and out” of irregularity as laws and policies change. 43 The use and application of descriptive labels has been the subject of considerable debate. Terms such as “illegal”, “undocumented”, “non-documented”, and “unauthorised” migration can have different connotations in national policy discourses. Due to this and to the potential association with criminality, 44 it is agreed that terms “illegal migration” and “illegal migrants” should be avoided. Entering a foreign country in an irregular manner, or staying without the required papers, is not a criminal offence but an administrative infringement. 45 Apart from this, the movement itself may be “legal” or “illegal”, but migrants themselves cannot be described as “illegal”, because the term is appropriate only to describe the action, not the human being. 46 Moreover, migrants should not be called “illegal”, as this often results in discrimination, racism and xenophobia. In order to “more accurately describe the situation”, 47 at present, there is a general agreement at the international level in using the term “irregular migrants” or “migrants in an irregular situation”, or “undocumented” or “non-documented”, to indicate those who undertake movements that are not in compliance with the law of the origin, transit and/or destination countries, whereas the term “regular migrants” indicates those who undertake movements that are compliant. States and Irregular Migration Every state has the sovereign right to control its borders; implement immigration laws and policies that protect and advance the legitimate interests of its nationals; determine who may enter its territory, the length of stay, and the nature of activities they can undertake. ILO labour standards and the CMW rely on the assumption that states are absolutely in charge of the migration process. They reiterate not only the right of states to determine who enters their territory, but also their interest in managing irregular migration. The CMW was drafted before the increase of irregular migration during the last decades, and before the change of migration patterns with the appearance of international criminal organisations that used migration for economic profit, at a time when state control over emigration and immigration was stronger. Therefore, the CMW, along with the other 44 Most irregular migrants are not criminals, as being undocumented does not constitute a crime in most countries. However, even in countries where violations of immigration law are considered criminal offenses, committing a criminal offense does not make the migrant an “illegal” person. 45 International Migration Law, Glossary on Migration, IOM, 2019. Available at: https://publications.iom.int/ system/files/pdf/iml_34_glossary.pdf. 46 Council of Europe, Parliamentary Assembly, Resolution 1509 (2006), “Human Rights of Irregular Migrants”. 47 UN High Commissioner for Human Rights, Navi Pillay, 12 th session of the Human Rights Council, 22 September 2009. 42 Ibidem, p. 26-27. 43 Ibidem .

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