How to Measure the Rights of Irregular Migrants?  The Case for Implied Rights

Irregular migrants – those without the legal right to reside and work in host countries – are among the individuals most vulnerable to labour market exploitation and fundamental rights abuses.

Developing effective policy solutions to address this reality requires, among other things, a better understanding of the current context of legal rights protections for irregular migrants and how this varies across countries.  As part of the EU Horizon-funded project – Protecting Irregular Migrants in Europe (PRIME)  – we begin this task by comparatively analysing the labour and social rights of migrants without legal status in the 27 EU Member States and in the UK.

But measuring the legal rights of those who, in immigration and other terms, are ‘outside the law’ is not straightforward. Both by default and design, the rights of irregular migrants are often not explicit in national labour and social welfare laws.  We therefore argue that, to achieve a comprehensive understanding of the rights ‘on paper’ of irregular migrants, we need to go beyond explicit legal rights and include in our measures, instances of ‘implied rights’ of irregular migrants.

Measuring the social and labour rights of irregular migrants

Rights-based approaches to policy analysis have proved fruitful in understanding the sources of vulnerabilities among citizens and legal residents. In applying this framework to study the conditions of irregular migrants in European countries,  we face the usual definitional and conceptual matters of determining who counts as an ‘irregular migrant’, what we mean by ‘rights,’ and which social and labour protection measures we can meaningfully compare cross-nationally.  We also however face the added challenge of ascertaining when irregular migrants are included or excluded from the labour and social welfare protections guaranteed to citizens and categories of legal migrants.

Naturally, the more explicit the law on matters of inclusion and exclusion, the easier it is to measure irregular migrants’ legal rights.  In reality however, and for a range of institutional, political, and historical reasons, national laws are frequently not explicit (i.e. on the face of the legislation) about the scope and applicability of certain labour and social welfare laws to irregular migrants. In such grey cases, we cannot automatically assume the absence of rights before first considering whether there are grounds on which we can reasonably interpret national legal provisions as inclusive of irregular migrants – in other words, as implying rights for irregular migrants.

Implied rights and how to measure them

The rationale for implied rights is based on observations that the national institutions of European countries – in particular their welfare states, labour markets and legal/constitutional systems – have developed in ways that variously (and to different degrees) facilitate inclusivity or universality. Provided that we have sufficient evidence, and absenting the explicit or implicit exclusions of persons on grounds of immigration status, there may be reasons to imply that relevant social welfare, labour, human rights, equality and constitutional national laws are inclusive of irregular migrants. But what is the evidential threshold for implied rights of irregular migrants and how can we satisfy the methodological requirements of data robustness, replicability and objectivity?  We argue that making the case for implied rights involves two steps.

(i) Establishing the universality of social welfare and labour provisions

First, we need to establish a solid ground for an inclusive or ‘universal’ reading of national labour, social welfare, constitutional and human rights laws based on official government law and policy.  Arguments should draw on a range of materials such as: case law from relevant national and international courts; interpretative documents, including explanatory notes to legislation and ‘travaux préparatoires’; government policy documents, including research papers, consultation papers, implementation manuals, and executive agency publications.   Such materials, distinct from legislation and judge-made law which explicitly include irregular migrants, would identify a prevailing understanding of the universal scope of the laws in a way which could reasonably be interpreted as inclusive of irregular migrants. Government policy documents which expressly include irregular migrants in the scope of national labour and social welfare laws but which, alone would not constitute an explicit legal basis for claiming irregular migrants’ rights, would nonetheless be important pieces of evidence in support of the case of implied rights.

(ii) Checking for implicit exclusions from social and labour rights

The second step in building a case for the implied rights of irregular migrants under universally-applicable national laws, is to check for and evaluate any grounds on which irregular migrants may be implicitly excluded from such legal rights due specifically to their illegal status. For example, under the legal systems of some countries (particularly common law countries), illegality can render employment and service contracts null and void, thereby denying irregular migrants any of the normal labour or social protections derived specifically from those contracts.  While such laws may typically be explicit (based on accumulated case law on the subject), they may also be implicit in contexts where cases of irregular migrant workers have not yet come before the national courts. Illegality might also have the effect of implicitly excluding migrants from seemingly universal social welfare benefits and services in cases where eligibility is based on satisfying legal residence requirements (which irregular migrants cannot typically meet).

Imperfect but indispensable

There is no perfect way to measure the legal rights of a migrant population that so often inhabits a grey territory in national laws and policies.  To avoid under-measuring or over-measuring rights we require an approach that is richly contextual.

Implied rights might, at first sight, seem like the ‘poor relation’ in the machinery of legal rights protection. However, as recent Constitutional Court and Supreme Court judgments in France and the UK attest, implicit universal rights have the power to trump even explicit exclusions of irregular migrants’ rights (including their social and labour rights) under national immigration laws.  Through such processes, implicit universal rights become explicitly ‘owned’ by irregular migrants. Against this rapidly evolving institutional landscape, our efforts in rights measurement prioritise transparency and an important degree of flexibility to adapt to new political developments.

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Clare Fox-Ruhs is a Part-time Assistant Professor at the Robert Schuman Centre for Advanced Studies at the European University Institute.

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