The rights of migrants without legal authorisation to reside in host countries are politically contested.  How, then, do European governments respond to the conflicting demands of guaranteeing the fundamental rights of all persons, and enforcing immigration laws and controls?  A new cross-national dataset developed by the PRIME project begins to answer this question by offering the first systematic comparative analysis of the social and labour rights of irregular migrants in the laws of 28 European countries. Our new rights indicators show important cross-national differences in how governments limit or contain the rights of irregular migrants, and they identify a hierarchy in the rights that governments choose to protect.

A first-ever index of irregular migrants’ rights

Across Europe, there is growing concern about how national governments manage immigration and about the poor working and living conditions faced by ‘irregular migrants’—namely, those without the legal right to reside in a host country. Until now, there has however been no systematic analysis of what rights these individuals can claim under national laws.

To fill this gap, researchers from the European University Institute, Uppsala University, and the University of Zagreb developed IRMIGRIGHT: a cross-national dataset that maps how 28 European countries regulate social and labour rights for irregular migrants. Drawing on this data, the research team developed multidimensional indicators which measure not only irregular migrants’ access to rights but also the quality of those rights in terms of their potential to enhance migrants’ capabilities and freedoms.

The findings: some universal protections, many gaps

The data show that a small core of rights is widely protected across European countries.  Where protections exist, the substance of the benefit is typically equal in scope to that enjoyed by citizens. Such rights include:

•          access to emergency and maternity healthcare;

•          compulsory education for children;

•          back pay for outstanding wages;

•          health and safety standards in the workplace.

Large rights gaps nonetheless remain. Irregular migrants have very limited access to income support and social housing—whether in crisis or in everyday life.  Social rights are, in general, less well protected in law than labour rights and, overall, legal protections for irregular migrants do not exist in nearly half (43%) of the cases examined.

In cross-national terms, more established EU Member States tend to lead in legal protections—though Greece, Ireland, and the UK are key exceptions. Newer Member States offer the weakest safeguards overall.

Goal Conflicts and Rights Limitations

When countries make some form of legal rights provision for irregular migrants, the constraints of immigration laws and controls clearly come to bear on the quality and mode of those rights protections.  The IRMIGRIGHT data highlight three key ways in which the conflicting demands of fundamental rights and immigration laws  – what we call the ‘goal conflict’ – serve to limit the power of rights to protect irregular migrants from labour exploitation and social deprivation in European countries.

1. Unequal User-Costs Likely to Make Rights Unaffordable

In around 60% of all cases where irregular migrants are legally entitled to access healthcare—whether emergency, maternity, primary and specialised care—the cost of care is not equal to that which citizens pay.  For example, in over two thirds of countries that offer maternity care, irregular migrants will not be covered by state insurance and will likely be required to pay for their care at a surcharged rate.  The same goes for access to emergency care in nearly half of the European country laws (46%).

The costs of state healthcare for uninsured irregular migrants may operate as a very real obstacle to the enjoyment of healthcare rights guaranteed by law. In the UK, for example, irregular migrants are charged 150% of NHS costs for some types of specialised care resulting in major affordability concerns.

2. Exercising rights may trigger deportation

For many irregular migrants, claiming a legal right—such as by visiting a hospital or filing a labour complaint—comes with the risk of being reported to immigration authorities. These fears could be reduced through ‘firewalls’: namely, legal protections that prevent public service providers (like doctors, teachers, or labour inspectors) from sharing immigration status with law enforcement.

Firewall protections are however rare; only a handful of countries provide them for healthcare or education, while no country in Europe guarantees that irregular migrants will be insulated from immigration authorities in the process of claiming labour rights, such as unpaid wages. On the contrary, and in a classic manifestation of the ‘goal conflict’, the IRMIGRIGHT data show that almost half of all European countries actually oblige labour inspectorates (pursuant to their mandates to uphold labour laws) to report individuals who are working in breach of national immigration laws.

3. Implied rights lack clarity

In many countries, the law lacks ironclad certainty as to whether irregular migrants are included in rights provisions. The data show that only about one-third of social and labour rights are explicit—i.e. clearly name irregular migrants on the face of the law.  The remaining two thirds of rights protections (notably labour rights) are implicit, in the sense that they must be implied from general legislative language like “all workers” or “everyone” and from an overarching interpretation of the law.

While a right is no less “real” or substantive whether it is explicit or implicit in national laws, unclear legislative provisions may have the (unintended) consequence of deterring migrants from claiming rights, especially when doing so could trigger undesirable outcomes.  Indeed, countries whose laws are most explicit about the rights of irregular migrants, such as France, Spain and Belgium, also rank among those offering the strongest protections to irregular migrants overall.

Next steps

There is still much to understand about why irregular migrants’ rights vary so widely across Europe. Recently published and forthcoming PRIME research explores some of the multiple objectives and interests to which national policies on irregular migrants rights may be responding.

The IRMIGRIGHT dataset will provide a new tool for probing further about the rights of irregular migrants that European countries most and least value, as well as the aspects of those rights that are especially contested.  The findings challenge us to problem-solve around how to better protect the fundamental rights of irregular migrants in ways that respect countries’ prerogative to control immigration.