Undocumented migrants and the failures of universal individualism.

Author:Ramji-Nogales, Jaya
Position:II. Human Rights Law and Undocumented Migrants C. The Contested Content of Human Rights Law 3. Nondiscrimination Based on Immigration Status through V. Beyond Human Rights: Engaging with Systemic Injustice, p. 730-764
  1. Nondiscrimination Based on Immigration Status

    Though international human rights law protects undocumented migrants from discrimination on numerous grounds, the right to nondiscrimination based on immigration status is limited. Yet undocumented migrants face discrimination precisely because they do not have lawful immigration status. This marker of vulnerability enables employers, landlords, hospitals, and other social service providers to exclude migrants from fair treatment, protection, and benefits on the basis of their immigration status. Undocumented migrants can receive unequal pay because they are not authorized to work, can have their housing applications rejected for a lack of official identity documentation, can be refused health care because they are ineligible for national health insurance programs, and can be excluded from pension and welfare programs. (115) Immigration status also authorizes states to keep undocumented migrants outside of the voting polity. (116) While this might seem an obvious sovereign right, it is not a foregone conclusion that migrants with substantial community ties should be any less entitled to vote than citizens. If we free our imagination from the sovereignty paradigm, political community might be bounded along social ties rather than physical borders.

    Though nondiscrimination is one of its foundational rights, the ICCPR does not explicitly prohibit discrimination based on immigration status. (117) The ICCPR contains two clauses enumerating the right to nondiscrimination based on numerous grounds, including race and national origin. Neither includes immigration status or even nationality in its list of protected statuses. (118) In fact, the drafters of the ICCPR specifically excluded nationality from the grounds of nondiscrimination. (119) The treaty drafters appear to have been concerned about being required to extend certain civic, political, and property rights to noncitizens. (120) Rather than crafting a narrow exception based on these concerns, they created a human rights treaty that permits discrimination based on immigration status or nationality.

    Both nondiscrimination provisions include a catch-all "other status" provision that might have been interpreted to include immigration status. The UN Human Rights Committee has not used these provisions to extend the grounds of nondiscrimination to protect undocumented migrants. Indeed, the language of the Committee's General Comment on the Position of Aliens under the ICCPR could be read to exclude undocumented migrants from its protections: "[O]nce aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the Covenant." (121)

    Similarly, the Migrant Worker Convention contains no explicit prohibition on discrimination based on immigration status. (122) Indeed, the treaty delineates certain rights--including the rights to family unity; liberty of movement; trade union rights; participation in public affairs; equality of treatment as to education, housing, and other social services; and freedom from double taxation--as inapplicable to undocumented migrants. (123)

    In the same vein, the International Labor Organization (ILO)'s 1949 Migration for Employment Convention offers protection against discrimination relating to employment and social security only to migrants lawfully in the territory of the State Party. (124) European regional human rights law, in the form of the European Social Charter, is similarly narrow in its protections of undocumented migrants. (125) While the ILO's 1975 Migrant Workers Convention provides for equal treatment for the undocumented with respect to rights arising out of past employment, it offers no right to equal opportunity and treatment with respect to employment for workers unlawfully present. (126)

    The story is a bit more complicated when it comes to the ICESCR and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The text of the ICESCR contains no explicit prohibition on discrimination based on immigration status. (127) However, the treaty interpretive body, the Committee on Economic, Social, and Cultural Rights, has stated in its general comment that the rights laid out in the ICESCR apply to non-nationals regardless of immigration status. (128) Somewhat ironically, CERD explicitly permits "distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens." (129) This strong treaty language has been modified by CERD's interpretive body, the Committee on the Elimination of Racial Discrimination, to permit differential treatment based on immigration status only if such treatment is proportional to the achievement of a legitimate aim. (130)

    The Inter-American regional human rights system also contests the UN Human Rights Committee's interpretation of the right to nondiscrimination based on immigration status. Like the ICCPR, the right to nondiscrimination in the text of the American Convention on Human Rights does not list nationality or immigration status as a protected ground. (131) However, the Inter-American Court of Human Rights has interpreted both the American Convention and the ICCPR differently than the HRC. In its Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants, the Inter-American Court found that regional and international human rights treaties prohibit Member States from discriminating against undocumented migrant workers in the terms and conditions of work. (132) The court conceded that states have the right to refuse entry and employment, but held that once employed, jus cogens principles of equality and nondiscrimination entitle undocumented migrants to basic workplace protections. (133)

  2. Family Unity

    Family unity has been the most promising human rights avenue for undocumented migrants to attain substantive and procedural protections in deportation proceedings, though supportive case law is limited. Conceptually, the right to family unity might take two forms: the right to enter a country in order to be reunified with one's family as well as the right to remain in a country so as not to be separated from one's family. The soft law thus far focuses on the latter right. Family has been interpreted relatively narrowly, emphasizing ties to spouses and minor children. (134)

    The UN Human Rights Committee has, in two cases, grounded procedural due process protections for undocumented migrants in the right to family life and the right of citizen children to protection as a minor without discrimination. (135) In both cases, though explicitly disclaiming the applicants' right to reside in Australia, the HRC ordered the government to reexamine its decision to deny their visa applications, offering some substantive relief as well. (136) In the first case, while both applicants were undocumented, they had originally filed an asylum claim. (137) In the second case, only one applicant was undocumented, and the other spouse was a citizen. (138) In a third case, the HRC found inadmissible claims to family unity by undocumented migrants, one of whom had criminal convictions apparently of a nonviolent nature. (139) While these decisions demonstrate the potential of human rights law to protect undocumented migrants, they also highlight some of the problems with human rights law discussed above--namely the distinctions it draws between "worthy" and "unworthy" migrants.

    The first of these cases, Winata and Li v. Australia, decided in 2001, is also the best known. The case was brought by two stateless individuals who were formerly Indonesian nationals. (140) They had lived in Australia for 14 years, having arrived on valid visas that subsequently expired. (141) Their thirteen-year-old son was born in Australia. (142) After he acquired Australian citizenship, Winata and Li applied for asylum but their claims were denied. (143) They then appealed their asylum claim and had a representative lodge an application for a parent visa at the Australian Embassy in Jakarta, Indonesia. (144) When their asylum appeal was denied, Winata and Li requested that the government exercise humanitarian discretion based on hardship to their son of removal to Indonesia. (145)

    In its decision, the Human Rights Committee stated expressly that "aliens may not, as such, have the right to reside in the territory of a State party" (146) and that "there is significant scope for States parties to enforce their immigration policy and to require departure of unlawfully present persons." (147) Given that the applicants had lived in Australia for over 14 years and that their child had grown up in Australia, the HRC found that the State Party was required to offer additional factors to justify their removal beyond simple enforcement of its immigration laws. (148) Otherwise, their removal would constitute arbitrary interference with the family in violation of the ICCPR. (149) In particular, the HRC held that Australia should refrain from removing Winata and Li until their applications for parent visas were examined. (150) Notably, the applicants had a viable route to lawful status; though they were technically undocumented, the HRC did not have to step outside Australia's immigration laws to find a legal avenue that would allow them to remain.

    The same was true in the case of Madafferi v. Australia, decided 3 years later. Madafferi, an Italian citizen, arrived in Australia on a valid tourist visa in 1989. (151) Four months after that visa expired, he married an Australian citizen, with whom he eventually had four citizen children. (152) Madafferi believed that his marriage automatically granted him residence status. (153) He later learned that it did not and applied for a spouse visa in 1996. (154) On that application, Madafferi disclosed that he had served 2 years in prison in Italy before arriving in Australia. (155) He later learned...

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