The recent global economic downturn has practically demonstrated the level of the social and economic vulnerability of many countries, including several European countries. The insurgence and resurgence of the Coronavirus (COVID-19) pandemic is painful evidence to this premise. Several major economic drivers, investors and large establishments went bankrupt despite their sound economic projection. Lots of economically stable individuals and families lost their jobs in deference to the virus. Business owners could not physically conduct their businesses, and institutions, including schools, are still imposing one form of restrictions or the other on physical activities. This unexpected global health emergency gave a compelling revelation of the state’s weaknesses as it did not only expose the otherwise wide inequalities in our society, it glaringly shows how interconnected and intertwined our lives are, and how challenging and unstoppable human mobility can become. It awakens us to the brutal reality of how much value and importance every life carries, and how not saving some of us could lead to the elimination of all of us.
At this crucial period, it is particularly expected for states as a matter of principle and of international law, to live up to their due diligence obligation by effectively protecting and enabling everyone – especially the most vulnerable groups who are more susceptible to predatory exploitation and human right abuse. In this case, the article discusses undocumented migrants and stateless persons. This article questions the restrictive treatment of undocumented migrants by European states, using the Netherlands as an instructive example, and shows how restrictive rules for migrants do often result in dire economic impacts for the host state. It encourages European countries to do away with the negative Eurocentric perception and interpretation of migration practices and seeks to examine whether in de-facto the decriminalization of the undocumented migrant within the host territory is capable of advancing the economic growth of the nation.
No Human Being is Illegal
Everyone is entitled to their human rights regardless of their legal status, cultural practices, religious beliefs, gender or sexual orientation. Despite the fact that states are expected to respect these rights, human rights are inherent whether they are upheld or not. It is, however, generally accepted that fundamental human rights in fact existed before any codified law. Therefore, the entrenchment of human rights in many international legal instruments and most national constitutions did not create them, instead, it protects and enables their realization. These fundamental rights among others are rights such as the right to life, the right to personal liberty, the right to dignity of a person, the right to freedom of expression and association, etc. Many states, as will be shown below, have been particularly reluctant and exclusively restrictive in the application of these fundamental rights. This attitude is undesirable as a matter of principle and indefensible as a matter of international law.
From an international law standpoint, there are three (3) main obligations that are owned by states to individuals. The first is the obligation to RESPECT; that is, the government should refrain from interfering with the enjoyment of human rights. The second obligation is to PROTECT; that is, to protect others such as non-state actors or other states from interfering with the enjoyment of human rights. And the third is the obligation to FULFIL; that is, to provide basic conditions such as the enactment of progressive legislations, education programs, and social facilities to enable the enjoyment of rights. The enjoyment of these rights has been particularly difficult for the undocumented migrants in the Netherlands (which is an instructive example of many European countries). While it is correct that since 2018, following the judicial decision of the European committee on social right, the Netherland has embarked on a national pilot program such as LVV shelter system in five cities of the country in an attempt to alleviate undocumented migrants from the ditch they are sunk into by the same restrictive alienage law of the state, it is discovered and firmly posited that the system is insufficient, non-exhaustive and exclusionary in implementation.
The Plight of Undocumented Migrants in the Netherlands
Undocumented migrants are heterogeneous group that comprises of mostly rejected asylum seekers, those who overstayed their visas or work permit, and those who are yet to submit their application for asylum, including stateless persons. These groups are usually silenced and pushed into invisibility by most migration regimes. Many of them, especially in the Netherlands, in a constant state of fear, had to resort to the collective squatting of unused, dilapidated, and abandoned buildings to keep their head safe. Often isolated from the host population, their illegal status makes them quite vulnerable as living and working legally is impossible, which makes housing and working conditions unstable and tough. Approximately between 23,000 and 58,000 undocumented migrants residing in the Netherlands according to the research conducted in 2017/2018 by Utrecht University at the behest of the Research and Documentation Centre (WODC: Wetenschappelijk Onderzoek – en Documentatiecentrum). Many of whom have escaped violence and repression, their asylum request has been rejected, but they are unwilling and unable or their country refuses to accept their return. Some are stuck in bureaucratic limbo and obstacle that precludes them from accessing refugee status. Others could not be repatriated by virtue of international law that prohibits the Netherlands from sending people to certain countries where their lives are likely to be in danger.
The lives of undocumented migrants are characterized by unstable living conditions, fear of being arrested by the authority, low levels of emotional support and poorer (physical and mental) health conditions. They are criminal targets by states and concomitant prey by non-state actors. These should not come as surprise because in a political atmosphere where the positive possession of “legal” identification papers is a legitimate prerequisite for the exercise of rights and freedom, every basic aspect of the life of an undocumented migrant is rendered illegal. While groups of undocumented migrants are now recently organizing and protesting against their invincibility, with the help of movements such as ‘We are Here,’ occupying pieces of lands or squat empty buildings (e.g., Vluchtkerk, Vluchtflat, Vluchtgebow, Vluchttoren, etc.), the undocumented are still precluded from engaging in a productive activity that will enable them to not only take care of themselves and not only depend on the advocacy and benevolence of others but also consequently shut out from extending a positive contribution to the social and economic development of the communities and countries in which they reside.
The State as the Protector
States occupy the central stage as they are the main actor of international law. This is because the state is sovereign. Article 2(1) of the United Nations Charter guarantees the sovereign equality of all member states. States are entrusted with full legal power because they have effective control over a defined territory, a permanent population and also the capacity to enter into relations with other states. States also ratified human rights treaties; therefore, they are responsible for the protection, implementation and violations that occur within their jurisdiction.
One of the first sets of international human rights treaties that has a binding effect on states is the 1966 international covenant on civil and political rights (ICCPR), and the international covenant on economic, social and cultural rights (ICESCR). These two interdependent and indivisible legal instruments are the treaty translation of the famous and authoritative Universal declaration of Human Rights (UDHR) of 1948 since the UDHR is only a declaration without any legally binding effect on the state. So, in order for the state to be legally held accountable for any sort of violation, (safe for an obligation arising from established international practices such as customary international law), they must be bound by some obligation in legal text or document to which they have voluntarily taken upon themselves or a judicial decision of the court or international body.
In other words, states that have signed and ratified the aforementioned treaties or any treaty whatsoever, are obliged to ensure equal enjoyment and fulfillment of the obligations assumed by them in accordance with the provisions therein. Most European states, including the Netherlands, have ratified the 1966 covenants among others, making them liable to the violation therefrom. They have also ratified other important human rights treaties like European Social Charter (ESC), the International refugee convention (IRC), and so on. It suffices to mention that the foundational human rights document – UDHR which many other human rights documents draw their inspiration from, recognizes and guarantees the inherent dignity and of the equal and inalienable rights of all members of the human family in its first preambular paragraph, and the ICCPR which is binding on states uses the All-Inclusive clauses in its phrasing to extend rights to other identifiable groups not yet mentioned in the treaty.
Article 26 ICCPR states that:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all person equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, nationality or social origin, property, birth or other status” (emphasis added)
This provision by the inclusion of “All” and “other status,” suggest that specific identifiable group such as undocumented migrants, stateless persons and other marginalized groups are to be included in the reading of the provision. It cannot, in good faith, be read in an exclusionary form because that will render the provision contrary to its object and purpose. In another vein, the international covenant on economic, social and cultural rights (ICESCR) places an obligation on states in its article 11 to ensure “the right of everyone to an adequate standard of living, including food, clothing and housing, and to the continuous improvement of living conditions”. Therefore, it is the obligation of the state to protect every of its population, which includes undocumented migrants, from avoidable hunger in the interest of their human dignity.
Although most rights are not absolute, however, the principle of international human rights law makes the (positive and negative) protection of human dignity of all persons so fundamental and inviolable that it cannot be allowed to be derogated from by the state. They must not only refrain from perpetuating harm; they must protect victims from other perpetrators, and enable them in the positive realization of rights. Are states living up to these obligations? The opposite seems to be the case.
The State as the Violator
States may be held accountable for the violation of human rights (both by commission and omission). The violation of human rights occurs when the state fails in its obligation to ensure that they are enjoyed without discrimination or in its obligation to respect, protect and fulfil them. As already explained above, these rights are inter-dependable that a violation of one of the rights could be linked to the violation of the other. Most people do not know that undocumented people can legally challenge their rights at the international body. This has been proved to be possible in 2013 when the Conference of European Churches, alleges that the Dutch government has failed to fulfil its obligations under the European social charter to respect the rights of undocumented people to food, clothing and shelter. The European committee of social rights declared the complaint admissible and then concluded that the Dutch welfare system that withheld undocumented migrants from accessing basic (‘bed, bath, and bread’) violated the provisions under Article 13(4) and 31(2) of the charter. The committee’s decision was controversial for different reasons that need no concern of this article.
However, whatever controversy it might have brewed, it was the same controversial decision that compelled and set the background under which the LVV system (Landelijke Vreemdelingen Voorziening) in the Netherlands was rooted. The irrefutable fact about that decision was that it became clearer that in situations where human dignity is at stake, the restriction of the treaty scope should not be read in such a way as to deprive irregular migrants of the basic protection needed. What this decision means in plain terms is that irregular migrants can no longer be ignored, and their basic expenses in terms of medical care, food, clothes and shelter in fulfilling the minimum requirement for their survival has become the burden of the government.
In light of the foregoing, we have come to realize that states also owe the responsibility to irregular migrants staying within their territory. We are also aware that article 13(4) and 31(2) of the European social charter has been successfully tested and state held in direct breach of the charter. Perhaps, it might as well be the ripe time to test other provisions of the charter such as article 1(1&4), the right to work and to promote appropriate vocational guidance, training and rehabilitation, and article 11(1), the right to the protection of health, and removal of the causes of ill-health.
Right to Health: An Inroad to Other Rights
In respect to health, overwhelmingly documented research has revealed that mental health problems are common among undocumented migrants and related to poorer living conditions and adverse life events. Many of these mental health issues are caused and/or heightened by the practical barriers imposed on them by states as they are trapped in-between the relationship of not adopting responsibility and fulfilling meaning in their lives. They become constantly depressed and even suffer more not only because they are economically restrained from being able to take care of themselves, they also feel stagnant, invisible, strangulated, unable to contribute and shrink into a preventable burden on the host state. They are perceived as an economic disaster and security threat to the host community.
Imagine if undocumented migrants are allowed to work for a limited period in a week, with a predetermined minimum wage because of their informal status, just like they have been allowed to receive covid-19 vaccination without any administrative hassle, it seems to be more likely that the host states will benefit from the initiative more than it will ever lose. While it’s true that there might be some negative effects on states in terms of employment or so, the positive effect is likely to be enormous and should not be swept under the carpet. Apart from the huge tax revenue that will be accrued from work done by this large group, there will be a substantial decrease in health care cost for undocumented migrants, reduced cost for shelter housing and food stamps, more effective and secure environment, and there will also be a radical increase in the general economic productivity of the host country.
Undocumented migrants have worse health and living conditions, many of them had lived in Europe for a long period of time and most were relatively young with more than half of the competent, agile and economically viable male population. According to the research conducted by Pew Research Center in 2017, (54%) of undocumented migrants are men and boys making up a slight majority of the group’s population, and (65%) of the entire undocumented population (male and female) are younger than 35 years. This data evidenced the preposition that undocumented migrants if giving the opportunity, are capable of advancing the economic growth of the host population.
Therefore, if it is undisputed that the state owes undocumented migrants an obligation to the protection of their health, it is safe to say that the state also has a legal obligation to eradicate all barriers that could lead to any cause of ill-health. Pursuant to these observations on the applicability of the Charter, it becomes possible and plausible to test the provisions of the law under the European social charter by challenging states to allow undocumented migrants access to certain kinds of work so as to enable their legally guaranteed right to mental health. The forceable outcome of these guarantees is that they will help increase the economic growth of the host state and improve the social wellbeing of the migrants within. What remains to be proved is whether there is a sufficient nexus between the right to work and the mental wellness of an individual.
Undocumented migrants are not criminals. Criminalizing them is counter-intuitive. Instead of being targeted, they should be decriminalized and strategically incorporated into the economic work force of the country. COVID-19 has served as a great leveler, it has shown us how weak and vulnerable most systems run. It has revealed to us how exclusionary policies can be so detrimental to the economic progress of a state. Therefore, it is logical to opine that decriminalization of undocumented migrants is capable of improving the socio-economy development of the host state. Like in so many other western countries, discrimination of any kind is generally regarded as an undesirable and unprogressive attitude towards economic growth. The Netherlands’ formal commitment to equality, tolerance and non-discrimination is grounded in article 1 of its constitution as the fundamental guiding principle of societal engagement. The country is globally reputable for its special interest in the issue of human rights. It should be reminded of that commitment and do more to facilitate its realization.
Stating the obvious, all the European Union countries actually need immigration. The birth rate in all of them is below the replacement rate, their population is getting older with more and more retired people needing to be supported by fewer and fewer younger workers. So, tax receipts are falling as the older people need their pensions paid and make more demand on the health and social services. How can they solve these problems? Increase taxes? Reduce pensions and services? Increase the retirement age? Or import workers? What is the logical preference? Talent is universal, opportunity is not.
Humanitarian Content Writer, Act for Displaced
Abiola Giwa is a Nigerian human rights activist, writer, and lawyer. He holds a Master’s degree in Public International Law at Utrecht University, Netherlands. Currently pursuing a Master’s degree in International Criminal Law at the University of Amsterdam.