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Society, Politics & Law

Politics, migration and questions of legality: can migrants be illegal?

Updated Wednesday, 22nd January 2020

Professor Jo Phoenix looks at the issues of legality around migration and the hard borders which are built across the world.

One common narrative underpinning populist political campaigns is an appeal to some imagined community. Perhaps it is an appeal to the idea of nation? We, ‘the British’. Perhaps to people who share a common experience? We, ‘the down trodden’. Whatever the imagined community, such appeals necessarily involve defining who is to be included in the ‘us’ and who is to be excluded as the ‘them’.

A common rallying cry of many contemporary populist movements has been to distinguish between migrants and indigenous populations. Also common has been the claim that many migrants are ‘illegals’. For instance, President Trump’s campaign foundations for his Presidential 2020 campaign make promises about deporting millions of illegal migrants from the USA.

But what is illegal migration? Is it a crime? The language would certainly indicate that it is. Common sense would tell us that illegal migrants are people who have broken the laws regarding migration; that they are living somewhere illegally and that the punishment is detention and deportation. Yet this understanding is far from the case. It is even possible to argue that the continual reference to illegal migration is, in fact, a cynical ploy on the part of populist politicians to get people to rally behind them.

What are the different categories of migrants?

A family sit on the edge of a boat on the beach, smiling - having arrived on the Greek island of Kos. Creative commons image Icon International Federation of Red Cross and Red Crescent Societies - Flickr under Creative Commons BY-NC-ND 4.0 license Refugees from Iraq arrive on the Greek island of Kos. In Britain, as in the USA and across Europe, the category 'illegal' migrant does not exist. The 1951 Refugee Convention creates two important legal categories of migrant - asylum seekers and refugees. This convention was established against the backdrop of the mass displacement of people during the Second World War. An ‘asylum seeker’ is a person who has applied for asylum (sanctuary) in the UK and is awaiting a decision on his or her claim. A refugee is someone who has been given permission to stay. There are no other specific categories of migrant. Migration, excluding for asylum, is determined by specific policies that governments create to facilitate the movement of labour and people, usually for economic purposes or academic purposes.

The term ‘economic migrant’ is not a legal term but one used on common parlance. It refers to both the ‘desirable’ migrants who can come into the country because they offer specialist and/or needed skills and expertise as well as the unskilled and semi-skilled labourers moving from poorer countries, usually from the Global South, in order to make money.

Are some forms of migration illegal?

Immigration policies are not part of the criminal code in the UK and many other European countries. To be in breach of those policies is therefore not a criminal offence. More, any signatory to the 1951 Refugee Convention must by law, respect the right of an individual to claim asylum.

The 21st century has born witness to unprecedented levels of the displacement of people due to conflict and environmental degradation. In 2018, 70.8 million people were forced to flee their homes. Nearly half of these people are children under the age of 18. A total of 41.3 million are ‘internally displaced’ (that is they remain in their home countries albeit not in their homes). 25.9 have been recognised as refugees, with 5.5 million being Palestinian refugees. Only 3.5 million are asylum seekers.

Countries like the UK have sought to make it more difficult to cross into sovereign territory - as the camps in Calais showed. In the UK, Theresa May as Home Secretary, introduced in 2013 a policy of creating a ‘hostile immigration environment’ - which eventually lead to the Windrush political scandal.

These figures may seem large, but this is set against the much larger phenomenon of the mass migration of people across the globe. In 2017, it was estimated that 258 million people were living outside their country of birth - that is 1 in every 30 people. So in addition to the forced displacement of people, advances in technology and transport, rapidly changing economies (like for instance the shift from an agrarian economy to a high tech economy in places like South Korea), climate change and increasing global inequalities have all created the conditions in which more people than ever are on the move.

Yet, this is in a context when many of the advanced industrial and richer societies of the world are making it tougher for people to legitimately migrate, to cross into sovereign territory or to claim asylum. They do this by putting in place procedural obstacles or treating those arriving in the country as second or even third-class populations, in order to deter them entering the country. Countries like the UK have sought to make it more difficult to cross into sovereign territory - as the camps in Calais showed. In the UK, Theresa May as Home Secretary, introduced in 2013 a policy of creating a ‘hostile immigration environment’ - which eventually lead to the Windrush political scandal.

Harder and harder borders are being built in other places. Hungary erected its 110-mile fence across its border with Macedonia. Trump has promised a wall between the USA and Mexico. The Melilla border fence forms part of a hard border between Morocco and Spain - stopping African migration into Spain via its two north African cities. Arguably these hard borders, hostile environments and tough penal talk by politicians, create the very conditions for those two other crimes often associated with migration - people smuggling and human trafficking. Discussion of some of the real drivers of these crimes though - global economic inequalities, the reliance of advanced economies on low paid labour and war and conflict - often get drowned out in the clamour and noise about stopping or dealing with illegal migrants.

So although much is made of illegal migrants, the public and political talk often obscures the complex economic, social and political realities that have made the 21st century the century of the mass movement of people across the globe.

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