At the Border and Between the Cracks: The Precarious Position of Irregular Migrant Workers Under International Human Rights Law

Abstract

This article aims to identify jurisprudence which advances the standards of treatment of unauthorised migrants in the context of often hostile domestic laws and political rhetoric. Due to its universalist and humanist underpinnings, many would consider international human rights law to be a natural source of rights protecting migrant workers. However, human rights doctrine takes a chequered approach to the protection of those living or working in a foreign state without visa authorisation. Even the Migrant Workers Convention recognises states' sovereign prerogative over immigration control, and thereby fails to cater to the especially precarious position of irregular migrants who decline to assert their rights for fear of facing sanctions under immigration laws. It is argued that we need to look to regional judicial forums to find international legal doctrine which articulates a progressive legal framework robustly protective of irregular migrants' rights. This article canvasses jurisprudence in the regional Human Rights Courts in Europe and the Americas which succeeds, in different ways, at decoupling the absolute discretion of states to regulate border control from the substantive rights of irregular migrants once present in a host state.