Thursday, July 16, 2009

Migrant and Migrant Worker – Definitions

These two terms are used almost interchangeably – due in no small part because of the common belief that one decides to leave one’s country and become a migrant primarily to work. To be sure, for the Merriam-Webster online dictionary, a migrant is “a person who moves regularly in order to find work.” Nevertheless, it is important that we define these two terms separately so that we may clearly define the subject of study of this paper.

Ms. Gabriela Rodríguez Pizarro of Costa Rica, who served as the first Special Rapporteur on the Human Rights of Migrants from 1999-2005, proposed three conditions under which one should be considered a migrant, as follows:

(a) Persons who are outside the territory of the
State of which they are nationals or citizens, are not
subject to its legal protection and are in the territory of
another State;

(b) Persons who do not enjoy the general legal
recognition of rights which is inherent in the granting
by the host State of the status of refugee, naturalized
person or of similar status; and,

(c) Persons who do not enjoy either general
legal protection of their fundamental rights by virtue of
diplomatic agreements, visas or other agreements.

The legal aspects of Pizarro’s proposal may be overly explicit, but this is not without good reason. Her proposed definition attempts to veer away from the “birth place” aspect of being a migrant, that is, that one is a migrant if one lives in a country other than one’s country of birth.

The Jus Sanguinis principle – that birth in a country does not give one automatic citizenship, but rather being born into a family who are existing citizens – made it possible for children of migrants to be considered still migrants even if they were born in their current host country of residence.

Notwithstanding the complications of the dual citizenship model, for the purposes of this study, the definition of a migrant shall follow Pizarro’s first of 3 proposed conditions, that is, that one is a migrant if one is residing in a country other than that to which he is a citizen or national of.

A migrant worker is defined as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.”

It is clear from the definition that the migrant worker participates in the remunerated activity with his full knowledge and consent, differentiating him from those forced or coerced into leaving their home countries, such as refugees, asylum-seekers or victims of human trafficking, mostly women and children, for sexual exploitation or forced labor. The United Nations Educational, Scientific and Cultural Organization (UNESCO) cites motive and legal status as the bases from which countries construct their classifications of international migrants.

The classification above highlights the fact that categorizing such a complex dynamic as migration is tricky. Migrants could be shifting between regular and irregular legal status depending on opportunities that become concrete actionable options. For example, a guest worker whose contract expires may decide to go underground and find other work, thus making him an irregular migrant from his previous regular migrant status. And should there be a distinction made between once-regular irregular migrant workers and immediately-irregular migrant workers (who enter on thru faked documents, or thru jumping ships, or thru transit visa violations)?

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