Tuesday, June 29, 2010

Illegal Emigrant, Irregular Immigrant or Undocumented Aliens?

Towards a Useful Classification Framework for Migrants

Unlike in the physical or computer sciences where naming conventions are based on clinical or objective rules, not a few terminologies in the social sciences are coined based on the fears and concerns of society, polarizing rather than unifying its users. A few contentious ones quickly come to mind: negro (or black), cultural minorities (or indigenous peoples), retarded (or people with special needs). In the field of migration, one highly-debated term is "illegal migrant."

To be sure, any word has the potential to elicit a wide range of emotions and pre-conceptions, reflecting, on the one hand, the experiences, values and practices within which one was socialized or, on the other hand, the interests and causes one is espousing or protecting. What may be standard terminologies for one, may be highly offensive or pejorative to another. The key task at hand is to attempt to bring to the fore the various issues associated with each term used, providing readers with a critical basis, a useful framework with which one can navigate the multi-faceted, oftentimes interlocking dimensions of migration jargon.

Two Methods of Migrant Classification: Procedural and Essential

Two methods of classifying foreigners with no official permission to exist in a host country are evident in the current literature -- one is procedural (process-oriented), the other, essential (output-oriented) -- both methods serving different purposes.

The procedural classification method tracks all violations of immigration laws, each instance representing one type of irregular migrant. Since a degree of severity or rate of frequency of law infractions is not material to the migrant's chances of availing of the benefits of amnesty or regularization programs, the procedural method is, at best, useful in understanding the dynamics and historical context of a migrant’s legal status. In contrast, the essential classification method considers only the most current violation as the basis of assigning to a migrant the status of irregular.

The classification put forth by Papademetriou (2005) best typifies the procedural method, showing four stages of violations of migration law, as listed below:

1. Undocumented/Unauthorized Entrants - migrants who are able to enter a country through land, air or sea borders without being subjected to immigration control, including voluntary crossings, smuggled individuals and trafficking victims;

2. Fraudulent Entry - migrants who are inspected by immigration but nevertheless gain entry on the strength of bogus documents;

3. Violation of Visa Duration - migrants who do not leave a country after the allowed period of stay specified in the visa expires; and,

4. Violation of Terms and Conditions of a Visa - specifically applied to employment, migrants who accept cash remuneration for any activity done without the corresponding work permit.

Papademetriou's four-stage classification highlights two key immigration control metrics, variables if you will, namely: method of entry (types 1 and 2) and compliance with entry terms and conditions (types 3 and 4). Types 1 and 2, varying only in terms of whether a migrant was inspected or not, can both be considered as entry without official and authentic permission. The word authentic here is used to qualify the condition of fraudulent entry, type 2, where permission given is secured through fake documents and can thus be considered null and void. Since duration of stay can be considered as one of the many terms and conditions of a visa, types 3 and 4 can be collapsed into a single category: violation of terms and conditions of entry. A simplified, two-stage procedural classification of an irregular migrant may thus be:

1. Entry Without Permission - as indicated, entry without permission from official state authorities; and,

2. Violations of Residence Stipulations - once entry is gained, violations of any of the terms and conditions of a migrant's stay in a host country including, among others, duration of stay and permission to work.

Sikkel et al (2006:p149), applying the essential method, consider the method of entry -- whether legal or illegal – irrelevant. The salient characteristics of an irregular migrant are his residence stipulations, that is, permission to stay (having a valid residence permit) and permission to work (having a valid work permit). A migrant who has entered a country through clandestine or fraudulent means and a migrant who has done so legally, are both illegal migrants if both of them continue to reside in the country and are gainfully employed without having official permission to do so.

In an argument suggesting that the growth of an economy's informal sector can somehow predict the numbers of immigrants -- both regular and irregular -- Baldwin-Edwards (2008: p1455) highlights another aspect to a migrant’s access to gainful income: "illegal employment of lawfully present immigrants.” This phrase casts a different slant to the term illegal migrant. Grammar rules would dictate that the word illegal in the term illegal migrant describes the word migrant, the designated anchor word. This is similar to the way the term Chinese-Filipino refers to a Filipino national (anchor) with Chinese blood (adjective). In Baldwin-Edwards phrase "illegal employment of lawfully present immigrants,” the word illegal now takes primacy over the word immigrant in that one may be a legal immigrant but, at the same time, one is participating in an illegal activity, that is, non-payment of taxes due to undeclared income from informal jobs in the informal sector. To be sure, one may be tempted to use the term “illegal legal migrant” for this situation rather than the term “a legal migrant doing illegal activities” which may be simpler and clearer.

It can be seen then that within the salient immigration rule that migrants possess authorization to work can be found another key qualification. A migrant must not only have authorization to work, but that when he does he must comply with his financial obligations to the host society, that is, payment of taxes and payment of social security obligations. Applying now the essential classification method, a migrant with a valid work permit but employed in the informal sector and a migrant without a work permit and working (thru fake documents) in the formal sector (and thus paying taxes and social contributions) are both equally worthy of irregular migrant status. If the procedural classification method is applied, payment of financial obligations to the host society becomes another instance of violation in the immigration continuum.

One inevitable outcome of the procedural classification method is the many permutations of migrant illegality that become possible given the multiple immigration variables it tracks. In what is described as a “complex constellation,” thirteen sub-variations of an irregular migrant status are identified by Baldwin-Edwards and Kraler (2009: p. 3/p.129) in a report on regularization initiatives across the European Union. From the simplest, most straightforward illegal category (migrants who crossed the country’s borders illegally and just transiting through with no intention to stay nor to work) to two contentious classifications (overstayers in permit-free self-employment and children of illegal immigrants born in the host country), the typology of Baldwin-Edwards and Kraler, adapted from the earlier work of two other authors, may represent the most exhaustive, clearly authoritative, discussion on the root sources of migrant illegality.

Furthermore, adding to the variables already discussed above, Baldwin-Edwards and Kraler cite documentation as another dimension, though they are quick to qualify that this does not form part of the legal requirements, of immigration. Documentation is defined as being “known to the authorities” and has three levels – undocumented, semi-documented and documented – varying in terms of whether administrative requirements during border entry, residence and work access processing – are able to capture on paper pertinent information of a migrant. In this operationalization of the dimension of documentation by Baldwin-Edwards and Kraler, a migrant may be tagged as documented but still be classified as illegal.

Other authors view the aspect of documentation quite differently. While Passel et al (2004) subscribe to a procedural classification method similar to Papademetriou and Baldwin-Edwards and Kraler – they use the term “undocumented” to be synonymous to the terms “illegal” or “irregular.” An asylum seeker who works informally can be classified, on the hand, as an illegal but documented migrant in the Baldwin-Edwards and Kraler typology, or, on the other hand, as an undocumented immigrant in Passel et al’s view (but for which, in fact, documentation in paper exists).

Figure 1.1 (see below), mapping out the typologies used by various authors, presents in schematic form a proposed unified migrant classification framework, showing the procedural and essential methods discussed above, and plotting out four other important classification layers across five migrant categories.

Figure 1.1 situates the irregular immigration processes and illegal immigration acts (all objects in red – red arrows, red circles, red squares) within the regular immigration context (all objects in green) against the backdrop of the larger context of the various migrant types.  Figure 1.1 illustrates the following themes:

1. Irregular migration begins not just at the point of border entry but also, and sometimes more frequently, well within the host country’s territory.  Corollary to this is that while some migrants are irregular by design, that is, they had intended to become irregular from the start, others become so due to unavoidable circumstance.

2. Regularity and irregularity are not mutually exclusive conditions.  One can be within the regular process, and without moving away from that regular process, one can deviate into the irregular track, or vice-versa. (see markers 6, 14, 15, 18, 20, 21).  In essence, one can be an irregular migrant only, a regular migrant only, or both regular and irregular simultaneously.

Irregular or Illegal?

Indeed, the term used highlights two sides to their condition -- one, their status of residence and, two, their economic activities.  As will be discussed further below, understanding these two aspects will provide a clear basis of choosing which among the two terms -- "illegal migrant" or "irregular migrant" -- is more accurate.   But first, a review of basic terminology is in order.

A person who leaves his home country to stay in another for more than 12 months is an emigrant.  Persons who travel overseas but return to their home country by or before 12 months are tourists, businessmen or some other commercial, non-profit or government business travelers.  Persons who flee a country due to natural calamities, conflicts or war, persecution do so in full exercise of agency or their free will, as they wish to preserve their lives. Even smuggled individuals are exercising their agency.  Only victims of trafficking are forced against their will to leave their countries.  All refugees, asylum-seekers and trafficked persons are, by definition, also emigrants.

An emigrant gains an additional title -- an immigrant -- once he enters another country.  All immigrants are emigrants, but the opposite situation is not always the case.  One may be able to successfully depart from one's home country but be unable to successfully enter a destination country.  Immigrants and emigrants are also oftentimes referred to simply as migrants, dropping the prefix "e" or "im" which indicates the direction of their movement, the former signifying an exit, and the latter, an entry.

The emigrant/immigrant loses both titles once he re-enters his home country, at which time he is referred to as a return migrant.

The government of the destination country can give an emigrant permission to pass its borders or it can deny him entry.  If granted permission, the former-emigrant-now-immigrant is mandated by law to follow certain terms and conditions the two essential ones of which are, first, duration of stay, and, second, authorization to work.

Current definitions only address present state of the irregular migrants, a horizontal emphasis if you will.  Overlooked is the importance of seeing a vertical or time-sensitive classification.  Is this irregular migrant a first-timer, or has he been deported and has come back?  If he is a second- or third-timer, are his destination countries the same for each try?

[continuing article...]

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