In public discourse, many people and institutions use the term “illegal migrant” to describe some people on the move. The term “illegal migration” describes migration acts of movement that are “not legal”, or are carried out in violation of national, regional or international law. It is often not realised and/or acknowledged that this term is highly problematic because of how it shapes perceptions of people on the move and the consequences it has on policy decisions, particularly regarding legal but irregular migration. Calling people on the move “illegal” serves to justify certain practices such as pushbacks, pullbacks and other forms of violence at and within EU borders like, for example, the delegation of Search and Rescue operations to the so-called Libyan Coast Guard. Ironically, the practices that are justified in that way are themselves often criminal actions carried out by state authorities.
The consequences of using the term “illegal migrant” are seen both on and offline. For example, a recent video, filmed by Sea-Watch, shows the so-called Libyan Coast Guard shooting at a boat full of people on the move, chasing it and driving dangerously close to it, thereby willfully putting human lives at risk. Actions like these violate human rights, international maritime law, the Geneva Conventions and many other international legal frameworks. Above all, however, it is a devastating scene to watch and the lack of care for these people, who are seeking refuge and safety, is astonishing and heartbreaking to anyone who still carries empathy for people of any skin colour in their hearts.
Many people, however, seem to have lost their sense of humanity. On Twitter, the reactions to the Seawatch video were astonishing, with people justifying the use of violence by calling the human beings “illegal migrants”.
The term “illegal migrants” clearly serves to legitimize violence and discrimination, as well as illegal acts against people on the move. And it is a common occurrence. It appears whenever someone talks about supporting people on the move, across different social media platforms as well as offline discussions.
Seeing how harmful the term “illegal migrant” is, this blog will explain why anyone who does not want to fuel racism or justify fundamental rights violations should use the terminology of “irregular migration” instead. We will explain what this means, why some people want to call this “illegal migration” and why the latter is so problematic. Finally, we will make a suggestion on how to counteract this problem.
There is no legal or widely accepted definition of “irregular migration”. The IOM defines it as “Movement of persons that takes place outside the laws, regulations, or international agreements governing the entry into or exit from the State of origin, transit or destination”. In the legal framework of the European Union, an irregular migrant is “a third-country national present on the territory of a Schengen State who does not fulfil, or no longer fulfils, the conditions of entry as set out in the Regulation (EU) 2016/399 (Schengen Borders Code) or other conditions for entry, stay or residence in that EU Member State.” This means the person who is considered an irregular migrant might either have overstayed a valid visa/residence permit or has entered the territory without being in possession of such.
Additionally, the IOM’s Global Migration and Data Analysis Centre (GMDAC) explains irregularity as not referring “to the individuals, but to their migratory status at a certain point in time” and “changes in national laws and policies can turn regular migration into irregular migration, and visa-versa”. It is common for the status of people on the move to change during their journey and stay in transit and destination countries. One common example, given by the Migration Data Portal, is that people on the move escaping conflict and persecution in their countries of origin who are seeking protection in another country may be seen as “irregular migrants” at the moment of crossing the border, but their status may become “regular” once they apply for asylum (see: Vespe, M. et al. 2017; IOM, 2017).
Thus, irregular migration is a type of movement of people that occurs in a non-regular way, meaning in contrast to movements that are regulated, such as tourism, work/study or family reunification procedures. Like all migratory movements, irregular migratory movements are fluid and can overlap with regular movements. Also, “irregular migration" encompasses both the movement of people in a non-regular way, known as “irregular migratory movements” (see: our Info Series #7: What are “Migratory Movements”?), and the number of people on the move whose status becomes undocumented at any given time, also known as “undocumented migrants” or “irregular migrant stocks”.
It is much more common to end up with an irregular migration status than most people think, due to the way most countries' immigration laws work. For example, in the UK there are significantly higher levels of people without regular migration status who actually entered regularly, rather than irregularly (see: Düvell et al. 2018). See below for a diagram explaining the main pathways into irregular migration status in the UK. Most other countries in Europe have similarly structured systems that differ only slightly.
According to the IOM, in 2018, there were more than 100 million people who were classified as “irregular migrants” in the world. Most people on the move do not have access to regular migration paths. For example, they do not qualify for visa-free travel to Europe and if they want to apply for a visa at a consulate, they are almost always rejected. As regular options for cross-border movement are continuously shrinking and oftentimes completely absent, many people on the move are forced to enter, transit or stay irregularly in countries to claim their rights, such as the right to seek asylum in a safe country. See our #3 Info Series answering the FAQ of “Why do people risk their lives making dangerous sea crossings?” for more information on safe passages.
First of all, this term lumps all people on the move into one category - whether they are an asylum seeker, refugee or migrant. In our #4 Info Series, we have explained what the differences are between migrants, refugees and asylum seekers and why they are important. Erasing these differences between people on the move and the diversity of their reasons, intentions and experiences is highly problematic in and of itself. It is especially bad when they are labelled as “illegal migrants”, as it collectively invalidates their struggles and ignores their various motivations for moving - be it forced or voluntary movement.
However, there are many additional problems with the term “illegal migrant”. We could not describe these better than the organisation PICUM (Platform for International Cooperation on Undocumented Migrants) has done, so below is an excerpt of text published on their website:
Using the term “illegal” is legally incorrect. Being undocumented does not constitute a crime in almost all countries. As it is not an offense against persons, property or national security, it belongs to the realm of administrative law. However, even in countries where violations of immigration law are considered criminal offenses, committing a criminal offense does not make an “illegal” person.
It is misleading - as most undocumented people on the move throughout Europe have lost their status as a result of exploitation, misinformation or administrative delays (which is not their fault) - not by committing an offense or crimes. Children are also erroneously labelled “illegal” simply being born or coming into an irregular situation with their parents.
It ignores international legal obligations. States have internally recognised obligations towards all persons under their jurisdiction, all of whom deserve human rights no matter what their migration status is. In response to human rights violations, atrocities and crimes against humanity, these standards were designed precisely to prevent states from defining any human being as anything less than a “legal” person.
It violates the principle of due process. Defining and treating an individual or group as “illegal” violates their right to recognition as a person and a rights holder before the law. Due process is a fundamental human rights safeguard, yet people on the move are increasingly denied their full legal rights in immigration proceedings. While punitive sanctions, such as detention, are increasingly used to enforce immigration violations, these administrative proceedings lack the necessary procedural safeguards and protections.
Finally, it is inaccurate to describe people arriving at borders. Under international law, everyone has the right to leave a country, including their own. All those arriving at borders have innate human rights and specific human rights protection needed. Labelling all people on the move trying to reach Europe through unofficial channels as “illegal” is inaccurate and increases their exposure to prejudicial treatment.
However, although irregular migration is actually legal in many situations - for example in the case of asylum seekers who, according to the Geneva conventions explicitly have the right to cross borders and even transit countries irregularly - those who irregularly migrate are far too often framed as criminals and, as a result, treated as such. People who enter irregularly to stay in a country, state or territory should not be criminalised or prosecuted, as the act of crossing borders irregularly is not a crime against persons, property or national security (see: A/HRC/20/24, para. 13). According to International Human Rights Law, the criminalisation of irregular migration goes beyond states’ legitimate interests in protecting their territories and regulating migration (see: A/HRC/13/30, para. 58).
Irregular migration is being criminalised at the same time that regular migration pathways are being eliminated. This is also a result of the rise of anti-immigration movements and the increasing popularity of far-right political parties. However, many centrist politicians take anti-migrant positions too and promote disproven ideas about immigration being bad for national security and economic interests. Though neither regulating migration nor discriminating against people on the move are new, modern technologies have made it more and more difficult for people to cross borders in a safe but irregular manner.
Despite the problems that come with the criminalisation of irregular migration, the rise of anti-immigrant and right-wing sentiments across Europe has led to the rhetoric of “illegal migration” being used increasingly. The term is almost exclusively applied to people of colour. People from the Global North, who become irregular due to, for instance, overstaying their visas, are rarely seen as “illegal migrants”. This kind of racism and xenophobia is also increased by the use of the terminology of “illegal migration”. Calling people “illegal” dehumanizes them and makes it easier to violate their rights. As the vast majority of people the term is used for are non-white, the increase in anti-migrant sentiment has led to an increase in racism and discrimination against racialized people in Europe, regardless of their immigration status. Racist sentiments, xenophobia and discriminatory practices fuel the use of the term “illegal migrant” and have negative effects on the civil, cultural, economic, political and social rights of people on the move.
For example, the European Union has used the term “illegal” in several policy documents relating to irregular migration. Amongst them are:
One of the most influential institutions, the European Union, has the power to shape discourse around the world. By using the word “illegal” and relating it to migration in the policy documents they produce, the EU is fueling a highly problematic sentiment in society which is detrimental to the EU’s own values.
Not only the widespread phenomenon of irregular migration is being criminalised, but also the people involved. But as the Office of the High Commissioner for Human Rights (OHCHR) states in a position paper: “Criminalising people on the basis of their migration status can lead to a number of other human rights violations, including discriminatory profiling, arbitrary arrest and detention, family separation, and the inability to access critical health care, housing, education or other rights.”
Every day, we see the problems mentioned by the OHCHR in our work, especially on the ground. The policy and rhetoric of criminalisation excludes people on the move from society and pushes them to live and work in situations where they are extremely vulnerable, exploited and abused by states and private actors. It encourages suspicion and mistrust of those who simply look “foreign” or different, often on the basis of their race, ethnic origin or religion. It increases social divisions, and gives rise to xenophobia and hate crimes.
Describing people as “illegal” dehumanises their dignity and basic human rights. As this video shows, the mere fact that some people are labelled as “illegal” completely changes their lives. They live in fear of persecution, face discrimination as well as contempt from others and need to constantly hide the fact that they exist.
Using the word “illegal” depicts people on the move as dishonest, undeserving criminals who are a threat to the public good and safety. It normalises the use of practices that seek to punish people on the move and deter them from seeking asylum in Europe. Pushbacks are a prime example of this. States will “pushback” people on the move, without regard for due process or caring for the reasons for their crossing. State authorities deny the existence of these illegal practices and violations of fundamental human rights. By calling people “illegal”, they seek to justify these pushbacks, despite simultaneously refusing to acknowledge the existence of pushbacks along the EU’s external borders.
States and governments, when commenting on migration related issues, label people on the move as “illegal migrants” to justify their anti-migrant policies. Examples include, but definitely are not limited to: Bosnia, United Kingdom, Hungary, and Croatia. Criminalising irregular migration, rather than addressing the laws and policies which create irregularity in migration, prevents a truthful, fair and informed debate on migration.
Also, labelling the entry and stay of people on the move as “illegal” often results in an escalation or automatic criminalisation of anyone who might help them: even rescuing people on the move at sea or providing them with clothing and shelter can result in prosecution. Prohibiting solidarity towards undocumented migrants risks an increase in suffering and loss of life. The criminalisation of solidarity is a real threat for many civil society and non governmental organisations and individual human rights defenders and humanitarian workers. It shrinks the space for help to exist. By prohibiting solidarity towards people on the move, it leads to increased suffering and loss of life.
While the consequences of using the terminology of “illegal migration” are countless and complex, there is a simple solution: call it “irregular migration”. Below is a table created by PICUM with translations of the terms “undocumented migrant” and “irregular migrant” in multiple different languages. Study these, and use them!
Office of the High Commissioner for Human Rights: The Criminalisation of Irregular Migration
In public discourse, many people and institutions use the term “illegal migrant” to describe some people on the move. The term “illegal migration” describes migration acts of movement that are “not legal”, or are carried out in violation of national, regional or international law. It is often not realised and/or acknowledged that this term is highly problematic because of how it shapes perceptions of people on the move and the consequences it has on policy decisions, particularly regarding legal but irregular migration. Calling people on the move “illegal” serves to justify certain practices such as pushbacks, pullbacks and other forms of violence at and within EU borders like, for example, the delegation of Search and Rescue operations to the so-called Libyan Coast Guard. Ironically, the practices that are justified in that way are themselves often criminal actions carried out by state authorities.
The consequences of using the term “illegal migrant” are seen both on and offline. For example, a recent video, filmed by Sea-Watch, shows the so-called Libyan Coast Guard shooting at a boat full of people on the move, chasing it and driving dangerously close to it, thereby willfully putting human lives at risk. Actions like these violate human rights, international maritime law, the Geneva Conventions and many other international legal frameworks. Above all, however, it is a devastating scene to watch and the lack of care for these people, who are seeking refuge and safety, is astonishing and heartbreaking to anyone who still carries empathy for people of any skin colour in their hearts.
Many people, however, seem to have lost their sense of humanity. On Twitter, the reactions to the Seawatch video were astonishing, with people justifying the use of violence by calling the human beings “illegal migrants”.
The term “illegal migrants” clearly serves to legitimize violence and discrimination, as well as illegal acts against people on the move. And it is a common occurrence. It appears whenever someone talks about supporting people on the move, across different social media platforms as well as offline discussions.
Seeing how harmful the term “illegal migrant” is, this blog will explain why anyone who does not want to fuel racism or justify fundamental rights violations should use the terminology of “irregular migration” instead. We will explain what this means, why some people want to call this “illegal migration” and why the latter is so problematic. Finally, we will make a suggestion on how to counteract this problem.
There is no legal or widely accepted definition of “irregular migration”. The IOM defines it as “Movement of persons that takes place outside the laws, regulations, or international agreements governing the entry into or exit from the State of origin, transit or destination”. In the legal framework of the European Union, an irregular migrant is “a third-country national present on the territory of a Schengen State who does not fulfil, or no longer fulfils, the conditions of entry as set out in the Regulation (EU) 2016/399 (Schengen Borders Code) or other conditions for entry, stay or residence in that EU Member State.” This means the person who is considered an irregular migrant might either have overstayed a valid visa/residence permit or has entered the territory without being in possession of such.
Additionally, the IOM’s Global Migration and Data Analysis Centre (GMDAC) explains irregularity as not referring “to the individuals, but to their migratory status at a certain point in time” and “changes in national laws and policies can turn regular migration into irregular migration, and visa-versa”. It is common for the status of people on the move to change during their journey and stay in transit and destination countries. One common example, given by the Migration Data Portal, is that people on the move escaping conflict and persecution in their countries of origin who are seeking protection in another country may be seen as “irregular migrants” at the moment of crossing the border, but their status may become “regular” once they apply for asylum (see: Vespe, M. et al. 2017; IOM, 2017).
Thus, irregular migration is a type of movement of people that occurs in a non-regular way, meaning in contrast to movements that are regulated, such as tourism, work/study or family reunification procedures. Like all migratory movements, irregular migratory movements are fluid and can overlap with regular movements. Also, “irregular migration" encompasses both the movement of people in a non-regular way, known as “irregular migratory movements” (see: our Info Series #7: What are “Migratory Movements”?), and the number of people on the move whose status becomes undocumented at any given time, also known as “undocumented migrants” or “irregular migrant stocks”.
It is much more common to end up with an irregular migration status than most people think, due to the way most countries' immigration laws work. For example, in the UK there are significantly higher levels of people without regular migration status who actually entered regularly, rather than irregularly (see: Düvell et al. 2018). See below for a diagram explaining the main pathways into irregular migration status in the UK. Most other countries in Europe have similarly structured systems that differ only slightly.
According to the IOM, in 2018, there were more than 100 million people who were classified as “irregular migrants” in the world. Most people on the move do not have access to regular migration paths. For example, they do not qualify for visa-free travel to Europe and if they want to apply for a visa at a consulate, they are almost always rejected. As regular options for cross-border movement are continuously shrinking and oftentimes completely absent, many people on the move are forced to enter, transit or stay irregularly in countries to claim their rights, such as the right to seek asylum in a safe country. See our #3 Info Series answering the FAQ of “Why do people risk their lives making dangerous sea crossings?” for more information on safe passages.
First of all, this term lumps all people on the move into one category - whether they are an asylum seeker, refugee or migrant. In our #4 Info Series, we have explained what the differences are between migrants, refugees and asylum seekers and why they are important. Erasing these differences between people on the move and the diversity of their reasons, intentions and experiences is highly problematic in and of itself. It is especially bad when they are labelled as “illegal migrants”, as it collectively invalidates their struggles and ignores their various motivations for moving - be it forced or voluntary movement.
However, there are many additional problems with the term “illegal migrant”. We could not describe these better than the organisation PICUM (Platform for International Cooperation on Undocumented Migrants) has done, so below is an excerpt of text published on their website:
Using the term “illegal” is legally incorrect. Being undocumented does not constitute a crime in almost all countries. As it is not an offense against persons, property or national security, it belongs to the realm of administrative law. However, even in countries where violations of immigration law are considered criminal offenses, committing a criminal offense does not make an “illegal” person.
It is misleading - as most undocumented people on the move throughout Europe have lost their status as a result of exploitation, misinformation or administrative delays (which is not their fault) - not by committing an offense or crimes. Children are also erroneously labelled “illegal” simply being born or coming into an irregular situation with their parents.
It ignores international legal obligations. States have internally recognised obligations towards all persons under their jurisdiction, all of whom deserve human rights no matter what their migration status is. In response to human rights violations, atrocities and crimes against humanity, these standards were designed precisely to prevent states from defining any human being as anything less than a “legal” person.
It violates the principle of due process. Defining and treating an individual or group as “illegal” violates their right to recognition as a person and a rights holder before the law. Due process is a fundamental human rights safeguard, yet people on the move are increasingly denied their full legal rights in immigration proceedings. While punitive sanctions, such as detention, are increasingly used to enforce immigration violations, these administrative proceedings lack the necessary procedural safeguards and protections.
Finally, it is inaccurate to describe people arriving at borders. Under international law, everyone has the right to leave a country, including their own. All those arriving at borders have innate human rights and specific human rights protection needed. Labelling all people on the move trying to reach Europe through unofficial channels as “illegal” is inaccurate and increases their exposure to prejudicial treatment.
However, although irregular migration is actually legal in many situations - for example in the case of asylum seekers who, according to the Geneva conventions explicitly have the right to cross borders and even transit countries irregularly - those who irregularly migrate are far too often framed as criminals and, as a result, treated as such. People who enter irregularly to stay in a country, state or territory should not be criminalised or prosecuted, as the act of crossing borders irregularly is not a crime against persons, property or national security (see: A/HRC/20/24, para. 13). According to International Human Rights Law, the criminalisation of irregular migration goes beyond states’ legitimate interests in protecting their territories and regulating migration (see: A/HRC/13/30, para. 58).
Irregular migration is being criminalised at the same time that regular migration pathways are being eliminated. This is also a result of the rise of anti-immigration movements and the increasing popularity of far-right political parties. However, many centrist politicians take anti-migrant positions too and promote disproven ideas about immigration being bad for national security and economic interests. Though neither regulating migration nor discriminating against people on the move are new, modern technologies have made it more and more difficult for people to cross borders in a safe but irregular manner.
Despite the problems that come with the criminalisation of irregular migration, the rise of anti-immigrant and right-wing sentiments across Europe has led to the rhetoric of “illegal migration” being used increasingly. The term is almost exclusively applied to people of colour. People from the Global North, who become irregular due to, for instance, overstaying their visas, are rarely seen as “illegal migrants”. This kind of racism and xenophobia is also increased by the use of the terminology of “illegal migration”. Calling people “illegal” dehumanizes them and makes it easier to violate their rights. As the vast majority of people the term is used for are non-white, the increase in anti-migrant sentiment has led to an increase in racism and discrimination against racialized people in Europe, regardless of their immigration status. Racist sentiments, xenophobia and discriminatory practices fuel the use of the term “illegal migrant” and have negative effects on the civil, cultural, economic, political and social rights of people on the move.
For example, the European Union has used the term “illegal” in several policy documents relating to irregular migration. Amongst them are:
One of the most influential institutions, the European Union, has the power to shape discourse around the world. By using the word “illegal” and relating it to migration in the policy documents they produce, the EU is fueling a highly problematic sentiment in society which is detrimental to the EU’s own values.
Not only the widespread phenomenon of irregular migration is being criminalised, but also the people involved. But as the Office of the High Commissioner for Human Rights (OHCHR) states in a position paper: “Criminalising people on the basis of their migration status can lead to a number of other human rights violations, including discriminatory profiling, arbitrary arrest and detention, family separation, and the inability to access critical health care, housing, education or other rights.”
Every day, we see the problems mentioned by the OHCHR in our work, especially on the ground. The policy and rhetoric of criminalisation excludes people on the move from society and pushes them to live and work in situations where they are extremely vulnerable, exploited and abused by states and private actors. It encourages suspicion and mistrust of those who simply look “foreign” or different, often on the basis of their race, ethnic origin or religion. It increases social divisions, and gives rise to xenophobia and hate crimes.
Describing people as “illegal” dehumanises their dignity and basic human rights. As this video shows, the mere fact that some people are labelled as “illegal” completely changes their lives. They live in fear of persecution, face discrimination as well as contempt from others and need to constantly hide the fact that they exist.
Using the word “illegal” depicts people on the move as dishonest, undeserving criminals who are a threat to the public good and safety. It normalises the use of practices that seek to punish people on the move and deter them from seeking asylum in Europe. Pushbacks are a prime example of this. States will “pushback” people on the move, without regard for due process or caring for the reasons for their crossing. State authorities deny the existence of these illegal practices and violations of fundamental human rights. By calling people “illegal”, they seek to justify these pushbacks, despite simultaneously refusing to acknowledge the existence of pushbacks along the EU’s external borders.
States and governments, when commenting on migration related issues, label people on the move as “illegal migrants” to justify their anti-migrant policies. Examples include, but definitely are not limited to: Bosnia, United Kingdom, Hungary, and Croatia. Criminalising irregular migration, rather than addressing the laws and policies which create irregularity in migration, prevents a truthful, fair and informed debate on migration.
Also, labelling the entry and stay of people on the move as “illegal” often results in an escalation or automatic criminalisation of anyone who might help them: even rescuing people on the move at sea or providing them with clothing and shelter can result in prosecution. Prohibiting solidarity towards undocumented migrants risks an increase in suffering and loss of life. The criminalisation of solidarity is a real threat for many civil society and non governmental organisations and individual human rights defenders and humanitarian workers. It shrinks the space for help to exist. By prohibiting solidarity towards people on the move, it leads to increased suffering and loss of life.
While the consequences of using the terminology of “illegal migration” are countless and complex, there is a simple solution: call it “irregular migration”. Below is a table created by PICUM with translations of the terms “undocumented migrant” and “irregular migrant” in multiple different languages. Study these, and use them!
Office of the High Commissioner for Human Rights: The Criminalisation of Irregular Migration
