Human
Rights analysis
Legal
status of illegal (undocumented) migrants
Barrister
Harun ur Rashid
Migration
is a social-economic process that historically occurred
across the globe. There are several reasons for migration
and some of them deserve mention:
*economic and demographic factors
*promotion of entrepreneurial skills
*employment opportunities thought or known to be available
in foreign countries
*civil wars, harassment or discrimination in the country
where intending migrants live
One
thing must be made clear that ordinarily people do not
move from their home country unless there are compelling
reasons to do so. Migrants in foreign land face discrimination,
alien culture, language and a different way of life. They
live far away from their near and dear ones and their
emotional strain is often stressful and deep.
Prior
to independence in 1971, Bangladeshi people hardly knew
that they could go overseas for jobs. During united Pakistan
days there were no recruitment agencies in Bangladesh,
although 50 licensed agents were working in West Pakistan.
Demand
for young workers
The oil-boom in the Middle East changed the societal habits
of the people in those countries. They were reluctant
to undertake manual work. A demand for foreign workers
grew. The flow of contract
-migrants
from Bangladesh commenced in mid-70s. Majority of Bangladesh
contractual workers went to the Middle East as the oil-rich
countries wanted cheap labour from South Asia.
It
is believed that a few Arab countries gave preference
to Muslim workers and as a result a steady increase continued
in Saudi Arabia, Iraq, Qatar, United Arab Emirate, Oman,
Bahrain and Kuwait from 70s until this day. It is estimated
that the largest number of workers went to Saudi Arabia
followed by UAE in the Middle East.
The
UN Report prepared by the Population Division in early
2000 indicates that population in Japan and in most countries
of the European Union (25 countries) will decline because
of low birth-rate while the average person in those countries
will get older.
The
European Union countries account now for more than 450
million and this level will fall to about 400 million
or less by 2050. According to the report, labour force
in Germany will shrink from 41 million to 21 million and
Italy's 23 million to 11 million.
The
report estimated that for Japan to keep its labour force
constant during the next 100 years would require an immigration
program peaking at 900,000 a year in 30 years, falling
to a longer term figure of about 700,000 a year.
It
has been suggested in the report that substantial levels
of immigration will be required to maintain the economy
of industrialised countries. Young people from developing
countries from Asia and Africa are likely to fill in the
gap.
Kinds
of migrants
Migrants are of three kinds:
(a) contract workers,
(b) permanent migrants and
(c) illegal or undocumented migrants.
Migrants
of (a) and (b) types possess proper documentation from
foreign countries. The third (c) takes the risk of migrating
to another country without proper documents. Most of them
are semi-skilled or unskilled, either lured by recruiting
agents or prompted by their personal knowledge of someone
known to them who is earning a lot of money in a foreign
country.
The
age and gender of Bangladeshi migrants are mostly young
and male population. About 80% per cent had less than
higher secondary school education. About 40% per cent
appear to be unskilled. A study of labour migration from
Bangladesh to the Middle East was undertaken by the World
Bank in 1981. It concluded that : "the net present
value from migration is not only positive but also quite
large……..We have not however taken into account
certain cost elements, such as the psychological costs,
costs of separation from family or the dislocation costs.
But the statistical magnitude of such components would
have to be large to reverse the findings of sizeable net
social gain from emigration".
Illegal
(undocumented) migrants
Illegal migrants travel without documents because there
is an increasing demand from private sectors for young
workers in industrialised countries, in particular in
low-paid dirty or dangerous jobs. A few of unscrupulous
agents continue to send Bangladeshi nationals to overseas
without proper procedures and such migrant-workers fall
into difficulties abroad as being "illegal immigrants".
Ordinarily
a person is believed to spend at least Taka.100, 000 for
his travel abroad. Furthermore many take risks to travel
to another country without proper working permits just
because they heard some success stories of their friends
in foreign countries. They do not have idea what kind
of jobs is available for them. They just take a gamble
in their lives and often their journey has been perilous,
often without food or drink for days together.
Often
they are employed in unattractive and demanding jobs because
of shortage of labour in host countries for such types
of jobs. Another advantage for companies in foreign countries
is that they can employ them on very low wages. The illegal
migrant workers are exploited by most employers as they
work without legal permits. They are under-paid, are in
constant threat of being deported to their countries of
nationality. Their working conditions are very poor.
It
is reported that thousands of Bangladeshi undocumented
migrants are working abroad as illegal immigrants. They
have been allowed to live without the dignity and worth
of a human person just because they work without proper
legal documents. It is noted that they contribute significantly
to economy of the country through their hard work.
Illegal
female migration
One of the striking phenomena is the rise of women migration
in the last two decades. High incidence of women migrants
is from Philippines, Indonesia, Sri Lanka, Bangladesh
and Thailand, according to an UNESCAP report. According
to the report, the estimated flow of illegal women migrants
is about 35,000 to 50,000 a year.
It
is reported that rural illiterate girls from poverty-stricken
families are often forced to migrate to earn money from
Bangladesh. Women migrants are ordinarily found to be
conscious of sending back regularly money to their families.
Since they are unskilled, they suffer most in foreign
countries. They are vulnerable to exploitation, ill-treatment
and humiliation. Some of them are even subject to physical
abuse. Their mental and physical existence is tough yet
they endure it because of economic reasons. A researcher
on women issues, Therese Blanchet, wrote many stories
of women migrants of Bangladesh (DS/6 November, 2002).
Legal
status of illegal migrants
Article 3 of the 1948 Declaration provides that "everyone
has the right to life, liberty and security of person."
The right to life leads migrants to work overseas since
they can't get employment in the country. Furthermore
there are several ILO Conventions and Recommendations
that protect these migrant-workers from being treated
unjustly.
The
1949 Convention Concerning Migration for Employment provides
a safety valve for them. ILO Conventions of 1962 and 1982
deals with social security entitlements. The fundamental
human rights as enshrined in 1948 Universal Declaration
of Human Rights and the workers' right under ILO (International
Labour Organisation) are flouted in their employment conditions.
Although
the ILO Conventions provide in establishing minimum standards
for the treatment of all workers, most states do not apply
the ILO standards to illegal migrants. The irony is that
while these illegal migrants who are employed by foreign
companies contribute to the productivity of the host countries,
they have no protection under laws of host countries.
The
provisions of the 1990 UN Convention on Protection of
the Rights of All Migrant Workers and Members of their
Families appear to be grossly violated. The Convention
provides a framework of state responsibility and accountability
as to how they deal and treat illegal migrants. However
not a single European country , to my knowledge, has become
parties to the Convention.
Attitude
of Western countries
It appears that it is a great hypocrisy on the part of
many Western countries. They are often loud in their criticism
against violations of human rights but keep quiet on intolerable
conditions of illegal migrants from developing countries
who live and work in those countries.
They
seem to be Janus-faced (double-faced) with respect to
violation of human rights. The internationally oriented-
face enjoy the status they receive by pointing out violation
of human rights, while the nationally turned-face refuse
to comply with the working conditions under the ILO laws
and regulations. No one in that country wants to listen
to illegal migrant workers as they are considered "flotsam"
of the society, although they keep their economy running.
Despite
the expected decline in population levels, it appears
that industrialised countries are converting their territories
into formidable fortresses for migrants. The governments
of industrialised countries are tightening immigration
laws in such manner that they want to be insular from
the wave of migration, although private sectors are crying
out for migrant workers in those countries.
Furthermore
there appears to be veiled racial discrimination underpinning
immigration laws. They believe that strict immigration
laws would be able to stem the tide of the flow of persons
from third world countries.
The
affluent countries appear to look at the symptoms and
not at the root of the issue of migration. Migration from
developing countries will not go away and it has to be
resolved in humanely fashion. Migration is a humanitarian
issue and a new legal regime in association with the International
Organisation of Migration, UNHCR and the UN Centre of
the Human Rights may be established so that illegal migrants
enjoy wages and quality of life in accordance with ILO
and 1990 UN Convention standards.
The
author is former Bangladesh Ambassador to the UN, Geneva.
