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Credit: © ISSA / Elma Okic
30 August 2023

In April 2023, the UN Special Rapporteur on the human rights of migrants, Felipe Gonzalez Morales, published report A/HRC/53/26 entitled ‘How to expand and diversify regularization mechanisms and programmes to enhance the protection of the human rights of migrants'. This report was presented to the Human Rights Council during the 53rd Ordinary Session, which took place in Geneva between 19 June and 14 July 2023. 

The report is divided into three main sections; a review of activities undertaken by the special rapporteur, a study on how to expand regularization mechanisms and programmes, and a series of recommendations. 

The study comprises the majority of the report, highlighting the human rights challenges faced by migrants in an irregular situation by providing an analysis on how irregularity increases vulnerability to human rights violations. He discusses how to address the situations of vulnerability migrants exist in through the lack of regular migration status by creating and strengthening regularization mechanisms. The importance of framing narratives on migration is considered, as is the adoption of measures and mechanisms which promote regularization.

The UN Special Rapporteur draws upon 83 submissions received from UN entities, states, civil society organisations and academics in the report, particularly as regards the discussion of promising practices, ongoing efforts, and existing challenges. The report culminates in a series of recommendations whose purpose is to expand and diversify regularization mechanisms and programmes to enhance the protection of the human rights of migrants.

Throughout the report, the relationship between migration and the right to education is highlighted, both in terms of the positive benefits of education and the ways in which undocumented status leads to the violation of the right to education. 

Read the report in full here.

12. The factors that lead migrants to find themselves in irregular situations are multilayered. Regardless of the circumstances that led them into irregularity, the enjoyment of their right to health, housing, decent work, access to justice, education and other rights is usually negatively affected. The denial of migrants’ rights is often closely linked to discriminatory laws and to the expression of prejudice in practice, including intolerance or xenophobia. 

24. Under the Global Compact, Governments also agreed to prevent people from becoming undocumented by reviewing and revising existing pathways for regular migration in consultation with the private sector and other relevant stakeholders; to develop flexible, rights-based and gender-responsive labour mobility schemes by providing flexible, convertible and non-discriminatory visa and permit options; and to develop or build upon existing national and regional practices for admission and stay on compassionate, humanitarian or other considerations for migrants compelled to leave their countries of origin, due to sudden-onset natural disasters and other precarious situations, such as by providing humanitarian visas, private sponsorships, access to education for children, and temporary work permits, while adaptation in or return to their country of origin is not possible.10

25. On the occasion of the Progress Declaration of the International Migration Review Forum in 2022,11 Governments agreed to include more commitments and standards relevant to regularization. In this regard, Governments and other stakeholders recognized that the availability and flexibility of pathways for regular migration remained limited in many cases 12 and they committed to strengthening their efforts to enhance and diversify the availability of pathways for safe, orderly and regular migration, including in response to demographic and labour market realities, and for migrants in vulnerable situations, as well as those affected by disasters, climate change and environmental degradation. 13 Other commitments refer to labour mobility agreements, optimizing educational opportunities, facilitating access to procedures for family reunification that promote the best interests of the child and to providing migrants with access to information pertaining to their rights and obligations during all stages of migration.

32. Under international human rights law, the criminalization of irregular migrants goes against the legitimate interests of States in protecting their territories and regulating migration. In the New York Declaration for Refugees and Migrants, Member States agreed to consider reviewing policies that criminalize cross-border movement and affirmed that children should not be criminalized on the basis of their migration status.19 Undocumented migrants should not be treated as criminals or as national or public security threats. Criminalizing people on the basis of their migration status can lead to several other human rights violations, including discriminatory profiling, arbitrary arrest and detention, family separation and the inability to access health care, adequate housing, education, employment or other rights. The Special Rapporteur wishes to highlight that such criminalization of migrants further pushes them to live and work in the shadows of society and may increase their exposure to exploitation and abuse by different actors.

33. While in transit or in destination countries, many migrants find themselves in irregular and precarious conditions, unable to access basic services or justice and at risk of human rights violations and abuses, including trafficking in persons, sexual and gender-based violence and treatment that may result to torture and other cruel, inhuman or degrading treatment or punishment. Migrants in irregular situations also face challenges in the exercise of their human rights, including access to health care, education, essential services and adequate housing and to labour rights and social protection. Hence, irregularity increases exclusion, disempowers migrants and exposes them to greater risk of discrimination, abuse and exploitation.20 When migrants experience exploitation or abuse, their lack of a regular status prevents them from reporting cases to the police out of fear of deportation.

36. It is important to note that the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families have recognized several negative impacts on children’s well-being of having an insecure and precarious migration status, including but not limited to the risk of physical harm, psychological trauma, marginalization, discrimination, xenophobia and sexual and economic exploitation; different forms of violence on irregular migration journeys or in irregular situations in countries of destination; the risk of being denied access to education, housing, health care, recreational activities, participation, protection, social security and justice; the risk of child marriage, violence, trafficking, forced recruitment, exploitation and child labour, which is exacerbated when accompanied by a lack of birth registration and childhood statelessness; and risks to children’s physical and mental health, recognizing that children experience stress differently than adults.25

40. Some of the rights and obligations established by international human rights law may restrict the return of migrants and therefore constitute a non-discretionary ground for regularization. These include the absolute prohibition of non-refoulement under international human rights law, including when related to the risk of socioeconomic irreparable harm, for instance on medical grounds; the right to family life; the right to private life; and the right to rehabilitation of victims of torture. Regardless of the parents’ migration status, the best interests of the child must also be protected and children have the right to access basic education and should not be detained.

41. Regularization processes and procedures can facilitate the enjoyment of human rights by migrants holistically through civil and political rights and economic, social and cultural rights, improving migrants’ access to social protection, including health care, decent work, education, adequate living conditions and family reunification. Providing undocumented migrants with regular migration status empowers them to live in less precarious conditions and to enjoy more certain and dignified lives, leading to the improvement of their socioeconomic situations and, hence, enhancing their physical and mental well-being. 29 Regular migration status protects migrants from detention and deportation and enables them to access social protection systems and participate fully in society, positively contributing to economic growth and development. As a result of their regularization, children and youth could also benefit from access to education, physical and mental health care, safe housing and other social services, improving their overall well-being. Regular status can also help children and youth to resist exploitation, abuse and discrimination and to access justice.

42. When regularization and integration processes are considered in migration policy, migrants, including women and girls, are better able to exercise and enjoy their rights. Regular migration status supports migrant women’s access to housing, banking services, education, the justice system and health care, including sexual and reproductive health services, and the ability to work in the formal economy. Regularization enables migrants to “come out of the shadows” and employ agency by joining unions, exercising freedom of expression and the right to assembly and association, advocating for services and defending their rights, including resisting all forms of discrimination and abuse.30 Regularization also enables migrants to realize their right to decent work in just and favourable conditions and protects them from all forms of violence, including torture and exploitation, whether committed by State or private actors. 

43. It must be acknowledged that the purpose of integrating migrant workers into the local labour market is principally to ensure their successful integration into the destination country, as such integration can diminish tensions between migrant communities and the national  population and thus promote social cohesion and inclusive societies. The link between regularization and integration can be noted by the number of spaces in social and political life that persons with irregular status often cannot access: employment; labour guarantees; education; the health-care system; legal representation; the protection of rights; elections; membership in political parties and community organizations; and the right to association, among others. While residence and work permits should not depend upon a specific employer or contract, existing work relationships can continue and have continued after the employee was regularized. Depending upon the conditions of the permit granted, regularized migrant workers have greater labour market mobility. They are also able to negotiate fair conditions at work, develop in their careers and, in some cases, find employment that better matches their skills and expertise.31

44. The Special Rapporteur particularly notes that, while integration is a complex process that is not ensured simply by acquiring regular status, regularization serves as a first step towards concrete economic and social integration for migrants in their destination countries and communities. In economic terms, regularization allows migrants to obtain formal employment, undertake entrepreneurial ventures, establish small businesses, pursue selfemployment and exercise their capacity for innovation. Regarding social rights, obtaining regular status also allows migrants to access social security protection systems as, in some countries, universal health care is limited to emergency treatment and the schooling available to migrant children with irregular status is limited to primary education; migrants in regular situations enjoy greater access to health-care systems and education. 

61. While the Special Rapporteur takes note of some progress on the implementation of regularization, it is nonetheless important to refer to the challenges faced in designing and implementing regularization processes. In some countries, many people seeking asylum are considered in the same way as undocumented migrants or are granted a very precarious temporary status that does not provide adequate protection because of the lack of a legal framework and/or the implementation of a framework to protect refugees and others in need of international protection. Such lack of protection of refugees and asylum-seekers increases their risk of statelessness. Children born to undocumented refugees and asylum-seekers and undocumented migrants frequently lack documentation and are at risk of statelessness and insufficient or no access to education, health care and other social protection. Migrant workers in some sectors, including domestic work, fisheries and agriculture, are not covered by national labour laws in many countries and are therefore granted no or very limited status. They are often victims of trafficking in persons and at high risk for experiencing occupational safety issues. Women migrant workers consistently experience unfair treatment when they are pregnant or are forbidden from becoming pregnant by employers or by Governments. The Special Rapporteur notes with concern that due to a lack of a gender-based approach to protect and promote the human rights of migrants, gender-based violence and sexual harassment in the workplace against women and migrant workers with marginalized gender identities are rampant.

66. Regardless of the grounds for and length of residence that is granted, migrants should be provided with full and equal access to human and labour rights and essential services, including health care, education, an adequate standard of living, justice, social protection and decent work. Where it is not lawful, legitimate, necessary and proportionate, differential treatment in relation to access to rights and services based on migration status and the grounds under which residency is granted amounts to discrimination. Moreover, limited access to rights and services can itself be a further cause of vulnerability for the individual. When temporary residence is granted to migrants, States should provide for avenues to transition to another status, including those that provide long-term residency. Extensions, renewals and transition to another regular migration status should be facilitated by States through clear, streamlined, accessible and affordable procedures.