Workshop:
Now you see them, now you don’t. Defining irregular migrants in Europe and Asia and the immigration measures applied to them
7-9th January 2008
Institute of Occidental Studies (IKON) University Kenbangsaan Malaysia (UKM)
43600 Bangi, Selangor, Malaysia
Financed by Asia-Europe Foundation (ASEF)
Names of initiators and organizing institutions:
European initiator and contact address Blanca Garcés Mascareñas
Institute for Migration and Ethnic Studies University of Amsterdam
O.Z. Achterburgwal 237, 1012 DL Amsterdam The Netherlands
Phone: 00 31 20 525 2654 Fax: 00 31 20 525 3628 [email protected] Prof. Kees Groenendijk Centre for Migration Law Radboud Universiteit Nijmegen P.O. Box 9049
6500 KK Nijmegen The Netherlands
Phone: 00 31 24 361 2087 [email protected]
Asian initiator and contact address Prof. Dato' Shamsul Amri Baharuddin Institute of Occidental Studies (IKON) University Kenbangsaan Malaysia (UKM) UKM, 43600 Bangi, Selangor, Malaysia 00 60 389213967
Introduction to the topic to be addressed including scientific objectives Abstract
The intended workshop will examine who irregular migrants are, who defines them and how, and what is done with them once categorised. The presence of researchers from different Asian and European countries will enable to draw various (and unprecedented) comparisons. By examining the law and its application in different countries and investigating the legal and social responses to the allocation of the status of irregularity to individuals present on the country, our goal is to consider to what extent irregular migration means the same in different social and political contexts. Moreover, we hope that this workshop will also lead to original and innovative ideas for future collaborative research.
The novelty and timeliness of the workshop
Irregular migration has become a permanent phenomenon in many countries. The International Organization for Migration calculates that irregular immigrants may account for one-third to one half of new entrants into developed countries, marking an increase of 20% over the past ten years. In the European Union alone estimates suggest that the inflow might amount to 500,000 irregular migrants annually. Although there are no estimates at the regional level for Southeast Asia or Asia in general, countries such as Malaysia, Taiwan, Japan or India present high levels of irregular migration from other neighboring countries. In Malaysia alone, for instance, one million irregular migrants (in a population of 22 million) have been estimated in the past years. This means one of the largest irregular migration flows in Southeast Asia.
Following this development, irregular migration has become prominent, if not foremost, in much contemporary academic and public debate as well as policy thinking around migration. In Europe and Asia it is receiving wider attention as stricter measures are being adopted to combat it. New initiatives are also being taken to supplement or reinforce existing regional and international instruments dealing with different aspects of irregular migration. Despite its central place on national and international agendas and academic debates, the term covers a number of rather different situations.
At the national level, irregular migration might refer to three different issues: a foreigner arriving clandestinely on the territory of a state; a foreigner staying beyond his or her permitted period of entry and residence; a foreigner working when not permitted to do so or in a manner inconsistent with his or her immigration status. In most countries, these categories are implicit rather than explicit stated in law. Most national laws rarely specify any definition of illegal entry or presence of an individual. Instead definitions cover who is legal leaving the rest as potentially illegal. The space of legality is then carefully controlled in law. Admission to it is certified by various means all involving the direct involvement of State authorities. What is less clear is what being an illegal migrant means in terms of law. Where an individual does not clearly come within one of the national definitions of legal entry, residence and work, he or she falls into the grey space without the required certificates (Elspeth Guild, 2004: 3-4).
At the international level, irregular migration differs in many ways. First of all, it differs in the way irregularity is produced. In countries with very restrictive migration policies,
irregular migration results in great measure from the impossibility to enter the country regularly. This is the case, for instance, of many European countries. In other countries the restrictions imposed to regular migrants (such as the payment of high annual fees or the fact that their residence permit is tied to a particular employment and employer) leads many regular migrant to become irregular after arriving in the destination country.
This is particularly the case for many countries in Southeast Asia. Finally, cumbersome procedures to obtain or renew residence permits produce grey zones where foreigners are neither regular nor irregular or they are both regular and irregular depending to what kind of law we refer to. Although procedures differ from country to country, this way of producing irregularity is common in both Asian and European countries.
Secondly, irregular migration differs also in the way it is defined. Although the irregular migrant is seldom defined in national law, migration policies as well as other kind of policies place the irregular migrant in very different situations. While in some countries irregular migrants are completely ignored or refused as social and political subjects, in other countries they are entitled to work or have access to health care and education. In the Netherlands, for instance, the situation of irregular migrants has changed in the last years: while irregular migrants could work, pay taxes and premiums and had access to health care and other social services, these rights have been very much limited after 1991 and 1998 respectively. In Spain irregular migrants are allowed to register in the municipalities (the so-called empadronamiento) and this gives them access to a great range of social services and rights. Like in the Netherlands and other (mainly North) European countries, irregular migrants have been gradually excluded in many Southeast Asian countries in the last years.
Thirdly, related to the latter, irregular migration is combated very differently. Despite migration policies, irregular migration is tolerated in some countries. This is the case of many Eastern and Southern European countries. When it is not tolerated, the state responses differ: from the implementation of expulsion policies to their exclusion from social services or from the reinforcement of internal control measures (both by law and in practice) to their inclusion through regularization programs. While these measures coexist in most countries, these are emphasized and implemented in different ways and degrees. For instance, many countries in Southeast Asia have reinforced expulsion and exclusion measures while internal control has remained very low and regularization programs have had a very limited impact. In contrast, many Northern European countries have gradually increased exclusion and internal control measures. Finally, in Southern European countries expulsion policies coexist with low exclusion of irregular migrants and periodical regularization programs.
Relevance of the proposed event to current intellectual developments
As irregular migration became a permanent phenomenon in many countries, research on this issue started to develop. In general terms, this research is characterised by three main features. First of all, most research focuses on the socio-economic aspects of irregular migration (Azizah Kassim 1995, Wong and Anwar 2003). When it has focused on migration policies, it has mainly referred to migration control (Gonzalez 2006;
Duvell 2006). Secondly, it is done at the local, regional or national level (Geddes 2005;
Uehling, 2004; Van der Leun 2003). In recent years some research on migration regulations has been done as well at the European level (Cholewinski 2006, 2005; Peers
2006). Finally, international comparisons are mainly done within Europe or between Europe and North America (Martin 2003) and within Asia or Southeast Asia (Battistella and Asis 2003; Ananta and Arifin 2004).
This literature overview does not pretend to be comprehensive and bibliographic references are given as recent illustrations rather than as a complete list of what has been done. In general terms, we can conclude that two aspects are missing in the literature on irregular migration. First of all, there is little research or debate about the concept of irregularity or illegality. Since most research focuses on the composition of irregular migration flows or on migration policies alone, little is known about the legal and social responses to the allocation of the status of irregularity to individuals.
Secondly, most international comparisons focus on rather similar contexts. As said before, they are circumscribed within Europe (or Western countries) and within Asia.
This geographical circumscription limits the possibilities to really understand and discuss what irregularity implies in very different contexts.
Two conferences have tried to fill these gaps. First of all, a conference was held in the University of Leicester on 28th and 29th June 2003 on Irregular Migration and Human Rights in Europe. In this conference (Bogusz et al. 2004) most papers focused on the implications of irregular migration in Europe and particular attention was given to who irregular migrants were and how they were defined and perceived. However, again this conference was circumscribed to Europe. Secondly, a conference took place on 17th and 18th August 2001 at Tagaytay City on Foreign Workers, Refugees and Irregular Immigrants in Europe and Asia (Hernandez and Angenendt 2004). This is the only attempt that has been done until now to compare migration in Asia and Europe.
However, it did not focus on irregular migration as such and there were no references on how irregular migrants were defined in both places and what were the legal and social implications of irregularity.
This workshop aims to fill these two gaps by considering the legal and social responses to the allocation of the status of irregularity to individuals present in different European and Asian countries. Our starting point is that we need first to determine who the irregular migrant is and how irregular migration is produced, defined and combated in different countries (and particular in Europe and Asia) before continuing discussing about irregular migration as if it was an homogenous concept both within and beyond national borders. To overlook all these differences might lead to important misunderstanding both for academics as well as for policymakers.
Objectives
The intended workshop will examine who irregular migrants are, who defines them and how, and what is done with them once categorised. The presence of researchers from different Asian and European countries will enable to draw various (and unprecedented) comparisons. By examining the law and its application in eight countries and investigating the legal and social responses to the allocation of the status of irregularity to individuals present on the country, our goal is to consider to what extent irregular migration means the same in different social and political contexts. Moreover, we hope that this workshop will also lead to original and innovative ideas for future collaborative research.
(1) who irregular migrants are, who defines them and how?
−to overview who irregular migrants are in each country: where they come from, in which economic sectors they are found and their gender composition
−to examine how and to what extent migrants' behaviours, options and decisions are conditioned by state regulations. To see to what extent migration policies produce irregular migration: why migrants decide to migrate irregularly or why they become irregular once in the destination country
−to explore the discourses on irregular migrants both in origin and destination countries
−to investigate the position of irregular migrants in the destination country: to what extent they are excluded from social services or to what extent they are recognised as subjects of political and social rights
(2) what is done with them once categorised? Are they regularised? Are they expelled?
Are they ignored?
−to examine policies designed to reduce irregular migration: expulsion policies, regularisation programs, exclusion measures from labour market and social services
−to investigate why and when these policies are formulated
−to analyse how they are implemented and what their (intended but also unintended) effects are
(3) is irregularity a unique concept? By comparing who irregular migrants are, who defines them and how (objective 1) and what is done with them once categorised (objective 2), we will consider to what extent irregularity means the same in different countries or whether it refers to very different situations both within and beyond national borders.
Publication envisaged
The workshop will produce an edited book after a normal referee process of a selection of the workshop papers. This book will be proposed to the Amsterdam University Press, under the book series on migration published together with the European Network of Excellence IMISCOE. They have enthusiastically reacted to our project. Once we have the edited manuscript, its Editorial Committee will consider it for publication.
Another expected outcome is future collaborative research projects across the region.
The last session of the workshop will be devoted to developing research questions and exploring funding opportunities.
References
Ananta, A. and E. Arifin (eds.) (2004) International Migration in Southeast Asia, Singapore: ISEAS.
Azizah Kassim (1995) ‘Recruitment and employment of foreign workers in Malaysia’
in Rokiah Talib & Tan Chee Beng (eds), Dimensions of Tradition and Development in Malaysia, Petaling Jaya: Pelanduk Publications, pp. 163-202.
Battistella, G. and Asis, M.B. (2003) Unauthorised Migration in Southeast Asia, Philippines: Scalabrini Migration Center.
Bogusz, B., R. Cholewinski, A. Cygan and E. Szyszczak (eds) (2004) Irregular Migration and Human Rights: Theoretical, European and International Perpsectives, Martinus Nijhoff Publishers, Leiden and Boston.
Cholewinski, R. (2006) Control of Irregular Migration and EU Law and Policy: a Human Rights Deficit. Leiden: Nijhoff.
Cholewinski, R. (2005) Preventing Irregular Migration. Brussels: Bruylant.
Duvell, F. (2006) Illegal immigration in Europe: beyond control? Palgrave Macmillan.
Geddes, A. (2005) ‘Chronicle of a Crisis Foretold: the Politics of Irregular Migration, Human Trafficking and People Smuggling in the UK’, British Journal of Politics and International Relations, August, vol.7, issue 3, pag. 324-339.
Gonzalez Enriquez, C. (2006) ‘The Fight against Illegal Immigration, Smuggling and Trafficking in Human Beings in Spain: Ambiguities and Rhetoric’, in Immigration and criminal law in the European Union, Leiden: Nijhoff.
Guild, E. (2004) 'Who is an Irregular Migrant?' in Bogusz, B., R. Cholewinski, A.
Cygan and E. Szyszczak (eds) (2004) Irregular Migration and Human Rights:
Theoretical, European and International Perpsectives, Martinus Nijhoff Publishers, Leiden and Boston.
Hernandez, C. and Angenendt, S. (2004) Foreign Workers, Refugees and Irregular Immigrants: Political Challenges and Perspectives For Asia-Europe Cooperation, Philippines: Council for Asia-Europe Cooperation.
Leun, J. van der (2003) Looking for Loopholes: Processes of Incorporation of Illegal Immigrants in the Netherlands. Amsterdam: Amsterdam University Press.
Martin, P. (2003) Bordering on Control. Combating Irregular Migration in North America and Europe, Geneva: IOM.
Peers, S. (2006) ‘Key Legislative Developments on Migration in the European Union’, European Journal of Migration and Law, Jan, vol. 8, issue 1, pag. 97-114.
Uehling, G. (2004) ‘Irregular and Illegal Migration through Ukraine’, International Migration, vol. 42, issue 3, pag 77-109.
List of participants, indicating for each participant his/her affiliation, disciplinary competence in relation to the workshop topic and title of the paper:
Name (country) Affiliation Paper
1 Shamsul Amri Baharuddin
(Malaysia) IKON, University Kenbangsaan Malaysia Presentation of the workshop
2 Azizah Kassim (Malaysia) IKMAS, University Kenbangsaan Malaysia Irregular migration in Malaysia
3 Patrick Pillai (Malaysia) Institute of Strategic and International Studies (ISIS) Social Integration of Irregular Immigrants. A Case- Study of an Indonesian Baweanese community in Malaysia
4 Carl Grundy-Warr (Singapore) Department of Geography, National University of
Singapore Dis-Place-ment and the Multiple Meanings of
(Ir)regulaity in Southeast Asia
5 Kamal Sadiq (US) University of California, Irvine Illegal Immigrants as Citizens in Malaysia 6 Decha Tangseefa (Thailand) Faculty of Political Science, Thammasat University,
Thailand Flight to/through “the Door”: Imperceptible Naked-
Karens & the Thai-Burmese In-between Spaces 7 Melody Chia-wen Lu (Taiwan) International Institute for Asian Studies Irregular migration from China to Taiwan 8 Riwanto Tirtosudarmo (Indonesia) Centre for Population and Human Resources Studies,
Indonesian Institute of Sciences Irregular migration and the state response in Indonesia 9 Elspeth Guild (France) Centre for Migration Law, Radboud Universiteit
Nijmegen Human rights and protection against expulsion in
Europe - what are the boundaries of the state?
10 Blanca Garces Mascarenas (Spain) Institute for Migration and Ethnic Studies, University
of Amsterdam Deportability of regular and irregular migrants in
Malaysia 11 Jeroen Doomernik (Netherlands) Institute for Migration and Ethnic Studies, University
of Amsterdam
Irregular migration, migration policies and refugees in Europe
12 Didier Bigo (France) Sciences Po, Paris The Invisible expulsion of foreigners in France - a
Banopticon?
13 Judit Toth (Hungary)
Julia Traser (Hungary) University of Szeged, Faculty of Law How irregularity of migratory movements has increased after the Eastern enlargement of the EU
15 Bastian Vollmer (Germany) Institute for Migration and Ethnic Studies, University
of Amsterdam Production of irregularity in Germany
16 Ana Lopez Sala (Spain) University of Tenerife, Sociology Department Irregular immigration and state response in Spain. The case of the Canary Islands.
