CMW/C/GC/2
I.
Introduction
1.
International sources estimate that between 10 and 15 per cent of the world’s
international migrants are in an irregular situation, 1 although the very nature of irregular
migration makes it difficult to find reliable data on the scale of this phenomenon. While the
economies of developing countries cannot absorb the large numbers of young men and,
increasingly, women, seeking employment, population decline and ageing have reduced the
labour force in developed countries, thereby generating a demand for low and middleskilled migrant workers in many sectors of the economy. However, that demand has not
been matched by a corresponding increase in regular migration channels. As a result,
employers often resort to migrant workers in an irregular situation to fill the gaps.
2.
As a deterrent for migrant workers and members of their families in an irregular
situation to enter or stay on their territory, States increasingly resort to repressive measures,
such as criminalization of irregular migration, administrative detention and expulsion.
Criminalization of irregular migration fosters and promotes public perceptions that migrant
workers and members of their families in an irregular situation are “illegal”, second-class
individuals, or unfair competitors for jobs and social benefits, thereby fuelling antiimmigration public discourses, discrimination and xenophobia. Moreover, migrant workers
and members of their families in an irregular situation generally live in fear of being
reported to the immigration authorities by public service providers or other officials, or by
private individuals, which limits their access to fundamental human rights, as well as their
access to justice, and makes them more vulnerable to labour and other types of exploitation
and abuse.
3.
The term “migrant workers in an irregular situation” is defined in article 5 of the
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families (the Convention), which specifies that migrant workers or
members of their families are considered as non-documented or in an irregular situation if
they are not authorized to enter, to stay or to engage in a remunerated activity in the State of
employment pursuant to the law of that State and to international agreements to which it is
a party.
4.
The Committee is of the view that the term “in an irregular situation” or “nondocumented” is the proper terminology when referring to their status. The use of the term
“illegal” to describe migrant workers in an irregular situation is inappropriate and should be
avoided as it tends to stigmatize them by associating them with criminality. 2
5.
The situation of migrant workers may be irregular either because they have entered
the State of employment in an unauthorized way and are thus not authorized to stay, reside
or work in that State, or because they overstay the period or otherwise violate the
conditions of their authorized stay. Regular migrants may also lose their status through no
fault of their own due to illness or other unforeseen circumstances affecting them or family
members. The Committee emphasizes that whatever the modalities of their stay, migrant
workers can never be deprived of their fundamental rights, as protected under Part III of the
Convention, by virtue of their irregular situation.
1
2
International Labour Office, International Labour Migration: A rights-based approach (2010), p. 32.
See General Assembly resolution 3449, para. 2.
3