Around the world undocumented migrants are criminalized because of the perception that they are 'illegal'. Fibonacci Blue under a Creative Commons Licence

The EU and its member states must end criminalization of undocumented migrants to ensure equal access to human rights and to basic services, says the Platform for International Cooperation on Undocumented Migrants (PICUM).

There is a growing trend of criminalizing irregular migrants in Europe, using  criminal law, administrative detention or other punitive measures under administrative law, and through policies and practices that perpetuate prejudices.

PICUM has found that most EU member states punish irregular entry and irregular stay.
People who assist, support and rescue undocumented migrants for humanitarian reasons may also be prosecuted. Facilitating irregular entry and stay is considered a criminal offence in most member states.

The choice of terminology is also crucial in shaping perceptions. The view that undocumented migrants are ‘illegal’ frequently creates administrative, financial and other practical barriers to accessing their basic rights.

François Crépeau, United Nations Special Rapporteur on the Human Rights of Migrant explains: ‘Using incorrect terminology that negatively depicts individuals as “illegal” contributes to the negative discourses on migration, and further reinforces negative stereotypes of irregular migrants as criminals. Moreover, such language legitimates the discourse of criminalization of migration, which in turn, contributes to the  further alienation, discrimination and marginalization of irregular migrants, and may even encourage verbal and physical violence against them’ ..

Such perceptions distract attention from the fact that the majority of undocumented migrants in Europe do not enter irregularly but experience difficulties in renewing their residence permit or in complying with the increasingly tight requirements for a permit renewal. In many cases, migrants become irregular through exploitation by their employer or by losing their status due to gender-based violence.

Undocumented migrants and service providers witness first-hand, on a daily basis, how the perception that they are ‘illegal’ leads people to believe that they have no rights and that migration is a criminal activity.

‘The perception of being “illegal” prevented me from getting my first cleaning job in the Netherlands,’ said Jack, an undocumented migrant from the Philippines ‘Since then the word “illegal” has become a stigma in my everyday dealing with people. Indeed, such an experience even made me ask myself whether I was really illegal. Of course, I was not and will never be. I am undocumented.’

Moreover, defining an individual or group as ‘illegal’ is erroneous and incorrect from a juridical point of view, as neither an individual could be considered by nature as ‘illegal’, nor have the individuals necessarily committed a criminal offence under national laws.

An increasing number of European and international institutions and media have abandoned the term ‘illegal’ and refer to ‘irregular’ or ‘undocumented’ migrants.

Nonetheless, implications of criminalizing irregular migration by linking it to internal security concerns and economic instability remain and impact on undocumented migrants’ human rights and on social cohesion.

International human-rights law guarantees undocumented migrants’ entitlements to a comprehensive set of rights regardless of their administrative status. European states must take steps to ensure and further implement a human rights-based approach to migration ensuring that the protection of all migrants, including the undocumented, is always the first concern.

Watch a film about the criminalization of undocumented migrants in Europe.

PICUM is an international NGO that promotes respect for the human rights of undocumented migrants within Europe. Michele LeVoy is the organization's director.

The January-February edition of New Internationalist magazine investigates the detention of undocumented migrants around the world. Subscribe now and get a free trial subscription.