Foreigner in irregular situation

A foreigner in irregular situation (sometimes called without-papers or clandestine ) is a foreign present on a territory while being deprived of Permit residence in rule. This situation can intervene either after being entered of clandestine way on the national territory, or to be remained on the territory after expiry of the period of validity of the residence permit. Illegal character of this stay, without residence permit in rule, interdict the abroads in this situation to profit from the majority of the rights, in particular the right to work. On the other hand, of the specific rights theirs are sometimes granted (such as for example the Medical assistance of State intended to deal with the medical expenditure of the foreigners in irregular situation and without resources residing in France).

In several French-speaking countries, the foreigners in irregular situation are sometimes designated under the name of " without-papers " or of " clandestine ". In Spain one calls them harraga , word of origin Arab which means " those which burn (documents, not to be identified) ". In the anglophone countries, the terms most usually used are illegal immigrating or illegal alien (literally " immigrating illégal" , during " clandestin" French-speaking person) but the international institutions and the partisans of the rights from these abroad prefer the terms undocumented worker (" worker without papiers") or undocumented immigrating (" immigrating without papiers") who, according to them, mark on the one hand in a more exact way and, on the other hand, less stigmatizing the situation in which these people are.

One thus observes a semantic battle between the partisans of the rights from abroad and the partisans of a hardening of the legislation in their connection (generally in favor of a reduction of immigration).

The evolution of the legislation on this topic particularly marks the modification of the immigration policy of the states according to the economic context and social: while in France, before 1973 and the crushing argument of massive immigration, a foreigner in irregular situation saw his situation very quickly regularized by a benevolent administration towards the needs for labor, after 1973, the situation became more difficult for these immigrants.

The evolution of the statute of the foreigners in irregular situation is also marked in a general way by the evolution of the right from abroad and the refugees, and by the battles of influence at the national level (in France, durable conflict of authority between the Ministry for Foreign Affairs, the Ministry of Labor and the ministry for the interior) and to the international level (UNO and Office of the High Commission of the United Nations for the refugees against state-nations).

Two types of foreigners in irregular situation

The foreigners can find themselves in irregular situation in two manners while entering illegally on the national territory or while entering legally on the national territory, but while remaining there after the expiry of their residence permit (known under the name of visa overstayers in the United States).

It is difficult to consider the proportion of foreigners in irregular situation being in the first situation or the second, being given the unknown character by nature of their situation. However, the States try to draw up statistics in connection with this population.

The ministry for the French Interior estimates at 90% the foreigners in irregular situation to be in the second situation. One would thus observe a difference between the real situation in which is the foreigners in irregular situation and the image which is given by it in the media of mass, which would treat mainly their irregular situation under the angle of an illegal entry (" boats of clandestins" , report on the " traffickers humains" allowing an illegal access on the national territory, etc), whereas for a majority of them, the entry was done in a legal way, the illegality of their situation intervening in vast majority after the expiry of their visa or a refusal of the administration to renew their residence permit.

In the United States, the proportion from abroad having entered in a way legal on the territory but remained illegally after expiry of their residence permit ( visas overstayers ) is comparable with the French situation: the Immigration and Naturalization Service estimates their proportion at least 95%. However, the American statistics include in this category the people having used false documents to cross the border. Moreover, one observes a difference in proportion according to the country of origin, in particular within sight of the particular geographical location with Mexico, with which the United States maintains various agreements allowing a temporary immigration labor (see in particular the case of the Border Crossing Card ). The American immigration policy on the matter, in parallel with the fight against terrorism, tends to harden, with the development of biometric documents, but especially an heightened surveillance on behalf of the institutions (controls of the departure of the territory, development of average data processing the such Student and Exchange Visitor Information System allowing the monitoring of the foreign students, etc).

In France

In France, the fact of remaining in an irregular way on the territory constitutes a one year of prison punishable offense, of 3750 € of fine and 3 years of prohibition of the territory. The foreigners represent a substantial mass of the incarceration population. Between 1998 and 2002,90% of the foreigners in irregular situation had entered on the French territory in a legal way, the illegality of their situation intervening only after the expiry of their residence permit, often after a refusal of the prefecture to renew this title to them.

It is, by definition, difficult to know the number of foreigners in irregular situation present on the national territory. The estimates vary. For 2004, the Central management of the control of immigration and fight against clandestine employment (Diccilec) advances the figure of 200.000 irregular but, on its side, the International office of work estimates that they are 400.000…

In France, the expression " without-papiers" knew a broad diffusion near the general public following the occupation of Parisian churches by Collectif S asserting a massive regularization of their situation: Saint-Ambroise the March 18th 1996 and Saint-Bernard of the June 28th to the August 23rd 1996.

Definition of the term

According to the Board of inquiry into the regularizations of foreigners in irregular situation of the French Senate:

It will be noted in this respect the expression “without-papers” often employed to designate these foreigners is not neutral. It can indeed let think that those are “victims”, private of a right by the administration whereas they are from abroad remaining irregularly in France.

The question of “without-papers” is the subject of many handling Sémantique S. the terms most usually used to qualify these migrants are those of “clandestine” and “hard-working clandestine”. These terms are regularly used by authors who seek to stress that the specificity of this population is played around the fact that it resides in a place without residence permit, while avoiding the use of the “illegal” word.

This term remains however strongly criminalisant with the eyes of certain defenders of without-papers. This more especially as, as the anthropologist Marcello Valli underlines it (Report/ratio on Without papers with Lausanne, Suisse, 2003, p. 15):

The concept of clandestinity has connotations which go well beyond the simple fact of announcing the statute of a migrant. In particular starting from the Attacks of September 11th, 2001, the European governments make an explicit amalgam between criminality, even terrorism, and irregular migrations. The clandestine term would be rather adapted to exclusively refer the made-to-order to enter a country, i.e. with the people who cross the border in a way illegal or clandestine, which is the case for a part only of Without-Papers. It is in any event abusive of speaking about clandestine when, for example, these irregular migrants pay taxes or national insurance contributions or when their children attend the schools. But it is obvious that these people are very often obliged to adopt behaviors of “clandestine”, to hide or merge among the others, etc”. Pushing logic further, and because “it is not the act to migrate which is irregular, but it is the management of the act of the migration by the States which makes it irregular. Professor Claudio Bolzman speaks about “clandestinized population”.

Logically, the official and legal authorities pay much more their attention on the question of the illegality. Thus the Swiss official offices (IMES, ODR, ODM) speak about “illegal migrants”. The European Community speaks “people in irregular stay”, but uses the illegal term of “ migrating ” in its documents in English. In English also the the United Nations seem to prefer name “ undocumented migrant ” which with the advantage of referring to the fact that these migrants are not registered in their host country, without to make a criminalisant element of it. The International organization for the Migrations goes in the same direction by defending names “ irregular migrating ” and “ irregular resident ” which implies that the statute is not regular but that the individuals are not “illegal” for as much. The organization insists thus on the negative consequences which can have the assimilation of the migrants to the concept of illegality in term of image and acceptance by the indigenous population.

The associative movements and of support for the migrants prefer the term - more militant - “Without-Papers”. This term is however not exact and carries to confusion. Indeed, in a very large majority, “Without-Papers” have a passport in rule. In addition, they have a legal existence in whole pieces of the company, such as the health insurances at which Without-papers residing in Switzerland have the right and the obligation to be ensured or the obligatory state education which are officially open without discrimination to their children.

The most correct name would be thus that of “migrants without authorization of stay”, or for the large majority of them, of “migrant worker without authorization of stay”.

Definition and government action

The majority of the developed countries have today a policy with double orientation:

either expulsion towards the countries of origin, at more or less high intervals according to the countries and their current government,
or integration in the host country.

But there exists also the category known as of the " Nor-nor " , for " neither expulsable, nor régularisable". This category includes/understands the foreigners who had during their course a change in their situation: for example, a foreigner (in not renewed regular situation but, or irregular situation) who has a child with his indigenous spouse. Rights to the normal family life, of which that not to separate the families arbitrarily, guaranteed by article 8 of the European Convention of the human rights prevent an expulsion even if this one answers the law of the host country.

Often, the regularizations of certain foreigners in irregular situation are used only so that the State is put in conformity with these international conventions.

In France the prefectures manage without-papers which ask for the regularization of their situation. This request gives place to an instruction and a positive or negative decision after several stages. There is in all the towns of a few thousands of inhabitants of the lodging houses of people who ask for the regularization of their situation. One of them the center of Sangatte in the north of the France, which accommodated without-papers wanting to pass to the the United Kingdom was closed definitively, the December 16th 2002.

Motivations and origins of without-papers

The motivations of their migration can be of an economic nature and/or political, when they are private in their countries of origin of a fundamental human right which obliges them to flee.

The internationalization of the media which often makes gleam in the poor countries a greater political or economic ease in the rich countries.

The origins have sometimes a bond with their countries of destination. It is often the case when they are people old colonies which seek refuge in the old colonizing country.

Nowadays, the Eastern European countries, Africa and South America generate many candidates with clandestine immigration in the Western countries. But there also exist the clandestine ones in the poor countries.

Discusses

In many developed countries, the subject from abroad in irregular stay is discussed. Generally, in France, the left parties and of extreme left are rather favorable to the massive regularization of without-papers and the right parties to a policy of massive not-regularizations. But these tendencies give place to many exceptions. It is also advisable to distinguish the times.

At the time of the glorious Thirty, the left point of view of (Marxist, Socialistes) was that the foreign workers were Prolétaire S international exploited by the employers of the country in which they settle, with the complicity of the local government. But their regularization was easy if they asked it.
En France these workers often came from the old French colonies and were generally regulates some on the French territory.
This point of view referred more recently on without-papers, after independences. As they are sometimes employed without official statute (because they do not have the right to work officially), they can be paid with wages lower than the minimal wages, and without ancillary costs of social protection. The permanent risk of expulsion the constrained one not to ask better work conditions. Moreover, according to this analysis, their situation contributes to the weakening of the social rights of the whole of the workers of the country. This is why it would be in the logic of solidarity between the workers that the workers " indigènes" fight for the regularization of their immigrant comrades, this in the shared interest of the ones and others.
Nowadays the civil society seized this problem through religious associations, institutions and of ONG. In the event of conflict one sees “collectives” being constituted. Political solidarity between the companies of the world took importance with the increase in without-papers arriving for political reasons.
Another point of view, current with right, is that “without-papers” are economic migrants who come to seek better economic conditions and social that in their country of origin, but the social cohesion and the economy of the country endanger in which they settle. This point of view concludes that “without-papers should be expelled”, because not to do it would encourage others to try their chance, thus increasing the constraints related to the Immigration.

The points of view are also opposed on the capacity which a state with respect to the stay from abroad should have:

Some reject the concept of nationality and say that the access to the countries should be free. The Freedom of movement of the people, that the liberal companies asserted formerly against the Marxist companies, became a claim of the Altermondialisme against the company liberal, in support for without-papers.
Of others considers that the stay from abroad in a host country is not a right, but a privilege, that the host country can grant to its own way and according to its interests.

Because from these different point of view, various organizations preach various policies:

Of the parties or organizations, in particular of left or Extreme left, preaches the stop of expulsions of the immigrants in irregular situation, or at least their least rate/rhythm.
Of the parties or organizations, in particular of right or Extreme right-hand side, preaches the expulsion of the immigrants in irregular situation, with more or less of severity.

Random links: