Dupper, Ockert --- "The Human Rights of (Irregular) Migrants: An International, Regional and South African Perspective (Part 1)" [2010] IntJlSSWC 6; (2010) 2(1) International Journal of Social Security and Workers Compensation 61

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Around the world, irregular migrants are often excluded from basic social rights. While few would go so far as to argue that irregular migrants should enjoy the full range of socio-economic rights extended to regular migrants, or that there should be no distinctions drawn between these two groups of migrants, developments at the international and the regional level, as well as legal and policy developments in a number of individual countries around the world, indicate that there may be a movement away from an approach that focuses exclusively on the security aspects of irregular migration (i.e. on measures to combat irregular migration) to a more nuanced approach that also places significant emphasis on the human rights of irregular migrants. Consensus is beginning to emerge that irregular migrants are entitled to certain minimum rights in the migrant receiving country. In this paper, the position of irregular migrants in South Africa will be explored, in particular their entitlement to certain fundamental rights. The paper is divided into two parts: Part 1 explores the protection afforded to irregular migrants in international law. In addition, the specific legal and other instruments adopted at a regional level are also examined in order to determine the extent to which they complement and strengthen international norms. In part 2 of this paper (forthcoming (2011) 3(1) International Journal of Social Security and Workers Compensation), I will turn to a discussion of the minimum rights that I believe should be extended to irregular migrants in South Africa. Under each heading, the international, regional and comparative framework(s) discussed earlier will be used as the baseline from which to examine the specific South African position (both de lege and de facto).

I INTRODUCTION

Irregular migration is nothing new and appears to be wide-spread and on the increase around the world, although the exact numbers of irregular migrants are a subject of constant debate and conflicting opinion.^[1] It is estimated that there are over 200 million migrants around the world today.^[2] Of these, around 15 per cent are believed to have an irregular status.^[3] Today, this would amount to around 20-30 million irregular migrants, without considering regional and country variations.^[4] It is estimated that between 2-4.5 million migrants cross international borders without authorization each year.^[5]

For some countries, the estimates are as much as twice the official emigration or immigration levels.^[6] All regions are variously affected by irregular migration, and, depending on factors such as geography, labour market structures, and level of national development, differences in trends and impacts can vary greatly.^[7] Irregular migration affects both developed and developing countries. In 2000, in Europe and the United States alone, there were an estimated 11 million irregular migrants.^[8] In Argentina, for example, it was estimated in 2004 that there were 800 000 irregular migrants, mainly from the bordering countries.^[9] Many parts of Asia, Africa and Latin America have long and porous borders that people commonly cross without going through immigration posts, as with the Democratic Republic of the Congo in Africa and the border between Myanmar and Thailand. Indeed, in many of these regions, most of the migratory flows might better be considered as informal, since the authorities are frequently aware of them but tolerate them – either because they do not have the capacity to police borders adequately or because they recognize that immigrants serve a useful purpose for certain interest groups and communities.^[10]

As is the case with respect to migration generally, migration within the Southern African Development Community (SADC)^[11] is driven mainly by both political and economic factors. Both these factors have contributed to making South Africa the main migrant receiving country in the region.^[12] Even though reliable data on the extent and volume of migration within and to SADC is hard to obtain, it would appear that clandestine and irregular (ie undocumented) migration, as well as cross-border human trafficking within and to the region is on the increase, while regular migration is declining.^[13] This is a worrying trend, and may be placed at the door of restrictive and complex immigration policies – a subject that will be addressed in more detail in part 2. Despite the increase in irregular migration, some commentators have warned against the use of overtly emotive language to describe the phenomenon, pointing out that clandestine border crossing in Southern Africa is nothing new.^[14]

While official data on irregular migrants is difficult to obtain, a recent study estimates that there are at least 500 000 irregular migrants in South Africa.^[15] The primary means of enforcement related to migration in the region is to identify and deport violators with the minimum of due process.^[16] Since 1990, South Africa has deported over one million people, with the vast majority of deportees (upwards of 80 per cent) sent home to only two countries, namely Mozambique and Zimbabwe.^[17] In 2007 alone, more than 300 000 (irregular) migrants were deported from South Africa, up from approximately 250 000 in 2006.^[18]

Despite the fact that some convergence seems to be emerging on the use of ‘irregular migration’ as the most appropriate term to refer to migrants whose status does not conform to the legal norms of the country in which they reside,^[19] the South African Immigration Act 2002 (South Africa) (Immigration Act) persists in its use of the term ‘illegal’ to refer to such migrants. The Immigration Act defines any individual who is neither a citizen nor a resident in the Republic of South Africa, and who is in contravention of the Act as an ‘illegal foreigner’.^[20] Vigneswaran writes that ‘irregular’ migrants contravene South Africa’s immigration laws in one of three main ways: First, they enter the Republic clandestinely by crossing the border at a place other than a recognized port or post; second, after entering South Africa legally, some migrants contravene the terms of their residence permit, by staying beyond the allowed period, failing to renew, or by working, trading, studying or receiving government services in defiance of their permit; and third and finally, migrants may acquire fraudulent documents prior to coming, or during their stay.^[21]

It is submitted that the South African government is struggling with the problem of irregular migration. Irregular migrants are perceived ‘as a significant risk for the nation and its ambitious agendas of political transformation, economic development and broadly speaking, modernization attempts.’^[22] Undocumented migrants are often perceived as competing with citizens for jobs, and as frustrating state efforts to regulate health, education and housing sectors. As a result, the South African public discourse is dominated by a set of tenuous beliefs about what is termed ‘illegal migration’. Despite the prevalence of evidence to the contrary, the majority of South Africans believe that the country is suffering from an immigration crisis of tremendous proportions and gravity. While many South Africans believe that 25 per cent of the population is foreign, the figure is probably closer to 3-5 per cent.^[23] Popular and official estimates contrast sharply with census data. These ‘myths’ guide and constrain the immigration enforcement regime, limiting the scope for reform, and licensing exploitative arrest and detention practices. Vigneswaran points out that the continued abuse of citizen and foreigner rights is not the only a cause for concern: ‘The harsh methods South Africa uses to manage this perceived immigration crisis, are generating risks for South African development and democracy.’^[24]

In this paper, the position of irregular migrants in South Africa will be explored, in particular their entitlement to certain fundamental rights. The paper will be divided into two parts: In part 1, the protection afforded to irregular migrants in international law will be explored. In addition, the specific legal and other instruments adopted at a regional level will also be examined in order to determine the extent to which they complement and strengthen international norms. Here the focus will be on developments in the Council of Europe, the European Union, as well as the Southern African Development Community (SADC).

Part 2 of the paper (forthcoming)^[25] will investigate the de facto and de lege position of irregular migrants in South Africa with specific reference to their access to social security- and labour rights as well as a number of socio-economic rights, including health care and education. In addition, the position of cross-border traders as well as unaccompanied foreign children will be considered.

II INTERNATIONAL INSTRUMENTS AND IRREGULAR MIGRANTS

There is an important body of international legal instruments that protect the human rights of non-citizens, including irregular migrants.^[26] The general principle contained in international human rights instruments pertaining to non-citizens is that all persons, by virtue of their essential humanity, should enjoy all human rights unless exceptional distinctions, for example, between citizens and non-citizens, serve a legitimate state objective and are proportional to the achievement of that objective.^[27] In its General Comment 15 the United Nations Human Rights Committee explained that

Other United Nations human rights instruments, treaties and conventions, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the International Convention on the Elimination of all Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Elimination of All Forms of Discrimination against Women confer protection on migrants as well. These instruments are of significant importance for the debate in South Africa on the position of non-nationals generally and in social security specifically, as all of these (except for the International Covenant on Economic, Social and Cultural Rights) have been ratified by South Africa.^[29] The same applies to the provisions of the African Charter of Human and Peoples’ Rights, which was ratified by South Africa in 1996.^[30]

International Labour Organization (ILO) Conventions and Recommendations protect the rights of all workers irrespective of citizenship.^[31] The most significant of these are the rights contained in the ILO Declaration on Fundamental Principles and Rights at Work, 1998. These relate to the topics of freedom of association and the effective recognition of the right to collective bargaining, the elimination of forced or compulsory labour, the abolition of child labour and the elimination of discrimination in respect of employment and occupation.^[32]

These conventions also apply to migrant workers, including those in an irregular situation.^[33]

While South Africa has ratified all eight of these fundamental conventions, its record in respect of the instruments relating to social security and migrants is less stellar. There are a plethora of ILO Conventions and Recommendations dealing with social security rights^[34] as well as with the specific problems facing migrant workers.^[35] To date, however, South Africa has only ratified one of the Conventions dealing with social security, namely the Equality of Treatment (Accident Compensation) Convention, 1925 (No 19),^[36]

What is important to note is that the relevant ILO social security instruments and those dealing with migrants are generally silent regarding the protection of irregular migrant workers. However, there are at least two exceptions. The first can be found in the ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), which stipulates that irregular migrant workers shall have the same rights as regular migrant workers concerning social security rights arising out of past employment.^[38] This provision particularly must be understood for the purpose of acquiring rights to long-term benefits. Within this context, it appears that the wording ‘past employment’ refers to past periods of legal as well as illegal employment.^[39] Of further importance in this regard is Recommendation No. 151, which accompanies Convention No. 143, and which recommends that migrant workers, irrespective of their status, who leave the country of employment, should be entitled to employment injury benefits.^[40]

As the title indicates, the Framework comprises non-binding principles and guidelines for labour migration, and is meant to supplement and not replace any of the existing ILO instruments.^[42] Despite its non-binding nature, one notable feature of the Framework is that it explicitly recognises the rights of migrant workers in an irregular situation. It encourages states parties to enter into bilateral, regional or multilateral agreements to provide social security coverage and benefits, as well as portability of social security entitlements, to regular migrant workers and, ‘as appropriate, to migrant workers in an irregular situation’.^[43]

Apart from these exceptions, none of the other ILO instruments address the situation of irregular migrants. In this regard, the United Nations Migrant Workers Convention^[44] breaks new ground by expressly recognising the plight of irregular migrants. As with the ILO Conventions dealing with migrants, South Africa has regretfully neither signed nor ratified this Convention.^[45] The Convention is applicable to all migrant workers, regardless of reciprocity^[46] and irrespective of their status.^[47]

In this regard, it has been hailed as the ‘most ambitious statement to date of international concern for the problematic condition of undocumented migrants’.^[48] In the preamble, the Convention recognises that ‘workers who are non-documented or in an irregular situation are frequently employed under less favourable conditions of work than other workers’, and that ‘the human problems involved in migration are even more serious in the case of irregular migration’.

However, despite acknowledging the precarious situation of non-documented migrants, the Convention nevertheless differentiates between regular and irregular migrant workers by providing the former with additional rights. Part III of the Convention extends certain rights to all migrant workers and their families, while Part IV provides additional rights only to those workers and their families who are documented or in a regular situation. It thus creates, in effect, two classes of human rights protection. For example, states parties are entitled to discriminate against undocumented migrants with respect to rights to family unity, liberty of movement, participation in the public affairs of the state of employment, equality of treatment with nationals as regards the receipt of various social services, equality of treatment for family members, freedom from double taxation, and further employment protections and trade union rights, among others.

This differentiation between regular and irregular migrants must be viewed against the background of the persistent tension that the entire field of human rights suffers from, namely between the principles of universal human rights and those of state sovereignty. In the migration context, human rights and territorial principles meet and compete in two different regulatory domains.^[49] In the first, namely that governing matters concerning the admission and expulsion of aliens into and from a national territory, the tension ‘has largely been resolved in favour of the State’.^[50] The second domain concerns the states’ general, non-immigration-related treatment of aliens who are present within their territory. Here, Bosniak points out that ‘the interplay between the principles of States’ territorial powers and their human rights obligations is more complex’.^[51] Generally speaking, in this internal domain, all human beings are viewed as theoretically entitled to internationally-guaranteed standards of treatment with respect to fundamental rights. Yet no state is required to treat aliens, including legal resident aliens, identically with citizens. Restrictions for aliens are written into various human rights instruments, but even in the absence of such explicit restrictions, states themselves limit a variety of rights to nationals, and such action is generally treated as legitimate under international law.^[52] Just how much and to what extent states may limit rights granted to aliens is a matter of ongoing controversy. However, it is clear that ‘[t]he discrimination permitted against undocumented aliens exceed, by far, the discrimination permitted against most other classes of aliens’.^[53]

For a variety of reasons,^[54] international law treats the power of states to discriminate as both greater and more vital with respect to irregular immigrants.^[55] This is also reflected in the UN Migrant Workers Convention, which, despite extending substantial human rights protections to undocumented migrants, also makes it clear that their irregular status makes these migrants less entitled to international protection than other migrants.^[56] However, as far as social security is concerned, the UN Convention extends this right to all migrants, irrespective of status.^[57] Article 27 reads as follows:

Article 27(1) is a framework provision and not self-executing. The reason is that it refers not only to the applicable legislation, but also to the terms of bilateral and multilateral agreements that have to be fulfilled. By virtue of these provisos, states parties can adopt provisions that would, for example, differentiate between regular and irregular migrants, thereby negating the protection that the article is meant to confer on all migrants, irrespective of their status. The article does not require reciprocity for social security provisions to take effect, and therefore applies to migrant workers who are nationals of states that have not ratified the Convention. Article 27(2) applies to migrant workers’ rights in the course of acquisition. This refers to migrant workers who have left their employment in the country in which they are not nationals, have acquired rights in that state, but not the right to receive benefits abroad. The protection that article 27(2) provides is rather weak, urging states to ‘examine the possibility’ of reimbursing the contributions of migrant workers and their families in cases where the applicable legislation does not permit them to receive benefits.^[58] This is in contrast to more strongly worded protection offered by the relevant ILO instruments.^[59] It must also be noted that the lack of definition of ‘social security’ raises doubts whether the term includes non-contributory benefits, from which migrant workers are often excluded.^[60] Finally, article 27 is a statement of general principle and therefore does not define the scope of social security. However, at least two branches of social security are covered by other Convention provisions. Article 25 refers to equality of treatment between nationals and migrant workers in respect of remuneration and other conditions of work, and arguably covers the right to employment injury benefits.^[61] Article 28 covers emergency medical care. It provides that

[m]igrant workers and their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their life on the basis of equality of treatment with nationals of the state concerned … [and] … [s]uch emergency care shall not be refused them by reason of any irregularity with regard to stay and employment.

The extension of protection to undocumented migrants by the UN Migrant Workers Convention represents a watershed or, as one commentator has argued, ‘a political and jurisprudential achievement’.^[62] With few exceptions,^[63] all other instruments regarding migrant workers have provided protection to documented or regular migrants only. The question that remains is to what extent the incorporation of undocumented migrants has been successful, especially when viewed from the perspective of the human rights of the undocumented migrant.

On the face of it, the Convention extends significant rights to undocumented migrant workers and family members. Apart from the right to social security, it also includes the right to due process, equal protection, access to the courts, rights to free expression, and so forth. This in itself is significant, and if properly enforced, could improve the status and situation of these workers considerably. On the other hand, the Convention does allow states to afford lesser protections to undocumented migrant workers than to documented migrants, confirming the view that the extension of benefits to irregular migrants is done ‘in the context of an overall disapproval of the phenomenon of irregular migration’.^[64] For example, under the terms of the Convention, the undocumented migrants do not have guaranteed rights to family unity, certain trade union freedoms, liberty of movement, participation in the public affairs in the state of employment, equality of treatment with nationals with regard to certain government benefit programs including housing, educational and health-related services, and further employment protections.^[65]

However, as Bosniak^[66] points out, the real problem with the Convention, and one which will seriously limit its efficacy as a human rights instrument for undocumented migrants, is that its provisions protecting states’ sovereign prerogatives to control immigration will often effectively undermine or defeat the rights it provides to those migrants. As a practical matter, efforts to exercise the rights prescribed in the Convention may well expose the migrants to expulsion and punishment for immigration-related violations. This continued vulnerability to prosecution for immigration violations will not only limit their ability but also their willingness to exercise the rights guaranteed to them under Part III of the Convention. For example, upon applying for social assistance benefits or upon presenting themselves for emergency medical care, undocumented migrants would almost certainly be required to display identification, or in some other way reveal the particulars of their status, ‘which could lead to questions and to unwanted contact with immigration officials’.^[67] There is nothing in the Convention that would protect an undocumented migrant who finds him- or herself in such a situation. Article 79 expressly provides that ‘[n]othing in the present Convention shall affect the right of each state party to establish the criteria governing admission of migrant workers and their families’.

In addition, the powers of states to enforce their immigration policies may undermine one of the most significant rights extended to undocumented migrants, namely the right to enforce their rights against an employer irrespective of their unauthorised status.^[68] As Bosniak argues, even if an employer has violated this right by contacting immigration officials and notifying them of the migrants’ undocumented status, ‘a State is unlikely to forego prosecuting an immigrant for violations of its immigration laws simply because his or her employer will also be subject to prosecution’.^[69]

Finally in this regard, the protection afforded to undocumented migrants may be limited in another respect. Even though a state cannot ratify the Convention while at the same time excluding the application of any part of the Convention, it may ratify with reservations as to specific articles.^[70] It is therefore possible that many states will ratify the Convention, if at all, with a variety of reservations as to specific articles which benefit undocumented migrants.

III REGIONAL FRAMEWORKS

A Council of Europe^[71]

In general, Council of Europe instruments have been limited in their application to irregular migrants. For instance, while the European Convention on the Legal Status of Migrant Workers (1977)^[72] and the European Social Charter (1961)(the Charter)^[73] and the Revised Social Charter (1996) (the Revised Charter)^[74] protect the rights of migrants and their families, they appear to be limited to migrants who are lawfully resident, and only those of contracting states.^[75] Nonetheless, the European Committee on Social Rights, which monitors the application of the Charter and Revised Charter and administers the Collective Complaints Protocol,^[76] recently held that legislation or practice which denies entitlement to medical assistance to foreign nationals within the territory of a state party, even if they are there illegally, is contrary to the Charter.^[77] The Committee reasoned that it was necessary to interpret limitations on rights restrictively in order to preserve the essence of the right and to achieve the overall purpose of the Charter. The restriction in this case went to the very dignity of the human being and adversely impacted children who were exposed to the risk of having no medical treatment. In the opinion of the Committee, given that medical care is a prerequisite to the preservation of human dignity, any legislation or practice denying such treatment to foreign nationals within the territory of a state party, even if those foreign nationals are unlawfully present there, cannot be justified under the Charter.^[78] The Committee thus extended the protection of the Charter to migrants in an irregular situation, in particular through Articles 13 (right to social and medical assistance) and 17 (right of children to protection).

In contrast to the European Convention on the Legal Status of Migrant Workers and the European Social Charter, the European Convention on Human Rights (ECHR)^[79] applies to everyone within the jurisdiction of the contracting parties (Article 1). However, the ECHR is primarily concerned with protection of civil and political rights, although it does explicitly provide for two rights which are of an economic and social character, namely the right to property (Article 1 of Protocol 1 to the ECHR, which has also been found to encompass social security payments)^[80] and the right to education (Article 2 of Protocol 1 to the ECHR).^[81]

As far as the latter is concerned, the first sentence of Article 2 of the First Protocol to the ECHR stipulates unequivocally that ‘[n]o person shall be denied the right to education’. When read in conjunction with Article 14 ECHR (the non-discrimination clause), this provision clearly applies on a non-discriminatory basis to both nationals and non-nationals who are within the territory of a contracting party unless there is an objective and reasonable justification for the differential treatment.^[82] This in effect means that no children of non-nationals present within the jurisdiction of Council of Europe member states, which have ratified this protocol, may be denied their right to receive an education, even if their parents are unlawfully resident in the country.^[83] Article 2 of the First Protocol has been interpreted, both by the European Court of Human Rights and by the majority of Council of Europe member states to encompass both primary and secondary education.^[84] However, it has been held that should a parent be expelled from a country under immigration laws, the fact that the child (due to his or her age) will be obliged to accompany the parent will not amount to a violation of Protocol 1, Article 2.^[85] Nonetheless, the implementation of a removal decision may amount to a violation of the Convention when the timing of such removal would have an adverse effect on the completion of a particular stage of a child’s education and there was no imperative need for this expulsion to occur.^[86] An important consideration in the decision whether to deport an undocumented minor is whether the child would be able to obtain secondary education in the country to which she and her parents were being removed.^[87] One obstacle that children of irregular migrants often face, relates to the recognition of the education that they receive. In a recent report it was noted that some member states fail to issue certificates to irregular migrant children demonstrating that they have completed their education, which cause tremendous difficulties for such children upon their return to their countries of origin.^[88] Finally in this regard, there seems to be consensus that teachers should not be under an obligation to report the children of irregular migrants to the authorities.^[89] An exemplary approach was adopted in Belgium, where both the Flemish and Walloon governments have issued circulars underlining the right of irregular migrant children to attend school and to receive certificates and clarifying that headmasters and teachers are not required to report the status of such children to the authorities.^[90] This approach is in keeping with the general approach adopted in this paper, namely to ensure that irregular migrants can enjoy the rights that have been extended to them in law and practice without fear of immediate detection and expulsion.

While the legally binding instruments of the Council of Europe referred to above have provided limited protection to migrants in an irregular situation, numerous non-binding standards have been adopted that call upon member states to extend certain minimum rights to irregular migrants.^[91] In January 2000, the Committee of Ministers adopted Recommendation No. R (2000) 3 on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship, urging member state governments to put the following five principles into practice:

1. Member states should recognise, in their law and practice, a right to the satisfaction of basic material needs of any person in a situation of extreme hardship.

2. The right to the satisfaction of basic human material needs should contain as a minimum the right to food, clothing, shelter and basic medical care.

3. The right to the satisfaction of basic human material needs should be enforceable, every person in a situation of extreme hardship being able to invoke it directly before the authorities and, if need be, before the courts.

4. The exercise of this right should be open to all citizens and foreigners, whatever the latters’ position under national rules on the status of foreigners, and in the manner determined by national authorities.

5. The member states should ensure that the information available on the existence of this right is sufficient.^[92]

These principles identify a minimum threshold of treatment below which provisions should not fall and which clearly cannot be denied to anyone for reason of their nationality or legal status.

More recently, a report of the Committee on Migration, Refugees and Population of the Council of Europe directly addressed the issue of the human rights of irregular migrants.^[93] The recommendations of the report were adopted as Resolution 1509 (2006).^[94] While recognising the right of each Council of Europe member state to regulate the entry of foreign nationals and to return irregular migrants to their country of origin in accordance with international human rights law, the report nevertheless acknowledges that ‘a number of minimum civil and political and economic and social and economic rights [should] be applied by member states of the Council of Europe in favour of irregular migrants’.^[95] Particularly instructive are the following minimum economic and social rights:

1. Adequate housing and shelter guaranteeing human dignity: Because this right is so closely interlinked with other civil, political and economic rights, irregular migrants should have at least a minimum right to housing and shelter guaranteeing a minimum level of dignity.^[96]

Emergency health care: As a minimum, irregular migrants should have the right to emergency health care clearly recognised in domestic law so as to ensure that there are no practical obstacles to the enjoyment of the right. This should encompass preventive, curative and palliative health services as well as more holistic care for vulnerable groups such as children, disabled persons, pregnant women and the elderly.^[97]

Social protection through social security: Irregular migrants who have made social insurance contributions should be entitled to benefit from those payments or at least be repaid the sums contributed, for example if expelled from the country. In addition, social security in the form of social assistance should not be denied where necessary to alleviate poverty and preserve human dignity. This may include access to non-pecuniary social assistance benefits in kind, such as food, clothing and housing. Children are in a particularly vulnerable position and should be put on the same footing as national children in respect of the enjoyment of social and other protection. Finally, irregular migrants in work should receive equal protection to that of nationals, including in respect of compensation for work accidents.^[98]

Conditions of employment: Irregular migrants must enjoy certain basic rights so as not to be exploited and to ensure that they enjoy certain rights linked to fair conditions of employment. These include the right to fair wages, reasonable working conditions, compensation for accidents, access to the courts to defend their rights and also freedom to join a trade union.^[99]

Access to education: Children should have access to education at both primary and secondary school level where such schooling is compulsory. They should also be entitled to official certification of the standards achieved.^[100]

General: Particular protection should be provided to children and other vulnerable groups such as the elderly, single mothers and more generally single girls and women.^[101]

B European Union

As the largest and most developed free-movement regime in the world, the European Union (EU) has since the early 1970s afforded generous economic and social rights to citizens of member states who move to another member state and take up employment there.^[102] EU-citizens therefore enjoy full and equal protection in the field of social security and may under no circumstance be treated less favourably than national citizens. This is a consequence of the right of freedom of movement and the general non-discrimination rule which lies at the heart of the Treaty establishing the European Community (EC treaty).^[103] This regime has also benefited the third-country national (or non-EU national) family members of such EU citizens.^[104]

To date, the EU has adopted two directives concerning the rights of third-country nationals. The first identifies a heavily qualified right of family reunification for certain limited groups of third-country nationals lawfully resident in EU member states, while the second provides for a secure residence status to third-country nationals who have lawfully resided in an EU member state for more than five years as well as limited rights to move to another EU member state to take up employment.^[105] In addition, in October 2007, the European Commission proposed a General Framework Directive on the socio-economic rights of third-country nationals resident and employed in member states who are not yet eligible for long-term resident status.^[106] However, this measure, like the others, is directed only at those migrants who are lawfully resident in the territory of member states.

There is presently no instrument at the EU level specifically focusing on the protection of irregular migrants.^[107] It has been noted that the EU has consistently failed to adopt positive measures in the field of irregular migration, particularly such that address the pressing need to safeguard the fundamental rights of irregular migrants at all stages of the migration process.^[108] Instead, the focus has been on security and control, prioritising either regularisation or repatriation for those who are apprehended without the necessary documentation.^[109] Instructive in this regard is the recent European Commission Communication on ‘Policy priorities in the fight against illegal immigration of third-country nationals.’^[110]

This communication seems to view regularisation as a measure of last resort because of the perceived negative repercussions on the EU as a whole if and when newly regularised migrants move to other member states. This is in contrast with the earlier approach, initiated in the 1970s and still evident in the mid 1990s, where the protection of human rights occupied a more prominent place in EU policy, even though more in the breach than in the realisation.^[111] Nonetheless, the communication does recognise the importance of assessing legislative initiatives with a view to evaluating their impact on the fundamental rights of irregular migrants:

The poverty of specific measures adopted at EU level to protect the rights of irregular migrant workers means that one has to turn to developments at the national level of the individual states in order to extract best practice guidelines. This will be done in part 2, forthcoming, where access to minimum rights will be discussed.

C SADC

Unlike the EU, which is a supra-national institution, the Southern African Development Community (SADC) is a regional organisation aimed at developmental, economic and regional integration.^[113] The Charter of Fundamental Social Rights in SADC (Social Charter)^[114] contains important provisions relating to both labour law and social protection. In respect of labour rights, it requires of member states to observe the basic rights enshrined in the Social Charter, relating to freedom of association and collective bargaining, equal treatment for men and women, and the protection of children and young people, as well as persons with disabilities. It also requires the improvement and harmonisation of working and living conditions, and the creation of an enabling environment for purposes of the protection of health, safety and environment, information, consultation and participation of workers, employment and remuneration, and education and training of workers.^[115]

In respect of social protection, the Social Charter contains provisions relating to the protection of both workers and those who are not employed – and regulates the position of workers (in terms of social protection) more comprehensively than the position of those who do not work. Article 10 is the most significant article in this regard, and provides as follows:

What is immediately clear from this article is that no distinction is drawn between citizens and non-citizens. According to Olivier, such a distinction is also not contemplated, given the treaty^[116] emphasis on regional integration and Charter focus on harmonisation of social security schemes.^[117] Even more explicit are the provisions of the Code on Social Security in SADC, which encourage member states to ensure that all lawfully employed immigrants as well as self-employed migrants are protected through the promotion of certain core principles.^[118] In terms of two of these principles migrant workers should, firstly, be able to participate in the social security schemes of the host country and, secondly, enjoy equal treatment alongside citizens within the social security system of the host country.

Even though the distinction between citizens and non-citizens is of no import in this regard, it is apparent that the protection referred to above only applies to ‘lawfully employed immigrants’. Nonetheless, migrant workers in an irregular situation are not without protection. Article 17.3 of the Code on Social Security in the SADC provides that illegal residents and undocumented migrants should be provided with basic minimum protection and should enjoy coverage according to the laws of the host country. While ‘basic minimum protection’ is not defined, it is submitted that this would include core social assistance. This does not necessarily imply monetary support, but at a minimum that certain basic amenities are made available. In this regard, much can be gleaned from developments within the Council of Europe referred to above.

IV CONCLUDING REMARKS

In this part of the paper, I have illustrated that developments at the international and the regional level, as well as legal and policy developments in a number of individual countries around the world, indicate that we may begin to see a movement away from an approach that focuses exclusively on the security aspects of irregular migration (i.e. on measures to combat irregular migration) to a more nuanced approach that also places significant emphasis on the human rights of irregular migrants. Consensus is beginning to emerge that irregular migrants are entitled to certain minimum rights in the migrant receiving country. In part 2 of this paper,^[119] I will turn to a discussion of the minimum rights that I believe should be extended to irregular migrants in South Africa. Under each heading, the international, regional and comparative framework(s) discussed earlier will be used as the baseline from which to examine the specific South African position (both de lege and de facto).

[∗] BA (Stellenbosch) LLB (Cape Town) LLM SJD (Harvard). Professor, Faculty of Law, University of Stellenbosch. I would like to thank the two anonymous reviewers for their very helpful comments. I also acknowledge a special debt to Marius Olivier – conversations with him have shaped much of this paper.

[1] Official figures on the number of migrants worldwide do not include irregular migrants. See Wim Franssen, ‘The role of social security in protecting migrant workers’ (Paper presented at the ISSA Regional Conference for Asia and the Pacific, New Delhi, India, 21-23 November 2006) 2. See also Marius Olivier, ‘Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)’ (Report commissioned by the World Bank, 2009) 16.

[2] International Organization for Migration, World Migration Report 2008 (2008) 2.

[3] See International Labour Organization, Fair Deal for Migrant Workers (2004) 11.

[4] However, given that the vast majority of irregular migrants either enter countries through unofficial channels or take up unauthorized residence and employment or lapse into irregularity after regular entry, this figure is impossible to verify on the strength of currently available official data. See ibid 9.

[5] Global Commission on International Migration, Migration at a Glance (2005)

[6] Managing Migration and Minimizing the Negative Impacts of Irregular Migration (Working paper prepared for the meeting of the Global Forum on Migration and Development, Manila, Philippines, 27-30 October 2008) 3.

[11] The Southern African Development Community (SADC) consists of 15 member states: Angola, Botswana, Democratic Republic of Congo (DRC), Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

[12] Political migration has largely been the result of instability in countries such as the DRC and, earlier, Angola and Mozambique. Economic migration, which worldwide appears to be the most important driver of migration, has within SADC resulted in the flow of migrants to countries with better economies and skills shortages, namely Botswana, Namibia and especially South Africa. See Olivier, above n 1, 10 and the studies referred to there. It has also been noted that the employment opportunities created by the 2010 World Cup soccer tournament hosted by South Africa and attendant labour requirements – particularly in the construction industry – have further increased the flow of migrants to South Africa. See Southern Africa Trust, ‘Crossing the Threshold of Regionalism: Can We Meet the Social Cost of Integration in Southern Africa?’ (Policy Brief No 3, September 2008) 5. A recent study of migration within Southern Africa revealed that 86 per cent of the total number of migrants from Lesotho, Botswana, Southern Mozambique, Swaziland, and Zimbabwe work in South Africa. See Wade C Pendleton et al, Migration, Remittances and Development in Southern Africa (Southern African Migration Project, 2006) (Migration Policy Series No. 44) 3.

[13] See Olivier, above n 1, 10; Godfrey Kanyenze, ‘African Migrant Labour Situation in Southern Africa’ (Paper presented at the ICFTU-AFRO Conference on ‘Migrant Labour’, Nairobi, 15-17 March 2004) 1-2.

[14] Jonathan Crush, Vincent Williams and Sally Peberdy, ‘Migration in Southern Africa’ (Paper prepared for the Policy Analysis and Research Programme of the Global Commission on International Migration, 2005) 12. The authors refer specifically to the use of ‘aquatic imagery’ such as ‘floods’ or ‘tidal waves’ that is generally applied to the phenomenon of irregular migration. Also see Darshan Vigneswaran, ‘Undocumented migration: risks and myths (1998-2005)’ in Wa Kabwe-Segatti et al (eds), Migration in post-apartheid South Africa: Challenges and questions to policy-makers (Agence Française de Développement, 2008) 142.

[15] Crush, Williams and Peberdy, above n 14, 12-13. See also International Federation of Human Rights (FIDH), ‘Surplus People? Undocumented and other vulnerable migrants in South Africa’ (Report, 2008) 5.

[18] Consortium for Refugees and Migrants in South Africa (CoRMSA), ‘Protecting Refugees, Asylum Seekers and Immigrants in South Africa’ (Report, 2008) 17.

[23] Crush, Williams and Peberdy, above n 14, 12-13. The Consortium for Refugees and Migrants in South Africa (CoRMSA) put the figure at 3.4 per cent. See CoRMSA, ‘Protecting Refugees, Asylum Seekers and Immigrants in South Africa’ (Report, 2009) 29.

[25] Forthcoming (2011) 3(1) International Journal of Social Security and Workers Compensation.

[26] It is worth pointing out that there is no single international instrument which deals with the rights of irregular migrants, which has led to a ‘web of uncertainty as to the minimum rights to be applied to irregular migrants’, see Committee on Migration, Refugees and Population: Council of Europe, Human rights of irregular migrants (Doc 10924, 4 May 2006) at para 17 of the Explanatory Memorandum.

[27] United Nations Special Rapporteur on the rights of non-citizens, Final report on the rights of non-citizens, U.N. Doc. E/CN.4/Sub.2/2003/23 (2003), Executive summary. See also Olivier, above n 1, 73-74.

[28] See Human Rights Committee, General Comment No 15: The Position of Aliens under the Covenant (27th session, 1986) paras 1, 2.

[30] African [Banjul] Charter on Human and Peoples' Rights, adopted 27 June 1981, 21 ILM 58 (entered into force 21 October 1986) OAU Doc CAB/LEG/67/3 rev. 5,. South Africa is thereby bound to respect every individual’s right to life and physical integrity (art 4), dignity and freedom from torture, exploitation and degrading treatments (art 5), liberty and personal security (art 6), fair trial (art 7), freedom of conscience and religion (art 8), right of information (art 9) and to free association (art 10) in the limits set by law, right to property (art 14), right to work under equitable and satisfactory conditions (art 15), right to enjoy the best attainable state of physical and mental health (art 16), right to education (art 17), and right to family life (art 18). These rights largely correspond to those conferred by the UN human rights treaties. They constitute binding obligations for the South African state. Ibid. See also Olivier, above n 1, 75.

[32] The eight ILO fundamental conventions are: the Forced Labour Convention (No. 29), the Freedom of Association and Protection of the Right to Organise Convention (No. 87), the Right to Organise and Collective Bargaining Convention (No. 98), the Equal Remuneration Convention (No. 100), the Abolition of Forced Labour Convention (No. 105), the Discrimination (Employment and Occupation) Convention (No. 111), the Minimum Age Convention (No. 138), the Worst Forms of Child Labour Convention (No. 182). See

[34] In this regard, four Conventions and two Recommendations have been adopted, namely the Equality of Treatment (Accident Compensation) Convention, 1925 (No 19) and Recommendation, 1925 (No 25); the Maintenance of Migrants’ Pension Rights Convention, 1935 (No 48); the Equality of Treatment (Social Security) Convention, 1962 (No 118); and the Maintenance of Social Security Rights Convention, 1982 (No 157) and Recommendation, 1983 (No 167).

[35] These are the Migration for Employment Convention (Revised) (No 97) and Recommendation (Revised) (No 86), both adopted in 1949, and the Migrant Workers (Supplementary Provisions) Convention (No 143) (whose longer title is ‘Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975’) and the Migrant Workers Recommendation (No 151), both adopted in 1975 to supplement the 1949 instruments.

[37] At least one trade union has blamed the recent spate of xenophobic attacks in South Africa to the failure of the government to ratify Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, 1975 (No 143). Ironically, Solidarity did not base their argument on the failure of the government to ensure better treatment of what they refer to as ‘illegal migrants’, but on their failure to ‘gather(…) information on migrating workers in order to prevent unsuited workers from staying in the country illegally’, See ‘Solidarity wants ILO convention ratified’, Independent Online, 8 July 2008.

[39] See Ursula Kulke, ‘The role of social security in protecting migrant workers: The ILO approach’ (Paper presented to the ISSA Regional Conference for Asia and the Pacific, New Delhi, India, 21-23 November 2006) 4.

[41] See <http://www.ilo.org/public/english/standards/relm/gb/docs/gb295/pdf/tmmflm-1.pdf> .

[42] Ibid introduction [4].

[43] Ibid [9.9].

[44] The full title is: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families., It was adopted by General Assembly resolution 45/158 of 18 December 1990, 30 ILM 1521 (entered into force on 1 July 2003).

[45] It is important to note that the countries that have signed and/or ratified the Convention consist only of so-called ‘sending states’. None of the major ‘labour-receiving’ countries, that is states which primarily attract migrant labour, have to date either signed or ratified the Convention. See Dupper, above n 19, 227.

[46] This principle (of non-reciprocity) is also enshrined in ILO Conventions 97 and 143. This means that so long as the country of employment has ratified the Convention in question, the social security rights of migrants are to be respected, irrespective of whether the migrant worker’s home country has ratified the instrument. However, during negotiations on the drafting of the UN Migrant Workers Convention, the German representative, joined by others, had argued unsuccessfully for inclusion of a reciprocity clause that would have permitted a state to limit its obligations under the Convention to nationals of other states parties. Such a reciprocity clause would have avoided the asymmetry of requiring a state to protect the rights of particular nationals without a positive assurance that the state’s own nationals would enjoy protection in the territory of the other state – ie, in the state of the protected nationals. It has been pointed out that the absence of such a clause may inhibit ratification and accession to the Convention. See James A R Nafziger and Barry C Bartel, ‘'The Migrant Workers Convention: its place in human rights law'(1991) 25 International Migration Review 786. This may be one of the reasons for the fact that the Convention has been ratified only by so-called ‘migrant sending’ countries.

[47] For the sake of completeness is must be mentioned that the recent ILO Multilateral Framework on Labour Migration (2005) [para 9.9] proposes that ‘where appropriate’, social security coverage and portability of benefits should be extended to ‘migrant workers in an irregular situation’,

<http://www.ilo.org/public/english/standards/relm/gb/docs/gb295/pdf/tmmflm-1.pdf> .

[48] Linda S Bosniak, ‘Human Rights, State Sovereignty and the Protection of Undocumented Migrants under the International Migrant Workers Convention’ (1991) 25 International Migration Review 740. The extension of certain rights to irregular migrants did not occur without significant opposition. During the drafting process, many countries argued that extending rights to these workers would encourage and even reward someone for violating a country’s borders. Many of those in favour of extending rights to irregular migrants in the end used instrumental as opposed to normative reasoning to support their position. They argued that extending rights to migrants in an irregular situation ‘would discourage employers from hiring such workers and improve conditions for national workers’. See Ryszard Cholewinski, Migrant Workers in International Human Rights Law (1997) 187.

[49] See Bosniak, above n 48, 753.

[50] Ibid.

[51] Ibid.

[52] Ibid 754.

[53] Ibid 755.

[54] States mainly view the presence of irregular migrants both as a violation of their sovereign exclusionary powers and as a breach of the social contract which binds the nation. See ibid 755.

[55] Ibid.

[56] The hope is that the carrot of additional benefits and protections for migrants in a regular situation may encourage undocumented migrants to seek to regularise their status. See Nafziger and Bartel, above n 46, 784.

[57] Cholewinski, Migrant Workers, above n 48, 165-166, points out that it is not entirely clear from the drafting history of the Convention whether art 27 applies to irregular migrants to the same extent as it does to regular migrants. A clause in the draft text explicitly limited the application of the equality principle in respect of irregular migrants to those social security benefits to which they had contributed. However, this clause was removed during the second reading of the text. Cholewinski nevertheless concedes that the presence of art 27 in Part IV, which applies to all migrants, irrespective of status, removes any doubt that it was intended to apply to both regular and irregular migrants. It must be noted that extending social security rights to all workers, irrespective of status, reflects the position adopted in other human rights instruments. See Universal Declaration of Human Rights, arts 22 and 25(1); International Covenant on Economic, Social and Cultural Rights, art 9; International Covenant on the Elimination of all forms of Racial Discrimination, art 5(e); and European Social Charter, art 12.

[58] It is arguable that a mere reimbursement of contributions is not sufficient to properly reimburse migrants for the rights they have acquired. This does not, for example, take into account the contributions that employers have made on behalf of migrants, nor the years of contributions that migrants need in order to qualify for old-age pensions elsewhere. This is particularly true in ‘defined benefit’ systems. Making benefits portable would be a more appropriate solution. I am extremely grateful to one of the anonymous reviewers for bringing this point to my attention.

[59] Eg, art 9(1) of Convention 143 protects the social security rights of migrant workers arising out of ‘past employment’, and Recommendation 151 stipulates in para 34(1)(c)(ii) that all migrant workers who leave the country of employment should be entitled to ‘reimbursement of any social security contributions which have not given and will not give rise to rights under national laws or regulations or international arrangements’.

[60] See discussion in n 67, below.

[61] See Cholewinski, Migrant Workers, above n 48, 167.

[62] See Bosniak, above n 48, 758.

[63] Unlike Convention 97, which confines protection to any person ‘regularly admitted as a migrant for employment’, art 9(1) of Convention 143 does extend rights ‘arising out of past employment as regards remuneration, social security and other benefits’ to undocumented or irregular migrants. The objective of this part of the Convention is to extend to undocumented migrant workers some rights that derive from their having been employed. Eg, the fact that an undocumented migrant does not have a work permit should not deprive him or her from receiving remuneration for work that he or she has performed. Para 34 of Recommendation 151 elaborates further on this right, and provides that ‘a migrant worker who leaves the country of employment, irrespective of the legality of his stay therein to any remuneration for work performed, including severance payments normally due; to benefits which may be due in respect of any employment injury suffered; and in accordance with national practice to compensation in lieu of any holiday entitlement acquired but not used; (and) to reimbursement of any social security contributions which have not given and will not give rise to rights under national laws or regulations or international agreements’ (emphasis added). While it is clear that only social security benefits that derive from past employment are covered, it is equally clear that these benefits are extended to both documented and undocumented migrants.

[64] Paul Schoukens and Danny Pieters, ‘Exploratory Report on the access to social protection for illegal labour migrants’ (Council of Europe, 2004) 8.

[65] Convention Part IV. See also Bosniak, above n 48, 741.

[66] Bosniak, above n 48, 759.

[67] Ibid 760. This is not mere speculation. In Denmark, eg, entitlement to social assistance is reserved for people who have lived in the country for the previous three years. Social assistance for people who have lived in Denmark for a shorter period of time is decided by local authorities acting under guidance laid down by the Ministry of Social Affairs. However, if a claim for social assistance is made by a person who has lived in Denmark for less than three years, he or she may be deported. See Simon Roberts et al, Migration and Social Security Handbook (1997) 211.

[68] Art 25(3).

[69] Bosniak, above n 48, 761. In terms of art 68(2), states must impose sanctions against employers who employ irregular migrants in order to ‘eliminate the employment in their territory of migrant workers in an irregular situation’.

[70] Art 88. In drafting this provision, state representatives deliberately capitalised the ‘p’ in ‘Part’ to clarify its reference to entire sections of the Convention rather than to individual provisions. See Nafziger and Bartel, above n 46, 785.

[71] The Council of Europe was established to promote democracy, the rule of law and human rights as well as co-operation among its member states. It currently has 47 member states. See Simon Tonelli, ‘Irregular Migration and Human Rights: A Council of Europe Perspective’ in Barbara Bogusz et al (eds) Irregular Migration and Human Rights: Theoretical, European and International Perspectives (2004) 302.

[72] European Convention on the Legal Status of Migrant Workers, opened for signature on 24 November 1977, 14 ETS 93 (entered into force on 1 May 1983).

[73] European Social Charter, opened for signature on 18 October 1961, 529 UNTS 89 (entered into force on 26 February 1965).

[74] Revised European Social Charter, opened for signature on 3 May 1996, ETS 163 (entered into force on 1 July 1999).

[75] Ibid 303.

[76] Additional Protocol to the European Social Charter Providing for a System of Collective Complaints (9 November 1995) ETS No 158. Under this Protocol, certain trade unions and non-governmental organizations (NGOs) can bring complaints against those Contracting Parties accepting the Protocol's procedure. See Ryszard Cholewinski, ‘The Human and Labor Rights of Migrants: Visions of Equality’ (2008) 22 Georgetown Immigration Law Journal 177, 190.

[77] IFHR (International Federation of Human Rights) v. France, European Committee on Social Rights, Complaint No.14/2003, 8 September 2004) [32].

[78] Ibid [29]-[32].

[79] European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature on 4 November 1950, 213 UNTS 222 (entered into force on 3 September 1953).

[80] See Gaygusuz v Austria [1996] ECHR 36; (1996) 23 EHRR 364.

[81] Ryszard Cholewinski, Irregular migrants: access to minimum social rights (Council of Europe, 2005) 30.

[82] Ibid 36.

[83] Ibid.

[84] This is due to compulsory schooling requirements in most member states. See Cholewinski, Irregular migrants, above n 81, 35.

[85] Sorabjee v United Kingdom (Application No 23938/94, 23 October 1995) (unreported); Jaramillo v United Kingdom (Application No 24865/94, 23 October 1995) (unreported); Dabhi v United Kingdom (Application No 28627/95, 17 January 1997) (unreported); and Ajayi and others v United Kingdom (Application No 27663/95, 22 June 1999) (unreported).

[86] See Vikulov and others v Latvia (Application No 16870/03, 25 March 2004) (unreported), where the removal of the family was delayed until the completion of a child’s school year. This was held not to amount to a violation of Protocol 1, Article 2. See also Jeremy McBride, ‘Irregular Migrants and the European Convention on Human Rights’, 21, [114] (memorandum drafted for the Committee on Migration, Refugees and Population, AS/Mig/Inf, 14 November 2005).

[87] In Vikulov and others v Latvia (Application No 16870/03, 25 March 2004) (unreported), the fact that the child was able to obtain secondary education in the country to which he and his parents were being deported was an important consideration taken into account by the ECHR. See McBride, above n 86, [114] and Cholewinski, Irregular migrants, above n 81, 38.

[88] Cholewinski, Irregular migrants, above n 81, 37.

[89] Ibid and the examples cited there.

[90] Ibid.

[91] Cholewinski, ‘The Human and Labor Rights of Migrants’, above n 76, 211. For a chronological report on the activities of the Council of Europe on irregular migrants, see Cholewinski, Irregular migrants, above n 81, 7-10.

[92] Council of Europe, Committee of Ministers, Recommendation No R (2000) 3 (19 January 2000) to member states on the Right to the Satisfaction of Basic Material Needs of Persons in Situations of Extreme Hardship. (Emphasis added).

[93] Council of Europe, Human rights of irregular migrants, above n 26.

[94] The text was adopted by the Parliamentary Assembly of the Council of Europe as Resolution 1509 (2006) Human rights of irregular migrants on 27 June 2006 (18th Sitting).

[95] Council of Europe, Human rights of irregular migrants, above n 26, [11].

[96] Ibid [52].

[97] Ibid [60]-[61].

[98] Ibid [62]-[70]. Also see ‘conditions of employment’.

[99] Ibid [71].

[100] Ibid [77]-[81].

[101] Resolution 1509 (2006) para 13. I will return to these rights under the separate headings in part 2, forthcoming, above n 25.

[102] Cholewinski, ‘Human and Labor Rights of Migrants’, above n 76, 191.

[103] M Olivier and G Vonk (eds), ‘Comparative review of the position of non-citizen migrants in social security’ (Report for the South African Treasury, 2004) 52.

[104] Council Regulation 1612/68/EEC On Freedom of Movement for Workers Within the Community [1968] OJ Sp Ed L 257/ 475.

[105] See Council Directive 2003/86/EC On the Right to Family Reunification [2003] OJ L 251/12; Council Directive 2003/109/EC Concerning the Status of Third-Country Nationals who Are Long-Term Residents [2004] OJ L 16/ 44.

[106] See European Commission, Proposal for a Council Directive on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, COM (2007) 638 final (23 October 2007).

[107] Cholewinski, ‘Human and Labor Rights of Migrants’, above n 76, 192.

[108] Cholewinski, Migrant Workers, above n 48, 162-163.

[109] See Ryszard Cholewinski ‘The Acquis on Irregular Migration: Reinforcing Security at the Expense of Rights’ (2000) 2 European Journal of Migration and Law 361.

[110] Released on 19 July 2006, COM (2006) 402

<http://eurlex.europa.eu/LexUriServ/site/en/com/2006/com2006_0402en01.pdf> . The document adopts ‘siege mentality’ language as if the problem is wholly external to the EU and not linked to any economic forces operating within the territory of the member states. See Cholewinski, Migrant Workers, above n 48, 176.

[111] Cholewinski, Migrant Workers, above n 48, 163.

[112] Communication from the Commission on Policy Priorities in the Fight Against Illegal Immigration of Third-Country Nationals, COM (2006) 402 final (July 19, 2006) [3].

[113] Olivier and Vonk, above n 103, 64.

[114] Charter of Fundamental Social Rights in SADC, signed and entered into force on 26 August 2003.

[115] Olivier, above n 1, 65.

[116] Treaty establishing the Southern African Development Community (SADC) of 17 August 1992.

[117] Ibid 66.

[118] Article 17 of the Code.

[119] Forthcoming, see above n 25.

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