Chapter 37

The Challenge of Irregular Migration

Dita Vogel

37.1 Introduction

International migrants represent a small fraction of around three per cent of the global
population, and according to estimates, irregular migrants seem to comprise a rather
small share of international migrants in most countries of the world. Amongst the
general public and politicians, irregular immigration is associated with fears: that
countries are losing control over their borders, that social systems are overstretched
by unauthorised use, that indigenous workers are being pushed out of employment,
and that criminality is growing. Many states worldwide invest large amounts of public
funds into combatting irregular migration. When it is argued that the political
significance outweighs the numerical significance of irregular migration (Koser 2010,
p. 187), it should be considered that fears of irregular migration are motivated by the
numbers of potential migrants outside the receiving country rather than the number of
irregular migrants who are inside a country.

The term ‘irregular migration’ in the broader sense is used for many forms and types
of ‘irregularity’ or ‘illegality’ related to entry, stay and work of foreign citizens
(Triandafyllidou 2010, p. 2). In a narrow sense, irregular migration refers to processes
that lead to illegal residence – migrants living outside their country of citizenship
without any legal status in the country of residence. The term irregular or
‘undocumented’ resident or (im)migrant is used to refer to these categories of persons.
Other expressions with similar meanings are often avoided because they may carry
negative connotations (such as: illegal, clandestine, unauthorised) or positive
connotations (such as: illegalised, sans-papiers).

The very definition of irregular migration implies the existence of nation-states with
restrictive migration policies and can thus be considered a recent phenomenon

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(Cvajner and Sciortino 2010, p. 390). If there is no state, there is no foreign national.
If everybody has the right for unconditional and spontaneous change of residence,
there is no irregular migration. However, the metaphor ‘fortress Europe’ reminds us
that migration restrictions existed prior to nation-states on the local level. In medieval
cities, governing bodies already had the will and capacity to distinguish between those
who may reside inside the walls and those who do not have that right. A
contemporary parallel would be the restrictions that Chinese cities have towards new
inhabitants from other parts of the country, particularly from rural areas.

Legal migration restrictions differ throughout the world, therefore it should come as
no surprise that they lead to largely diverging irregular situations. For example,
irregular migration may refer to Mexicans working in the US agriculture sector as
undocumented migrant workers; Asian and African boat people arriving at the shores
of Southern Europe or Australia and applying for asylum after irregular entry;
construction workers from the Southern Caucasus entering legally and finding illegal
employment in Russia’s shadow economy; workers from Congo-Brazzaville in
Congo-Kinshasa, facing mass deportations in times of crisis; or Bengali household
servants submerging unnoticed in the local Bengali minority in India.

We can assume that irregular migration differs substantially between different nation-
states and thus the challenges to different actors associated with this migration should
differ as well. This chapter addresses challenges for understanding and challenges for
policy-making, with a focus on high income Western democracies and their policy
advances.

37.2 Theorising Irregular Migration

Differentiation theory is proposed as a comprehensive approach for understanding

why irregular migration occurs and how irregular migrants are positioned in receiving
societies. Differentiation theory starts from the assumption that world society is
functionally differentiated, but that each subsystem has its own form of internal
differentiations. While the development of some subsystems, such as the economic
subsystem ‘triggers or facilitates human mobility’ towards the areas with better life-
chances, other subsystems like the political subsystem, assume stable territorial

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distinctions and states are thereby entrusted with the task of regulating the impact on
insiders of anyone and anything coming from the outside (Cvajner and Sciortino
2010, p. 393). Other theoretical approaches can be embedded in this overarching
theory; they mainly focus on specific perspectives. As irregular migration is a social
construction from the political subsystem, theoretical approaches come from a
perspective of the political subsystem, particularly addressing irregular migration as a
gap between policy goals and policy outcomes (Cornelius and Tsuda 2004).

The degree of inclusion of irregular migrants depends on the significance of an

immigrant’s legal status for the subsystems within nation states (Cvajner and
Sciortino 2010, p. 397). For buying bread, participating in cultural events and
working in the informal economy, lack of status is insignificant. For buying houses,
participating in elections and working in the formal economy, status is significant in
most nation-states and more or less consistently checked. Generally when little
paperwork is required for an interaction, the cost of introducing checks only for
immigration status is high, and the effectiveness of checks is likely to be low.
Understanding irregular migration in different societies is not possible without
understanding which criteria are relevant for the interactions of persons with a regular
status in different subsystems.

Moreover, state institutions are fragmented and functionally differentiated so that we

can speak of subsystems within public administration. They are represented by sets of
more or less independently deciding organisations within the state of funded by the
state. For example, welfare departments often employ social workers. They have a
key orientation towards the welfare of their clientele, and know their specific welfare
law best, while migration enforcement departments often employ persons with police
training who have a key orientation towards law enforcement and know immigration
law best. Therefore, it makes a big difference whether a young irregular migrant is
allocated to the youth welfare department or to the immigration enforcement
department, or whether a handicapped or traumatised irregular migrant is primarily
dealt with in the health or the immigration enforcement department.

37.3 Observing Irregular Migration

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The state’s monitoring of the resident population impacts on the distinguishability of
irregular migrants, regular migrants and citizens. Particularly in poor rural areas of
developing countries, large parts of the citizen population have no papers or other
proof of their citizenship. In such regions, it is difficult for authorities to distinguish
those who are legal citizens from those who are not (Sadiq 2009, p. 72). Irregular
migrants may gradually accumulate fake or real documents – for example, an
electricity bill, voting receipt, child’s birth certificate or driver’s licence – sufficient
for local purposes. Such papers may later be used to acquire real authorised state
documents – irregular migrants become ‘paper citizens’ (Ibid., p. 110).

In more advanced states, technical developments have increasingly improved states’

capacities to identify their resident populations and keep track of travellers with visa
databases that may be linked in the future to entry-exit-systems. However, due to
privacy concerns, states differ substantially with regard to the implementation and
acceptance of monitoring of the regular population. On the one hand, in Scandinavian
countries, unique identifiers accompany people from the cradle to the grave. Data
sharing and exchange is a common and accepted practice. On the other hand, the UK
and the US do not require residence registration or possession of identification
documents from their citizens.

The type and scope of monitoring of the regular population and of involvement of
regular police in migration control does not only impact on irregular migration, but
also on a researcher’s means to study the phenomenon: If all police note the residence
status of all suspects irrespective of the crime, irregular migrants can be traced in
police statistics. With pressure to serve only people with residence status, doctors or
support agencies may be reluctant to speak to researchers about divergent practices.
The more irregular migrants feel at risk of being detected and deported, the more
difficult it is to survey them. As a consequence, research in this field has to rely on
biased quantitative data, qualitative case studies and theory-guided interpretations of
data. For some countries and population groups, considerable efforts have been made
to deal with these biases and achieve a better understanding of migration processes
and living conditions, at least for specified subpopulations (Massey and Capoferro
2007).

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Existing studies with thorough interpretation of biased data have shed light on several
myths about undocumented immigrants. The following discrepancies are not only
found in the selection of European countries in which they were analysed but can also
be found elsewhere (Triandafyllidou and Vogel 2010)1: estimates of increasing
irregular migration often persist when there are indications that it declines; regular
entry with subsequent overstaying is usually more important than entry without
inspection; the importance of young males is overestimated compared to females of
different age groups; forms of regularisation and outward movement are the main
pathways out of irregularity rather than forced return and deportation.

37.4 Policy Challenges in High Income Democracies

The remainder of this chapter focuses on policy challenges in high income

democracies. The reason is not that the majority of irregular migrants is living in these
states. However, irregular migration to relatively wealthy Western democracies has so
far attracted most of the scholarly research, while the movement of poor people across
unmarked borders into other developing countries with limited resources for
monitoring and controlling immigration is a neglected area of research (Sadiq 2009).

37.4.1 The mobility challenge

High income democracies are characterised by a high degree of international
connectedness requiring the mobility of people over borders. They are economically
engaged with other countries through trade in goods, investment into production
abroad, and tourism. With the exception of Japan, they also have substantial
population shares of immigrant origin with family relations in the countries of origin
and other countries of the world. Therefore, citizens of high income states have
multiple reasons to move over borders themselves and to have their family and
business partners visit them. Governments seeking to maintain the interests and
privileges of their citizens must make sure that border regimes do not discourage or
even impede these movements which are perceived as advantageous by their own
citizens (Mau et al. 2012).

Visa regimes screen legal entrants and simultaneously allocate the opportunity for
overstaying. Finotelli and Sciortino (2013) analyse visa policies of the European

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Union and show that the boundaries of tolerance towards potential irregular migrants
are selectively defined:

If there are no risks of growing number of asylum applicants (and in

some cases, such as Serbia and Macedonia, even if there are), EU
member states seem willing to tolerate certain levels of irregular
immigration if they are perceived as temporary (as in the case of the
new candidate countries) and/or culturally close, or if they are judged
to be a side-effect of more important policy goals. (Finotelli and
Sciortino 2013, p. 516).

Particularly neighbouring countries may receive favourable visa regimes for their own
citizens, as border control depend heavily on the neighbouring state’s cooperation and
willingness to accept those who are found to have entered irregularly from the
neighbouring state.

37.4.2 The protection challenge

Highly developed democracies have distinctly different regimes towards human rights
protection within their territories than outside their territories. There is no right to
enter for people who suffer from severe human rights violations, but there is a right
not to be returned (for more information see Papagianni, Schuster or Betts in this
volume). Inside the country, it is crucial whether irregular migrants are officially
identified as deserving particular protection and therefore transferred to a protection
subsystem that deals with them according to a different set of rules.

Forcibly displaced persons have a better chance to get a long-term residence permit in
a relatively secure and wealthy country if they are in that country’s territory already
(compared to if they are still outside that country’s borders). In 2013, from an
estimated 51.2 million people forcibly displaced due to persecution, conflict, violence
and human rights violations, close to 1.1 million people lodged an asylum application,
while less than 100,000 persons were offered protection in a different country through
resettlement (UNHCR 2013, p. 5). The possibility of settling in a stable and wealthy
country is a powerful incentive for irregular migration into such a country, regardless
of the high costs paid to smugglers for falsified visas or the lethal dangers of

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clandestine entry. When migrants enter irregularly, they at least receive temporary
protection and support during the course of the asylum procedure. This involves the
chance of a long-term stay and the risk of deportation to the country of origin or
transit, which may be avoided by hiding from authorities and becoming irregular.

Unaccompanied minors face a similar asymmetry: while there is no right of entry,

they are protected from deportation as long as they are still minors (under 18 years of
age). As a vulnerable group, unaccompanied children and youth are addressed – at
least in principle – like other minors in the receiving country, being able to go to
school and to have shelter and adult support. Their situation changes significantly
when they are transferred from the exclusionary migration control system to an
inclusionary youth protection system, and thus age determination plays a crucial role
for allocation to subsystems. Similarly, the identification of an irregular migrant as a
presumed ‘trafficking victim’ – usually through indicators that he or she is forced or
tricked into the situation to be exploited in labour or prostitution – can have a
protective function, although usually only for a period of cooperation with the
authorities that seek to prosecute the trafficker.

For irregular residents hiding from immigration authorities, the human rights question
is posed differently. In principle, basic human rights should be granted, but in
practice, they may not be fulfilled if accessing services implies the risk of detection
and deportation (Fundamental Rights Agency 2011). It is not only a question of
whether individuals should be primarily dealt with in a subsystem focussing on rights.
In addition, subsystems in the society that are necessary to ensure basic human rights
such as legal aid, health care and schooling can be shaped in a way that immigration
status bears no significance. Following the logic that basic human rights should be
accessible to everyone, service providers can be exempted from asking immigration
status information just as the baker does not ask for immigration status when selling
bread.

37.4.3 The labour market challenge

The labour market challenge is considered to be crucial for irregular migration as
many migrants seek and find better employment as irregular migrants abroad than as
regular residents at home. Because of this fact, they are willing and capable to survive

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as irregular migrants and achieve targets such as a having an improved standard of
living, or sending remittances to their family in the country of origin. They may even
join forcibly displaced persons in their efforts to enter a country over dangerous
borders illegally if they belong to a population group that cannot enter regularly
within the visa regime, if they have the perception that improved labour market
chances will justify this risk.

Access to the formal tax-paying labour market is very difficult in countries with close
population monitoring such as the Nordic states. In closely monitored states, regularly
employed migrants usually have some sort of residence documentation, although
irregularities may occur. Residence conditions can be broken, or falsified or
‘borrowed’ papers can be used. In other countries such as the United States, the
employment of irregular migrants in regular jobs is at the core of public debates.
Employer sanctions are partly designed to prevent the inadvertent hiring of
undocumented immigrants. This concerns mostly jobs that are eschewed by native
workers because of low wages, low status and high demands in terms of dirt,
difficulty and danger (3-D-jobs) (Koser 2010). If employers are willing to employ a
migrant in a tax-paying job, irregular migration can in principal be substituted by
regular migrations schemes.

Cooperation between authorities reduces the participation of irregular migrants in the

regular economy. If tax or labour authorities have to forward information to migration
authorities, the migration control regime dominates the rules that are prevalent in
other subsystems. The Netherlands are a good example to illustrate the consequences
of cooperation obligations. Before the introduction of extended cooperation
obligations between authorities, 30 per cent of undocumented migrants had worked
within the formal labour market. Ten years later, almost none of them still did so
because many immigrants had shifted to informal work in difficult to control
workplaces such as small restaurants and private households (Engbersen and Broeders
2009, p. 877).

Non-state actors can be involved particularly through employer sanctions which

oblige employers to check whether a foreign national is eligible for work . The burden
to inadvertent employers depends heavily on the general monitoring systems –

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making an extra tick in a registration form is an easy task, whereas the obligation to
scrutinize a wide range of documents is more difficult and employers may rather risk
to discriminate against ethnic minority job candidates than fail to comply with
immigration law obligations (Vogel 2005).

Regular migration schemes are no alternative for the employment of irregular

migrants in the informal economy because it is built on the avoidance of bureaucracy
and taxes. Migration status is insignificant for labour relations in the informal
economy which depends on the perception that contracts will be kept although they
cannot be enforced through the legal system. Rather, work obligations are kept
because of trust in a social relation or because of the idea of complicity in tax evasion.
Domestic work is particularly prone to unauthorised work, because state strategies to
control compliance would require interference in private homes – something that is
likely to meet with the resistance of citizens. The demand for domestic and care work
attracts irregular migrants who are not legally authorised, but informally welcomed
(Ambrosini 2013, p. 15).

Countries with a wide informal economy are more likely to attract irregular migrants
than countries with a smaller share of informal economic activities. Thus, the
regulation of the labour market for all citizens impacts on the opportunities for
employing irregular migrants. States would have to grant wide-ranging tax
exemptions for branches that are not easily monitored by the state to make jobs
attractive for regular inhabitants.

37.5 Political Relevance and Future Developments

At the time of writing, refugee numbers increased dramatically in a number of crisis

regions in the world, and even more regions are threatened with war and unrest.
Often, political instability comes with economic problems and increases the poverty
level. At the same time, border crossing is often easy in many less developed regions
of the world and increasingly difficult in the industrialised democracies with the
highest wealth. In such a situation, it can be expected that irregular migration will
increase particularly to those countries which are accessible, relatively safe and have
large informal economies that offer some way of getting along for irregular migrants

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(such as Turkey for example). Particularly high income countries seek to shield
themselves from an increasing irregular inflow by guarding regular gates of entry and
borders more heavily with the employment of improved technical equipment. In that
sense, irregular migration is mainly a problem of high income countries, not because
they experience more irregular inflows and host more irregular residents than other
countries, but because they have more to lose and more to share. Irregular migrants
pose considerable challenges in terms of mobility management, protection, and labour
market regulation.

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Endnotes

1
Austria, Czech Republic, France, Greece, Germany, Hungary, Italy, The Netherlands, Poland
Slovakia, Spain and the UK.

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