Undocumented or illegal immigrants?

by Lorenzo Piccoli

It is early June and I am sitting on a train on my way back to Switzerland working on my dissertation. I am currently writing a chapter explaining why different regions of the same state provide a different right to health care for undocumented migrants. This latter term perplexes the passenger next to me whom, after a few minutes spent over-looking the text I am writing on my laptop, decides to start a terminological debate on ‘undocumented migrants‘. It is a good topic for a debate, for there are multiple ways to define people that do not have an official piece of paper to justify their entry, or their presence, within the territory of one State: illegals, irregulars, undocumented, clandestinos.

The argument of the curious passenger is that we must use the term ‘illegal migrants‘ to describe all those who do not have the necessary documents to stay in the territory of a State. I explain that I prefer the term ‘undocumented migrant’ because it is less heavily laden.

The friendly passenger draws a comparison between a person who enters illegally in a house and a migrant who enters illegal in the territory of a State. Both of them, he argues, are illegal. I protest the use of a term that attributes illegality to persons as such instead of their actions. Undocumented migrants are, in fact, a broad group of persons. They comprise the individuals who cross the borders of a State without the required documentation (identity documents and, where necessary, a VISA) but also those who, having entered a country on a regular basis, either overstay their permit of stay, or breach the conditions attached to it. Take, for instance, my Canadian friend whose name I won’t make who decided to stay in Europe ‘just a little bit longer‘, thus disregarding the terms of his tourist visa. He became an undocumented migrant, because his permanence within the country was no longer covered by any administrative permit. Undocumented migrants can also be refused asylum seekers, or children born from parents that do not have permission to stay. All these situations have one thing in common: the lack of some necessary administrative documents.

It is not uncommon in the life of an ordinary citizen to breach administrative provisions: what generally happens as a consequence of that is that the citizen pays a fine, and moves on with his or her life. The problem with the situations described above, explains Lucia Caroni on the nccr blog, is that the breach of administrative provision makes the very presence of a person within a State no longer accepted. That is why this is perhaps one of the fields of law where words matter the most: ‘the risk is to criminalize not an act, but rather a way of being, thus making the uncertain lives of such people even more precarious‘. I could not convince the fellow passenger on the train to stop using the term ‘illegal immigrant‘, but I hope I did convince some of you.