European Journal of Social Security

This article discusses some recent trends in the area of immigration and social security. Access to social security is rendered more difficult, particularly for irregular immigrants, while the scope of application of the social security system is more closely linked to the national border (retrenchment to the national borders). It is argued that these trends can be attributed to restrictive immigration policies and the implicit rejection of transnational citizenship. These factors also appear to affect the strength of the transnational informal social security networks of which migrant groups are members. The article calls for an alternative strategy for the social protection of irregular migrants based upon respect for human rights, extra-territorial responsibility of migrants and more socially inspired return policies.

Human security emerged as a post-Cold War discourse out of the United Nations Development Programme (UNDP) in the 1990s, and provides the focus of the 2003 Commission on Human Security Report and the 2012 UN Secretary General's Second Report on Human Security. The concept of human security attempts to confront threats that had been overlooked by conventional state-centred conceptions of national security, addressing risks faced by individuals and communities, such as poverty, HIV/AIDS, and violence against women. It places human rights as one of its core pillars and advocates a person-centred approach to dangers that create interlinked vulnerabilities for persons worldwide.

The focus of human rights on the individual often provides a fragmented picture of phenomena that are, in fact, interconnected. In response to this, the paper asks whether the introduction of the concept of human security has the potential to enrich International Human Rights Law by enabling it to adapt to the challenges faced by undocumented migrants. It examines legal irregularity as a source of risk through the lens of human security. In reviewing illustrative judicial cases from the European and Inter-American human rights' systems, it analyses whether a human security-sensitive approach, with its view of widespread threats, offers a more integrated approach towards the rights of undocumented migrants, as well as examining the consequences that unfold when it is overlooked.

It can be argued the EU Reception Conditions Directive constitutes an improvement on international refugee law in that it creates entitlements to welfare for asylum seekers. However, this development is limited in two important respects. First, the Directive has often either not been fully implemented or has been poorly implemented, resulting in vast differences in practice and inadequate levels of protection across the Union. Second, the effect of the EU's immigration and border control practices is to limit access to EU territory for all migrants, irrespective of their motivations for moving. Migrants' departure points are being pushed further afield and their journeys to the EU are becoming more dangerous. Thus, the EU's highly restrictive immigration and border control policy de facto undermines the protective elements that might otherwise result from the Reception Conditions Directive.

This article analyses possible legal bases for the establishment of extra-territorial socio-economic human rights obligations on the part of wealthier European ‘Destination Countries' vis-à-vis poor migrants. In particular, it considers whether obligations of international cooperation and assistance under the International Covenant on Economic Social and Cultural Rights (ICESCR) might provide a basis for addressing socio-economic deprivation in Countries of Origin and lead to the provision of social assistance. The article also analyses the socio-economic case-law under Article 3 of the European Convention on Human Rights (ECHR) in respect of expulsion of migrants (e.g. MSS v Belgium and Greece, Sufi and Elmi v the UK, and SHH v the UK).

The analysis of these documents supports the claim that wealthy states can attract responsibilities for providing protection against living in poverty for persons in other countries. At the same time, although language and semantics relating to extra-territorial socio-economic protection are converging under the ICESCR and ECHR, there are a number of pertinent questions that remain in the sphere of concrete burden sharing. These relate primarily to the allocation to wealthy European states of concrete burdens of responsibility for the elimination/prevention of poverty in other countries and raise the question of how far the responsibility stretches.

In the current global context, many migrant workers, and in particular women and irregular workers, are not - or are very inadequately - covered by social security and other social protection programmes. Current human rights standards related to migrant workers and families have so far had little impact on this situation. This article first examines various national approaches to extending social security to migrant workers in low-, middle- and high-income countries, such as through affiliation to the social security systems in countries of employment and countries of origin. It then attempts to assess the impact of regional and other international migration and social security agreements, particularly within the European Union. It also explores the potential impact of wider ratification of ILO and UN Conventions on migrant workers, which would ensure basic social and labour protection, in particular for irregular migrant workers. The article concludes with some key policy challenges for the future, including for improved regional and global governance.