“The EU Should Talk to Germany” Transnational Legal Consciousness as a Rights Claiming Tool among Undocumented Migrants

Abstract

Migrants must often negotiate their rights while being hampered by their precarious resident status, within contexts where the overlap of migration, welfare, labour and gender regimes lead to incoherent and contradictory institutional set-ups that hinder their claiming of rights. The analysis of the legal consciousness of undocumented migrants in Germany reveals a complex set of orientations. On some occasions they waive their rights, accepting lower working conditions in order not to lose their jobsa finding that confirms existing research. At the same time, they also informally "enact" rights and access to institutions themselves. They appeal to the experiences of undocumented migrants with laws and access to social services in other countries. The finding of relatively widespread transnational legal consciousness adds a new dimension to the scholarship on migrant legal consciousness and claims-making, which has hitherto portrayed undocumented migrants as living in a legal limbo between their countries of origin and destination.

Introduction: The Contentious Politics of Refugee and Migrant Protest and Solidarity Movements: Remaking Citizenship from the Margins

“…Our aim here is to bring into conversation scholarship and discussions that have thus far largely remained separate. Although social movements literature has studied pro-migrant solidarity groups (Tazreiter 2010;Rosenberger and Winkler 2014;Monforte 2016;Moran 2015), it has only minimally engaged with the subject of migrant and refugee struggles (Ataç et al 2015;Refugee Review 2013;Schwenken 2013). Moreover, social movement literature has often paid insufficient attention to the nuances of space, preferring to retain analysis at more macro scales of analysis and, as the literature on 'contentious politics' makes clear, it has also been anemic in its attention to the political dynamics at the heart of struggle as discussed below in the third section.…”

Living with Compromised Legal Status: Irregular Temporary Foreign Workers in Alberta and the Importance of Imagining, Strategizing, and Inter‐Provincial Legal Consciousness

“…The person who had nominated her felt that she could contribute in the long term to her business, she belonged to a tightly knit church, and she, her husband, and her baby have already settled in the city. Julia's insistence on using documents such as her copy of her PNP application and her pay stubs as proof that she contributed to the economy echoed findings from other studies showing how irregular migrants endeavour to prove that they belonged despite their ambiguous legal status (Schwenken, : 139).…”

“…Irregular migrants’ awareness of how immigration policies are context‐dependent informs their “legal consciousness,” or their awareness of their legal rights and entitlements. Schwenken () assesses how irregular migrants in Germany develop notions of their rights through word‐of‐mouth and through public documents of court cases showing irregular migrants’ legal victories in settling labour disputes (139). Hearing about how other irregular migrants fare in other EU countries either through stories from acquaintances or through media accounts allows migrants to see their rights beyond national jurisdictions so that they become aware of how EU countries have different laws governing irregular migrants.…”

“…This article shows that for Mateo, Julia, and Eva, “cognitive processes” (Mahler and Pessar, ) are crucial in allowing migrants to exercise agency despite living amid uncertainty. Through “imagining” (i.e., dreaming of possible life paths), “strategizing” (i.e., preparing their responses to different scenarios and calculating how to get ahead) and developing inter‐provincial legal consciousness – which is a deviation from Schwenken's () arguments concerning “transnational legal consciousness,” a concept which requires migrants to actively develop an awareness of legal norms and which this paper defines below – migrants mentally claim rights for themselves. Because of the shifts in circumstance that propel migrants like Mateo, Julia, and Eva up the chutes towards more security or down ladders to more precarity (Goldring and Landolt, ), this article deliberately uses the term “irregular” migrants as opposed to “illegal migrants” or “undocumented migrants” to describe them.…”

Viewing domestic workers problems through a human rights lens

“…Notably, the German government implements the Convention by simply reiterating the existing German national law is capable of dealing with the convention provisions without any need to enact new laws (see Bundesregierung Deustchland, 2012a, b, Schwenken, 2013b. However, a review of German labour law shows a loophole in the protection of mainly live-in domestic workers (Schwenken, 2013a). Paradoxically, the UK is amongst the countries that have been singled out for not doing enough to protect domestic workers (ILO, 2010a, b, c).…”