This chapter situates the human rights of irregular migrants within the legal frames of reference chosen for this study. This chapter contrasts the principle of sovereignty in international law with the universal personal scope of application of human rights. The tension between the two foundational principles is a major root cause of the oscillation of international and European case law on the rights of irregular migrants between sovereigntist and human-centred tendencies. The trend is also visible in relation to migrants’ entitlement and enjoyment of social rights.

Following the 2015 refugee crisis, Norwegian politicians introduced proposals to extend a family reunification income requirement to refugee sponsors and to introduce an income requirement for permanent residence. Family sponsors must make enough money to qualify; and migrants must ‘get to work’ to qualify for permanent stay. This chapter seeks to explain why one of the income requirements was implemented and the other not. It harnesses Carol Lee Bacchi’s approach to policy analysis, asking, ‘What is the problem represented to be?’ in a close reading of relevant documents. It finds the two requirements inscribed into different narratives. One narrative establishes the arrival of an unprecedented number of asylum seekers foremost as a problem for the Norwegian society and the sustainability of the welfare state. An alternative problem representation brings attention to the concrete effects of such requirements on specific groups of refugees. The analysis identifies an economic drift and stratification of migrants’ rights. It argues this drift is part of the more general development in Europe, where money has become a more important tool to regulate migration.

Harsh migration enforcement has sparked courageous humanitarian reactions and hundreds of criminal prosecutions. Such prosecutions ostensibly seek to vindicate the power of governments to control nation-state borders. But they seem, ironically, to have achieved the opposite: They have vindicated, reinvigorated – and even inspired new forms of – basic human rights. This chapter examines three cases: Cédric Herrou, a French olive farmer who was criminally tried for assisting unauthorized migrants in France; German “rescue” ship captains, Carola Rackete and Pia Klemp, prosecuted for rescuing distressed migrants at sea and bringing them to Lampedusa, Italy; and Scott Warren, prosecuted after allegedly providing food, water, beds, and clean clothes to undocumented immigrants in Arizona. The verdict in Herrou’s case was overturned because fraternity was recognized as a constitutional value. Captains Klemp and Rackete appealed to the ideal of “solidarity.” Warren’s attorney intoned to the jury, “Being a good Samaritan is not against the law ….” These encounters implicate deep questions of constitutional legitimacy and migrant rights, involving the presence of migrants with definable – if not yet enforceable – rights claims. They illustrate a dynamic process of mediating tensions between “sovereign” power and human rights, an essential revitalizing project for constitutional democracy and human rights law.