In this chapter we focus on the creation and positioning of undocumented migrants within policy, law and human rights frameworks. We explore the European agreements, international rights frameworks and the role of citizenship as a mechanism for inclusion and exclusion and locate some recent developments in the UK within that general framework. ‘Illegality’ is, according to Chavez, ‘socially, culturally and politically constructed’, something that is produced as a consequence of ‘political decisions’ (2007: 192). However the state of ‘illegality’ is produced or constructed, it is nevertheless acutely felt and experienced in almost every facet of life, (see for example, Willen, 2007; Chavez, 2012; Holmes, 2013; Bloch, Sigona and Zetter, 2014). As de Genova argues:

Contextualising migration policy

Within nation states, undocumented migrants are conceptualised as being outside of the framework of laws and regulations, lone, independent and hidden individuals, whose assumed but unseen presence causes fear and anxiety, whose numbers are always unknown (Samers, 2008; Vollmer, 2011). There are continuous calls for tougher regimes of control, which are proposed as a method of dealing with – and removing – the problem, but which in reality have singularly failed to do so. This is primarily because the policy aim has never been to eliminate the presence of undocumented migrants. The reality is that states require migrant workers, and so what Chavez calls ‘a legal fiction’ occurs (2007: 192) where it is politically expedient to be seen to be controlling migration but, in reality, it is only ‘legal’ flows that states can have any real control over. Moreover, other forms of immigration control such as border police and the deportation of some migrants are used ‘in order that most may ultimately remain (un-deported)’ (de Genova, 2004: 161).

The presence of undocumented migrants provides governments with the justification for increased controls, not just on migrants themselves but on the whole population. Thus, particularly in periods of crisis, the undocumented migrant presence is both the scapegoat and the justification for policies which otherwise might be resisted, for example, biometric checks or the introduction of identity cards.