Week 5: Legal rights and workplace protections for migrant workers
It's not a question of 'what can be done?', but one of 'what are we willing to do?'
It is often stated that ‘charity begins at home’. This popular truism builds upon a powerful image of the world which divides humanity into insiders and outsiders. Insiders are typically defined on the basis of shared race, ethnicity, or religion. Outsiders are typically defined on the basis of markers of difference, such as having a different skin colour, a different language, a different faith, or even different clothes or food. Hostility towards outsiders is a recurring feature of human history, with the most extreme examples involving entire groups of people being targeted for extermination.
Divisions between insiders and outsiders have major implications for migration. Tremendous amounts of wealth and energy are now devoted to preventing ‘undesirable’ outsiders from crossing international borders. Securing legal permission to move from one country to another has never been harder for people with the ‘wrong’ passport, with elaborate application procedures and challenging financial requirements being placed upon people seeking to move for work, to study, or to even visit as tourists. Migrants who are unable to secure legal permission to travel are, in turn, faced with all kinds of barriers which are designed to make movement as difficult and dangerous as possible. Efforts to prevent movement rarely reduce the number of people on the move to any degree. They instead increase the dangers and vulnerabilities associated with movement.
These efforts to prevent movement are not inspired by humanitarian sentiments. They are instead primarily motivated by cultural and economic anxieties. However, we also have many cases where the language of preventing trafficking or slavery has been invoked to present an humanitarian wrapping for policies decided on other grounds. When Donald Trump signed an executive order declaring his intention to ‘build a wall’ in 2017, he publicly justified his decision in terms of preventing ‘illegal immigration, drug and human trafficking, and acts of terrorism’. Building a wall is clearly not a policy that arises out of a concern for migrants, but this is nonetheless where many anti-trafficking and anti-slavery policies end up: more and more border protection. This is not helpful. Efforts to prevent movement are often part of the problem, rather than the solution.
It is also important to recognise that governments are not opposed to all migrants. Despite the rhetoric of ‘defending the border’, governments routinely turn to migrant workers in order to help satisfy their labour needs. Some workers with ‘exceptional skills’, such as doctors, academics or engineers, secure work visas with few complications. Other workers secure entry on tied visas which severely limit their options and opportunities. The main attraction of this latter category is that workers on tied visas are typically paid less, have to work longer, and have poorer working conditions than their local counterparts. They also work under the shadow of potential deportation.
These conditions can be primarily traced to their work visas, so the most effective way of addressing systems of migrant labour exploitation involves improving the terms of work visas to include statutory time off, increased wages, binding restrictions on hours worked, the legal right to change employers, and a pathway to becoming a citizen of the country where migrant labourers often live and work for many years. What this means, in essence, is working to close the gap between the rights and protections enjoyed by local workers – the insiders – and the much weaker rights and protections enjoyed by migrant workers – the outsiders. Laws governing local workers can be far from ideal, but they are generally preferable to protections afforded to migrant labourers.
This is not a situation where there are no obvious solutions available. It is instead a situation where there are obvious solutions available which governments remain reluctant to implement. They instead desire a pool of migrant workers whom they can exploit with few consequences. Migration has always been an important pathway for advancement and opportunity, and people will continue to seek to improve their fortunes through mobility, yet governments throughout the globe currently have little or no interest in supporting migrant rights.
Part 1. Introducing week five
View a transcript of Part 1
Welcome back to week five of our course on forced and precarious labour in the global economy. This week I want to take up and extend some of the themes that Sam talked about last week, namely issues associated with the exploitation and vulnerability of migrant workers and their role within global economic systems.
Last week you heard from Sam about the problems associated with migration and migrant work. This week I want to reflect upon some of the ways in which different solutions, strategies or ways of organising might be adopted in order to improve the legal rights and workplace protections that are afforded to migrant workers in various countries.
I want to do two things in this session. The first is to analyse some of the problems and complications associated with one of the most popular responses to migration and exploitation, and that is the impulse –stirred and supported by racism and xenophobia – to prevent all forms of migration and mobility at the border. This is a very popular strategy. It’s not necessarily motivated by humanitarian impulses, but it's nonetheless something that governments and others turn to when faced with problems associated with migration and exploitation. They try to stop people moving.
In the first half we're going to think about some of the complications and limitations associated with this established policy and practice. In the second half, we're going to think about some of the alternative strategies which could offer a more effective response to the problems associated with migration and exploitation. That's our mandate for this week.
At this juncture I also want to briefly recap some of the key themes that Sam discussed with you last week. Recall that governments, corporations and others are often very invested in having people move for the purposes of work. Migrants fill jobs, they grow crops, they provide care in nursing and hospitals, they build stadiums, and so on and so forth. So this whole idea that governments are automatically opposed to migrants misses the fact that, in a lot of cases, governments and various economic interests are actually really invested in having people move for the purposes of work. The problem of course is, as Sam outlined, regards the terms under which they move. These terms leave them vulnerable to various forms of exploitation. Migrant workers are only valuable within this calculus, because the protections that are afforded to them are limited and their work is not paid for at the same rate as workers in the communities within which they reside.
This is the fundamental dilemma. In terms of possible responses to this issue, the first point we have to think about is this impulse to stop people at the border. I'm not going to pretend that the impulse to stop people at the border arises out of some noble humanitarian sentiment. As Sam outlined, the underlying sources of racism and xenophobia and a fear of outsiders and others are often the main animating impulse behind efforts of border protection.
However, it's still important to grapple with the humanitarian argument because government officials throughout the globe give it as part of the reason why border protection is necessary. For example, when President Donald Trump proclaimed an executive order regarding his commitment to build a wall, one of the justifications he gave was to prevent human trafficking. This prevention of human trafficking rationale is not distinctive to Trump's wall – it's also something that European politicians have invoked repeatedly in relation to the recent crisis in the Mediterranean. When it comes to preventing people moving from Africa and the Middle East to Europe, there's been a recurring tendency to run together the terms people smuggling and people trafficking.
And by running together these terms of smuggling and trafficking, there's been a broader argument being made that says that highly aggressive and punitive measures to stop human traffickers are foundational to a humanitarian mission and not simply a punitive and protectionist one. A good example of this comes from the Italian Prime Minister Matteo Renzi, who declared that human traffickers are the slave traders of the 21st century and that they need to be brought to justice. In this formula, which the Italians, the Spanish, the French, the British and others use to conflate smuggling and trafficking, trafficking becomes a moral cause or problem which requires border protection.
As a consequence of this need for border protection, which is now cloaked in humanitarian language and rhetoric, all kinds of highly punitive measures have been adopted to prevent people from Africa and the Middle East from entering into Europe. This isn't something that that begins at the Mediterranean. It also extends through the auspices of Frontex and other initiatives into places like Libya and Nazaire, where Europeans are heavily invested in preventing all forms of movement.
Now, it may well be that that there's an argument for preventing movement – but it's not an argument that works in any kind of humanitarian terms. We know throughout history that movement is a natural human condition. We also know from extensive research that what happens in response to initiatives like Trump's wall or the European border fortress is that they raise the costs and challenges associated with migration without necessarily preventing it. What we find repeatedly is that border protection makes people vulnerable but doesn't prevent people from moving in the first place. This is in part because migration remains, as it always has been, one of the great strategies for escaping poverty, conformity, or other limitations and constraints that people find in their home communities.
Migration is, in a lot of cases, an avenue or a strategy. It's not something that can be easily controlled or tamed through an army of drones, or the building of additional walls, or the cracking down in various militarised ways on ships and movement. So when it comes to migration and exploitation, we cannot accept the idea that preventing movement is a humanitarian impulse. It instead arises out of xenophobic and racist impulses, and in a lot of cases and it's also unlikely to be effective when push comes to shove.
So if the dominant and conventional approach isn't going to work? What might we instead contemplate in terms of alternative strategies and approaches?
Part 2. Migrant workers and the separation between human and citizen
View a transcript of Part 2
If we accept that stopping people at the border is unlikely to be effective, or is at least unlikely to be effective as a humanitarian gesture in preventing the exploitation of migrants, we then need to reflect on what the positive alternative might be.
When it comes to thinking about alternatives to border protection, there are a couple of points that are really worthwhile emphasising. All of these points arise out of the fundamental division that makes migrant workers precarious and vulnerable. This is the division between the privileges that citizens of a particular country are afforded, and the vulnerable status that non-citizens, outsiders, and humanity in general are excluded from.
This fundamental divide between citizenship and humanity, insiders and outsiders, is crucial to understanding why and how migrant workers are exploited. It's also crucial when thinking about strategies, because many of strategies that could improve the rights and protections afforded to migrant workers ultimately boil down to ways of closing the gap between the privileges of citizenship and the vulnerability attached to humanity in general.
There are a number of concrete steps that we can contemplate when it comes to closing the division between citizens and non-citizens. One of the most important of these, which Sam alluded to last week, regards the fact that many legal migrant workers lack the capacity to change their employers. This is because their work and residency rights are tied to a specific employer, and as a consequence they're unable to effectively or easily express grievances when their employer ends up exploiting, excluding, or otherwise harming them. The ability to change employers is something that nearly all citizens enjoy as a matter of course, but it's not a right that many migrants have.
So when it comes to strategies for addressing abuse, one of the most simple and straightforward steps is to enable migrant workers to seek other forms of employment. The capacity to seek employment creates a bargaining chip or a platform for negotiation with a current employer. The possibility of employment elsewhere provides the migrant worker with a foundation from which to suggest that they may not want to be employed by their employer anymore. So giving migrant workers the right to change employers is a fundamental way of enabling them to exercise their interests, and to be properly paid and supported in their work.
Second, and I think directly related, it's important to emphasise that in a lot of cases migrant workers – either legal or illegal – don't get paid for the hours they work. Migrant workers are frequently asked stay back and help out around the house, or to work overtime in order to ensure that a construction deadline is hit, and so on. In these situations it's frequently the case that hours laboured are not reflected in pay received. So in terms of providing support for migrant workers, one of the simplest and most direct remedies we have available is to provide ways of seeking back pay or additional pay in situations where people have worked longer than they otherwise should.
Third, we need to recognise that in a lot of cases migrant workers are unable or unwilling, often for good reason, to draw attention to abuses or limitations in their working conditions. In this context the avenues to express grievances become crucial to challenging or changing the ways in which workers are treated. Now, avenues for expressing grievances may sometimes exist on paper, but they're not particularly useful in situations where there's no protection against retribution from angry or aggrieved employers. Grievances can sometimes be serious, particularly in relation to physical and sexual abuse, but there's very little that can be done when raising them becomes the basis for retribution from employers.
In all of these cases you begin to see concrete and practical steps which could close the gap between the privileges that citizens enjoy and the rights and protections that migrant workers are able to exercise. You are also hopefully starting to see the different dimensions of the fundamental division between citizens and non-citizens. The types of workplace arrangements, pay conditions and employment contracts governing migrant workers are substantially and deliberately different to the same types of terms and conditions that workers from the countries in question enjoy.
In all of these cases there's a need to close the gap. The protection privileges that citizens enjoy must be extended and afforded to migrant workers in various ways. And one of the biggest protections that might be afforded to migrant workers is the capacity to eventually become a citizen of the countries within which they work. Yet pathways to citizenship are frequently and automatically denied to workers who labour legally in countries for years and sometimes even for decades. When their labours are over migrant workers are expected as a matter of law to return to their home countries. For far too many there's no pathway for them to become naturalized, there's no legal right to become citizens of the countries within which they have worked for extended periods and whose societies and economies they have contributed to.
Migrant work is by design precarious. This precarious nature stems from the division between citizens and non-citizens. In a lot of cases, what should ultimately happen when it comes to protecting migrants is that migrants move from the status of non-citizen to citizen. And, hopefully, their families would enjoy the same privileges. Migration and labour are frequently solitary. People are expected to move without their families, and there's no expectation that their families can ever legally join them. So citizenship ultimately not only requires migrant workers to become citizens, but that that status be given to immediate family members – children, wives, husbands and so on – as well.
All these ideas are fundamental to protecting migrant workers, but it's crucial to recognise that they're not necessarily popular or easy choices to make. Sam and I mentioned previously that these types of additional protections go against enduring patterns of racism and xenophobia, which are foundational to the social hostility that migrants generate amongst the communities within which they reside. So it's important to recognise here that while the types of remedies that I have proposed are actually relatively straightforward in terms of legal provisions and regulation, they're far more complicated from a political and economic standpoint.
This is because they ultimately require the privileges associated with citizenship to be closed and additional protections afforded to migrants. This, in many cases, makes migrants less desirable because it makes them less precarious and less able to be exploited. Precarious and exploited migrant labour is foundational to the way in which the global economic system is structured, and protecting migrants, giving them greater opportunities, giving them greater ways of expressing their interests, and organising in protection of their rights is ultimately something which is going to present a direct challenge to all who benefit from the current economic system, and to all who are on the inside of this division between human and citizen.
Deepen your learning by completing an exercise which asks you to evaluate the relationship between potential solutions and political dynamics.
- Anti-trafficking is an inside job by Nandita Sharma, openDemocracy (2020).
- Claiming rights under the kafala system by Marie-José L. Tayah, openDemocracy (2017).
- To work without rights is to be powerless in the face of abuse by John Gee and Samuel Okyere, openDemocracy (2018).
- Interview: detention as the new migration management? by Ben Lewis and Cameron Thibos, openDemocracy (2017).
- Modern slavery, Brexit, migration, and development: connecting the dots by Benedetta Rossi, openDemocracy (2017).
- Interview: how can better policy empower women on the move? by Catherine Tactaquin and Cameron Thibos, openDemocracy (2017).
- Getting the state to switch sides in the fight for workers' rights by Elizabeth Tang, Sanjiv Pandita, and Penelope Kyritsis, openDemocracy (2016).
- Home: a black hole for workers' rights by Fish Ip and Neil Howard, openDemocracy (2018).
- Domestic workers speak: a global fight for rights and recognition edited by Giulia Garofalo Geymonat, Sabrina Marchetti and Penelope Kyritsis, openDemocracy (2017).
- Migration and Mobility edited by Julia O'Connell Davidson and Neil Howard, openDemocracy (2016).
- How do we make labour rights real? by María Roa, Ana Teresa Vélez, and Andrea Londońo, openDemocracy (2017).
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