• 1 Global Commission on International Migration (GCIM), Migration in an Interconnected World: New Dire (...)
• 2 M. Ruhs, « The potential of temporary migration programmes in future international migration policy (...)
• 3 S. Castles, « Guestworkers in Europe: A Resurrection? », International Migration Review, vol. 40, 2 (...)

1The admission of temporary migrant workers has become an increasingly popular labour market instrument for industrialised countries, including countries that have traditionally emphasised permanent settlement1. In seeking to differentiate contemporary TMWPs from the ‘less humane’ post-war guest worker schemes, advocates argue that ‘carefully designed’ schemes can be a ‘triple-win’ policy instrument2. They argue that TMWPs can help to address economic and labour market needs of receiving countries while placating domestic political concerns over permanent migration. Sending countries can benefit from remittances and skills transfer of their nationals while mitigating the problem of ‘brain drain’. For migrants and their families, TMWPs provide access employment opportunities abroad through legal channels. On the other hand, critics have highlighted the inherently exploitative nature of such schemes, which impose restrictions on migrants’ employment and social rights and provide employers with additional means of control in and beyond the workplace3.

• 4 D. Bell, « Justice for Migrant Workers? Foreign Domestic Workers in Hong Kong and Singapore » in So (...)
• 5 GCIM, Migration in an Interconnected World (n 1).

3A major aspect of the ‘triple-win’ claims regarding TMWPs is the purported benefits arising from opportunities for migrants to access employment in high-income host states. Such arguments generally presume that most temporary migrants are often not seeking long-term membership of the host state, but merely access to its economic opportunities so as to ‘improve their lives’ upon returning home4. Advocates of contemporary TMWPs argue that such schemes expand the legal channels for global labour migration in the face of strong push and pull factors. Without these avenues, it is claimed that migrants can be pushed into informal and less regulated sectors of the labour market where they are more vulnerable to exploitation5. As Pevnick points out:

• 6 R. Pevnick, Immigration and the Constraints of Justice, CUP 2011, 179.

4It is unlikely that foreign workers would prefer a system that promised full legal rights, but accepted very few (thus ushering many into illegal immigration) to a relatively humane guest­worker program that allowed entry for enough to satiate labour demand6.

• 7 Ruhs, Price of Rights (n 4), p.13.

5TMWPs are thus considered as a ‘second-best’ policy in contrast to the ‘politically unfeasible’ alternative of granting migrants permanent residence. Arguments supporting the expansion of TMWPs give considerable weight to the proposition of a ‘numbers versus rights’ trade-off. In his analysis of TMWPs in over 50 high-income countries, Ruhs finds that the more ‘open’ the admission policy (such as granting entry to larger numbers of migrants), the more restricted the bundle of rights that are granted to migrants admitted; and vice versa. He maintains that migrants’ rights not only have an intrinsic value as underlined by human rights approaches, but also an instrumental role in shaping the effects of labour migration for receiving states, sending states, and migrants themselves. For Ruhs, the rights granted to migrants are based on policymakers’ assessment of the costs and benefits for the population in the receiving country7. He cautiously acknowledges the moral weight of human rights, but argues that rights rationales often fail to consider the economic welfare benefits for migrants, mainly the interests of future migrants in seeking access to the labour markets of high-income countries. The ‘price’ of granting more rights and/or insisting on equal rights (as citizens) for existing migrants is likely to be restrictive admission policies towards future migrants.

• 8 Ibid., 4.
• 9 Castles, « Guestworkers in Europe: A Resurrection? » (n 3) 749.

6However, it is foreseeable that this line of argumentation can be misused to justify the deprivation of virtually all rights of migrants that entail some kind of cost. The ‘numbers versus rights’ trade-off can pose normative dilemmas for liberal democratic states that are committed to basic principles of human rights and moral equality. Ruhs has attempted to clarify that although ‘some rights generate costs’, this ‘does not mean that there is a moral justification for condoning or even advocating for such restrictions’8. Yet the ‘price’ of rights seems to imply that certain regulatory goals such as economic efficiency ought to be prioritised over others. Such a narrative can diminish the intrinsic moral legitimacy and weight of human rights and their key principles of universality, alienability, and indivisibility. Castles has rightly raised the normative question of whether it is acceptable to trade off workers’ rights for economic gains9.

• 10 Ruhs, Price of Rights (n 4) 12.

7Instances of labour migration policies that concurrently restrict migrants’ rights and the numbers of migrants admitted are not uncommon in numerous liberal states such as the UK in recent times. Ruhs’ analysis has also been largely limited to examining ‘rights on paper’. Although he acknowledged that ‘in theory, migrants can be denied some rights that exist in law’10, Ruhs’ inquiry stops short at examining ‘rights in practice’. Notably, there has been insufficient attention in his inquiry to the role of these migrants’ precarious legal statuses in undermining the enforcement of their employment rights in practice.

• 11 Ibid.

9Ruhs’ response to tolerating certain restrictions of rights in exchange for migrants’ access to the host state’s labour market is premised on granting a set of ‘core’ rights for migrants under TMWPs11. His starting point is that migrants’ basic civil and political rights (except for the right to vote) must not be restricted under any scheme. Other rights can be restricted if those rights are shown, based on evidence, to create net costs for host states. He argues that there is a strong case for limiting restrictions to those already in practice in democratic high-income states, which include: the right to free choice of employment, select social rights, the right to family reunion, and the right to access permanent residence.

• 12 Pevnick, Immigration and the Constraints of Justice (n 7) 178.

10Pevnick also advances a ‘core’ set of basic rights under an ethically acceptable guest worker scheme, which would allow migrants to work for different employers and protect their basic employment rights. In regards to rights that can be excluded or restricted, he submits that there would be ‘(a) no promise of future access to citizenship; (b) no access to membership services (such as social security); and (c) no access for their families’12. Pevnick argues that these restrictions are warranted since otherwise such programmes would not be pursued at all.

• 13 Ruhs, Price of Rights (n 4) 13.

11Ruhs’ and Pevnick’s distinction between core and non-core rights for migrants under TMWPs runs the risk of falling into the trap of reinforcing the demarcation of civil and political rights from social and economic rights in a hierarchy that has prioritised civil and political rights. Moreover, any rationalisation for distinguishing between core and non-core rights would need to go beyond arguments based on the ‘price’ of rights. These proposals seem to be based on an instrumental view that the rights granted to migrants are shaped by cost-benefit considerations that ‘depend on their impacts on the existing population in the host country’13. However, such arguments would have little appeal to those who underline the intrinsic value of human rights as well as the liberal state’s commitment to universality, inalienability, and indivisibility of human rights.

• 14 J. H. Carens, « Live-in Domestics, Seasonal Workers, and Others Hard to Locate on the Map of Democr (...)
• 15 J. Carens, « Who Belongs? Immigration, Democarcy, and Citizenship » in O. Schmidtke and S. Ozcurume (...)

13For Carens, the admission of temporary migrant workers with explicit restrictions on their right to stay in the host state would be morally permissible provided that these workers are actually present only for a short time. For persons admitted to work on a temporary visa ‘who have no other moral claim to residence than their presence in the state’14, it would be reasonable to expect that they leave the host state after a year or two when their visa expires. However, for Carens, ‘it is not acceptable to keep people in a temporary status which is constantly renewed, so that they actually stay for a long time but remain in a vulnerable and restricted situation’15.

• 16 V. Ottonelli and T. Torresi, « Inclusivist Egalitarian Liberalism and Temporary Migration: A Dilemm (...)

14Rather than promoting the extension of membership rights to temporary migrants, Ottonelli and Torresi call for the provision of substantial exit options at any stage of their migration projects. Viable exit measures can include: giving migrants the ability to change jobs and to return to their home state whenever they wish; enabling the transfer of social security payments to be used in their home state; allowing for frequent visits to and interactions with the home state16.

• 17 A. O. Hirschman, Exit, Voice, and Loyalty, Cambridge MA, Harvard University Press, 1970.
• 18 R. B. Freeman and J. L. Medoff, What Do Unions Do? New York, Basic Books, 1984.
• 19 R. B Freeman, « The Exit-Voice Tradeoff in the Labor Market: Unionism, Job Tenure, Quits, and Separ (...)

15Drawing on some of above insights, I put forward a discourse of ‘exit and voice’ as the normative grounding for addressing most problematic restrictions on migrants’ rights under such schemes. Insights from Hirschman’s ‘Exit, Voice, and Loyalty’17 proposition have been applied to situations of dissatisfied workers who can respond through ‘exiting’ the employment relationship to seek better working conditions elsewhere, or through ‘voice’ mechanisms such as trade unionism and collective bargaining18. Voice and exit are commonly seen as trade-offs, where a lack of ‘voice’ can increase the likelihood for ‘exit’ and vice versa, as exemplified in Freeman’s association of unionism with lower quit rates19.

• 20 Hirschman (n 18) 93.

16In some situations, it can be said that workers are deprived of the possibility to resort to exit and voice mechanisms. According to Hirschman, initial high costs of entry and stiff penalties and sanctions for exit can diminish and repress the salience of both exit and voice. Hirschman identifies these entry fees and exit penalties as devices for organisations to generate or reinforce the loyalty of consumers or employees. In other words, loyalty disrupts the functioning of exit and voice by causing consumers or employees to stay with an organisation20. Entry costs can include the time, money, resources, and energy invested by the migrant, their family, and community to embark on the migration project. At the same time, there can be hefty penalties for exit. If a migrant under a TMWP quits their job with the employer, they could be subject to the adverse consequences of losing their legal authorisation to remain in the host state, including the risk of deportation. Other sanctions for exit may arise from repayment of large debts and the shame associated with returning home early.

• 21 Ibid., 175.
• 22 Carens, ‘Live-in Domestics’ (n 15) 433.

20Ruhs argues that the portability of work permits/visas between different employers could be acceptably limited for a short initial period (such as six months), otherwise it would ‘substantially reduce the propensity of local employers to recruit migrant workers because the latter would be free to leave the employer who recruited them before at least part of that employer’s recruitment costs have been recovered’21. Carens proposes that a period of three months would be the maximum for limiting migrants’ freedom to change employers, so that any ‘recruitment costs’ may be recouped. Even with such a restriction, there ought to be an escape clause if the employer engages in abusive behaviour during this period22.

• 23 Ch. Forde and R. MacKenzie, « The Ethical Agendas of Employment Agencies Towards Migrant Workers in (...)

23New types of intermediaries such as the social enterprises identified by Forde and MacKenzie’ study23 can play a positive role in meeting the needs of migrant workers throughout their migration projects, such as facilitating post-admission labour market transitions under a redesigned TMWP where migrants’ legal statuses are not tied to a specific employer sponsorship. A robust regulatory framework of registration and licensing, obligations and responsibilities, monitoring and enforcement can help to reduce the scope for exploitative practices of less scrupulous intermediaries.

• 24 Carens, ‘Live-in Domestics’ (n 15) 425.

26In liberal democratic states, employment protection laws generally apply to temporary migrants (with lawful residence status) and permanent residents and citizens alike24. The effective protection of migrants’ labour rights requires disentangling their migrant status from the enforcement of employment laws. As a starting point, a model of TMWP that does not tie the migrant’s employment and residence authorisation to a mandated employer sponsorship would alleviate fears of reprisal if migrants sought to bring claims against their employers for violations of these rights.

• 25 J. Carens, « The Rights of Irregular Migrants », Ethics and International Affairs, vol. 22, 2008, p (...)

27The enforcement of immigration controls is also a crucial source of practical barriers to migrants’ access to employment protections. The core worker-protective function of labour inspections can be severely undermined where inspectorates are expected to function as an arm of immigration authorities. Enforcing migrants’ rights at work requires labour inspectorates to carry out their uncompromised mandate. A ‘legal firewall’25 should be erected between the enforcement of immigration law and the protection of migrants’ employment rights so as to enable migrants with precarious statuses to claim such rights.

• 26 I. Greer, Z. Ciupijus and N. Lillie, « The European Migrant Workers Union and the barriers to trans (...)

29Trade unions themselves need to be innovative in organising and mobilising a ‘temporary’ migrant workforce, such as building alliances with migrant communities and civil society groups. There is also potential for transnational organising efforts between trade unions in host states and home states, with the involvement of international trade union organisations. However, the failed attempt of the European Migrant Workers Union to become a transnational organisational structure for posted migrant workers in the construction sector reveals the political limits to cross-border solidarity between national labour movements26.

• 27 Ruhs, Price of Rights (n 4) 47.

30Being able to access social rights and entitlements in the host state, ranging from unemployment benefits and pensions to public health, education, and housing services, can provide migrants under TMWPs and their family members with greater. However, restriction of migrants’ access to social protections is often defended on the basis of maximising the ‘fiscal net contribution of migrants’ and minimising the ‘cost’ to the host state and its citizens in extending public services and welfare benefits to migrants27.

• 28 CESCR, General Comment n° 19, The right to social security (Art 9) (adopted 23 November 2007) U.N. (...)

34Temporary migrants’ claims to social programmes provided by the state for the benefit of citizens may be plausibly restricted where programmes are aimed at redistribution such as income support and social housing. However, migrants’ moral claims to these benefits ought to strengthen over the time of their residence in the host state. A reasonable qualification period (for example, 1-2 years) from when migrants first arrive in the host state to when they can make claims on non-contributory welfare benefits would be acceptable and consistent with the international standard on the right to social security28.

• 29 Ibid.

36Any restrictions on family reunion or accompaniment would need to take into account the normative weight of the right to family life as enshrined in a plethora of international, regional, and national human rights instruments. In the specific context of migrants, Article 44.2 of the ICPRMW stipulates that ‘states Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses… and with their minor dependent unmarried children’. As Carens notes, ‘Liberal democratic states find it difficult to justify overriding this right merely for the sake of narrow economic advantages’29. If such a restriction is to be imposed under a TMWP, then the period of restriction should be as minimal as possible, such as the initial few months of the migration project with the possibility for returning home for visits.

• 30 Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals (...)

39The first option is that TMWPs should provide a route to permanent residency that is built into the conditions of admission from the very start. If the TMWP allows for the continual renewal of migrants’ visas and work permits, then they should be able to claim permanent residency after a stipulated minimum period of employment and residence in the host state. Importantly, this transition to permanent residence status should not require a specific employer’s continued sponsorship and/or support. There is then the challenge of drawing the line of when temporary migrants would acquire such a ‘right’ to permanent residence status in legal form. The European Union30 grants permanent residence status to migrants legally residing in a member state for five years.

• 31 J. Carens, The Ethics of Immigration, Oxford, OUP, 2013, p. 113.

40The other alternative is to make TMWPs truly temporary by explicitly restricting the renewal of work permits and visas. As Carens argues, the ‘admission of workers on a temporary basis is morally permissible, but only if the duration of their stay is truly limited… democratic states cannot keep people indefinitely in a «temporary» status’31. During the migrant’s temporary stay in the host state, their legal status should not be compromised at the employer’s discretion over the renewal or termination of their sponsorships. If migrants under TMWPs cannot be provided with independent pathways to permanent residency (that do not depend on employer sponsorship), then in my view, restricting the renewal of migrants’ work permits and visas would be a ‘second-best’ option.

• 32 Ottonelli and Torresi (n 17).

41The main argument here is the indefensibility of keeping migrants in a long-term situation of precarious legal statuses, which reinforce their dependence on the employer and the extreme uncertainty of their migration projects. One may also take into account that some migrants undertake ‘temporary migration projects’ with no intention of ever settling in the host state but to attain the requisite earnings and experience to advance long-term life plans upon returning home32. Nevertheless, the longer this group of ‘temporary’ residents remain, the more likely they are to develop forms of emotional, psychological, social, cultural, and economic ties to their host society. In liberal democratic states, there is a strong moral case for these migrants to be incorporated as full members of the host state on the basis of these ties that strengthen with the passage of time.

• 33 Anderson (n 3) p. 311.

42Finally, it is envisaged that a clear, informed, transparent, and accountable rule-making and administrative system underpinning TMWPs would help to cure some of the substantive and procedural defects that render migrants’ statuses precarious. Complex, incoherent, and frequently tinkered immigration rules along with opaque and inefficient procedures can increase the likelihood of inadvertent breaches by employers and migrants. As Anderson puts it, ‘the contradiction is therefore that in a bureaucratic and inevitably complex system of control, the state may perversely lose control over migration by creating greater numbers of overstayers, people working in breach of conditions, and illegal entrants’33.

• 34 Ottonelli and Torresi (n 17) p. 208.

45Recourse to exit and voice mechanisms at any stage of migrants’ work relations and their migration projects underpins the proposals for reform that have been put forward in this paper. The proposals further seek to embrace the ‘aspirations and projects of the migrants themselves, as actors and purposive participants’34 in TMWPs. Considering the strong push-pull factors driving global labour migration, the use of TMWPs is unlikely to cease in the near future. I have focused on reforming current TMWPs, rather than advocating for their immediate elimination in favour of zero-migration or permanent settlement policies. Rather than laying out a blueprint for a ‘triple-win’ TMWP, it is hoped that the above proposals can direct the attention of policymakers in liberal democratic states to the normative legitimacy and practical feasibility of protecting migrants against extreme precariousness in and beyond the workplace.