Regulation,migration and the implications for industrial relations

Understanding the concept of regulation

The concept of regulation looms large within the field of industrial relations. Whether explicitly addressed or not, industrial relations scholars dedicate much of their attention to the regulation of the employment relationship, through, for example, the study of traditional mechanisms of joint regulation or the contractual terms through which the supply of labour is regulated. The growth of interest in international migration within the field raises some interesting issues in terms of the discussion of regulation. We suggest that there is a mutuality to the relationship between the debates around regulation and migration: the study of regulation offers a useful perspective on issues relating to migration; in turn, the study of migration allows us to reconsider issues of regulation.

There is a broad debate on regulation spanning academic disciplines, although the conceptualisation of the term varies across these areas. According to Baldwin et al. (1998), an author rarely cited in industrial relations contexts, such contributions tend to fall into three main strands. There are those contributions that treat regulation in terms of ‘targeted rules’, explicit laws and codes that must be obeyed, and which are enforced by some mechanism specifically responsible for ensuring compliance – typically a public agency. The second strand – associated with political economy approaches – takes a more abstract view of regulation as reflecting the institutions employed by the capitalist state in its attempts to manage the economy. There is a third strand though that considers regulation to be ‘all mechanisms of social control – including unintentional and non-state processes …’ (p. 4). This approach widens the way we understand the landscape of regulation. In the field of industrial relations, this would encompass the actions of national states (and supranational bodies) in terms of employment legislation, labour market and welfare policies, patterns of public ownership and public sector employment. In parallel to these, there can be levels of joint regulation involving unions, employers and the state: from peak level concertation via established mechanisms of tripartite governance; through centralised mechanisms of collective bargaining; down to organisation level or workplace representation, and informal processes of regulation (p. 4). These are levels of regulation that are interrelated and mutually informing, although not always clearly connected (Jessop, 2002). At the level of the organisation, in addition to workplace-level mechanisms of joint regulation, the employment relationship may be regulated by open-ended employment contracts and other mechanisms associated with Internal Labour Markets that employers have established to regulate the supply of labour. The tapestry of regulatory arrangements might vary across contexts and be prone to change; yet there is a need to not treat regulation as a zero-sum gain relationship between the dichotomies of regulation and deregulation – with a shift towards deregulation somehow meaning the absence of regulation. In reality, the processes presented as de-regulation of the economy, the labour market or the employment relationship often involve the transfer of regulatory functions between actors (Majone, 1994, 1997; Seidman and Gilmour, 1999). With the regulatory role being performed by other actors, the terms re-regulation or regulatory transfer may be preferable.

Any conceptualisation of regulatory actors must be sensitive to their multiple roles and the diverse spaces in which they operate. To these ends, we have built upon, and extended, Hancher and Moran's (1989) own development of Crouch's (1986) use of the term regulatory space. However, we maintain that these spaces are not just national and macro specific, they exist and operate at numerous levels, with a variety of spaces interacting and overlapping, and some actors spanning multiple spaces. To build on this, we suggest that we should view the panoply of regulation through an analytical framework made up of a variety of levels, spaces and actors, producing regulatory processes that are adjacent and at times interlocking, and both mutually supportive and potentially competing (MacKenzie and Martínez Lucio, 2005). The regulatory terrain of industrial relations, for example, is populated by a range of regulatory actors such as, inter alia, state bodies, trade unions or management networks, to name some key examples – but also could include other non-statutory bodies, charities, religious organisations, civil society organisations, community groups, training bodies, employment agencies and so on. These actors operate and interact with one another within a given regulatory space – a recognised boundary of jurisdiction for the regulatory processes in question. In each case, these actors provide a framework of stability, a space within which economic and social actors can act with relative confidence regarding the actions of others.

Various actors may intervene in the process within this space, and there may be an overlap between the boundaries of regulatory spaces, but within these spaces each actor will also operate within their own sphere of influence, or jurisdiction, within which they are the sole actor. For example, trade unions and management interact within a given regulatory space, within which each traditionally operates their own sphere of jurisdiction: a regulatory space that is fluid and contested by extant actors and may be prone to threat from new entrant actors – who may even pose a threat to the continued existence of established spheres of jurisdiction. Returning to the example of joint regulation, by management and unions at the level of the workplace, relationships between actors within this regulatory may be informed by regulatory processes in the form of regional and national bargaining structures, the policy processes of the nation state and, increasingly, supranational mechanisms of regulation. At any given moment a socio-economic agent may be subject to a multiplicity of regulatory processes operating within various discrete, interlocking, overlapping, regulatory spaces.

The actors that occupy given positions within the spaces of regulation may vary by location. The regulation of certain social and economic relationships may in one location be served by the local state, whilst in another this role may be played by capital or by social institutions such as local community groups or even religious bodies – or a changing combination of these actors. It is also important to recognise that the panoply of regulatory actors and spaces reflects the coexistence of both the formal and the informal, in terms of their social and economic status. Informal regulation has been an important dimension in the study of industrial relations. Examples from the industrial relations literature show that employers historically relied upon the informal role of trade unions within the management of production. The seminal Donovan Commission, which was a state-led review of the nature of industrial relations in the UK in the late 1960s, highlighted the coexistence of formal and informal bargaining structures and their impact; even predating that there was a recognition of the importance of custom and practice in industrial relations as an informal regulatory process within the workplace (see Turner, 1969, for a review of the Donovan Commission). Employers in the UK were historically willing to tolerate union influence at the shop floor level, especially as such containment did not lead to broader challenges to management prerogative in terms of corporate governance (Clegg, 1979). Recognising the role of the informal has for some time allowed industrial relations scholars to broaden their approach to the study of regulation (Terry, 1977). ¹

More extreme examples can be found in the criminology literature. In certain contexts, the state has been known to tolerate the regulatory role of organised crime in circumstances where its own presence was under-developed or limited and where this expediency did not pose a threat beyond the boundaries of this regulatory space or zone of tolerance (Anderson, 1996; Beare, 1997; Block and Griffin, 1997). Within such regulatory spaces, employers in the USA demonstrated a historic willingness to engage with these informal regulatory actors in sectors such as port transport, construction and waste disposal (Ichniowski and Preston, 1989; Levy, 1989). These diverse examples demonstrate that formal and informal means of regulation should not be seen as necessarily mutually exclusive, but rather as existing in a symbiotic relationship. Should accommodation and linkages with the informal no longer be deemed effective, then actors may move to redefine this relationship, but this may occur in a number of ways: for example, the role of the informal may be formalised and incorporated by the formal; or alternatively the role of one actor may be appropriated by another (MacKenzie and Martínez Lucio, 2005). The point is that the boundaries between regulatory spaces may be fluid and contested, and within regulatory spaces roles and influence may be subject to competition between actors. Regulatory responsibility may transfer between existing actors, or to new entrant actors; this process of transfer may be negotiated and consensual in nature or it can be coerced and based on a variety of interventionist measures (MacKenzie and Martínez Lucio, 2014). This is an important distinction in the use of the concept of regulatory space. Regulation, concern for which is often attributed to more pluralist traditions within industrial relations due to its role in creating consistency and order, is much more contested in terms of its content and form than pluralist traditions acknowledge. Underpinning these tensions are questions of capacity, resource allocation and the legitimacy of the actors involved in the regulatory process.

In this article, we have applied this framework of spaces and actors to the study of international migration. Through the application of this framework the purpose is not to privilege one regulatory level, site or actor over another (Hadjisolomou et al., 2017), but rather to examine the changing relationship between levels, sites and actors. As such, the framework offers a dynamic approach to mapping regulation. The role of regulation in international migration is too often reduced to the focus on the legal framework governing regulation at the national state level and its at times coercive implementation. Important though this form of regulation undoubtedly is, national legal frameworks and the actors involved are but one site of regulation operating within a multilevel tapestry of regulatory spaces and actors. Different forms of migration such as forced migration, labour migration or irregular migration are also often associated with different migratory spaces and actors, although in turn the same spaces and actors may apply.

To map the multiplicity of spaces and actors involved in the regulation of migration is beyond the scope and word count of this article. The examples chosen for inclusion reflect a review of a range of debates within the migration literature in which issues pertaining to regulation are discussed, if not always explicitly in these terms. The point is to provide some illustrative examples of how the framework of actors and spaces may be usefully applied to a range of circumstances within debates on migration. The application of the framework to a wide range of examples is intended to demonstrate its underlying purpose: the framework allows for the abstraction from specific contexts to examine the relationship between actors within regulatory spaces. The actors may vary by location or context, but their entrance and exit of regulatory spaces, processes of regulatory transfer and the manner in which these processes are played out often demonstrate common patterns. It also allows us to begin to appreciate the political tensions that are central to these debates arising from the complex alliances that can emerge between different state and social actors.

The following sections apply the framework to descending levels of regulatory spaces, beginning at the supranational level, as reflected in debates within the migration literature. Some of the debates within the migration literature pertain directly to the long-established concerns of industrial relations scholars and deal with the actors traditionally associated with the regulation of the employment relationship. However, the regulation of the employment relationship does not exist in a vacuum; the regulation of the employment relationship exists within a panoply of regulatory spaces and actors pertaining to broader socio-economic activity. It is notable that in recent years scholars working within the field of industrial relations have broadened the scope of engagement with other regulatory spaces; this is particularly apparent in debates around ‘new actors’ in industrial relations (Heery and Frege, 2006) and the growth of interest in so-called ‘soft’ forms of regulation. As noted earlier, individuals who are subject to the regulatory processes associated with the traditional concerns of industrial relations have also been subject to a wide range of other spaces and actors, contemporaneously and historically–the experiences of migration bring this into particular relief. Through the growth of engagement with issues of migration, the landscape of the field of industrial relations has changed, as scholars have increasingly concerned themselves with new regulatory spaces and actors operating alongside the traditional mechanisms of joint regulation. The following section applies the framework to a mapping of such actors and spaces operating at the supranational level. The purpose of starting at this level is to demonstrate the way in which regularity spaces and roles have been redefined, with actors entering into new regulatory spaces.

Supranational actors and changing regulatory spaces

For trade unions, some of the key traditional actors within the regulation of employment, the emergence of supranational regulatory spaces has presented particular challenges, given that the institutional heritage of organised labour tends to be embedded in specific national contexts (Hyman, 2005). Recent decades have seen the development of institutional capacity at the supranational level in various forms as organised labour has begun to assert itself as an actor within new regulatory spaces at this level, including those pertaining to migration. Global Union Federations are increasingly entering supranational regulatory spaces, often operating in sectors where temporary labour migration is prevalent (Ford, 2013). Moreover, sectors such as construction and maritime shipping have witnessed the internationalisation of the occupational labour force, creating a supranational regulatory space in which multinational employers, labour market intermediaries and international labour organisations interact (Lillie, 2004, 2012; McGrath-Champ et al., 2011; Rosewarne, 2013; Woolfson and Somers, 2006); whether the capacity and reach of these actors is effective is another matter.

The development of supranational institutional capacity by organised labour, and the entry into new regulatory spaces pertaining to migration, reflect one element of a panoply of spaces and actors operating at the supranational level, making up the tapestry of regulation of migration. As outlined in the following, such actors may be focused on the social and welfare aspects of regulation, or aspects related to labour market control as well. The boundary between regulatory spaces and the roles played by regulatory actors has been fluid and contested, with new regulatory spaces developing, new actors emerging and traditional actors redefining their roles.

Turning to debates within the migration literature, examples of changing regulatory spaces and actors are numerous. As stated, it is not our purpose to map these spaces and actors exhaustively but rather to provide illustrative examples, through applying the framework to developments discussed within the migration literature. In the wake of the Second World War, a number of intergovernmental bodies emerged at the supranational level to coordinate responses to refugee crises arising from conflict. The United Nations Relief and Rehabilitation Administration was established in 1944, followed by the International Refugee Organization in 1947 and the Office of the United Nations High Commissioner for Refugees (UNHCR) in 1950. With a remit that included but extended beyond support for refugees, the International Organization for Migration (IOM) was established in 1951 to help ‘ensure the orderly and humane management of migration’. ² Although often involved in providing practical and logistical support, such supranational intergovernmental agencies are often regarded as providing softer or more indirect forms of regulation due to an inability to apply coercive sanction in support of their aims (Majone, 1994). Alternatively, through examining the roles played by such organisations, and changes in these roles, a view of movement between regulatory spaces emerges. The IOM is a case in point: the organisation has undergone several name changes, reflecting its changing focus and roles. Founded as the Provisional Intergovernmental Committee for the Movement of Migrants from Europe in 1951, its role was primarily as a relatively small logistical agency. Through entering adjacent regulatory spaces over time, the IOM has expanded the scope of its role beyond logistical support, plus the size of its staff and operating budget, to the point where it claims to be the leading international organisation for migration. Similarly, the UNHCR has expanded its field of activities from the traditional protection of refugees, seeking new roles (and new sources of funding) in the ‘management’ and ‘policing’ of migration processes (Scheel and Ratfisch, 2014). As these traditional actors have expanded into new regulatory spaces, new actors have also entered these spaces. Other international bodies have become involved in these regulatory spaces due to the proximity of migration issues to their core activities. The World Health Organization, for example, has entered a new supranational regulatory space through issuing non-binding global codes of practice on the international recruitment of health workers (Merçay, 2014). The role of soft regulation, reflected in such codes of practice and in the activities of the supranational bodies discussed up to now, has become an area of increasing interest within the field of industrial relations in recent years (Donaghey and Reinecke, 2018; Wells, 2007).

The European Union (EU) can be seen as an attempt at creating a ‘stronger’ regulatory space within a broader supranational landscape in which actors such as the UNHCR or the International Labour Organization (ILO) exert soft regulation over issues relating to refugees and labour migrants, respectively (Geiger and Pécoud, 2014). Only since the Tampere summit of 1999 has the EU developed a (supranational) competency in the area of migration. Prior to the Tampere summit, coordination of migration policy within the EU was based on ad hoc agreements between member states. Subsequent years saw the emergence of a regional supranational regulatory space as the EU developed a competency in the area of migration policy, culminating in the 2009 Lisbon Treaty, which brought migration policy under the ordinary legislative procedure of the EU (Hampshire, 2016). The development of EU competency in this supranational regulatory space has seen increased roles for the European Parliament and the European Court of Justice (Hampshire, 2016). However, due to issues of legitimacy and limitations on actor capacity, the EU has increasingly involved other international organisations in the implementation of migration policy. In recent years, existing regulatory actors in the form of bodies such as the IOM and the UNHCR have entered into the supranational regulatory space of EU migration policy, playing roles policing or correcting EU policy, implementing specific programmes as de facto subcontractors, or as transmission agents for the diffusion of EU strategy (Lavenex, 2016). In turn, it could be argued that the EU has colonised some of the supranational regulatory space previously occupied by bodies such as the IOM. The point is that a new regulatory space was opened up by the development of an EU competency in the area of migration, which was filled by new entrant actors in the form of institutions of the EU and in time entered by pre-existing supranational actors. Irrespective of the introduction of other regulatory actors, the effectiveness of the EU's role and the political contingencies related to it remain a subject of discussion. There are also tensions regarding the underlying purpose of such new forms of intervention and whether they are social or neo-liberal in orientation.

Within the EU, increased attention has been paid to the multi-level governance of migration policy (Gebhardt, 2016; Hampshire, 2016; Hooghe and Marks, 2001; Lavenex, 2016), the mapping of which would exhaust the word limit of this article. The focus of this article is the dynamic nature of the boundaries of regulatory spaces and actors involved in ‘… the increasingly multilevel nature of European migration governance, which incorporates supranational, international, national, and sub-national authority structures, and the increasingly complex array of actors operating at—and often across—each level’ (Hampshire, 2016: 537). Therefore, the EU as a regulatory space in itself also incorporates a multitude of regulatory spaces and actors operating within them, and tensions remain over competing narratives of social rights, political stability and economic efficiency. Such debates around alternative visions of the EU project have become increasingly important within the field of industrial relations in recent years, in particular in terms of the difficulty of reconciling neo-liberal economic agendas with the aspirations of the European social dimension (Hyman, 2015).

In terms of more coercive forms of regulation, new regulatory spaces have been created around monitoring and policing the external and internal boundaries of the EU, into which new actors have been introduced to supplement and even substitute the roles of existing state agencies. Recent years have seen the emergence of a new role for private security contractors, working alongside state apparatus, in the policing of European borders (Andersson, 2016). A new regulatory space has developed through what Andersson (2016) calls the creation of an ‘illegality industry’ (p. 1062) in which boundaries of responsibility shift between state security forces and multinational defence and outsourcing companies. The increasing role of new multinational actors reflected in the introduction of private sector contractors into areas previously the preserve of the coercive arm of the state has been echoed at the national level. The UK has seen the relocation of some of the more coercive aspects of the enforcement of migration regulation from the statutory UK Border Agency to multi-national private sector contractors. The Anglo–Dutch security firm G4S held contracts with the UK for running detention centres for undocumented migrants and escorting people on deportation flights ³ (Hampshire, 2016; Lemberg-Pederson, 2013). The privatisation of these activities reflects a longstanding political agenda in the UK, and elsewhere, shifting responsibilities onto new actors in the wake of the withdrawal of the state, which in relation to migration is explored later in the article.

Returning to the level of the EU, the shifting of regulatory responsibility onto other actors is echoed elsewhere. In recent years, the UK has pursued a policy of pushing partial responsibility for control of its southern border onto the French state. Elsewhere, in an alternative display of the logic of transferring responsibility, through a deal established with the EU, Turkey assumed a disproportionate responsibility for people displaced by conflict in Syria in the stead of EU member states taking in more refugees. Moreover, the involvement of bordering states or sending, ‘third states’ in the policing of the external boundaries of the EU has become an established community policy tool (Boswell, 2003; Lavenex, 2016). The actors involved in the regulation of national and community-level boundaries make up a complex and constantly moving picture of regulation.

The selection of examples in this section has intended to demonstrate the constantly shifting boundaries between regulatory spaces and the changing roles of regulatory actors. The internal mobility of EU citizens across member states has also created new regulatory spaces into which new actors in the form of labour market intermediaries have entered (Ciupijus, 2011). Interestingly, the regulatory actors facilitating the movement of labour migrants between national labour markets vary in form, from established labour supply agencies, to new start-up firms, social enterprises and even single employers (Forde et al., 2015), to less formal community and familial network-based mechanisms (Poros, 2001). These are issues explored in subsequent sections of the article, but they point to the interrelation between regulatory spaces operating on different levels, and the impact changes at one level can have on spaces and actors at other levels. Following those levels down, we now move from the supranational-to national-level regulatory spaces and actors, and the focus of the argument shifts from identifying examples of movement in the boundaries between regulatory spaces and the changing roles of actors, to exploring the nature of the process of regulatory change.

Regulation and national level actors

The nation state remains a key focus for the understanding of regulation, even within a framework that stresses the panoply of regulatory actors and eschews privileging particular regulatory spaces. Clearly the state should not be viewed as a monolith, but rather as an actor within a multiplicity of regulatory spaces, and in itself as containing a range of regulatory spaces and actors within its own internal structures. As discussed earlier in terms of the new role of private security firms, the state may enter or exit regulatory spaces or redraw the boundaries of regulatory spaces and thereby encourage the entrance of new actors into existing spaces. In turn, within the boundaries of the state different ministries, departments and agencies could be regarded as discrete regulatory actors co-existing and competing in multiple regulatory spaces (Martínez Lucio and MacKenzie, 2017).

The jurisdictional boundaries of responsibility for different aspects of state activity change over time. Such changes hold implications for industrial relations in terms of the definition of regulatory spaces pertaining to work and employment issues, and the actors involved in these spaces. In Europe, shifting political agendas and the redefinition of the ‘problem’ of undocumented or irregular migration, for example, have seen the jurisdictional shift in responsibility since the 1970s away from labour ministries and towards ministries of the interior (Andersson, 2016; Guild, 2005). This ‘appropriation’ of responsibility (Andersson, 2016: 1060) is one way in which regulatory transfer (Majone, 1994) between actors may occur: a proactive or aggressive entrance into a regulatory space, often reflecting competition over influence or resources, and resulting in the expulsion of existing actors. This competitive logic can be applied to Groutsis's (2003) analysis of the role played by the Australian state in shaping the labour market experiences of migrant medical professionals. Within a defined regulatory space, actors at various levels from Federal, Commonwealth to the local state – alongside professional associations – competed for control of labour market access and accreditation processes for medical professionals.

These are, of course, dynamic processes and so prone to change and even reversal. Such can be seen in Gebhardt's (2016) exploration of the tensions between national and local government in Germany, Sweden and the Netherlands over control of activities such as language training and social integration programmes for immigrants. Similarly, Emilsson's (2015) Swedish-based study reports on the national employment agency, the Arbetsfömedlingen, wresting overall strategic responsibility for language programmes away from local authorities; an act that also demonstrated the redefinition of language training as an issue pertaining to the field of industrial relations (Perrett et al., 2012). These studies point to the transfer of responsibility back and forth between levels, suggesting central state bodies in some EU countries are increasingly re-entering regulatory spaces previously ceded to the local level.

These examples run in contrast to experiences in the UK, where the withdrawal of the state from many areas of social and economic engagement, including the provision of support to new arrival communities, has increasingly necessitated the entrance of new actors in regulatory spaces abdicated by central and local government (Wren, 2007)–not the hostile appropriation of regulatory space so much as filling a void. Yet both scenarios have seen the increased involvement of private sector actors (Groutsis et al., 2015). Gebhardt's (2016) study of three EU countries points to the central state's active replacement of local government by private sector actors in the provision of civic integration programmes. The UK's more fragmented and voluntarist approach has also seen increased opportunities for private sector involvement in areas such as language provision, housing and even, as mentioned earlier, the prosecution of the more coercive and security-oriented activities (Lemberg-Pederson, 2013). ⁴ In many European countries, integration programmes historically provided by local authorities have been increasingly contracted out to private sector providers or third sector organisations and community groups (Gebhardt, 2016; MacKenzie et al., 2012). This process of appropriation of roles and introduction of new actors into existing regulatory spaces has gone hand in hand with the increased commodification of the regulation of migration.

The commodification of migration: Gaps and competitive processes

In the UK, the withdrawal of the state from key areas of support for new migrant communities has created a competitive market for non-statutory substitute bodies. Although often associated with support for asylum seekers and refugees, aspects of support provision, for example language training and advice centres, aimed at promoting integration into host communities extended to all new migrants (Wren, 2007). Parallel processes have seen replacement of state activity by profit-seeking private sector actors in immediately commodifiable areas, such as housing provision for asylum seekers, and a shift to third sector and community-based groups in other areas. The new actors that have entered these spaces take a variety of forms: voluntary organisations, non-governmental organisations (NGOs), church groups, plus Black and minority ethnic (BME) organisations and refugee community organisations from within established and new arrival migrant communities, respectively (MacKenzie et al., 2012; Wren, 2007; Zetter and Pearl, 2000). The commodification process has seen the redefinition of grassroots groups into resource-seeking organisations, and competition for resources has led to the appropriation of areas of activity by existing bodies. Therefore, one of the consequences of the changing roles, as new actors move into these regulatory spaces, is changes in their behaviour (MacKenzie et al., 2012).

The introduction of new actors into these regulatory spaces creates competition over resources and influence. Certainly, the growth of reliance on NGOs and community groups in the provision of support to migrants in the UK has created competition between actors. Newly emergent migrant community groups have found themselves vying with longer-established BME groups for statutory funding for the provision of support (MacKenzie et al., 2012; Zetter and Pearl, 2000). The logic of appropriation of regulatory space in terms of how regulatory actors attempt to constitute themselves is reflected in the expansion of activities of established BME community groups into support for newly arrived migrants and asylum seekers, at times displacing emergent but less institutionalised grassroots groups from the newly arrived communities (MacKenzie et al., 2012). This is not necessarily an inevitable outcome. In another context, Gnes's (2016) study of Korean community groups in Los Angeles demonstrates the potential for the coexistence of what ostensibly could be competitive migrant support groups, on the basis of distinct organisational logics–in this case distinguished by ethnic and class-based approaches.

There are other examples where, rather than being displaced, grassroots community groups are pushed towards greater institutionalisation and the development of more professional administrative capacity (MacKenzie et al., 2012; Zetter and Pearl, 2000). This reflects the way in which informal actors can be pushed towards more formal regulatory status. However, as discussed previously, when the process of formalisation is not successful, then displacement and the appropriation of regulatory space may be the next step. Where grassroots groups failed to develop the requisite organisational capacity, alternative suppliers in the form of more established and institutionalised third sector groups offered a ready alternative (MacKenzie et al., 2012).

Beyond the increased commodification of support services for new migrant communities, which are often focused on support for asylum seekers and refugees, the regulatory mechanisms that impact the lives of labour migrants arguably reflect an even more extensive process of commodification. In recent years, there has been a growth in the roles played by labour market intermediaries in the form of temporary employment agencies facilitating labour market entry for new migrants. These actors have operated in regulatory spaces alongside the statutory mechanisms governing residency entitlement and access to labour markets, plus trade unions and other community-based organisations seeking to protect workers' rights (Alberti, 2016; Forde et al., 2015; Holgate, 2009; Martínez Lucio and Connolly, 2012; Williams et al., 2009).

New spaces and actors in the labour market: Competition and tensions in regulatory processes

In recent years, the regulation of the employment relationship has undergone structural change in many advanced economies, creating new regulatory spaces and lending growing importance to new actors in the form of labour market intermediaries, employment agencies and subcontractors; these structural changes have often intersected with the growth in use of migrant labour (Rosewarne, 2013). Although labour market intermediaries have long played a role in international migration, in both departure and destination countries (Piore, 1979; Waldinger, 1986), research suggests that more recently temporary employment agencies have developed strategies specifically focused on migrant workers as part of a longer-term policy to ‘make markets’ and expand their roles (Forde et al., 2015). These strategies include actively recruiting in countries of origin, even opening offices there, and employing migrants as recruitment consultants. In turn, this regulatory space has not remained static, particularly in relation to migrant labour. In terms of alternative actors emerging within the space occupied by private sector temp agencies, Forde et al. (2015) report the activities of a social enterprise-based agency operating in London on the basis of a broader agenda of serving the long-term needs of migrant workers in terms of skills development and sustainable employment, rather than simply job placement. Moreover, Maher and Cawley's (2015) study points to other developments within this regulatory space, where the role of informal social networks in finding jobs has in some cases displaced the use of formal labour market intermediaries. There is an extensive literature on the role of kinship and ethnic networks as social mechanisms mediating the process and experience of migration (Boyd, 1989; Faist, 2000; Krissman, 2005; Meyer, 2001; Poros, 2001). In many ways, the roles played by these networks have been appropriated by new entrant actors, for example in the form of employment agencies operating on an international basis, although – as noted above – this is a fluid process with kinship networks continuing alongside and even displacing the new entrant actors (Maher and Cawley, 2015). Kinship networks have also been seen to play important roles in the experience of undocumented or irregular migration, providing informal regulation where legal status precludes access to formal mechanisms of regulation. Studies of undocumented Turkish migrants in Germany (Boyd, 1989; Faist, 2000), for example, demonstrate the crucial role played by kinship networks in terms of access to the labour market in a context where the traditional regulatory mechanisms of the German employment model are inaccessible. ⁵ Informal actors operating in a regulatory space in the absence of formal regulatory jurisdiction is an issue we return to later in the section.

The logic of regulatory space can be applied to the strategies of trade unions for organising migrant workers who are often working in traditionally ‘hard to reach’, non-unionised workplaces, and experiencing employment precarity and labour market churn. The focus on community unionism in the USA and the UK (Fine, 2005; Holgate, 2009) has seen unions moving beyond traditional regulatory spaces within workplaces into wider regulatory spaces and encompassing new, non-work-based themes (for a detailed set of studies regarding the sheer diversity of trade union responses to migration in relation to work, see Marino et al., 2017). Similarly, Japan's minority social and labour movement has moved beyond the traditional regulatory space of the enterprise, occupied by traditional actors in the form of enterprise unions, to be new actors in a new regulatory space. Operating outside the traditional system of labour representation, minority unions offer organisation to workers excluded from the mainstream collective institutions, including labour migrants (Alberti and Però, 2018; Stewart, 2006; Stewart et al., 2017). Again, operating at the level of the community, minority and independent unions are able to pursue agendas that can transcend the workplace, including – inter alia – ethnic minority issues, environmental concerns and globalisation. Within this broader regulatory space these community-based unions also connect directly with other new actors in the form of non-union migrant networks (Urano and Stewart, 2009). ⁶

Trade unions and other formal regulatory actors are faced with both a challenge and a dilemma when it comes to the extension of coverage to undocumented or irregular migrants. The formal status of such actors does not preclude the possibility of informal practices, which often constitute processes of regulation, and community- rather than work-based models of organising may offer potential points of reference for undocumented or irregular migrants; how sustainable these are is a challenge nevertheless. However, again there are many actors that share this space, broadly defined, for example, as NGOs (see the work of Heery et al., 2012 on new actors in industrial relations). Indeed, state actors may play a role as well, and in some cases align themselves with the activities of trade unions and NGOs, for altruistic or coercive reasons. In the UK, taxation authorities have worked with other actors in local community initiatives on minimum wage issues in order to encourage tax compliance (Martínez Lucio and Perrett, 2009). In Spain, the state has at times provided support for trade union advisory centres to sustain collective regulation through information on employment rights, in order to reduce the economic and social costs of the informalisation of employment (Martínez Lucio and Connolly, 2012). Hence, innovative union initiatives can work in tandem with state and civil society organisations.

Nonetheless, sectors such as horticulture, agriculture and food processing are notorious for the engagement of undocumented or irregular migrant labour, rendering such workers more vulnerable to exploitation than those with legal status (Pena, 2010; Underhill and Rimmer, 2016). The absence of legal protection does not, however, equate with a lack of regulation, just a lack of formal regulation; as discussed earlier in relation to kinship and ethnic networks, informal regulatory actors operate within informal – as well as formal – regulatory spaces. Moreover, the decentralisation and withdrawal of the state from support for new arrivals, reported previously, means that bodies operating beyond the auspices of the central state may be less concerned with legal status and so extend regulatory aegis to undocumented or irregular migrants regardless of legal status (Gebhardt, 2016). The regulatory actors operating at the border between formal and informal regulation vary by form and character. Despite being described as ‘medieval working practices’ by a British government committee, the regulation of contingent labour in the UK agricultural sector relies on the coercive regimes of gangmasters (Brass, 2004). Analogous contractor arrangements are apparent in Australia (Underhill and Rimmer, 2016), where a spectrum of legal and quasi-legal labour market intermediaries span the boundary between formal and informal regulation. In keeping with the logic of the regulatory actors and spaces framework, there have been attempts to formalise the informal. In the UK, the Gangmasters Licensing Act and subsequent Gangmasters Licensing Authority (GLA) were established in the wake of the death of 23 Chinese cockle pickers in 2004 (In 2016 this public body was renamed the Gangmasters and Labour Abuse Authority). As Strauss (2013) points out, however, the GLA has done little to address the fundamental problems of long hours and exploitative working practices. This legislative move only served to partially formalise the informal, as those gangmasters wishing to continue past practices eschewed licensing; but it did represent the redefinition of a regulatory space, and the actors operating within it, which was previously the preserve of informal regulation.

Conclusion: Rethinking the regulation of migration in terms of spaces, actors and competition

It is not the purpose of this article to present an exhaustive mapping of the regulatory spaces and actors associated with processes of international migration. Rather, the illustrative mapping presented is intended to demonstrate the constantly changing relationship between different levels, sites and actors. The application of the framework of spaces and actors offers a more dynamic and relevant approach to mapping regulation in relation to migration in a context of institutional change.

The application of the framework illuminates a number of important issues. First of all there is the wide range of regulatory spaces and actors involved, operating at various levels, shaping the experience of international migration: ranging from the supranational- to the local level, the regulation of international migration involves a multiplicity of actors operating within a complex system of regulatory spaces. The analytical framework also captures the dynamic nature of the relationship between regulatory actors and the changing nature of regulatory spaces. Although regulatory spaces may provide stability and predictability regarding the behaviour of other actors, this does not preclude the possibility that these spaces may be contested: relations between actors may be competitive, even hostile, rather than cooperative. The framework thus highlights the dynamic nature of the boundaries between regulatory spaces, which may be fluid and contested: regulatory roles change, new actors enter regulatory spaces and new spaces may be created. Within these dynamic processes, issues of actor capacity and power relationships are played out. The failure of actor capacity can lead to the displacement of one actor by another, the need to introduce new actors, or the redrawing of boundaries between spaces. How such boundaries change or actors emerge reflects broader power relationships. All actors are not equal, which is further reflected in the competition for resources and influence, the hostile takeover of regulatory roles and the way the displacement of one regulatory actor by another is either actioned or sanctioned. Furthermore, the significance of this emerging regulatory complexity is that it creates new challenges in terms of how actors maintain their roles in different regulatory spaces and institutions. For example, engagement by traditional industrial relations actors such as trade unions may be compromised, limited or even excluded. These realities of regulation, as it becomes more dispersed, tend to be overlooked in the pluralist traditions of industrial relations where primacy is given to static regulatory processes as the means to maintain industrial peace and sustain consensus within the employment relationship.

Bringing together issues of migration and regulation is a mutually stimulating exercise: a perspective that broadens our understanding of the competitive and political processes in relation to regulation offers a different insight into migration; and in turn the debate stimulated within the field of industrial relations by the study of migration invites us to re-examine issues of regulation. The debate on migration has begun to extend the imagination of industrial relations research and brought questions of rights, representation and regulation to the centre in interesting ways. It has also created a greater degree of social sensitivity: an awareness of the limits of social and employment regulation, and its skewed nature in terms of rights and roles. Like gender and equality debates that went before, the issue of migration has not only stimulated a body of work around substantive issues of labour market exclusion, racial stereotyping, ethnic closure and competing approaches to social inclusion, but has also raised positive challenges as to how we should understand and indeed develop a more multi-tiered and socially responsible approach to understanding regulation. Debates emerge and shift as a consequence of social transformations that challenge the settled arrangements of industrial relations.

Within the industrial relations literature the issues of migration and regulation have largely converged around studies of migrant workers' experiences of regulatory mechanisms or the wider implications of increased migration for particular regulatory systems. These are important debates: our suggestion is that such debates make a useful contribution to a broader understanding of the regulation of migration by locating them in a wider framework of analysis. This logic fits well with the traditions of industrial relations as a field: the regulation of the employment relationship involves a panoply of regulatory mechanisms, both formal and informal, operating at a number of levels within and beyond the workplace. Carrying this logic beyond the regulation of the employment relationship and into the broader regulatory influences that impact on the experience of international migration, is also a useful corrective to the temptation to define people by their contribution to the production process.