Abstract
The 22 chapters in this volume result from a symposium on the conflicts between migration law and labour law and focus on a topical and sensitive topic: migrant workers’ rights. The two editors open with a theoretical discussion of the tensions between labour law and migration law: whether immigration control over migrant workers stands in contradiction to labour law’s protective function over the labour force.
Part One debates the principle of whether immigration law should deviate from labour law’s protective function for workers. Anderson criticizes that the expanding state authority over the mobility of non-citizens distorts employment relations and infringes human rights. By contrast, Ruhs emphasizes that the fundamental conflict is between expanding employers’ access to migrant labour and protecting the prospects of local workers. Accordingly, he considers local workers’ preferential status as a priority and strongly criticizes that migration control regimes are too weak to restrict migrants’ access to the labour markets. Davies, looking at the example of the agricultural sector, argues that the strong regulation of immigration has come at a significant humanitarian cost for the EU.
Based on different states’ legal approaches, Part Two discusses more specifically to what extent immigration laws weaken and fragment the solidarity of local and migrant workers. Drawing on the case of Italy, Sciarra and Chiaromonte criticize how immigration law exacerbates the divisions between privileged insider migrants as stable employees and others subject to precarious employment. The contribution by Albin is concerned with a decision by the Israeli Supreme Court, according to which the tying of migrant workers to their employers is unconstitutional and should be abolished. Following respective legal changes, Albin welcomes the respect of workers’ freedom of movement and their right to choose their workplaces. In a chapter on US immigration law, Dewhurst argues that it creates a class of workers ‘below the floor for free labour’, workers that are extremely vulnerable to slavery and involuntary servitude. She criticizes how current US law excludes immigrants from protective legal instruments and, instead, proposes a full protection approach for irregular immigrant workers’ rights to back pay. A contribution on the UK shows that British labour law can apply to migrant workers; in fact, however, long qualification periods exclude them from many protections. Ryan points out that employer checks of immigration status have created new barriers for the enforcement of protective labour regulations for migrant workers in the UK. Except for Israeli legal practice, the evidence in Part Two demonstrates a strong trend that states sacrifice migrants’ human rights in order to control immigration.
Parts Three and Four present constructive responses to harmonize the conflicts of labour law, equality and human rights law in addressing migrant workers’ rights. Olney and Cholewinski re-state the International Labour Organization’s (ILO’s) commitment to achieve equality between local and migrant workers regarding the right to non-discrimination. Mantouvalou emphasizes the significance of associational activities in recognizing and including migrant workers in society. The right to organize is a fundamental labour and human right recognized and protected by international human rights and labour law, and this entitlement should not distinguish between nationals and non-nationals. Successful Swedish experiences, which combine openness to foreign labour and high labour standards, prove that equal treatment of migrant workers is feasible. With a high union density and a high degree of collective bargaining coverage, Sweden can afford to apply open and fair policies to migrant workers without experiencing adverse effects.
Based on the contributors’ analyses of policies and practices across a large range of countries, Freedland and Costello argue that the vulnerability of migrant workers results from a distortion of the employment relationship by migration law. Ensuring the decent treatment of migrant workers requires innovative thinking on the institutionalization and enforcement of labour rights, such as innovative legislation aiming to include low wage migrant workers into mainstream labour law or the admittance of migrants into trade unions through corporate social responsibility schemes.
The empirical evidence and critical analysis presented in this volume demonstrates how the increasing control over migrants has resulted in considerable humanitarian costs and left many workers extremely vulnerable to slavery and involuntary servitude. The examination of the relationship between immigration and the vulnerability of migrant workers contributes not only rich empirical materials but also presents important theoretical discussions from different countries. Instead of viewing migrants as opponents to local workers, who ‘threaten’ the job opportunities of local workers, the majority of contributors emphasize migrants’ identities as workers who deserve fair treatment and rights protection. The equal and fair protection of migrant workers can only be achieved by minimizing the divisive effects of immigration laws.