Theorizing sites and strategies of differential inclusion: Unlawful migrant workers in Australia

Abstract

In this article, I extend the theoretical concept of differential inclusion, as developed in 2013 by Mezzadra and Neilson, via an empirical examination of the experiences of unlawful migrant workers in Australia and those who employ them. I explore the dynamic and shifting positionality of the unlawful migrant by examining several sites and strategies used to achieve differential inclusion in the Australian context, including migrant worker networks, the workplace and the broader community. My analysis reveals that the nation-state’s effort to exclude and demarcate non-belonging via law and policy is destabilized by the inclusionary bordering practices of both citizens and unlawful non-citizens. My findings point to the importance of criminologists continuing to look beyond the physical border to make sense of the configuration and reconfiguration of belonging. The conceptualization of differential inclusion provided here recognizes that workers and employers utilize diverse strategies and sites which can subvert state exclusionary practices.

Keywords

Australia differential inclusion exploitation immigration unlawful migrant labour

Introduction

In this article, I seek to refine the concept of differential inclusion, as developed by Mezzadra and Neilson (2013), through examining the experiences of unlawful migrant labourers and those who employ them in Australia.¹ My analysis aims to contribute to the burgeoning theoretical and empirical research that examines how and where internal bordering occurs. Many researchers have explored the experience of unlawful non-citizens who live in the shadow of immigration law enforcement, including the adverse impacts of internal bordering practices that seek to detect and exclude via detention and deportation (Weber, 2013). Yet, my research reveals that exclusion and shadows are not the only relevant factors for understanding this group of labourers. Daily life for many non-citizen migrant workers does involve various forms of exclusion, but it is also characterized by their experiences of being productive workers, valued and remunerated to varying degrees, and active members of the broader community—as drivers on the road, consumers at the shops, patrons and guests at restaurants and hotels, and travellers visiting tourist sites.

In their theorization of ‘differential inclusion’, Mezzadra and Neilson (2013) argue that borders and bordering produce a multiplicity of subject positions. Specifically, they state:

only by understanding how the border is productive of subjectivity, rather than acting as a mere limit on already-formed subjects, can we critically understand its capacity to act as a brake on justice as well as a conduit of injustice […] To the extent that the machinery of the border imposes limits on justice as the same time it enables the administration of justice, it operates as much as a means of inclusion, which always involves the production of multiple subject positions, as a device of exclusion.

(Mezzadra and Neilson, 2013: 268)

Mezzadra and Neilson emphasize that exclusion and inclusion operate in tandem and are never complete. I extend their conceptualization of the dynamic and shifting positionality of the unlawful migrant by examining several sites and strategies used to achieve differential inclusion in the Australian context. The first site that I explore is migrant worker networks, including various strategies that enable migrant workers to access knowledge about how to find good work, employers and accommodation. While those in migrant networks may be working unlawfully, they nonetheless support other migrant workers to secure employment and to make informed decisions. Second, I consider the site of employment, including strategies utilized by employers to ensure distance from the law and its enforcement for the mutual benefit of workers and employers. Third, I examine the site of the broader community, which captures public and commercial spaces, including the way that public participation and everyday exchanges contribute to a provisional inclusion. My analysis of these sites and strategies reveals that the nation-state’s efforts to exclude and demarcate non-belonging via law and policy implementation are persistently destabilized. This destabilization is achieved in everyday places and via the practices of both citizens and unlawful non-citizens. These experiences and practices are not just sites of struggle, they are the embodiment of inclusionary bordering practices that disrupt the overarching nation-state goal of exclusion.

Background: The borders of illegality and differential inclusion

A significant body of work has recognized that borders and bordering practices are everywhere: they are not fixed to geographic border crossing sites, nor are they persistently exclusionary in their operation (see Aas, 2007; Bosworth, 2008; Mezzadra and Neilson, 2013; Weber, 2013; Weber and Pickering, 2011; Wonders, 2006). Researchers have evidenced that bordering is dynamic. Borders are produced and reproduced by a multiplicity of agents and practices, not limited to formal border policing agents and agencies, but extending to both state and non-state actors operating beyond the physical border (see Mezzadra and Neilson, 2013). Migration and border criminology scholars generally accept that, across Europe, the USA and Australia, the ‘criminalization of migration’ has intensified in recent decades (see De Giorgi, 2010; Dekkers et al., 2016; Mitsilegas, 2015), including processes that seek to reinforce the distinction between ‘bona fide’ global citizens and ‘crimmigrant others’ (Aas, 2011; Bosworth and Guild, 2008; Weber, 2013; Wonders, 2006). There has been significant work on border patrol and/or border policing practices (see Bosworth and Guild, 2008; Dekkers et al., 2016; Weber, 2013), but also important emerging scholarship on internal border practices that fall within the remit of agencies and individuals whose primary roles have previously had limited direct relationship to border security, such as local police (see Weber, 2013).

Internal bordering practices are increasing as neo-liberal states attempt to assert some control over globalized capitalism and global mobility (Anderson, 2010). It is well documented that specific populations are subject to migration control and limitations on mobility, in part to restrict and direct their labour opportunities. Mezzadra and Neilson (2013: 159) argue that borders produce the ‘times and spaces of global capitalism’ and view the border as a site of struggle. Bordering practices facilitate the management of capital and labour. Over time there has been a growing interaction between the regulation of markets and labour and the use of criminalization in an increasingly deregulated neo-liberal market place. I have noted elsewhere (Segrave, 2015) that while market liberalization may seem at odds with the practice of market criminalization, today they are intimately connected. As criminologists, we are well attuned to the interdependency of licit and illicit markets and, as other scholars have noted, the illicit market is often demarcated by the definition of the licit market (see Sassen, 1999). Migration law and policy are increasingly mechanisms of labour regulation, serving to establish whether and in what capacity non-citizens may be employed. However, it is well known that neo-liberal systems of capital rely on underpaid and irregular (or unlawful, as termed in this research) labour. As such, labour markets can and do operate outside the ‘boundaries of regulation with an assured supply of workers willing to work without the security of being regularized labour’ (Segrave, 2015: 308; see also Kagan et al., 2011; Shamir, 2012).

As a result of these dynamics, contemporary migration policies produce a labour market that is effectively denied by the nation-state: industries are relying on some percentage of underpaid workers who have few formal rights. Compared to those who have no migration-related work restrictions but who work in the shadow economy (e.g. those who work for cash), unlawful migrant workers are fundamentally more precarious. They are vulnerable not least because of the ongoing commitment of the nation-state to the identification and removal of those who are in the country without a visa and/or who are employed without work rights. In Australia, efforts to ‘protect’ migrant workers from exploitation are dominated by internal policing and bordering practices. Workplace checks (or raids) and administrative visa checks focus on whether or not particular non-citizens have the right to work; if they do not, they are subject to removal from the country. The impact of these practices on unlawful workers and employers, however, is largely unknown. Australia is a nation which is geographically vast and thus overwhelmingly difficult to regulate. The impetus for this study was to examine how the implementation of labour and migration regulation shapes the experiences of unlawful migrants and employers.

Within the criminology of mobility, there has been a strong focus on the examination of law as the site for the construction of subjectivity and belonging/non-belonging, and within this literature a number of ‘taxonomies of illegality’ have emerged (Anderson and Ruhs, 2010: 176). In particular, a significant body of scholarship has mapped the nuances and complexity of legal liminality which refers to those who live ‘on the edge of banishment’ and who move in and out of legal immigration status (Chacón, 2015: 711, see also Menjívar, 2006). Chacón argues that legal liminality is not a transitional state experienced only by unlawful non-citizens, but extends to those who are granted limited and/or temporary rights that may be subject to change without warning. From this perspective, it is important to conceptualize informal labour very broadly—including all those working in the shadow economy regardless of citizenship (see Williams and Schneider, 2016). While the focus of this study is specifically on unlawful migrant labour, the scholarship on informal labour markets offers valuable insights about devalued labour that, in fact, underpins national economies. This article adds nuance to that literature by examining specific sites where unlawful migrant workers in the informal economy experience and practise inclusion as workers, consumers and users of public space.

While legal liminality is a useful concept, the intention of my analysis is to theoretically shift the focus from the role of law to the various places and practices that create conditions of differential inclusion. Through examining the strategies and sites where differential inclusion occurs, it becomes evident that there are internal bordering practices that run counter to the dominant nation-state commitment to and performance of exclusion, and in fact achieve the opposite effect. In so doing, such practices quietly but effectively contradict the national border (see Mezzadra and Neilson, 2013). By examining sites and strategies of differential inclusion, I seek to deepen theoretical consideration of the way in which non-citizens (workers) and citizens (employers) alike can transform the intention of law and policy to exclude and create alternative spaces and forms of inclusion and, indeed, protection. This research contributes towards a more robust account of differential inclusion which has previously been recognized as ‘an often-indeterminate concept due to the theoretical nature of the discussion and the lack of references to specific systems of migration governance’ (Könönen, 2017: 53). Before moving to the analysis, however, I briefly map the Australian approach to unlawful migrant labour by way of background.

The Australian context: Illegality, migrant labour and the border

In 2011, it was estimated that between 50,000 and 100,000 non-citizens were working ‘illegally’ in Australia at any one time (defined as working in breach of their visa or as a result of overstaying their visa, see Howells, 2011). Under s. 235 of the Migration Act 1958 (Clth) it is an offence for:

an unlawful non-citizen [this includes someone who has overstayed a visa] to do any work in Australia, whether for reward or otherwise; and a non-citizen, who holds a visa that is subject to a work condition, to work in Australia in contravention of that condition.

This means that these labourers have no formal rights or protections.

The lack of rights, however, is not the main focus of Australian efforts to address the issue of unlawful migrant workers and their potential vulnerability. The main focus is identifying and removing unlawful non-citizens primarily via immigration compliance efforts. However, there is an employer-focused strategy which is a fine-based system that can escalate to prosecution. The 2013 Migration Amendment (Reform of Employer Sanctions) Act 2013 made it easier for businesses to be prosecuted for employing a person without a valid work visa, and enabled the Department of Immigration to issue infringement notices against employers (up to AUD18,900 fine for a business). In addition to reactive strategies, support mechanisms have also been established to encourage employers to be proactive with regards to checking employee visa status including the creation of the Visa Entitlement Verification Online service and related training. The impact of these measures, however, has not been the subject of close examination. It appears that the enforcement emphasis is focused on migrant workers who are punished for being unlawful. In 2016/2017 across Australia, 396 illegal worker warning notifications were issued to employers, 12 infringement notices and 0 prosecution briefs (DIBP, 2017: 81). In the same reporting period 6948 unlawful non-citizens were removed from Australia (DIBP, 2017: 82). There is no way of knowing how many of those identified as unlawful were employed, or the conditions of their employment, as the emphasis when unlawful non-citizens are identified is their removal. The identification of unlawful non-citizens can occur in a range of locations, and no specific questions regarding employment conditions or employers are routinely pursued. The consequence is that there is limited risk for employers in relation to employing unlawful labourers. There is no strong appetite within Australia’s migration or employment regimes to be concerned regarding the welfare of unlawful migrant workers.

For the most part, it is the vulnerability of lawful migrant workers that has occupied the nation. This attention resulted from a number of inquiries regarding the exploitation of migrants on temporary work visas (see Commonwealth of Australia, 2017a) and public exposés of exploitation (Sydney Morning Herald, 2015). Accompanying these revelations has been increasing research in Australia focused on working holiday visas (Underhill and Rimmer, 2016) and international students (Clibborn, 2018), as well as the challenges faced by those on skilled working visas (Berg, 2016). The consequence of increased awareness of exploitative practices has been a push towards recognizing the vulnerabilities of migrant workers and efforts to better protect these workers. However, concern regarding vulnerable workers has not extended to unlawful workers (Segrave, 2017). Unlawful workers tend to be recognized as ‘victims’ only when their exploitation is deemed sufficient to warrant a referral to the Australian Federal Police as a potential human trafficking or slavery offence.

In Australia, s. 270 and s. 271 of the Criminal Code 1958 (Cwlth) specifies offences pertaining to human trafficking and slavery-like practices. These are serious criminal offences and there has been substantial investment to increase identification and investigation. The federal government has funded an independently provided welfare package (the Support for Victims of People Trafficking Programme), a dedicated team of Australian Federal Police (AFP) to investigate, and Australia has introduced specific visas to enable suspected victims to remain in the country for the duration of the investigation (Segrave et al., 2018). However, a consistent critique of this system is that immigration compliance operations are the predominant point of referral and that this process is compromised given that the core role of immigration compliance is identifying and removing unlawful non-citizens (USDOS, 2017). Very few cases referred to the AFP have been prosecuted.² This is partly due to the complex circumstances in which these offences occur, including situations where the victim/witness is also an individual who no longer has a valid visa and who may be discredited as someone who is primarily cooperating in the hope that this will enable access to a long-term visa in Australia (see Segrave et al., 2018).

If an unlawful non-citizen has experienced workplace mistreatment or exploitation that is not identified as human trafficking or a slavery-like practice, but which could come under the jurisdiction of the Fair Work Ombudsman as a breach of employment law, there is no pathway to support: they will be subject to removal from Australia (see Segrave, 2017). The challenge of seeking more formal protections for those working unlawfully is best evidenced by public statements regarding unlawful migrant labourers. Over the past decade, this group of workers has been described by federal parliamentarians as ‘undermin[ing] the integrity of the Australian labour force’ (Bowen in Hansard, 2012: 11175), threatening the ‘integrity of our migration and visa program’ (Evans, 2008) and ‘taking jobs of […] Australians’ (Senator Griff in Commonwealth of Australia, 2017b: 18). While there is emerging international and national evidence that unlawful migrant labourers are vulnerable to criminal victimization and workplace exploitation (Aas, 2011; Anderson and Andrijasevic, 2008; Segrave, 2017), the nation refuses to formally protect these workers. The question this raises, then, is how do unlawful migrant workers experience living and working in Australia when the nation’s emphasis is on their exclusion. I detail the research undertaken to explore this question, before turning to the analysis which is organized around sites and strategies that facilitate and produce inclusion.

Methodology

As indicated above, this article draws on findings from a study of unlawful migrant labour conducted in 2017 which focused on 50 non-citizens working unlawfully in Australia. The research sought to expand on a body of research that has examined the regulation of unlawful migrant labour and the response to human trafficking in Australia, especially the social construction of illegality, the focus on criminalization and the absence of recognition of the role of the state in creating conditions which enable exploitation (see Segrave, 2015; Segrave et al., 2009, 2018). The research sits within the body of scholarship that explores how borders and bordering practices control, limit and contain the mobility of those with the least capital and social power (e.g. De Genova and Peutz, 2010). Additionally, this research dovetails with the work of migration scholars, such as Düvell et al. (2009: 229), who are committed to ‘researching irregular migration and informing society about the phenomenon in a manner that does not contribute to discrimination against these groups but, instead, improves understanding’.

Drawing on this body of research, particularly the critique offered by Ruhs and Anderson (2010) that workers are often excluded from research, the investigation sought to focus on two core groups of participants: unlawful migrant workers, and other stakeholders (including employers and labour hire contractors, authorities and advocates). In order to develop a multifaceted understanding of the experiences of unlawful migrant labourers, I wanted participants in the study to be able to offer their perspectives on the local and national policy and legal context, as well as to share their lived experiences negotiating law and policy on the ground, in their everyday lives. A qualitative research design was adopted which utilized semi-structured interviews and focus groups as the primary data collection method. All interviews were digitally recorded (with the exception of two interviews where workers requested note taking rather than an audio recording), transcribed and analysed using nVivo software.

The research ultimately relied on targeted and snowball sampling and comprised over 100 interviews. A total of 53 interviews with non-migrant worker stakeholders were included in the study and these were all conducted as semi-structured interviews. This group included policy makers, employers, accommodation providers, police, health and welfare workers and contractors. A total of 57 individual unlawful worker stories are included in the study. Of those, 50 unlawful migrant male and female workers were interviewed (eight were interviewed individually, and the remainder in focus group interviews which ranged from two to eight people). In this article, I draw on the interview data alongside seven additional workers’ stories accessed via intermediaries or via direct response to online questions (see Segrave, 2017). Semi-structured interviews were used to guide all interviews and focus groups; this consistency of focus aided analysis, while ensuring that there was flexibility to incorporate unexpected and divergent issues raised in the interview. All participants in focus groups or semi-structured interviews were given a token of thanks (AUD20 retail voucher), as approved by the Monash University Human Research Ethics Committee. This was given to participants before the interview started and they were able to end the interview and/or withdraw from the research at any time.

By way of background: the majority of migrant worker participants (n = 36) came to Australia on a visitor/tourist visa (i.e. without work rights) and intended to work. The age range of migrant workers was early 20s to late 50s. While there were retirees among this group, who had little social security at home, as well as younger men and women in their 20s and 30s, the majority were men and women with young children at home. Every participant was working to support family in some capacity. Many of the participants had worked in a range of industries, but most were employed in the horticultural industry at the time of interview. The majority of migrant workers in this study had been in Australia for an average of one year, but this ranged from over 20 years to just a few weeks. Almost 90% of participants came from Pacific Island nations and Malaysia, although participants were also citizens of China, New Zealand and the Philippines. In the analysis, the specific location of interviews and the nationality of unlawful migrant labourers is not specified, only a general region, and in direct quotes specific identifying information is de-identified (using ellipses and/or the use of generic terms such as city, town, country). In the analysis I also make reference to the group participants were interviewed with, to offer some context in terms of who was present when the focus group interview took place. Pseudonyms have also been used to de-identify the data. De-identifying the data, via changing participant names and not specifying their country of origin, was critical to the research design and to securing the participation of unlawful workers, employers, contractors and other stakeholders.

Overall the research has some significant limitations: as a female Anglo-Saxon English-speaking researcher, I was not interviewing participants in their first language, and there are notable issues pertaining to the willingness and openness of some cultures, such as Pacific Islanders, to speak about challenges and problems that they may encounter (see Tazreiter et al., 2015). To some extent it was evident that the focus groups assisted in addressing this limitation, as when one person spoke of specific challenges it did open up discussion to share experiences. The research was also limited by the time I was able to spend with participants: while building rapport and trust would have been ideal, just securing an opportunity to meet with people was challenging and also risky for the workers. There was no opportunity for repeat meetings or to spend significant time together (as a consequence, some of the ethical dilemmas that arise in the context of close and repeated interactions were also not raised in this research, see Düvell et al., 2009). Further, while there were 21 women and 29 men interviewed in this study, the was no oportunity to explore gender relations and gender-specific experiences of labour and exploitation in any depth or detail. The conditions of the research were messy and opportunistic: some group interviews were conducted late at night in a room of a house shared by men and women, and as such their ability to speak about sensitive experiences was limited. The consequence is that the research is the surface of what happens in these settings and undoubtedly there are more complex and nuanced experiences that are not evident in this study. Nonetheless, given the absence of unlawful migrant workers in this area of scholarship, my research did create an opportunity for participants to share complex personal accounts of their experiences. In the analysis which follows, the perspectives and experiences of workers and employers are the focus. The analysis examines sites and strategies used by both citizens and non-citizens to undermine, challenge and subvert the sovereign border performance. As will be described, many of these strategies are not intended to garner attention or to assert rights, but instead have the objective of ensuring that unlawful migrants remain out of view and that their work is uninterrupted; this analysis provides valuable insight into how and where differential inclusion occurs within the Australian context.

‘Illegal’, but not excluded: Sites and strategies of differential inclusion

My analysis is organized around three sites of differential inclusion frequently discussed during the interviews. The first site is non-citizen or migrant worker networks. These are physical and digital networks that bring people together to share information and knowledge both physically and via social networking applications. The second site is the workplace. In this site, both workers and employers engaged in practices that are defined here as inclusionary practices. The third site is the broader community, including both public and private spaces designed to be accessed by all to obtain goods and services and to facilitate various forms of social interaction. Throughout the analysis of strategies of inclusion that occur across each of these sites, the theoretical contribution of this piece is developed by identifying where and how differential inclusion is achieved.

Non-citizen networks: Finding (good) work, keeping each other safe

For all of the workers I interviewed in this study, the connection to other workers was critical to their livelihood, both before and after arriving in Australia. There is considerable scholarship on migration networks (see Cvajner and Sciortino, 2010) and, as noted in that scholarship, it was found in this study that migrant networks are diverse and operate with varying purposes and impacts. However, what was evident during my research is that non-citizen networks were critical for navigating work and for obtaining accommodation. Being a part of a migrant network is a strategy that enables connection to other unlawful migrants and empowers individuals to make informed decisions such as where to work (or not work).

Over 90% of the migrant workers in this study obtained information from migrant networks about where to find work before they arrived in Australia. Migrant workers travelled to a specific town or city where they already had a point of contact who would assist with accessing employment. Most often this was seasonal or short-term employment. After arriving, participants explained that they continued to find new work via job opportunities posted online and word of mouth—often using social media platforms. The network of migrant workers is spread across a vast geography and supports individuals to access work; in that way, unlawful migrants experience a form of inclusion via knowledge sharing and support. The importance of migrant networks was discussed by the vast majority of those interviewed, regardless of country of origin. Gabrielle (from South-East Asia) and Nathan (from the Pacific Islands) both offered examples of how they found work in this way:

through our friend [we found work]. Our friend worked with them and then our friend tell us that the contractor need workers, and that is why we joined that farm.

(Gabrielle, 15 February 2017, interview with two female workers)

It depends on our friends, sometimes some of them move to another farm and they can—sometimes they ask us—here is a good work here and so forth and that is how we communicate it, we know where it is the next place to move. [Sometimes on Facebook] […] [but] maybe mostly we use phones—not in Facebook, we using our phones, because they are the people already been to this place, is [from the same country], and then when we see that job […] [if] it’s not very good, we start to contact with them. Or if there is any job here, can we come over?

(Nathan, 20 April 2017, interview with eight male workers)

The existence of migrant networks undermines the state’s effort to exclude this group of workers. Where the state fails to provide protection to unlawful non-citizens, worker networks fill this gap by providing support and sharing and accessing information regarding problematic contractors and/or accommodation. This is a collective and inclusive strategy. Not all participants experienced these networks in the same way, but the power of networks was discussed by many participants. For example, Mary (Pacific Islands) discussed how working and living with people from her own cultural background made her feel safe:

I’m feeling like, yeah, I stay home, my place, because the place I live, I just only take my people to work in the farm. It’s not different people. So, I feel at home every time that I’m not feeling any bad things or anything between me and people and yeah.

(20 April 2017, interview with three female workers)

The migrant network can facilitate shared accommodation, which is partly a necessity because of the expense of housing and the inability of many migrants to independently access or afford private accommodation. Shared housing often (although not always) also provided a safe, secure and inclusive environment in which day to day life was experienced. In the everydayness of this experience the expectations and assumptions of being marginalized and liminal in terms of one’s legality are counteracted by supportive networks. These networks—whether they are online or in person—contribute to a sense of safety and security, and offer an experience of living and working in Australia that I argue is inclusive.

The workplace: Employment and valued work

A growing literature has explored migrant employers who utilize informal employment practices that often include irregular workers (see Bloch and McKay, 2015, 2016; Ruhs and Anderson, 2006). There are echoes of some of the findings of that literature in this analysis. However, the focus on employers here is not exclusive to those that Bloch and McKay (2015) describe as ‘ethnic enclave employers’, but includes a broader group of employers and labour hire contractors. Being employed matters, and the act of employing an unlawful migrant intentionally or unintentionally is a practice that counters the nation-state’s efforts to insist that those who are unlawful must be excluded.

In Australia, unlawful migrant workers are often accused of taking Australian jobs. Yet in this study, employers and contractors who rely on short-term or seasonal workers would often begin an interview by saying two things: that they did not want Australians to work for them (identifying citizen labourers as ‘unmotivated’ and ‘lazy’), and that they would like to see more flexible options to enable migrant workers to work for them on an ongoing basis. Very few employers (n = 4) stated that they had knowingly employed unlawful workers. However, the sentiment and general attitude in the interviews was the employers prioritize reliable workers over ‘legal’ workers (see also Bloch and McKay, 2015). Employers in this study did indicate that they avoided or obfuscated administrative requirements related to regulating the visa status of employees. Employers have been included in the expansion of the machinations of internal bordering processes through laws and policies that require administrative oversight and sanctions for those who fail to comply. What was evident in this study is that some employers offer unlawful migrant labourers the opportunity to participate in the workforce by ‘turning a blind eye’ (John, 19 April 2017) or ‘not asking the question’ (Brad, 21April 2017) regarding work rights. Work and remuneration are key components of belonging and inclusion, and they are offered to unlawful migrant workers by employers, despite the fact that the very status of these workers, according to law, ought to ensure exclusion from the community, the workplace and the nation.

In some cases, accommodation was provided by employers to unlawful workers. This was sometimes a measure of goodwill that employers used to reward valued and trusted workers, but this practice was sometimes a form of extortion since workers can pay a lot for this accommodation and have no option but to use it if they want a job (Segrave, 2017). In some cases, the accommodation while very basic, was free or inexpensive, and was highly valued by worker participants. Indeed, three of the focus group interviews were conducted in such houses on the edge of farms, or in remote locations, where I sat around a crowded lounge room in the evening warmth to talk with workers about their experiences. The accommodation was clearly basic, but workers in those homes were grateful for the accommodation and it was consistently referred to by participants in these interviews as a secure and a preferred type of accommodation.

For employers, giving workers accommodation was a part of a broader strategy where it was recognized that accommodation, relatively good wages and good treatment of workers ensured that employers are able to have a ready, quality workforce. Employer participants in this study said that obtaining good and reliable labour was their main priority, and that it was work ethic, not citizenship, that was the primary marker of employability. Every employer interviewed for this study stressed that migrant workers, including those who were potentially unlawful, were a labour resource they valued and were dependent upon, as Gary and Tom’s statements indicate:

And it’s the migrants […]—they’re here, they want to work […] and they will. And those are the sort of people we need.

(Gary, 17 February 2017)

You’ve got to rely on trust. You’ve got to have a good relationship […] with your workers, because they are the ones that control the quality of your product […] So, you need to be able to trust them. So therefore, if you are exploiting them, they’re not going to do the job that you want […] it’s going to hurt you in a long run. So therefore, it’s in our interest to make sure that they are well cared for. Otherwise we’ll get hurt. And we can’t afford that. So, we’ve got an incentive as well to make sure that these workers are well remunerated.

(Tom, 17 February 2017)

The ‘relaxed’ approach to the migration status of employees was not primarily driven by altruistic priorities towards migrants; instead, in the interviews self-interest seemed to be a higher priority. Employers commented most often about their labour needs in relation to continuity and quality of labour. Yet at the same time, three employers did demonstrate some altruism when they reflected on the need for migrant workers to make money to send home; in that reflection, these employers questioned the expectation that they ought to be proactive in excluding and denying unlawful non-citizens the opportunity to work. In doing so, these employers engaged in practices that subvert the nation-state’s efforts to insist that only lawful workers produce valued work. Employers can and do value work undertaken by those who are unlawful non-citizens and will proactively support good workers regardless of legal status.

Of course, it can be argued that all employers and contractors engage in exploitation when they employ people who have no formal protections. Employment cannot simply be equated with empowerment. However, in my examination of internal bordering practices what is evident is that employers do engage in acts that enable and support workers. This can be true even when the remuneration for work is inadequate.

The experience of receiving ‘good pay’ was a dominant theme in interviews with unlawful workers. What I found was that not all participants knew the appropriate award rate for their particular employment. Rather participants spoke frequently of ‘good work’ and ‘good pay’. These were both defined in a predominantly financial way: good work equated with enough pay to enable money to cover living expenses to be met with money remaining that could be sent home (most often via transfer). This was evident in Maheea’s (South-East Asia) comment: ‘Here—we work contract and then $3 per box [picking fruit]. So, yes, we take six to 700 [dollars] sometimes, one grand in a week, if we do our picking very fast. So I’m happy with my boss’ (Maheea, 20 April 2017). The amount Maheea was being paid would not be acceptable in a lawful employment contract for such work, but this was not her touchstone.

All of the workers in this study had worked at places where they had not been paid, or where the work or workplace was substandard or abusive to some degree. The touchstone for good work and good pay was, in part, informed by the recognition of participants that they did not have rights if things went wrong. In this context, a good wage, not necessarily the legal wage, enabled a positive work experience. It is in workplaces and via the process of being paid a good wage that unlawful non-citizens become valued ‘employees’. Offering work and paying workers a good wage are strategies and practices engaged in by employers that reconfigure everyday bordering practices by subverting the nation-state’s emphasis on migration status.

The public and private spaces of the broader community

The migrant workers I interviewed were well aware that their migration status made them targets for non-payment and poor treatment and, as noted above, most had experienced this kind of exploitation. However, in exploring the way in which migration status impacted the daily lives of this group of workers it was also evident that the fear of being identified as unlawful—both in the workplace and in community spaces—created a contradictory experience. That is, being unlawful was omnipresent, yet participants spoke about their daily lives in terms of the ordinary experiences of working, shopping for necessities and travelling. In migrants’ discussion of these activities, differential inclusion is revealed as a strategy of necessity: in the everyday practices of being a consumer and a member of a community (which may range from attending church to accessing public spaces) inclusion is both experienced and practised by unlawful migrant workers.

Given that many of the workers in this study were based in regional locations at the time of the interview, driving was a necessity as public transport infrastructure is limited or absent in many of these locations. For some, where and how they drove was informed by their awareness of the danger of drawing attention to themselves; as Jamie (Pacific Islands) explained: ‘I know how to drive, but I cannot drive in the highway, otherwise when they check me then they will catch me. So, yes, that’s […] [how I] secure […] myself’ (Jamie, 20 April 2017, interview with eight male workers). Awareness, however, was not articulated as fear per se. When doing focus group interviews, I found that there was a general consensus among migrants that it was simply best to avoid detection. However, participants did not talk to me about hiding away from the community (unless Immigration had conducted a workplace raid in which case many of those who had no legal right to work would disappear for a number of days), but discussed the importance of appearing to be model members of the community and not breaking laws or disrupting order. As Amy (Pacific Islands) explained: ‘If we stay good, nothing to do with cops [we are safer]’ (20 April 2017, interview with eight male and female workers). For the most part, the participants I interviewed were independent and self-reliant and sought invisibility via quiet community participation. They purchased groceries and spent time in cities and towns with friends and family. This was emphasized by Dean (Pacific Islands):

We’re just like normal people here, working, we can drive, we just overstayed, because we’ve got a Victorian licence, we drive, we go out, we go to the club, we do it all the time but how often do people get caught. We hear, we hear, we don’t hear, we don’t, that’s it.

(Dean, 20 April 2017, interview with eight male workers)

Safety and invisibility are temporary and shifting, but they are and must be achieved in public locations. All of the participants in this study needed to transfer money, buy goods, communicate with their friends and family across Australia and at home, and access work. This required them to be seen in public spaces. While most of the participants in this study were at the time of interview unlawful simply due to having overstayed their visa, this is not written on their body nor is it evidenced by what they buy or where they shop. In their activities, as everyday consumers and drivers on the road, unlawful migrants engage in strategies of inclusion that simultaneously help them to evade internal bordering practices.

Conclusion

My analysis has sought to extend the theoretical contribution of Mezzadra and Neilson (2013) and to move their work on differential inclusion more centrally into the purview of border criminology. Building on their effort to detect ‘the ways these processes and strategies interact with subjective experiences and practices to create dissonances, interferences and interruptions’ (Mezzadra and Neilson, 2013: 133), I focused on the subjective experiences, attitudes and practices of unlawful migrant workers and employers in Australia. In the primary research analysed here, I have identified how differential inclusion occurs across multiple sites and is achieved via a variety of strategies utilized by both citizens and unlawful non-citizens. I have sought to go beyond an analysis that is focused on how ‘subjects are willing to flaunt these systems’ (Mezzadra and Neilson, 2013: 143) of producing belonging and non-belonging at the border. Instead I have demonstrated how the precariousness that is created via law and policy, and reinforced via law enforcement and policy implementation, is not absolute. Theorizing differential inclusion as a set of strategies that take place in specific sites offers a useful conceptual map for examining the everyday subversion of the nation-state’s bordering practices ‘from below’.

The key implication arising from my research is that criminologists must continue to look beyond the physical border to make sense of the configuration and reconfiguration of belonging. Exploring sites of inclusion is important because, while the border is a spatial arrangement or device configured via geography and law (Mezzadra and Neilson, 2013), it is also subjective and experienced beyond the border crossing, in everyday life. As evidenced here, the subjective and experiential realm allow us to understand and map how internal border practices and differential inclusion occur. My analysis has illuminated how inclusionary practices, differential by virtue of being incomplete, partial and always fluid, can enable unlawful migrant workers to live and work successfully within the constraints of illegality. Although the law and internal bordering practices are designed to exclude—defining migrants as ‘illegal’ and rendering their labour invisible—migrant networks, employers and the broader community can simultaneously foster belonging. I argue that when we examine the complex and relational subject positions of unlawful migrant workers within the Australian context, what is evident is the degree of interdependence between workers and employers; an interdependence that challenges and diffuses the binaries of citizen/non-citizen created by the border regime. This interdependence does not yield equal power for unlawful workers and employers. The exclusionary scaffolding of the border regime is never undone, but it is often rendered less relevant in the everyday experience of workers and employers. The nuanced and complex conceptualization of differential inclusion provided here recognizes that workers and employers utilize diverse strategies and sites to subvert state exclusionary practices. They construct support mechanisms within migrant networks, employment settings and in their communities that make it possible for them to successfully negotiate everyday life, even within the context of exclusionary legal regimes.

Footnotes

Acknowledgements

Sincere thanks to the reviewers and editors of Theoretical Criminology for their significant input into the development of this piece. Thanks also to the participants in Transforming Borders from Below, and to my co-leader of this event, Nancy Wonders, for their collegial engagement with the early iteration of this piece at the Monash Centre in Prato, Italy, August 2017.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funded by the Australian Research Council via an Discovery Early Career Research Award, for the research project entitled, The exploitation of unlawful migrant labour: Regulation, exploitation, vulnerability (ARC DE1411279).

Notes

ORCID iD

Marie Segrave

Author biography

Marie Segrave is an associate professor of Criminology at Monash University. Her research has focused broadly on the intersections of migration regulation and exploitation, focusing in particular on the experiences of unlawful migrant labourers. She has published five books, received significant national funding for her research and has published widely.

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