Ms. Gabriela Marti
In his piece entitled “Temporary Labour Migration: A Flawed System in Need of Reform”, Professor Graziano Battistella argues that temporary labour migration policies, which are widespread in Asia, are often flawed. According to Battistella, the flaws are not specific to temporary labour migration programmes (TLMPs) – rather, the flaws are inherent in the system of temporary labour migration. Battistella contends that firstly, the temporariness of labour migration is fictitious. Secondly, temporary labour migration is accompanied by sub-standard living and working conditions. Thirdly, temporary migrants are denied some fundamental rights, such as the right to association and to collective bargaining. Fourthly, migrants commonly do not accumulate social benefits, under temporary migration systems. Fifthly, temporary labour migration can lead to irregular migration. Finally, Battistella takes issue with the notion that temporary migration is a “win-win-win” situation (with “wins for the countries of destination, the countries of origin, and the migrants themselves), since temporary migrants are not only winning less, but they are also the ones paying the costs for the wins of others. Battistella suggests that the agency of migrants needs to be increased, in order to make migration a choice rather than a necessity. In particular, Battistella argues that policies should offer the opportunity for migrants to decide, if they wish, a long-term stay instead of a temporary stay.
I agree with Professor Battistella’s argument that temporary labour migration systems are flawed and in need of reform. However, I would like to take a slightly different perspective with regard to the possible measures to remedy the system.
As Battistella notes, TLMPs are usually defended by instrumentalist arguments and on the grounds that they create a win-win-win situation for the countries of destination, the countries of origin, and the migrants themselves. TLMPs allow countries of destination to address labour shortages in specific sectors which cannot be filled with local workers. The intake of low-skilled, temporary migrant workers can be increased and decreased as required by the economy (Kaur, 2010, 10). Moreover, TLMPs allow states to admit workers on a temporary basis, without adding new members to the political community (Sager, 2014, 199). In this manner, major host states in Asia have been able to avoid the issue of integrating large numbers of immigrants into the community (Piper, 2010, 399).
In the countries of origin, TLMPs are said to contribute to development and poverty reduction by generating foreign exchange revenue through the remittances transferred by overseas workers, and to easing domestic unemployment. In this context, it is argued that temporariness of migration is essential, since the temporary duration of migrants’ stay abroad and the prospect of returning to their home countries after the conclusion of their contracts ensures a steady stream of remittances. Indeed, the amount of remittances transferred is said to decrease the longer the migrants stay in the host country.
Finally, TLMPs are held to benefit the migrants themselves, by enabling them to contribute to their own and their families’ welfare and development.
By contributing to the development of countries of the global South, and by alleviating migrants’ and their families’ poverty, TLMPs are often said to contribute to global justice. It is argued that global justice, or development, is best served when large numbers of migrants from developing countries are admitted to work – even if only temporarily – in wealthy economies (see Lenard, 2014, 159). These programmes are thus temporary and – in the case of low-skilled migrant workers – regularly close off the route to permanent residency and citizenship in the host country. Moreover, they usually offer limited rights compared to those of highly-skilled migrant workers or permanent residents and citizens. This is often defended by arguing that this constitutes a trade-off between rights and numbers (Ruhs and Martin, 2008, 254). If migrants were accorded more rights and a path to permanency, it is argued, the costs of these workers for employers and the host states would increase, making them less likely to hire them. This is against the interest of migrant workers, it is said, who would prefer to migrate and take on jobs abroad even under the prevailing substandard conditions, and even if they are granted less rights than other (local and highly-skilled foreign) workers.
However, even though the remittances of overseas workers have contributed significantly to the GDPs of several countries of the global South, it is unclear to what degree TLMPs actually contribute to sustainable development in the countries of origin in the longer term. Several commentators have argued that the link between migration and development (the “migration-remittances-development nexus”) is tenuous (Rosewarne, 2010b, 3). Indeed, remittances do not seem to have generated the momentum for development envisaged in the migration-remittances-development nexus (Rosewarne, 2010b, 32). Despite their tenuous connection to development, however, TLMPs are praised by international financial institutions, international organisations, as well as governments of countries of origin and of destination, as a solution for the trade imbalances and the high levels of unemployment in the countries of the global South. At the same time, little attention is accorded to the costs associated with migration for migrants and their families, and to the improvement and protection of their – usually very limited – rights. In other words, based on a neoliberal rhetoric of “self-reliance”, low-skilled migrants from developing countries – many of whom are women – are expected to bear the responsibility of contributing to the development of the global South, and of correcting the failures of global economic programmes (Rosewarne, 2012, 81). Notably, migrants are expected to shoulder this responsibility without adequate rights and working conditions, and usually by forfeiting access to permanent residency and citizenship in the host countries. This is one way in which TLMPs can be said to be flawed. However, the popularity of TLMPs lies precisely in the fact that people are hired for a specific type of job, and that no new members are added to the political community (Sager, 2014, 199). In the migration-remittances-development discourse, therefore, labour migration – like other commodities – is presented simply as a means to generate export revenue for the global South (Rosewarne, 2010a, 99).
A further flaw of TLMPs is that they are based on a “myth of temporariness” (Lenard, 2014, 164). Many “temporary” migrant workers engage in circular migration, repeatedly completing a short-term contract, returning to their home country, and re-migrating. In this manner, they often spend years, or even decades, in a particular destination country. In the sector of domestic work in particular, many employers seem to have an interest in continuously employing the same domestic worker for an extended period of time, since these workers frequently perform care work, such as looking after children or elderly persons (Piper, 2010, 403). Nevertheless, host states regularly insist on the “temporariness” of the migrant workers’ stay, and do not allow low-skilled temporary migrant workers to acquire residency and citizenship, even if they have worked and lived in the respective country for a very long time. In Singapore and Hong Kong, for instance, migrant domestic workers (MDWs) are excluded from applying for permanent residency and, eventually, citizenship (Singapore) or the right of abode (Hong Kong). Indeed, TLMPs, and the restrictions they impose on migrants, are designed in order to prevent low-skilled migrant workers from integrating into the host society, and to ensure that they will return to their home country after the completion of their contracts (Lenard and Straehle, 2010, 284). The fact that the path to permanency is closed off, for MDWs in Singapore and Hong Kong, deprives them of any meaningful political leverage in the host society.
In this context, I agree with Professor Battistella that just TLMPs should offer a route to permanency (that is, permanent residency and, eventually, citizenship) to migrant workers (see also Lenard and Straehle, 2010, 293). It appears profoundly unjust that migrant workers should work and reside in a state for an extended period of time, providing essential services to the community, and that they should not be allowed to participate, in time, as full members of the host society (see Lenard, 2014, 168). If temporary labour migrants were granted a path to permanent residency and citizenship, however, this would mean the end of several TLMPs in their current form in Asia, such as the programmes for MDWs in Singapore and Hong Kong.
I do not believe, however, that it is realistic to expect that the major host jurisdictions in Asia will allow MDWs (and other low-skilled temporary migrant workers) to settle permanently anytime soon, as they do not have an interest in changing the status quo. Indeed, the Court of Final Appeal of Hong Kong decided on 25 March 2013 that MDWs are not permitted to apply for the right of abode (Vallejos and Domingo v. Commissioner of Registration).
At the very minimum, however, and regardless of whether host jurisdictions in Asia grant access to permanent residency to MDWs or not, these jurisdictions should protect the fundamental human and labour rights of temporary migrant workers, such as MDWs. This minimum requirement appears even more pressing than granting temporary migrant workers a route to permanent residency and, eventually, citizenship. Once they are living and working in the destination state, low-skilled temporary migrant workers (such as domestic workers, construction workers, agricultural workers, maritime workers, and workers in the manufacturing industry) should be afforded the same employment rights as permanent residents and citizens. The TLMPs for MDWs in Singapore and Hong Kong, however, are very far away from adhering to this standard (particularly in Singapore). Even adhering to minimum standards of justice would mean drastically changing the systems currently in place, in Singapore and Hong Kong.
MDWs in Singapore are excluded from the scope of the Employment Act, the main piece of labour legislation of the country, leaving them with practically no protection under employment law. Moreover, there is no mandatory standard employment contract for the employment of MDWs in Singapore. Indeed, it seems that several MDWs are employed without signing a written contract, at all. MDWs in Singapore also do not have a minimum wage, resulting in very low wages. Furthermore, MDWs in Singapore are required to undergo a bi-annual medical examination, including a pregnancy test and a HIV test, and they are immediately sent home if they fail this examination. MDWs in Singapore are not permitted to marry Singapore citizens and permanent residents, without the prior approval of the Controller of Work Permits (this applies even after the expiration of their Work Permit). These regulations constitute a severe restriction of MDWs’ reproductive and marriage rights. Moreover, the above-mentioned regulations do not comply with international (human rights and labour) standards, and should be amended. In particular, it appears crucial that MDWs are included under the scope of the Employment Act, like other workers. Finally, MDWs in Singapore cannot form their own unions or other rights-based or advocacy-oriented migrants’ organisations. Their right to associate is, therefore, severely restricted. The issue of freedom of association in Singapore is, however, problematic also for local workers (and other migrant workers), since trade unions are not independent of the government, and civil society in general is suppressed. In Hong Kong, although MDWs can join and form unions freely, they also cannot bargain collectively (this is the case for most MDWs worldwide).
In both Singapore and Hong Kong, MDWs are mandatorily required to live in with their employers. This significantly increases the risk of abuse and exploitation of these workers, and makes them highly dependent on their employers. The live-in requirement should be abolished, that is, MDWs should have the possibility to opt for live-out arrangements. In Hong Kong, MDWs are, in principle, not permitted to change employers, for the duration of their contract. In Singapore, MDWs may be “transferred” to another employer, but only with the consent of the current employer. The restriction on changing employers renders MDWs highly dependent on their employers, and potentially “traps” them in an abusive work relationship. In both Hong Kong and Singapore, MDWs are not allowed to change occupations – they are hired to perform work only as a domestic worker, and only for a specified employer. MDWs are also not entitled to family reunification, both in Singapore and in Hong Kong. Furthermore, MDWs in Hong Kong must leave the host jurisdiction within two weeks at the latest, if their contract is terminated by their employers, for whatever reason. The timeframe of two weeks is clearly insufficient for MDWs to find a new employer and for the Immigration Department to process an application for change of employer. It is also not sufficient to process and resolve a complaint filed to the authorities by a MDW for abuses and violations of her (employment and other) rights. MDWs’ access to justice is thus severely compromised by this “two-week rule”. In Singapore, MDWs must leave Singapore once their work permit has been cancelled. For non-Malaysian MDWs, the MDW’s departure date must be within two weeks after cancellation of the work permit, and the employer must ensure that the MDW leaves as scheduled. All these regulations are highly restrictive and controlling. Several of them do not comply with international standards, and should be amended.
A further issue is the role of private intermediaries in TLMPs. In Asia, the recruitment of temporary migrant workers, notably of domestic workers, relies heavily on private intermediaries, such as recruitment and employment agencies, brokers, etc. MDWs from the Philippines and Indonesia commonly use the services of private recruitment agencies, which usually charge them very high fees. The MDWs’ debts to the recruitment companies are repaid via salary deductions over the first few months of their employment relationship (usually the first six to ten months of their employment). During this time, they normally only receive a small allowance, while the rest of their salary is deducted to repay their debts to the agency. The indebtedness of MDWs at the beginning of their employment relationship makes them highly dependent on their employers and vulnerable to abuse, since they may constantly fear being terminated prematurely and, consequently, being repatriated.
With regard to possible suggestions for reforming the system of temporary labour migration in its current dominant form in Asia, I believe that a multi-pronged approach is necessary.
At the level of the host jurisdictions, temporary migrant workers should have decent working and living conditions, and their human and employment rights should be guaranteed and protected. In principle, these rights should be equivalent to those applicable to permanent residents and citizens. If the host jurisdictions fail to protect the rights of temporary migrant workers once they are working and residing in the jurisdiction, they fall short of their responsibilities as hosts of migrant workers they have called to fill specific labour shortages in their economies. It appears unjust to let temporary migrant workers, who are providing important services to the host community, work under inadequate conditions and with restricted rights, and to repatriate them after the completion of their contracts, without adequately rewarding them (see Lenard and Straehle, 2010, 285). However, in most major Asian host jurisdictions, there is, unfortunately, little political will to effectively protect the rights of low-skilled temporary migrant workers, and organisations such as the ILO and the IOM, as well as ASEAN tread carefully where state sovereignty over migration is in issue (Kneebone, 2010, 392).
Moreover, the longer “temporary” migrants have lived and worked in the host jurisdiction, the stronger the moral claim becomes to grant them access to political rights. It seems unjust to have people reside and work in a particular state for an extended period of time, subject to its laws and institutions, without granting them the right to participate in shaping these institutions (see Lenard and Straehle, 2011, 217). As noted earlier, however, it does not seem likely that the major host jurisdictions in Asia will grant MDWs access to permanent residency and citizenship (including the corresponding political rights) anytime soon.
At the level of the countries of origin, measures are required to protect their citizens working overseas. The Philippines in particular has put in place several laws, policies, and programmes for the protection of overseas Filipino workers. However, these measures usually only have a limited impact, since the legal system of the host state has the most direct effect on temporary migrant workers’ living and working conditions. States of origin have limited power to change the conditions in the host jurisdictions, and they are often dependent, to a considerable degree, on the goodwill of the host jurisdictions for the adequate treatment of their citizens abroad. Nevertheless, it appears possible that if a number of major countries of origin in Asia, such as the Philippines and Indonesia, were to work together more, as a block of countries, they could exert greater pressure on major host jurisdictions in the region to change the legal situation and the welfare of their citizens working in those jurisdictions. Since these countries are competing with each other for jobs overseas, however, they normally do not collaborate to negotiate better terms and conditions with the host jurisdictions.
Therefore, promoting the economic development of the countries of origin in Asia appears crucial, in order to increase the bargaining power of migrant workers. If large-scale unemployment and a lack of alternative options in the countries of origin persist, temporary migrant workers will continue to have less bargaining power and fewer rights, and they will continue to be vulnerable to exploitation and abuse. Only if the citizens of the (current) developing countries have other options and the possibility to find decent work in their home countries, will migration genuinely be a choice, and will they not be forced to migrate in the first place, if they do not wish to. Clause 12 of the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers of 2007 states that labour sending states should “[e]nsure access to employment and livelihood opportunities for their citizens as sustainable alternatives to migration of workers”. However, addressing the inequities in the global distribution of wealth and opportunities should be a shared responsibility of the international community (see also Rosewarne, 2012, 80).
That low-skilled, temporary migrant workers (among them many women migrant workers) – who are lauded as “new national heroes” in the Philippines, and as “foreign exchange heroes” in Indonesia – should bear the responsibility of reducing poverty and developing the global South by way of their remittances (while the responsibilities of the state and the market remain unchanged), seems profoundly unjust. These workers do not receive adequate rights, protections, and rewards which would correspond to this responsibility, and they and their families pay the main emotional and social price due to family separation during the migrant workers’ absence. Indeed, it appears that states and private actors such as recruitment agencies often wish to extract the economic benefits of migration, without undertaking sufficient efforts to provide even minimum rights and protections to temporary migrant workers.
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