Mobility without membership: Do we need special passports for vulnerable groups?

Are enhanced mobility rights for temporary labour migrants feasible and desirable?

Martin Ruhs (European University Institute)

In their thought-provoking opening contribution to this forum on ‘Mobility without Membership’, Jelena Džankić and Rainer Bauböck propose special passports for vulnerable groups to “provide limited and tailor-made mobility rights to those who need them most and who have no chance to acquire them via the citizenship route.” The vulnerable groups Džankić and Bauböck have in mind include temporary migrant workers, especially those employed in lower-paid and often precarious jobs. My reflections are concerned with this specific group of migrants, with a focus on high-income countries where the great majority of migrant workers in the world are employed. To be clear, I concentrate on actual rather than potential future migrant workers, i.e. on people who are  living and working in countries where they were not born and do not have citizenship. Would it be feasible and desirable to create special passports with enhanced mobility rights for temporary migrant workers employed in lower-paid jobs in high-income countries?  

Greater mobility without membership: The only game in (this) town

My concern here is with policies that can help improve the situation of temporary migrant workers within the fundamental structures and institutions of the world as it is today (or a least in a world that is not fundamentally different in terms of, e.g., the power and authority of states to regulate immigration and restrict the rights of labour migrants). From this ‘realistic’ perspective, I agree with Džankić and Bauböck that, in the short to medium term, thinking about new forms of mobility without full membership is the main ‘game in town’ when it comes to improving the situation of migrant workers employed on temporary permits in low-paid jobs in high-income countries. 

Considering the politics of labour immigration and the actual characteristics of policies toward migrant workers in high-income countries, ‘open borders’ and ‘extraterritorial access to citizenship’ for workers in lower-income countries  are not realistic options, and regional free movement that involves high-income countries, such as the framework for the free movement of workers in the European Union, is likely to remain limited to countries with similar levels of average incomes and economic development. The vast majority of the world’s migrant workers in high-income countries has been admitted and employed through legal immigration policies rather than through the various regional free movement agreements around the world. And even in the European Union, the current policy of granting EU citizens unrestricted intra-EU labour mobility and – as long as they qualify as ‘workers’ – equal access to the host country’ welfare states (i.e. near-equal membership) has recently come under political pressure.           

Gaining access to permanent residence status can be, and in practise is a way for migrants employed on temporary permits to acquire more rights, including greater mobility rights. In most liberal-democratic  countries, migrants with permanent residence status enjoy near-equality of rights with citizens, with a few important exceptions including the right to vote in national elections, protections against deportation, and international mobility rights (in some countries permanent residence can be revoked because of long absences that exceed a certain number of years). However, the transition from temporary to permanent status is usually discretionary and not automatic. By definition, a TLMP does not guarantee the award of permanent residence after some time (although a conditional and regulated transfer from temporary to permanent residence status is a possibility in many countries). This means that giving migrant workers permanent residence is not an obvious or feasible solution to the problems faced by migrant workers employed on temporary permits in high-income countries.     

Sources of vulnerability in TLMPs: The central role of restricted mobility

What are the key sources of vulnerability of migrant workers employed under TLMPs? To address this question, it is important to consider the broader context of such programmes. TLMPs are designed to facilitate international mobility without membership (just like Džankić’s and Bauböck’s ‘special passport’, although obviously in different ways, as I discuss further below). Such programmes are, inevitably, associated with a fundamental trade-off for migrants: On the one hand, TLMPs enable workers in lower-income countries to access the labour markets of higher-income countries, thus generating  opportunities for increasing the income and human development of migrants and their families and, under certain conditions, also benefit their countries of origin. On the other hand, TLMPs restrict migrants’ access to full equality of rights and citizenship in the host country. While there is considerable variation in their design across countries, TLMPs almost always restrict migrants’ right to free choice of employment, access to certain welfare benefits, family reunification and, by design, security of residence and access to citizenship. Some of these restrictions vary across policies that target low and higher skilled migrant workers, with the former typically facing most restrictions of their rights after admission.

As is well known and documented by a large research and policy literature on the topic, as a result of these rights restrictions, some migrants working under TLMPs in low-skilled jobs find themselves in highly precarious employment and exploitative situations. The key source of migrants’ vulnerability is precisely their restricted mobility, both in terms of their labour market mobility within the host country and their physical mobility across international borders. The vast majority of TLMPs issue work permits that limit the employment of the admitted migrant to the employer specified on the permit. Changing employers may be possible after some time, but it usually requires a new work permit application. This ‘tying’ of the worker to a specific employer can make it difficult or impossible for migrants to escape adverse working conditions unless they are willing and financially able to return home. Having spent considerable amounts of money to finance their migration and recruitment, some migrants can become trapped in highly exploitative employment abroad. This problem may be exacerbated by some employers’ illegal practices of retaining migrant workers’ passports and/or providing ‘tied accommodation’, i.e. accommodation provided by the employer on the condition that, and as long as, the migrant keeps working for that employer.

The inability to exit from an exploitative employment situation by changing employers in the host country or returning home is, in my view, the key source of vulnerability of migrants employed in low-paid jobs under TLMPs. I therefore agree with the premise of Džankić’s and Bauböck’s proposal that increasing mobility rights without at the same time demanding full or almost-full membership rights (i.e. citizenship or permanent residence) is the key challenge when it comes to improving the situation of migrant workers in low-paid jobs in high-income countries. The problem, and important constraint that cannot be ignored, is that restricted labour market mobility is also a critical policy element that makes the admission of migrant workers beneficial for host countries.

From the host country’s perspective, a fundamental rationale of TLMPs is to help reduce labour and skills shortages in specific occupations and/or sectors. If the admitted migrants were free to take up employment in any occupation or sector, TLMPs would not be able to meet one of their fundamental objectives. The most likely consequence of insisting on complete labour market mobility for temporary migrants in the host country would be a reduction of the size (i.e. numbers of migrants admitted), or in certain cases even the complete abolishment of TLMPs.

How to increase mobility rights for temporary labour migrants?

One way to increase the mobility of migrant workers within TLMPs would be to grant the right to change employers within certain sectors or occupations (i.e. those considered to be in shortage of labour and skills and thus in “need” of migrant labour) after a relatively short period of time. From the host country’s point of view, it is important to limit migrants’ employment to certain sectors or occupations, but not to specific employers, as most TLMPs currently do. Indeed, some countries (such as Ireland) have introduced policies that allow temporary migrant workers to switch employers freely within certain sectors or occupations after some time (e.g. one year after admission under the TLMP). However, for the reasons explained above, even when the initial tie between worker and specific employer is lifted, the restriction on employment to the occupations or sectors perceived to be in shortage typically remains.

Another important set of measures to facilitate temporary migrants’ de-facto ability to exit from their current situation would ensure that migrants do not incur large debts in the recruitment process and can finance their return (if desired) to their home countries. There is no space to discuss the range of measures that might be required and possible in different contexts, but there has been a considerable research literature on how to regulate recruiters and reduce migrants’ costs of recruitment.     

Special passports for temporary migrant workers: feasible and desirable?

This brings me, finally, to the proposal of a special passport with enhanced mobility rights for temporary migrant workers. There are different ways of thinking about this proposal. I focus on the idea that temporary migrant workers in lower-skilled jobs in high-income could be given special mobility rights that enable them to move freely between the host country they have been admitted to and their countries of origin. So, this would constitute a new and privileged status that falls between the status and rights enjoyed by a migrant working under a TLMP and permanent residence status. More specifically, it would essentially combine the labour market and welfare rights restrictions of a TLMP with the greater international mobility rights typically associated with permanent residence or citizenship status. Could this be feasible? And would it be normatively desirable? I conclude with a few reflections.    

With regard to the political feasibility of this idea, I do think the Covid-19 pandemic provides a window of opportunity, perhaps temporary and possibly already beginning to close, for implementing new policies that improve the situation, including the mobility, of migrants employed on temporary permits in what are considered essential jobs and services. The pandemic has highlighted the role that migrant workers play in many essential occupations, including in lower-paid jobs such as carers, health workers, agricultural workers, food processing workers, delivery drivers, etc. What used to be known as low-skilled migrants are now sometimes talked about as essential workers. If “systemic resilience” becomes a new goal in the design of labour immigration programmes, as colleagues and I have recently argued, it is important to think how greater mobility and rights protections for migrants employed in essential services will help not only migrants but also the host country’s population. If it becomes part of public debates and policy-making – an open question – this line of thinking could make enhanced mobility rights for temporary low-skilled migrant workers more feasible politically (also see Audrey Macklin’s contribution for a broader discussion of the feasibility of the idea of a special passport for vulnerable groups).        

In my understanding of such a privileged status with greater mobility rights, it would essentially enable unrestricted circular labour migration, so a more liberalised version (in terms of return and mobility rights) of the circular labour migration programmes that already exist in many countries (e.g. Canada’s Seasonal Agricultural Worker Program). This would not need to interfere with states’ right to regulate and decide on the initial admission of migrant workers but thereafter states would lose the right to prevent circular mobility of migrant workers between their origin countries and the host country. This would clearly benefit migrants as they could return to their home countries without fear of not being re-admitted (an issue discussed in Ottonelli and Torresi’s contribution to this forum) and it would benefit host country employers because it would most likely create a larger pool of temporary migrant workers available to them, for a longer period of time.

At the same time, such a policy and new status with enhanced mobility rights  would clearly also entail potential risks and normative concerns. For example, it could entrench host country employers’ reliance on – and in some cases preferences for – recruiting temporary migrant workers who can be employed with more limited rights than domestic workers. This, in turn, could accelerate processes of labour market segmentation and potentially crowd out of domestic workers from certain jobs. This may not be an issue in occupations where domestic workers show little interest to work, although it is important to remember that labour and skills shortages are slippery concepts and that domestic labour supply depends, at least in part, on the wages and employment conditions on offer.

A related normative issue – that also applies, at least to some extent, to already existing circular migration programmes – stems from the creation of a potentially large pool of permanently ‘second-class’ temporary (and circulating) residents, as is the case, for example, in the Gulf States. Various scholars have argued that there are strong moral reasons for limiting the maximum time migrants can spend working under restricted rights in liberal democratic countries. And in practice, most existing TLMPs in rich democracies provide migrants with work permits that are limited to a maximum period of no more than around five years of continuous employment.    Special mobility rights for temporary migrant workers that enable them to move freely between home and host country within a TLMP could lead to a scenario where large numbers of migrants circulate in and out of the same high-income country over many more years, always working with restricted rights.

The normative implications of such a policy are not clear-cut: On the one hand, the ability to engage in unrestricted circular labour migration over long periods of time could improve the situation of those temporary migrants who have either no interest or, under current TLMPs, little to no possibility of ever gaining permanent residence in their host countries. At the same time, such a policy could further prolong structural inequalities between temporary migrant workers and other workers in the host country, in a way that is incompatible with long-term standards of equality and inclusion in a liberal democracy. One way of addressing (or at least reducing) these potential risks and normative concerns with (my interpretation of) Džankić’s and Bauböck’s proposal is to minimise the difference between the labour and social rights of temporary migrants on the one hand, and the rights of permanent residents and citizens of the host country on the other. As I have explained, if we argue within a ‘realistic’ approach that accepts the current framework of TLMPs in high-income countries, the rights gap between temporary migrants and permanent residents and citizens cannot be completely closed. However, a smaller gap does, in my view, make a policy of facilitating the long-term circulation of temporary workers with restricted rights more acceptable.