Chapter 5

Regulating the Admission and Rights of Migrant Workers

Policy Rationales in High-Income Countries

What explains the relationships between openness, skills, and rights in labor immigration policies? Why are labor immigration programs that target higher-skilled workers characterized by greater openness and more rights for migrants than programs that admit lower-skilled workers? What drives the trade-off between openness and some migrant rights? The theoretical framework and hypotheses developed in chapter 3 suggest that the answers may be found in national policymakers’ assessments of the multifaceted benefits and costs of admitting migrants, and granting or denying specific rights to migrant workers of different skill levels.

This chapter explores the drivers of the relationships between openness, skills, and rights that we observe in practice. It discusses each of the three relationships—between openness and skills, rights and skills, and openness and rights—providing short case studies of where they occur, and why. It also looks at examples of policies that are not characterized by these relationships, and delves into the reasons for these exceptional cases.

The examples discussed below focus on high-income countries because this is where the quantitative analysis found the strongest evidence of relationships between openness, skills, and rights. The case studies cover a wide range of political systems, welfare states, labor markets, and geographic regions of the world. They thus include labor immigration policies that are made in different national policy spaces.

Given the focus on examining the drivers of key relationships, this chapter does not provide complete in-depth case studies of the evolution and determinants of specific policies in particular countries. Some of the examples go beyond the definitions adopted in the previous chapter and include groups that were excluded from the quantitative analysis (e.g., policies toward EU nationals).

The period under consideration in this chapter is 2011, and—unless indicated otherwise—all discussions of policies here refer to policy developments in or before that year.

Explaining Greater Openness to Higher-Skilled Migrant Workers

The theoretical framework developed in chapter 3 conceptualized labor immigration policy as a process that can be described as choice under constraints. National policymakers make decisions on how to regulate the admission and rights of migrant workers in order to achieve a set of national policy objectives (economic efficiency, distribution, national identity/cohesion, and national security/public order) given a series of constraints (including domestic and international legal constraints, a limited capacity to control immigration, and the prevailing welfare states and production systems). Within this approach, the discussion in chapter 3 suggested at least three reasons why high-income countries can be expected to be more open to admitting skilled rather than low-skilled migrant workers. First, skilled migrants can be expected to generate greater complementarities with the skills and capital of the existing population. Second, endogenous growth models emphasize the importance of human capital and knowledge for long-term economic growth. Third, the net fiscal impact of immigration—the difference between the taxes that migrants pay and the costs of public services and benefits that migrants consume—critically depends on migrants’ earnings and thus skills. Everything else being equal, skilled migrants employed in high-skilled jobs will pay more taxes and be eligible for fewer welfare benefits than low-skilled migrants in low-skilled jobs. The empirical case studies below show that these considerations are indeed at the heart of explaining policy choices in practice.

Europe: United Kingdom, Ireland, and Germany

Most but not all high-income countries in Europe are more open to admitting skilled versus low-skilled migrant workers. Since the early 2000s, the United Kingdom’s labor immigration policy for admitting migrant workers from outside the European Union has been among the most explicitly skills-based admission policies in Europe. The Labor government that came into power in 1997 drastically increased skilled labor immigration from outside the European Union (the number of work permits issued to non-EU workers increased from less than forty thousand in 1999 to almost eighty thousand in 2006 when it was announced that the policy would be reformed), but channels for low-skilled immigration from outside the European Union remained small and strictly limited.¹ In 2008, the United Kingdom introduced a points-based system, which comprised three tiers for migrant workers.² The UK Home Office (2006) described and differentiated these tiers based on skills along with the perceived economic contribution to Britain:

• Tier 1: Highly skilled individuals to contribute to growth and productivity

• Tier 2: Skilled workers with a job offer to fill gaps in the UK labor force

• Tier 3: Limited numbers of low-skilled workers needed to fill specific temporary labor shortages

The United Kingdom’s points-based system was designed to make policy simpler and more “rational.” As Tony Blair, the prime minister at the time of the development of the new policy, put it: “The challenge for the Government is to maintain public confidence in the system by agreeing [to] immigration where it is in the country’s interest and preventing it where it is not.”³ The increased selection and regulation of admission by skill, with higher-skilled migrants facing fewer restrictions than lower-skilled migrants, was at the heart of the new policy. Aimed at “attracting the best and brightest” in the global race for talent, Tier 1 does not require a job offer in the United Kingdom. In contrast, Tier 2 has been much more restricted with admission requiring a firm job offer, successful resident labor market test (unless the job is on a shortage occupation list recommend by the Migration Advisory Committee [MAC], a panel of independent labor market experts), and minimum threshold of points awarded based on prospective earnings and education (the education criterion was dropped in 2011). Tier 3 for low-skilled migrants from outside the European Union has never been opened, partly because of the availability of workers from other EU countries, especially since the European Union’s enlargement in May 2004, leading to a large inflow of eastern European workers.

After coming into power in May 2010, the Conservative–Liberal Democrat Coalition government essentially maintained the structure of the points-based system, but introduced an overall limit (cap) on the annual number of non-EU workers admitted to the United Kingdom. The cap on non-EU labor immigration is part of a larger policy goal of reducing the overall net migration from over two hundred thousand to “tens of thousands” by 2015. Other important policy changes included the raising of the skills threshold for Tier 2, resulting in an even greater selectivity by skill. Tier 1 for highly skilled workers was reduced from fifteen thousand to only one thousand annually, because of a concern about abuse rather than a policy of not wanting to attract highly skilled workers. As Damian Green, the immigration minister, explained at the launch of the limit: “We are sending out a clear message—the UK remains open for business and we want those who have the most to offer to come and settle here.” So the emphasis on attracting the most highly skilled remains, albeit based on a much stricter definition of what the current government calls “exceptional talent.”

Similar to the United Kingdom, Ireland operates a dual labor immigration system, with separate programs for highly skilled workers (the “green card permits” programs) and medium-skilled workers (a work permit program). In contrast to work permits, green cards do not require a labor market test and are open to a much larger number of occupations (all occupations, in fact, if the pay is over sixty thousand euros). A report commissioned by the Irish government to inform the development of its new immigration policies concluded that this dual system was justified by the greater benefits of skilled compared to low-skilled immigration, and—as in the case of the United Kingdom—the availability of other EU workers to fill low-skilled vacancies. The report suggested that “the interaction of the revised work permits system and the permanent Green Card system is intended to facilitate required high skilled migration, whilst encouraging employers to source low skills from within the EEA.”⁴

Germany has recently begun to transform its labor immigration policies from focusing on limiting numbers (a policy in place since the end of the guest worker era in the early 1970s) to a more managed system of actively attracting and selecting migrants based on their skills. The Immigration Act of 2005 initiated a set of policy developments that aimed at opening up the country to skilled and especially highly skilled migrant workers, while essentially maintaining (with minor exceptions) the ban on recruiting low-skilled migrants from outside the European Union. Two key themes in German policy debates since 2005 have been the need to operate attractive and open policies for highly skilled workers in order to be competitive in the global race for talent, and the goal of linking skilled labor immigration to the needs of the economy while protecting German workers in the labor market. The Immigration Act explicitly states that the admission of migrant workers must be “geared to the requirements of the German economy, according due consideration to the situation on the labor market and the need to combat unemployment effectively.”⁵ Based on research suggesting future shortages of skilled and highly skilled workers, the government developed an action plan in 2008 that reinforced the policy focus on admitting skilled and especially highly skilled migrants.⁶

Canada and Australia

Canada and Australia are examples of countries where greater openness to skilled migrants has been explicitly related to the use of immigration as a nation-building tool. Throughout the twentieth century, Canada’s immigration policy has been driven by the core objectives of expanding the population, boosting the economy, and developing society. Selective admission of migrants that would further these goals has been at the heart of Canada’s policies.⁷ Since the 1960s, when racial admission criteria were eliminated, Canada has operated a points-based system for regulating permanent labor immigration that aims to ensure that only skilled and highly skilled migrants are admitted as permanent residents. The focus on skilled labor immigration has been justified by the expectation and explicit argument that more highly skilled migrants would have a better chance of finding well-paid employment and therefore making a bigger contribution to the Canadian economy. As Jeffrey Reitz (2004, 106) explains, “A positive social, cultural, and political impact was also expected.” The emphasis on selecting skilled migrants is also thought to be a key reason for Canada’s more positive public attitudes to immigration compared to other countries.⁸

The evolution of Australian immigration policy followed a similar trajectory. In 1972, following the end of the White Australia Policy, Australia introduced a points-based system that selected migrants based on a range of economic criteria including skills. Applicants with more skills and education receive more points, and hence have a higher chance of admission.⁹ In the 1990s, the points-based system was reformed in response to the relatively high unemployment rates of migrants. Australia’s response was to sharpen admissions criteria—by, for instance, strengthening English-language requirements and premigration qualifications screening—in order to “select for success” among skilled applicants.¹⁰

Canada and Australia have in recent years introduced TMPs for both high- and low-skilled migrant workers to complement their policies for admitting skilled migrants on a permanent basis. Despite the noticeable shift toward more TMPs to fill labor shortages, including for low-skilled migrants, the focus of both countries’ labor immigration policies is still on admitting skilled migrants.¹¹

East Asia: Singapore, Hong Kong, and the Republic of Korea

Greater openness to skilled migrant workers is also a key characteristic of labor immigration policies in many Southeast Asian countries, some of which admit large numbers of low-skilled migrants. For example, Singapore has long admitted migrant workers of all skill levels as part of its overall population and development policies, which are increasingly framed in the context of the prospect of an aging and shrinking population. Selectivity based on skills has always been an important dimension of Singapore’s labor immigration policies. There is a clear distinction between attracting and integrating “foreign talent” and regulating the temporary employment of lower-skilled “foreign workers,” and this has been reflected in a set of highly differentiated policies for different types of migrant workers. In response to increasing concerns about the sustainability of the increase in immigration over time, the Singaporean government has recently committed to efforts aimed at stabilizing the share of migrants in the workforce at about a third (where it is now). Given that objective, there is now even greater emphasis on more openness for skilled and highly skilled migrants. Singapore’s deputy prime minister has recently stressed “good quality foreign workers and immigration still remain important to our sustained economic growth and are vital to address our serious longer-term population challenges.”¹² An influential report by the Economic Strategies Committee (2010) recommended that better management of Singapore’s dependence on migrant workers would require raising the quality of foreign workers by more actively encouraging employers to hire and retain skilled workers.

Hong Kong operates a tightly regulated labor immigration program for low-skilled migrant workers and a more open program for attracting high-skilled migrant labor. The “imported workers program” for temporary low-skilled workers requires a firm job offer and labor market test. In contrast, the “quality migrant admission” scheme, aimed at attracting highly skilled migrants “to enhance Hong Kong’s economic competitiveness in the globalized market,” does not require a job offer and can lead to settlement.¹³

The recent labor immigration policies of the Republic of Korea, which began to import migrant workers in the early 1990s, is also explicit about the policy preference for skilled over low-skilled workers. Throughout the 1990s, the policy approach was to admit skilled migrants as workers and low-skilled migrants as trainees.¹⁴ The trainee program attracted heavy criticism because of concerns about its treatment of trainees and the rise in the number of irregular migrants. In the early and mid-2000s, the Korean government reformed its overall labor immigration policies. This included replacing the trainee program with a formal employment permits program for low-skilled workers under which all migrants are treated as workers. At the same time, a number of policy initiatives such as the introduction of multiple entry visas encouraged the immigration of skilled migrant workers, especially but not only for jobs related to information technologies.¹⁵ The new labor immigration policy that emerged in the 2000s was clearly differentiated by skill, with greater policy openness toward skilled migrant workers.¹⁶ The employment permits system for low-skilled workers, for example, is limited by a quota, while high-skilled policies do not include numerical limits.

The greater policy openness to skilled workers is clearly reflected in the Korean Ministry of Justice’s (2008, 2) first five-year plan for immigration policy (2008–12), which “consolidates the fragmented policies of ministries into a comprehensive and long-term policy.” In the context of low birthrates and a rapidly aging population, the plan explains that the “past government’s Immigration Policy was control-oriented and focused on protecting national security. The strategic value of foreign workers was not recognized. The policy line on foreign workers needs to be changed into a ‘strategic opening’ to tap into the talent and capital of the rest of the world” (ibid., 9). It mentioned four immigration policy objectives: “enhancing national competitiveness with a proactive openness policy,” “pursuing quality social integration,” “enforcing immigration laws,” and “protecting human rights of foreigners” (ibid., 14). In its discussion of the first of these four objectives, the plan makes it clear that “the areas and ways of opening up are decided on the basis of national interest through cost-benefit analysis” (ibid., 11). The benefits are described as resolving labor shortages and economic contribution with the expansion of knowledge and information. The list of costs mentioned in the plan includes “social problems from a larger low-income class” along with “conflicts between local nationals and immigrants” (ibid.). As is the case in other countries, there is a strong view that Korea “needs an aggressive program for attracting highly skilled foreigners from overseas to help with technological innovation, develop value-added industries and lead global management” (ibid., 16).

While the great majority of high-income countries are more open to admitting skilled than low-skilled migrant workers, there are exceptions such as the GCC countries and Sweden. It is important to discuss the reasons for these cases. I also look at the case of the United States, a long-standing country of labor immigration with an ambiguous mix of policies toward admitting skilled and low-skilled migrant workers.

The GCC Exception

The clearest exception to the general pattern of more open labor immigration policies to skilled workers is the oil-rich GCC states (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates). The GCC countries operate one common type of labor immigration program—the kafala (sponsorship) system—for admitting migrants of all skill levels.

Since the dramatic increase in oil prices and revenues in 1973–74 and 1979, the GCC countries have admitted large numbers of what are meant to be strictly temporary migrant workers. After forty years of mass labor migration to the Gulf, migrants now constitute large majorities of the workforce in almost all GCC countries (ranging from just over 50 percent in Saudi Arabia to 95 percent in Qatar), especially in the private sector, where relatively few citizens work. The private sectors of Kuwait, Qatar, and the United Arab Emirates are effectively 100 percent staffed by migrant workers. In other GCC countries, the share of nationals in total private sector employment is higher, but it is still less than 50 percent (with Oman at 48 percent, Saudi Arabia at 46 percent, and Bahrain at 30 percent). Although doing all kinds of work, the majority of temporary migrants in GCC countries are employed in low- and medium-skilled jobs in sectors such as construction, wholesale, and retail and domestic services.¹⁷

The kafala system for regulating labor immigration in GCC countries is essentially an employer-led, large-scale guest worker program that is open to admitting migrant workers, but at the same time restrictive in terms of the rights granted to migrants after admission. The key feature of the kafala system is that to obtain a temporary work permit, migrant workers require a kafeel (sponsor), who is given considerable control over the migrant. In addition to providing employment, the kafeel essentially takes financial and legal responsibility for the migrant after admission. Each GCC citizen has the right to become a kafeel and recruit migrant workers (including domestic workers). The temporary work permit requires the migrant to work for their sponsor only. Although illegal in many GCC countries, in practice it is common for sponsors to hold migrant workers’ passports and for migrant workers from different countries to be paid different wages for the same work. Mechanisms for filing grievances are limited. Migrants’ rights in the labor market and access to welfare benefits are significantly restricted. In most GCC countries, there is no opportunity to obtain permanent residence. Family reunion is possible although often quite restricted.¹⁸ Since migrants are primarily considered as strictly temporary workers, integration policies and projects are largely absent.¹⁹ In many ways, the kafala system is the world’s largest and strictest TMP.

The reasons for the kafala system’s openness to admitting migrant workers of all skill levels stem from its fundamental policy objectives. The unique design and policies of the kafala system reflect three types of objectives that are broadly shared among all GCC countries: provide a cheap workforce for the low-cost provision of goods and services (including domestic services) in the private sector, and in some countries, help fill vacancies in the public sector; regulate the perceived impact of immigration on the culture and perceived national identity of the population; and address security concerns potentially arising from the fact that large numbers of migrants often outnumber citizens. Overall, the kafala system has helped develop and maintain a unique economic and social model whose primary aim is to distribute the oil wealth (which in most GCC countries accounts for the great majority of government revenues) among citizens. A key policy of this model has been to effectively guarantee citizens a job in the public sector, where employment conditions as well as benefits are much higher and working hours are much shorter than in the private sector.²⁰ Large-scale temporary labor immigration has thus been used to staff and develop the private sector, and do most or in some countries all the low-skilled work—including the provision of domestic services—which citizens do not wish to do, and under the prevailing economic and social model, are not meant to do.

Another reason for the absence of differentiated policies toward migrant workers with different skills lies in the control and discretion granted to kafeels in determining employment conditions. The restrictions that employers impose on low-skilled migrant workers are in practice significantly greater than those experienced by more highly skilled workers. So although the kafala system constitutes one policy for admitting and employing migrants of all skills, in actuality it is flexible in facilitating differential treatment based on skills and nationality.

Given its unique design, the kafala system has had predictable consequences for the labor markets of GCC countries, giving rise in recent years to debates about policy reform, and in a few countries, some first concrete steps toward changes. By design rather than accident, the labor markets of GCC countries have become extremely segmented.²¹ There is a fundamental divide between public and private sector jobs as well as high levels of segmentation within the private sector. It is not uncommon for different jobs to be dominated by workers of different nationalities and for workers from different countries to be paid different wages. Given the easy access to migrant workers, productivity levels in the private sector are often low. In the context of highly segmented markets, the employment of citizens in the public sector has become a major policy issue, mainly because the public sectors of many GCC countries are unable to continue to absorb all citizens and employ them in a productive way. Citizens’ employment rates are low (less than 30 percent in most GCC countries), and their unemployment rates are relatively high.²²

Most GCC countries have responded to the growing un- and underemployment of citizens with “localization policies” aimed at increasing the share of nationals while reducing the reliance on migrant workers in specific medium- and high-skilled occupations, but not in low-skilled occupations, where it appears to be accepted that jobs will continue to be done by migrants. Although different countries have experimented with different types of localization policies (including banning foreigners from particular occupations or imposing quotas that require a minimum share of nationals in employment in specific occupations), the general consensus is that they have so far had limited success, with the possible exception of Saudi Arabia.²³

There is a growing recognition in most GCC countries that the success of localization policies is closely linked to reform of the kafala system and labor markets. While wages and conditions in the public sector remain significantly higher than in the private sector, and while private sector employers continue to exercise a high degree of control over migrants, it is difficult to see how the share of nationals in the private sector will increase in any significant way. A few countries have taken initial steps to reform the kafala system—for instance, Bahrain modified its policies in 2009, now allowing migrants to change employers, and Kuwait announced in 2010 that it would end the kafala system sometime in 2011—but most GCC countries are currently continuing with their long-standing policies without any major reforms.

A Swedish Policy Experiment

With a population of just under nine million, Sweden is the biggest Scandinavian country with one of the world’s most advanced social welfare states. It combines a liberal market economy with an extensive state-run welfare state. Most comparative analyses of social policy consider Sweden the archetypal “social democratic welfare state” that aims at universal coverage along with rights and benefit equality.²⁴ Most wages and employment conditions are determined by collective bargaining, and with most workers in unions, employment conditions generally adhere to industry-wide standards.

With the exception of the period 1949–71 when Sweden experienced labor immigration from Finland and southern Europe, migration to Sweden has—until recently—primarily consisted of asylum seekers and family members. Over the past thirty years, labor immigration from outside the common Nordic labor market has been minimal. In 2007, Sweden issued fewer than five thousand first-time work permits and migration for work accounted for less than 2 percent of permanent-type migration to Sweden.²⁵ The low numbers of labor migrants from outside the European Union were due to a restrictive labor immigration policy in place in Sweden since the early 1970s. Concerned about “social dumping,” adverse impacts on collectively agreed-on wages and employment conditions, and maintaining the Swedish “economic model” more generally, Sweden’s powerful trade unions have—until recently—played an important role in opposing and restricting non-EU labor immigration. The key requirement was that the Swedish Public Employment Service, in close consultation with the unions, needed to approve any application for a work permit for a non-EU national. Reflecting the highly restrictive policy at the time, in the early 2000s the home page of the Swedish Migration Board’s website made it clear that “obtaining a Swedish work permit is no easy matter.”²⁶

In late 2008, Sweden’s new center-right coalition government, in power since 2006, introduced significant reforms of its labor immigration policy for workers from outside the European Union. Contrary to previous governments, the new one considered a more open and flexible labor immigration policy of vital interest to the Swedish labor market and economy. The new rules made it much easier for employers to recruit workers from outside the European Union. The long-standing requirement for approval from the Public Employment Service was eliminated, thus weakening the influence of trade unions over migrant worker admissions. Meant to be “employer driven,” the new labor immigration policy has four requirements for the admission of non-EU workers: an offer of employment; advertisement of the job in Sweden and the European Union for ten days; the terms of employment must be equivalent to those provided by a Swedish collective agreement, or customary terms and conditions for the occupation or industry (which constitutes the continuation of a long-standing requirement of labor immigration policy in Sweden); and the relevant union must be given the opportunity to state an opinion on the terms of employment. The temporary work permits are valid for two years and renewable. After forty-eight months, the employee will be eligible for a permanent residence permit.

Importantly, in contrast to most other high-income European countries (including other social democratic welfare states such as Denmark), Sweden’s new labor immigration policy does not distinguish between workers with different skills. In the words of Tobias Billstrom (2008), Sweden’s immigration minister since 2006,

Sweden has now decided to reopen the path for those wishing to come to work. In stark contrast to immigration regulations in many other countries, Swedish policy is not based on quotas or aimed exclusively at highly qualified labor. Instead one of the main features of the reform is that it focuses on the employers’ demand for labor, high-as well as low-skilled workers. In doing so, Sweden is setting an example, which hopefully others in Europe will follow.

Following the introduction of the new policy, the number of work permits issued to employees from outside the European Union increased dramatically to over fourteen thousand in both 2009 and 2010—double the figure in 2008, and triple the number for 2007. The numbers would likely have been larger were it not for the economic downturn. Permits were issued to a wide range of low-, medium-, and high-skilled occupations. In 2010, the top three occupations were agricultural, fishery, and related workers (most of whom were seasonal workers), data specialists, and restaurant and hotel workers. These three occupations accounted for almost 60 percent of all permits issued in 2010. The top three countries whose nationals received new work permits were Thailand, India, and China (together accounting for half the total that year, according to Swedish Migration Board statistics).

Although Sweden’s policy appears open and employer driven on paper, in practice the strict requirement that all workers be employed at collectively agreed-on wages is likely to act as a strong deterrent for employing large numbers of migrants. Unlike employers in countries with flexible labor markets such as the United Kingdom, Swedish employers cannot easily use non-EU labor immigration to lower wages or moderate wage growth, which reduces the danger of adversely affecting the employment conditions of low-skilled (and other) Swedish workers. This—together with the Swedish language—is likely to help explain why the number of work permits issued to non-EU nationals remains relatively low despite significant policy reforms.

So in addition to the continuing role of the “Swedish model” in limiting labor immigration, how can we understand and explain why Sweden’s new admission policy does not distinguish between workers of different skills? The answer arguably lies with the relatively recent introduction of the policy and its somewhat-experimental nature. As the effects of the new policy become clearer over time, it is possible that there will be further policy changes toward greater skill selectivity in admission, although there are no concrete signs yet that such a policy change is in the cards. As the immigration minister’s speeches over the past few years make clear, Sweden is acutely aware that its “employers know best” policies are out of step with policies in most other high-income countries. In Billstrom’s (2009) words a few months after the launch of the new policy: “Our new reform has been in place for six months. Time will tell how successful our reform will be. It is, however, my strong belief that managing high- and lesser-skilled migration through a general framework has a lot of benefits for all stakeholders involved.”

It remains to be seen how sustainable the policy proves to be over time. Mindful of potential debates about policy changes, Sweden had commissioned the OECD to evaluate its new policy. In its first evaluation report, the OECD (2011, 131) notes that “the faith in employers appears to be largely justified until now, although some vulnerability in the system could be addressed, especially in monitoring workplaces not covered by collective bargaining, and marginal businesses.” More stringent requirements were announced in January 2012 for employers in mainly low-skilled industries and new businesses applying for work permits to hire non-EU workers. These new requirements primarily relate to the employer’s ability to guarantee the applicant’s salary and other conditions set out as part of the work permit application process.²⁷

The US Ambiguity

Almost all migrant workers legally admitted to the United States are admitted as “nonimmigrants” on temporary visas.²⁸ Over the past few years, the United States issued about three hundred thousand visas to temporary workers per year.²⁹ The key temporary labor immigration programs in the United States are: O-1 for highly skilled persons “with extraordinary ability in the sciences, arts, education, business or athletics”; H1-B for skilled migrants for employment in “specialty occupations”; H2-A for temporary workers in agriculture; and H2-B for temporary workers in other (nonagricultural) sectors. The O-1 program is demanding in terms of the skills required and has admitted less than ten thousand people annually over the past five years. The H1-B program is capped at eighty-five thousand regular visas per year, but there are a number of categories exempted from the cap including migrants who work for colleges and universities. Among the low-skilled programs, H2-B is capped at sixty-six thousand and H2-A is not capped.³⁰

There is disagreement and ambiguity about whether US policies are more open to admitting skilled or low-skilled migrant workers. Some US migration scholars have argued that US policies are more restrictive to skilled than toward low-skilled migrant workers.³¹ Others disagree, and have contended that the admission procedures for H1-B are easier than for H2-A or H2-B.³² My own assessment in chapter 4 concerning the openness of these policies finds that based on the openness indicators used, the H2-A and H2-B programs (i.e., the two low-skilled programs) are slightly more open than the H1-B program and significantly less open than the O-1 program. In terms of the numbers of workers admitted, over the past few years migrants admitted on H1-B or O-1 visas (just under seven hundred thousand during 2006–10) have exceeded those admitted on H2-A or H2-B visas (just under six hundred thousand during the same period), but the difference is not large.³³

Given that the United States is a long-standing country of labor immigration, why are US policies ambiguous and not characterized by a clear, strong policy preference for admitting skilled migrant workers? The main explanation, I argue, lies with the long-term political gridlock over immigration in US politics, which has made it impossible to introduce and implement significant reforms to migrant admission policies over the past two to three decades. While immigration is a difficult and highly contested political issue in most countries, the United States appears almost unique among high-income countries in its long-term political paralysis on the matter.³⁴

There is consensus that the current system is “broken.”³⁵ Moreover, there is consensus that any comprehensive immigration reform must deal with three major areas: border and workplace controls, the eleven million irregular migrants in the United States, and the admission of new migrant workers or “future flows.”³⁶ There has been no shortage of proposals about how to reform admission policies, with many of them calling for a more skills-based labor immigration policy that prioritizes the admission of skilled over low-skilled migrant workers. For example, in addition to proposals by prominent economists,³⁷ the bipartisan US Commission for Immigration Reform—known as the Jordan Commission—maintained in the late 1990s that “immigration can support the national interest by bringing to the United States individuals whose skills would benefit our society. It also can help US businesses compete in the global economy. This national interest in the competitiveness of business must be balanced by an equally compelling national interest in developing a US workforce that has the skills necessary to compete in the global economy.”³⁸ The commission recommended that US immigration policy should eliminate the admission of unskilled migrant workers, and focus on the admission of skilled and highly skilled workers. Although none of these recommendations have been implemented yet, it seems clear that the current absence of more skills-based admission policies (i.e., policies that are more open to skilled than low-skilled migrant workers) is a result of political gridlock and institutional complexities rather than an active choice made by the US government to further the US national interest.

Why More Rights for Skilled Migrant Workers?

Why do labor immigration programs that target higher-skilled workers grant migrants more rights than programs targeting lower-skilled workers? The theoretical discussion in chapter 3 suggested two potential reasons: the recognition that to be successful in the global race for talent, countries need to offer highly skilled migrants a comprehensive set of rights; and the perceived costs and benefits of rights, which vary across different rights as well as between migrants with different skills.

Attracting Highly Skilled Migrants in the “Global Race for Talent”

With few exceptions, high-income countries recognize that there is global competition for highly skilled migrant workers, and are explicit in their policy debates and policy decisions about the need to offer a comprehensive set of rights to help attract highly qualified migrant labor.

For example, Canada and Australia, two countries that have long been successful in attracting skilled migrants, both grant qualified migrants permanent residence and the associated comprehensive set of rights immediately on arrival. Since the early 2000s, the United Kingdom has had labor immigration programs in place that aim to attract highly qualified migrants by offering them the opportunity to migrate to the United Kingdom without a job offer and with the right to apply for permanent residence after a certain number of years of residence (five years as of 2011). In 2006, Ireland introduced a green card for highly skilled workers that allows immediate family reunification and provides a path to permanent residence after two years. France introduced skill- and talent-based permits as part of its immigration policy reform in 2006. The permits are aimed at attracting highly skilled migrants, and in contrast to France’s policies toward lower-skilled migrants, grant family members a “private and family life residence permit” that allows spouses to work.

Since the early 2000s, Germany’s changing policies toward highly skilled migrants illustrate the importance and growing recognition of the central role of rights in attracting global talent. Germany introduced its own version of a green card program in 2000 to attract highly skilled information technology workers from outside the European Union. It offered a five-year work permit with no clear path to permanent residence and attracted fewer than the twenty thousand visas offered.³⁹ Following the failure of the green card system to attract significant numbers of highly skilled migrants, Germany passed a new immigration law in 2004 that provides for unlimited residence permits for highly qualified migrants and their families.

The European Commission’s (2007a) recently introduced blue card for highly skilled non-EU workers grants migrants a series of socioeconomic rights and favorable conditions for family reunification. It was specifically designed to attract highly skilled migrants to the European Union. Jose Manuel Barroso, the European Commission president at the time, explained at the launch of the debate about the blue card that “with today’s proposal for an EU Blue Card we send a clear signal: highly skilled migrants are welcome in the EU!”⁴⁰

The use of rights to attract highly skilled migrants is also an explicit part of the labor immigration programs of countries in East Asia (including some of those that impose significant restrictions on the rights of most migrants in their countries). For example, as part of Korea’s new strategy for attracting highly skilled migrants, “professionals will be classified by expertise and profession, and special benefits such as permanent residence status will be granted to those who are strategically valuable in industries,” and “dual nationality can be achieved in practice by loosening foreign nationality renunciation requirements for people with exceptional talent in social, economic and cultural areas.”⁴¹

Singapore markets itself as the “talent capital.” Access to permanent residence and citizenship are considered key aspects of attracting and maintaining highly skilled workers. In light of the rising number of awards of permanent residence status to migrants in recent years (the number of Singapore permanent residents almost doubled between 2000 and 2010), the Singaporean government has come under pressure to make a greater distinction between the rights of citizens and permanent residents.⁴² Although the government has responded by making some distinctions more explicit (e.g., in education and health care), it has also emphasized that access to rights is crucial to attracting global talent. According to Singapore’s deputy prime minister, “We must also avoid making ourselves so unattractive that suitable foreigners are deterred from sinking roots and becoming part of Singapore. There is a global competition for good people with talent and if we make Singapore an inhospitable place, we will lose out.”⁴³

The Costs and Benefits of Rights

A main theme of this book is that migrant rights play an important instrumental role in shaping the effects of international migration for the receiving country as well as for migrants and their countries of origin. In other words, restricting and granting rights has consequences that include multifaceted costs and benefits for the national interest, however perceived. As discussed in chapter 3, these consequences can be expected to vary across rights and, critically, between migrants with different skill levels. For some rights, countries can be expected to perceive equality of rights with citizens as best for the national interest. For some other rights, restrictions may be perceived as beneficial with an important distinction based on migrants’ skills. Granting some rights to higher-skilled migrants can be perceived to be less costly and/or more beneficial than granting the same rights to lower-skilled migrants.

Governments are rarely explicit about the rationales for restricting or granting rights to migrant workers. If clear reasons are given, they often explain equality of rights rather than why specific rights are restricted. Nevertheless, as shown in the examples below, there is considerable evidence that considerations about the costs and benefits of rights play a powerful role in high-income countries’ decisions on what rights to grant to migrant workers with different skills. In line with the theoretical discussion and framework developed in chapter 3, while concerns about the costs of social rights are common among most countries, concerns about the costs of other rights vary across different countries in line with those countries’ different policy spaces for restricting different types of migrant rights.

The United Kingdom’s labor immigration policies in recent years have been explicitly based on a cost-benefit approach, so the rationales for specific policies, including to some extent policies toward migrant rights, are more explicit and more openly discussed than in many other countries. As part of its reform of labor immigration policies for non-EU nationals in 2011, for instance, the UK government ran public consultations on migrant workers’ rights to settlement and family reunion. Although not spelled out explicitly, it is clear from both consultation papers that the governments’ policy proposals were influenced by a perceived difference between the costs and benefits of rights for low- and high-skilled workers. The settlement consultation made it apparent that the impact on public services and welfare is a key reason for restricting the right to settlement to “those who make the biggest contribution to the United Kingdom”—that is, high-skilled and high-paid workers rather than low-skilled workers:

A recent Ipsos Mori poll found that 75% of Britons believe that immigration is currently a problem and 44% thought it was a problem because of abuse of or burdens on public services. The Department for Communities and Local Government Citizenship Survey found that 78% of people thought that the number of immigrants coming to Britain should be reduced. Reserving settlement and the rights it affords, including the ability to access welfare benefits and apply for British citizenship, to those migrants who make the biggest contribution to the UK would help address these concerns.⁴⁴

In their unique study of the rationales for restricting selected rights of migrants in the United Kingdom, Sarah Spencer and Jason Pobjoy (2011, 37) conclude that cost is the “primary consideration in denying family reunion rights to those who come to the United Kingdom to undertake low-skilled work.” This assessment is confirmed by the UK government’s family consultation, which underscored that the financial ability to support a spouse or partner is a key reason for granting or denying family reunification:

It is obvious that British citizens and those settled here should be able to marry or enter into a civil partnership with whomever they choose. But if they want to establish their family life in the UK, rather than overseas, then their spouse or partner must have a genuine attachment to the UK, be able to speak English, and integrate into our society, and they must not be a burden on the taxpayer. Families should be able to manage their own lives. If a British citizen or a person settled here cannot support their foreign spouse or partner, then they cannot expect the taxpayer to do it for them.⁴⁵

In Canada, the reasons for granting low-skilled migrants more restricted rights than higher-skilled migrants are most explicit in discussion of why the Canadian government does not ratify the CMW. Although a traditional settlement country that grants many migrants permanent residence on admission, Canada has in recent years greatly expanded its TMPs, especially for low- and medium-skilled migrant workers. The aim of these TMPs is to fill labor shortages in specific sectors and occupations—an objective that requires a restriction of migrants’ right to free choice of employment. A recent analysis of the obstacles to ratification of the CMW in Canada concluded that the Canadian government is “not really interested in accepting the responsibility, through ratification of the Convention, of giving more rights than currently given for low-skilled workers under a temporary work permit, in particular the ‘right freely to choose their remunerated activity.’ ”⁴⁶

As is the case in most high-income countries, Germany does not ratify the CMW partly because it fears that the rights granted by the convention to irregular migrants would legitimize and encourage more irregular migration as well as create pressures for the social security system.⁴⁷ The German government’s answer to a parliamentary question in 2009 about the reasons for Germany’s refusal to sign the CMW specifically mentioned the right to education as an example of a right that would have to be granted to migrants and their children without legal residence status.⁴⁸ The great majority of irregular migrants are low skilled. Although Germany’s (and many other high-income countries’) arguments against rights for irregular migrants are typically framed in terms of the importance of “discouraging irregular migration” and “maintaining the rule of law,” it is clear that the perceived financial costs of granting social and other rights to low-skilled migrants are an important obstacle.

Financial costs also played a critical role in the introduction of restrictions on migrants’ access to welfare benefits in the United States. The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 brought about major changes in access to means-tested public benefits. Although it was a general reform bill that affected access to welfare for everybody, it also included a specific section that codified (for the first time) migrants’ access to welfare benefits. Until 1996, legal migrants generally enjoyed the same access to welfare rights as US citizens. The PRWORA introduced a key distinction between citizens and noncitizens. Migrants who had acquired US citizenship continued to be eligible, while the eligibility of immigrants without US citizenship was differentially restricted. The PRWORA divided legal immigrants without US citizenship into two groups: qualified and unqualified aliens. Qualified aliens included legal permanent residents and refugees (and some other smaller groups). Unqualified aliens included unauthorized migrants (many of who were unaffected by the law as they had never been eligible for welfare benefits), temporary legal migrants (especially workers and students), and applicants for permanent legal status already residing in the United States.

There is a large literature on the determinants and effects of the PRWORA in general and its immigrant provisions in particular. In understanding the rationale for the immigrant provisions of the PRWORA, it is important to emphasize the economic and political context. There was a perception that the United States had become a welfare magnet for low-skilled migrants and that public spending on immigrant welfare was increasing. The immigrant provisions in the PRWORA highlight that “self-sufficiency has been a basic principle of United States immigration policies,” thus suggesting a policy intent of reducing access to benefits for newcomers and other migrants until they have proven themselves by obtaining US citizenship or at least permanent residence. Michael Fix and Jeffrey Passel (2002) describe the goals of the PRWORA’s immigrant provisions as threefold: reduce immigration for the purpose of benefits rather than work; shift responsibility for the financial support of migrants away from employers to new migrants’ sponsors; and reduce welfare spending on migrants.

The PRWORA did not explicitly use skills as a criterion for deciding migrant workers’ access to welfare benefits. By including temporary migrant workers under unqualified aliens and permanent migrant workers under qualified aliens, however, the law in practice removed access to benefits for all low-skilled migrant workers (admitted under TMPs with no possibility of acquiring permanent residence) and maintained access for skilled migrant workers after they have acquired permanent residence. So although the explicit lines of division were centered on citizenship and permanent residence, the result of the PRWORA was that migrant workers’ access to welfare benefits was clearly differentiated by skill. Arguably, this was part of the policy intent given that higher-skilled migrants are less likely to make demands on the welfare state than lower-skilled ones.

In some countries, the reasons for granting skilled migrants more rights than low-skilled migrants go beyond economic considerations, and include perceived impacts on issues related to perceptions of national identity and nation building. Policy decisions about whether to grant or deny the rights to permanent residence and citizenship are in some countries partially based on the migrants’ skill level because of the perception that skilled migrants are more suitable candidates for inclusion in the citizenry or permanent resident population than low-skilled migrants. For example, Singapore’s policies of offering rights to permanent residence and access to citizenship to skilled (but not low-skilled) migrants is not only driven by an economic need to attract skilled migrant workers (as discussed above) but also by a belief that skilled migrants are more likely to fit in and enhance Singapore’s self-image of a multiracial global city as well as “meeting point for enterprise, talent, culture and ideas.”⁴⁹ According to Singapore’s deputy prime minister in a speech to Parliament in 2011:

But not all foreigners who come here to work are allowed to sink roots. We allow only those of good quality and who share our core values to become PRs or citizens. We take into account not just factors such as the applicant’s economic contributions, qualifications and age, but also whether he can integrate well into our society, and his commitment to sinking roots.⁵⁰

Japan and Korea—countries that still see themselves as culturally homogeneous—have recently begun to adopt more proactive approaches to regulating labor immigration along with migrant workers’ acquisition of permanent residence and citizenship. In both countries, the rights to permanent residence and citizenship are reserved for skilled and highly skilled workers, partly because they are considered more desirable members of a relatively homogeneous community.⁵¹

The examples above show that governments in different countries are making a distinction between the rights of low- and high-skilled migrant workers based on the perception that granting some rights (especially social rights, the right to free choice of employment, long-term residence rights, and access to citizenship) to low-skilled migrant workers creates greater economic and other net costs (or smaller net benefits) to the national interest of the receiving country than granting the same rights to higher-skilled migrant workers. Although the discussion was not comprehensive and there are some exceptions to this approach—for instance, Sweden grants equal social, residence, and family reunion rights to migrants regardless of their skill level—a large number of high-income countries are clearly making a distinction between the rights of low- and high-skilled migrants based on a perception of differential impacts.

It is important to stress that while some specific rights are restricted by skill level because of their perceived impacts, many other rights are granted to both low- and high-skilled migrants precisely because of their perceived economic and other net benefits for the receiving country. For example, to facilitate a level playing field in the labor market and avoid adverse impacts on resident workers, governments in a wide range of high-income countries grant migrant workers equal or near-equal rights in the labor market (with the significant exception of the right to free choice of employment, which as noted above, is typically more restricted for low-skilled migrants). The protection of resident workers was one of the main rationales behind the European Commission’s (2007b) recent proposal for a common set of rights for third-country workers in EU countries. The argument for equal rights to avoid unfair competition with resident workers is typically made most strongly in countries with strong labor market regulation such as Sweden. Equal rights to protect domestic workers is a consideration that used to apply less in GCC countries, where labor markets are completely segmented (and migrants therefore are not competing with citizens), but as mentioned earlier in this chapter, the equality of employment rights is increasingly recognized as a crucial step toward encouraging the greater employment of citizens in the private sector.

Explaining Trade-Offs between Openness and Rights

This section briefly discusses examples of tensions between openness to labor immigration and specific migrant rights. The aim is to understand the drivers of the trade-off. Meant to be illustrative rather than comprehensive case studies, the examples involve a range of different rights and different countries. The examples show that these trade-offs are not accidents or unintended consequences of policy decisions. Instead, they are the result of policymakers’ choices, which are heavily influenced by the perceived costs and benefits of specific rights.

US Policy Changes in the 1990s: “Immigration Yes, Welfare No”

In 1994, President William Clinton formally appointed the bipartisan US Commission on Immigration Reform, which was created by the 1990 Immigration Act with the mandate to “review and evaluate the implementation and impact of immigration policy.”⁵² The commission published three separate reports with a series of recommendations for reforming US policies toward illegal and legal immigration as well as naturalization. The commission was appointed at a time when concerns about the effects of immigration—both legal and illegal—had become an increasingly important focal point of the US immigration debate. In November 1994, for instance, Californian voters approved Proposition 187, intended to deny illegally resident aliens and their children welfare benefits, nonemergency health care and public education.⁵³ The fiscal effects of immigration were thus an important theme of the commission’s work.

In its 1994 and 1995 reports, the commission urged Congress to maintain immigrant access to social safety net programs but reduce the admission of immigrants, both permanent and temporary, including the elimination of most low-skilled labor immigration. The commission argued that while illegally resident migrants should not be eligible for public benefits except in emergency cases, legal immigrants should not be denied access to public benefits programs. As Susan Martin, the commission’s executive director, explained in 1996, this recommendation was based on the idea that US policy should strike a “grand bargain” on legal immigration: reduce the growth in immigration, but maintain legal immigrants’ full access to the social safety net.⁵⁴ Congress rejected this recommendation. It instead kept immigrant numbers high, and in 1996 reduced migrant access to benefits through the PRWORA discussed above. This policy outcome broadly reflected the “immigrants yes, welfare no” approach advocated by, among others, Michigan senator Spencer Abraham, a key opponent of restrictive admission policies. In his analysis of the US politics of immigration control in the 1990s, Daniel Tichenor (2002, 284) described this policy as

a triumph for free market expansionists, who allied with pro-immigration liberals to sustain unprecedented legal admissions with anti-immigrant conservatives to trim alien substantive and procedural rights. The outcomes of 1996 suggested that large-scale immigration would flow into the United States uninterrupted for the foreseeable future, and that those who arrived would enjoy fewer membership rights until they acquired citizenship.

Opening Labor Markets and Restricting Welfare Rights for East European Workers in the United Kingdom and Ireland

A similar trade-off between openness to immigration and migrants’ access to welfare rights could be observed when the United Kingdom and Ireland were in the minority of existing EU member states (together with Sweden) that opened their labor markets to workers from the new EU member states in May 2004.

Ten new countries joined the European Union in May 2004, including eight eastern European countries, also known as the A-8 (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia), plus Cyprus and Malta. Under the accession agreements negotiated between the old and new EU member states, existing members could restrict A-8 workers’ legal access to the labor market for a transitional period lasting up to seven years.⁵⁵ The transitional arrangements were mainly due to fears in existing EU member states that EU enlargement would trigger the movement of large numbers of eastern European workers to the older member states. Many member states were explicit in their concerns about the impacts on their labor markets and welfare states.

Both the United Kingdom and Ireland decided in 2003 that they would grant eastern European workers immediate unrestricted access to their labor markets. The decisions were made in the context of sustained economic growth in both countries. In the United Kingdom, EU enlargement was seen as an opportunity to meet employer demand for better access to low-skilled migrant workers—access that had been significantly restricted under the prevailing work permit system for non-EU workers.

In early 2004, the United Kingdom and, to a lesser degree, Ireland experienced heated public debates about the likely consequences of the decision to open labor markets to EU workers. Beyond the labor market effects, there was growing concern about the potential danger of a large number of low-skilled eastern European migrants moving for welfare benefits rather than work. In the face of significant political pressure as well as hostile public opinion and media coverage, the UK government decided to stick with its initial decision of opening labor markets to A-8 workers in May 2004, but to impose restrictions on migrants’ access to unemployment and welfare benefits. This involved changing the law regulating access to means-tested benefits. The Social Security (Habitual Residence) Amendment Regulations 2004 introduced the new requirement that a claimant must be able to demonstrate a “right to reside” in the United Kingdom in addition to the habitual residency test.⁵⁶ Under the new rules, A-8 workers could only have a right to reside (for benefit purposes) if they were working and registered under the Workers Registration Scheme (a special scheme set up for A-8 workers), or if they had already completed a twelve-month period of continuous, registered employment. During the first twelve months of registered employment, A-8 workers were entitled to child and in-work benefits such as tax credits. Those with a low income could also be entitled to housing and council tax benefits, and become eligible for assistance under the homelessness legislation. A-8 workers who were not registered did not have access to any of these benefits. After twelve months of registration, A-8 workers gained the right to be treated the same way as other EU nationals.⁵⁷ Although Ireland did not operate a formal registration scheme, it imposed similar restrictions on eastern Europeans’ access to welfare benefits.

The United Kingdom and Ireland’s policies toward eastern Europeans thus involved a clear trade-off between facilitating openness while at the same time temporarily restricting social rights. Since May 2004, more than a million new eastern Europeans came to work in the United Kingdom for some time (many have left again), and more than two hundred thousand arrived in Ireland.

Insisting on Rights as a Way of Restricting A-8 Immigration in Sweden

Sweden was the third of the EU-15 member states to grant A-8 migrants immediate unrestricted access to the labor market in May 2004. In contrast to the United Kingdom and Ireland—and in line with the Swedish social democratic model—Sweden offered eastern European migrants unrestricted access to the social welfare system based on the assumption that Sweden’s labor market structures and regulations would ensure that any eastern European workers employed in Sweden would be given the exactly same wages as well as employment rights as Swedish workers. Most wages and benefits in Sweden are set via collective bargaining, and with most workers in unions, wages and benefits adhere to industry-wide standards. At the time of EU enlargement in 2004, Sweden introduced a number of measures aimed at preventing immigration from undermining the effectiveness of existing labor market regulations and collective bargaining structures.⁵⁸

The requirement of equal rights in Sweden’s highly regulated labor market effectively meant that from the employers’ view, migrant workers were as expensive as Swedish ones. To a considerable degree, this explains why Sweden has experienced relatively low levels of labor immigration of A-8 nationals (just over fifty thousand new EU workers during 2005–11).⁵⁹ The insistence on equal labor rights in practice made Sweden’s policies toward admitting and employing A-8 workers much more restrictive than suggested by its formal decision to grant A-8 nationals immediate access to the labor market.

The experience of the Latvian construction company Laval un Partnery (L&P) is a good illustration of the trade-off between the openness to and rights of migrant workers admitted to Sweden. In May 2004, L&P, acting through a subsidiary (L&P Baltic Bygg AB, registered in Sweden) posted workers from Latvia to work on refurbishing a school near Stockholm. Swedish unions protested because L&P agreed to pay its Latvian workers in Sweden the equivalent of twelve euros an hour. Swedish unions demanded that L&P pay the equivalent of sixteen euros, the wage negotiated for Stockholm-area construction workers, and blocked access to the work site when L&P refused. L&P sued to stop the union’s action, lost in Swedish labor courts in late 2004, and subsequently left Stockholm.⁶⁰ After L&P brought the case back to the Swedish labor court, however, the ruling was eventually sent to the European Court of Justice. In December 2007, the court ruled—to the great shock of Swedish trade unions—that the unions’ blockade and sympathy actions to combat social dumping against L&P represented a restriction on the freedom to provide services. The ruling effectively restricted Swedish trade unions’ right to take industrial action to force foreign companies into signing collective agreements when operating in Sweden. In light of this ruling by the European Court of Justice, the Swedish Labor Court ruled in 2009 that Swedish trade unions have to pay punitive damages of about fifty-five thousand euros to L&P.⁶¹

New TMPs for Low-Skilled Migrant Workers in Canada and Australia

Canada and Australia are traditional settlement countries that used to grant most migrant workers permanent residence on arrival. In both countries, temporary labor immigration programs have been on the rise over the past twenty years. Until relatively recently, the great majority of temporary migrant workers admitted to Canada and Australia were skilled. Since the early 2000s, though, Canada, and to a lesser extent also Australia, have created and expanded low-skilled labor immigration schemes. In both countries, the increased openness to low-skilled labor migrants was accompanied by considerable restrictions of some migrant rights, indicating a trade-off between openness and rights.

Canada first introduced TMPs in 1973. The number of temporary labor migrants significantly increased over time, especially during the 1990s and 2000s. The number of initial entries of temporary foreign workers doubled from 32,000 in 1990 to 63,000 in 2000, and rose to 85,000 in 2010.⁶² The increase in temporary migrant workers was accompanied by a marked shift in their composition by skill. In 2001, just under two-thirds of temporary foreign workers (total entries) were skilled or highly skilled (i.e., in managerial, professional, or skilled and technical occupations). By 2010, this share had dropped to just over 40 percent.⁶³ The rapid increase in low-skilled migrant admissions was driven by the expansion of the Live-in Caregiver Program for domestic workers (total entries doubled from just over 4,000 in 2000 to over 8,000 in 2010) and the Seasonal Agricultural Workers Program (SAWP) (24,000 entries in 2010 compared to 18,500 in 2001) as well as the introduction and expansion of a new low-skilled pilot program (the total entries under this new program increased from 2,000 in 2002 to 15,000 in 2010).⁶⁴

The introduction of the low-skilled pilot program in the early 2000s was a response to employer demand for low-skilled migrant workers in a range of sectors beyond domestic services and agriculture (covered by the Live-in Caregiver Program and SAWP, respectively). The oil and gas, construction, and later also hospitality and tourism sectors in particular were demanding access to low-skilled migrant workers.⁶⁵

A key feature of the low-skilled pilot program is that it involves a number of restrictions of migrant rights that are significantly greater than those imposed on skilled temporary migrants and permanent migrants. In contrast to skilled temporary migrants, most low-skilled temporary migrants do not have opportunities to acquire permanent residence in Canada.⁶⁶

A recent study by Statistics Canada described the rights of low-skilled temporary foreign workers as follows:

Other non-permanent residents, usually those coming from abroad specifically to work, receive closed permits that may restrict the type of job they hold, the location where they work and/or the specific employer for whom they work….

Non-permanent residents admitted to Canada under the Temporary Worker Program can bring spouses and close family members with them provided they can demonstrate the financial capacity to support these family members while in Canada. However, non-permanent residents working in low-wage jobs may not be able to meet this requirement….

Non-permanent residents who have permits to work in Canada have the same labor rights and access to health and social programs as other workers in Canada. However, labour standards, employee rights and access to social programs differ according to the province or territory of work and most social programs and many jurisdictions require a minimum period of work or residence in order to qualify for benefits. As a result, some non-permanent residents may not qualify for unemployment, health and social assistance benefits.⁶⁷

The federal government’s view that many employment and social rights of temporary migrant workers fall under the jurisdiction of provinces has been subject of controversy. Judy Fudge and Fiona MacPhail (2009) point out that temporary workers are not eligible for provincial social assistance in any of Canada’s provinces.

It is clear that Canada’s opening to a growing number of low-skilled migrant workers has been accompanied by a series of restrictions on the employment, social, residency, and family reunion rights of migrants admitted under the low-skilled pilot program.

A similar story can be told about the recent introduction of a new low-skilled TMP in Australia. Like Canada, Australia has over the past two decades shifted from its long-standing policy of granting most migrants settlement on arrival and gradually increased the number of migrants admitted on a temporary basis. Until recently, temporary labor immigration programs admitted only skilled migrants, who were then given the opportunity to transfer to permanent residence after a certain number of years. Introduced in 1996, the 457 visa program admits skilled migrants on a temporary basis. The stock of 457 visa holders doubled from 60,000 in 2005 to just under 120,000 in 2010.⁶⁸

Until recently, migrants who enter Australia as working holidaymakers or students largely met the employer demand for low-skilled migrant workers. Both groups are not admitted for the primary purpose of employment, but students and working holidaymakers are legally allowed to work part-time during their stay in Australia. Most of the employed students and working holidaymakers do low-skilled work. The number of working holidaymakers (stock) increased from 70,000 in 2005 to 114,000 in 2010, and the number of international students rose from 150,000 in 2005 to just under 300,000 in 2010. Peter Mares (2011) argues that the increase in working holidaymakers was used instrumentally to help fill low-skilled labor shortages.

In 2008, the Australian government introduced its first formal labor immigration program for low-skilled migrant workers. Partly based on a similar scheme introduced in New Zealand in 1997, Australia’s new Pacific Seasonal Workers pilot scheme initially provided twenty-five hundred visas for workers from four Pacific Islands countries (Kiribati, Papua New Guinea, Tonga, and Vanuatu) to work in the Australian horticulture industry for up to seven months a year. Workers are recruited by “labor hire companies” selected by the Australian government, rather than by individual growers. In September 2011, the scheme was expanded to include more countries (Nauru, Samoa, Solomon Islands, and Tuvalu) and more sectors (the tourism sector for workers from East Timor).

Australia’s Pacific Seasonal Workers scheme includes various safeguards aimed at protecting migrant workers from exploitation.⁶⁹ The scheme, however, does restrict some migrant rights in important ways—and it is apparent that these restrictions were instrumental to the government’s decision to open up immigration to low-skilled migrant workers. The workers admitted under Australia’s low-skilled temporary immigration program do not have the right to free choice of employment; workers are tied to labor hiring companies (rather than individual employers) and cannot leave the sector to take up employment in other sectors. There is also no right to transfer to permanent residence and no right to bring family members. The Australian government made it clear that these restrictions were instrumental to ensuring that workers will return home after their temporary work permits expire: “The fact that they will not be able to bring dependents, such as family members, over to Australia provides further incentive to return home after their period of work has concluded. In addition, a ‘no further stay’ condition will be imposed on all visas issued under the pilot.”⁷⁰

The World Bank was influential in encouraging the introduction of low-skilled labor schemes in both New Zealand and Australia. In analyzing the pros and cons of such schemes, the World Bank (2006, 136) explicitly recognized the trade-off between increased openness and restricting some migrant rights.

Trade-Offs between Openness and Rights in the GCC Countries

GCC countries are the most extreme examples of countries operating high openness–low rights labor immigration policies. As discussed earlier in this chapter, the GCC countries combine an employer-led admissions policy that brings in large numbers of temporary migrant workers with significant restrictions on migrants’ economic, social, and residency rights as well as, in some cases, their civil and political rights. Some GCC countries have recently initiated efforts to grant migrants better protection.⁷¹ Yet there are numerous reports documenting the denial and abuses of migrant workers’ rights—in some cases involving basic human rights violations—especially (but not exclusively) of construction and domestic workers.⁷²

What drives the trade-off between openness and rights in the GCC countries? The primary factor is economic. As described above, the kafala system has provided a cheap migrant workforce that has facilitated the low-cost provision of goods and services in the private sector along with the development as well as maintenance of a generous welfare state whose benefits and services are largely limited to citizens. This system has clearly been of significant short-term economic benefit to GCC citizens as employers in the private and domestic service sectors, and as consumers of public services and products/services supplied by the private sector. As discussed above, though, it has also created long-term economic problems including especially increasing un- and underemployment of citizens who can no longer be absorbed in the public sector. There is an increasing recognition that localization policies—that is, policies aimed at reducing the reliance on migrant workers in certain occupations—can only be successful if migrants are given greater economic and social rights, thus reducing the gap between the rights of—and costs associated with employing—citizens and migrants. For example, according to Mohammed Ebrahim Dito (2008, 8), “Extending social protection to include migrant workers will contribute toward levelling the gap between national and migrant workers.” In other words, granting more rights to migrants can be expected to result in lower openness and numbers.

Especially in countries with small populations and where citizens constitute a small minority of the population, a second reason for restricting migrant workers’ rights in GCC countries stems from concerns about maintaining the national identity and national security. The policy of strictly temporary migration with few or no opportunities to acquire permanent residence and citizenship has aimed at maintaining the identities of the citizen population without having to actively pursue policies of reducing the number of migrant workers.

Singapore

Singapore’s policies for admitting low-skilled migrant workers are another example where a relatively high degree of openness to admitting migrants has been combined with considerable restrictions of migrants’ rights, including some of their civil and political rights (as is the case in some of the GCC countries). Singapore’s work permit system for low-skilled migrant workers (excluding Malaysians, who are treated differently) requires employers to ensure that their migrant workers have “acceptable accommodation,” and take responsibility for (and bear the costs of) migrants’ “upkeep and maintenance in Singapore,” including any costs of medical treatment. It also includes the following conditions “to be complied with by the foreign employee”:

• The foreign employee shall undergo a medical examination by a Singapore registered doctor as and when directed by the Controller. If the foreign employee is certified medically unfit, the Work Permit of the foreign employee shall be revoked.

• The foreign employee shall not go through any form of marriage or apply to marry under any law, religion, custom or usage with a Singapore Citizen or Permanent Resident in or outside Singapore, without the prior approval of the Controller, while the foreign employee holds a Work Permit, and also after the foreign employee’s Work Permit has expired or has been cancelled or revoked.

• If the foreign employee is a female foreign employee, the foreign employee shall not become pregnant or deliver any child in Singapore during and after the validity period of her Work Permit, unless she is a Work Permit holder who is already married to a Singapore Citizen or Permanent Resident with the approval of the Controller.

• The foreign employee shall not be involved in any illegal, immoral or undesirable activities, including breaking up families in Singapore.⁷³

As is the case in the GCC countries, the rationales for these restrictions clearly go beyond economic considerations. They are aimed at tightly controlling the perceived impacts of a large number of low-skilled migrant workers in relation to the social fabric and cohesion of the country. As discussed by Brenda Yeoh (2006) Singapore’s overall social objectives and model of nation building involve a dual approach to regulating labor immigration. High-skilled migrants need to be attracted and included as potential future citizens in Singapore’s society. In contrast, low-skilled migrants are admitted in large numbers, but they are intentionally excluded from becoming full and equal members of society. As Yeoh (ibid., 23) argues, low-skilled migrants’ “structural position within multicultural Singapore society is carefully excluded. Unskilled contract workers are admitted into the physical terrain of the nation state primarily as temporary workers, rather than as social and political subjects.” It is thus clear that Singapore’s openness to low-skilled labor immigration is perceived to be dependent on restrictions of migrants’ rights.

The National Interest: Expected Impacts Drive Labor Immigration Policies

The case study evidence explored in this chapter shows that policy decisions on how to regulate the admission and rights of migrant workers in high-income countries are firmly based on assessments of the consequences of admitting migrants and granting/restricting rights for the national interests of migrant-receiving countries. With few exceptions, high-income countries are more open and grant more rights to high- than low-skilled migrant workers because they consider these policies to be in their best national interests. Given the disagreements about the multifaceted consequences of immigration for the receiving country, it is no surprise that the impact assessments of specific admission policies and rights restrictions are commonly contested as well as continuously evolving in different countries. While the degree to which policy decisions are informed by evidence about real effects versus perceptions of likely effects varies across countries, it is clear that assessments of the impact on the national interest are a core factor explaining the policy choices observed in high-income countries in practice.

The policy examples discussed in this chapter also provide further evidence for the existence of trade-offs between openness and some specific rights in labor immigration policies, especially for admitting low- and medium-skilled migrant workers. While the rights restricted as part of this policy trade-off vary across countries to some extent (access to social rights are most commonly restricted), it is apparent that the trade-offs are based on a calculus made by national policymakers about the associated costs and benefits for the receiving country. As the next chapter will show, these trade-offs are in important ways sustained by global inequalities, which affect the interests and choices of migrants along with their countries of origin.

 

¹ MAC 2009.

² The United Kingdom’s points-based system has a total of five tiers. Tiers 1–3 are for migrant workers, Tier 4 is for students, and Tier 5 is for a range of temporary migrants, some of whom are given permission to work part-time.

³ Home Office 2005, 5.

⁴ Expert Groups of Future Skills Needs 2005, 133.

⁵ Cited in Parusel and Schneider 2010, 20.

⁶ Bundesministerium des Inneren 2008.

⁷ See Reitz 2004; Wayland 1997.

⁸ Reitz 2010.

⁹ See Castles and Vasta 2004.

¹⁰ Hawthorne 2005.

¹¹ See Hawthorne 2011; CIC 2010a.

¹² Singapore Government Press Center 2010, 7; emphasis added.

¹³ Immigration Department of Hong Kong, http://www.immd.gov.hk/ehtml/home.htm.

¹⁴ Yoo 2005.

¹⁵ Ibid.

¹⁶ Kim 2009.

¹⁷ Baldwin-Edwards 2011.

¹⁸ See, for example, Shah 2005.

¹⁹ Fargues 2006.

²⁰ See also Winckler 2010.

²¹ See Awad 2009.

²² The unemployment rates are estimated at between 10 and 15 percent in 2008 for Saudi Arabia and the United Arab Emirates; see Baldwin-Edwards 2011.

²³ See the discussion in ibid.

²⁴ See especially Esping-Andersen 1990.

²⁵ OECD 2011.

²⁶ Bucken-Knapp 2009.

²⁷ See http://www.migrationsverket.se/info/166_en.html (accessed January 26, 2012).

²⁸ The United States makes a strict distinction between immigrants (legal permanent residents with green cards) admitted for permanent settlement and nonimmigrants admitted on temporary visas (some of which may eventually lead to permanent immigrant status). Over the past five years, the United States has admitted about half a million new migrants as permanent immigrants (green card holders) every year.

A key feature of US immigration policy is that the great majority (about three quarters) of permanent immigrants admitted every year are admitted on the basis of having close family relationships with a US citizen or green card holder. This has been the case since 1965 when the “family preference” policy was first introduced. Immigrants admitted for employment purposes accounted for less than 3 percent (12,000 people) of all new immigrant admissions in 2010 (excluding family members).

²⁹ US Department of State 2011, table: “Classes of Nonimmigrants Visas Issued.” The figures exclude visas for intracompany transfers, which numbered seventy-five thousand in 2010.

³⁰ Ibid. H2-A issued fifty-six thousand visas in 2009.

³¹ Orrenius and Zavodny 2011; Crook 2011.

³² Personal conversation with Phillip Martin, one of the most prominent labor migration experts in the United States.

³³ US Department of State 2011, table: “Classes of Nonimmigrants Visas Issued.”

³⁴ Compare the discussion about the United States as a “weak state” in, for example, Jacobs and King 2009.

³⁵ See, for example, Bush 2007; Obama 2011; Crook 2011.

³⁶ See Martin and Ruhs 2011.

³⁷ See, for example, Borjas 1999; Hanson 2005.

³⁸ US Commission for Immigration Reform 1995, executive summary.

³⁹ For a discussion of this, see Kolb 2005.

⁴⁰ European Commission 2007a.

⁴¹ Ministry of Justice 2008, 18–19.

⁴² See http://www.singstat.gov.sg/stats/themes/people/popnindicators.pdf (accessed September 25, 2011).

⁴³ Singapore Government Press Center 2010.

⁴⁴ UK Home Office 2011a, 11.

⁴⁵ UK Home Office 2011b, foreword.

⁴⁶ Piché, Depatie-Pelletier, and Epale 2009, 205–6.

⁴⁷ See, for example, Hillman and Koppenfels 2009.

⁴⁸ See http://dipbt.bundestag.de/dip21/btd/16/116/1611603.pdf (accessed September 25, 2011).

⁴⁹ Economic Strategies Committee 2010, 9.

⁵⁰ Singapore Government Public Service Division 2011.

⁵¹ See http://www.immi-moj.go.jp/english/tetuduki/zairyuu/eizyuu.html (accessed November 4, 2011).

⁵² US Commission on Immigration Reform 1995, 2.

⁵³ Proposition 187 was eventually declared unconstitutional by a federal court; see Tichenor 2002.

⁵⁴ See http://migration.ucdavis.edu/rs/printfriendly.php?id=110_0_3_0 (accessed November 20, 2011).

⁵⁵ The possibility of temporary restrictions applied to EU nationals exercising their right to freedom of movement as workers, but with a few exceptions, not to the freedom to provide services. See the discussion in Engblom 2011.

⁵⁶ See the Social Security (Habitual Residence) Amendment Regulations 2004, http://www.opsi.gov.uk/si/si2004/20041232.htm. The term habitual residence is not defined in legislation. The most important factors for habitual residence are generally the length, continuity, and general nature of actual residence rather than intention.

⁵⁷ In line with the EU accession treaties, the United Kingdom’s Worker Registration Scheme was lifted in May 2011.

⁵⁸ Tamas and Munz 2006.

⁵⁹ See http://www.migrationsverket.se/info/790_en.html (accessed November 13, 2011).

⁶⁰ See the discussion in Woolfson and Sommers 2006; Tamas and Munz 2006.

⁶¹ Ronnmar 2010.

⁶² CIC 2010b, 52–53.

⁶³ Ibid., 78.

⁶⁴ See ibid., 62.

⁶⁵ Fudge and MacPhail 2009.

⁶⁶ Introduced in 2008, the Canadian Experience Class program regulates the transfer of skilled temporary migrants to permanent residence, but low-skilled migrants are excluded from this program.

⁶⁷ Thomas 2010.

⁶⁸ Mares 2011.

⁶⁹ See the discussion in MacDermott and Opeskin 2010.

⁷⁰ Australian government 2009.

⁷¹ Baldwin-Edwards 2005.

⁷² See, for example, Human Rights Watch 2004.

⁷³ Ministry of Manpower 2011.