(2018) Employer-tied Labour Migration vs Migrant Workers' Right Not To Be Held In Involuntary Servitude: Lessons From the UK, Israel and USA (original) (raw)

Conference Migrants at Work - Queens University, 2018

Abstract

In 2006, the Supreme Court of Israel recognized, in a unanimous decision, that the governmental issuance of employer-tied work permits to foreign workers creates a "modern form of slavery" and, more precisely, that it violates individuals' fundamental right to liberty. Other types of temporary labour migration programs have been documented as less restrictive of migrant workers' fundamental right to liberty, physical and psychological integrity, and access to justiceor more precisely, to their implied fundamental right not to be held in servitude. For decades, migrant associations and nongovernmental organizations around the world have been advocating for the respect of workers' fundamental rightsand in particular for the removal of state restrictions on the right to change employers. In 1998, the UK government agreed to issue sectoral work permits to foreign domestic workers employed by a foreign national residing in the country-instead of employer-tied work authorizations. Even though this less restrictive framework was confirmed by both civil society groups and state agencies as effective in reducing the abuses and obstacles to justice experienced by these workers, the U.K. government reintroduced, in 2012, the issuance of employer-tied work permits for foreign domestic workers. In the US, the evolution of legal schemes that imposed conditions of servitude on workers confirms that even when an explicit limit exists on the legality of state restrictions on workers' rights, such as a constitutional recognition of their fundamental right not to be held in involuntary servitude, repeated interventions by the courts has proven necessary to force policymakers to stop facilitating employers' access to a supply of unfree workers. The limited impact of direct pressure for progressive policies, of formal rights recognition, and of the first legal initiatives challenging the legality of employer-tied labour migration programs demonstrates that in order to secure for migrant workers the right to change employers, court decisions that broadly recognize the incompatibility between workers' fundamental rights and any form of employer-tying policy are necessary. Furthermore, the most effective court decisions would include detailed accounts of alternative labour migration policies that have a neutral or positive impact on migrants' rights.

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