The eight key elements needed for a just and sustainable labour (im)migration policy
Over the past 25 years, the systemic violation of employer-tied migrant workers’ rights has been denounced in over 50 reports by Amnesty International and Human Rights Watch, and by more than a dozen divisions of the United Nations. In 2024, the UN Rapporteur on Contemporary Forms of Slavery added to these denunciations after his visits to Canada and Australia. Within several countries and some of their specific regions, court decisions and parliamentary committee reports have raised similar concerns. It should be no surprise that, in 2006, an employer-tying measure applicable exclusively to non-citizen workers – the issuance of employer-specific work permits – was unanimously declared by the highest court of a country to be an unjustifiable violation of workers’ fundamental liberty and dignity and officially recognised as a ‘modern form of slavery’. A similar judicial inquiry has now been ordered by a judge in Canada, and at this point, we must ask ourselves which immigration policy tools are in fact compatible with basic human rights.
In the wake of the abolition of slavery, employer-tied worker regimes were reconsolidated across the world through policies restricting the right to change employers, or through policies restricting potential employers’ right to hire these workers. Such employer-tying measures had – and still have – a significantly negative impact on the individuals facing a condition of ‘unfreedom’ within the labour market, as well as on citizens, free workers hired alongside them and society as a whole. As such, during the first half of the 20th century, state measures binding workers to specific employers were repeatedly invalidated as slavery-like practices by local, appeal and Supreme courts, notably in the United States of America.
However, during and after World War II, the criminal employment law restrictions on workers’ right to change employers reemerged across the world within labour migration programmes, once again legalising a modern condition of worker servitude – this time around, only for certain non-citizen workers. Thus, through employer-controlled work permits and/or permanent status access regimes, increasing groups of (im)migrants have faced various threats of state sanctions associated with the termination of their relationship with their employer(s)-sponsor(s): the immediate inapplicability in the country of their right to work, higher risks of non-renewal of their work permit, higher risks of non-fulfilment of the conditions for permanent status recognition, higher risks of family unification delays and denial, higher risks of detention for breach of immigration conditions, and higher risks of expulsion together with higher risks of prohibition of re-entry to the host country. In this context, employer-tied migrant workers rarely demand respect for their rights. They make sure not to behave in a way that could jeopardise the relationship with their employer, systematically putting up with abusive if not unsafe conditions convenient for employers or agents operating in employers’ interests.
More recently, a series of actions has been pursued. In September 2024, the Canada-based Association for the Rights of Household and Farm Workers was allowed to launch a constitutional class action in court, whose aim was to declare unconstitutional the regulatory dispositions that have authorised the binding of migrants to employers and the damages for workers who have been bound to employers since 1982. Soon after, a second migrant worker constitutional class action was filed in Canada, which sought an additional redress for migrant agricultural workers barred from unemployment insurance benefits. Meanwhile, in the UK, a legal action on the basis of the right not to be held in servitude was launched against the restrictive work permits imposed in the commercial fishing industry in 2023. In a similar vein, the London-based Anti-Trafficking and Labour Exploitation Unit is preparing a legal action, claiming damages for workers hired under restrictive seasonal work permits. Another employer-tied migrant worker class action has also recently been launched in the USA on the basis of the anti-trust policy applicable to the employers concerned.
In Canada and elsewhere, how exactly could a labour (im)migration policy be both compatible with fundamental rights, and economically and demographically sustainable? Legal analysis and empirical studies lead to the conclusion that eight elements are key when it comes to addressing this issue. First, instead of a private worker sponsorship regime and the entitlements this gives to employers and their intermediaries, governments must take back the responsibility and management of the sponsorship of all (im)migrant workers invited for fast-tracked admission under work permits – and of their family members. Such a government sponsorship regime would be implemented through programmes ensuring free or low-cost governmental services for recruitment (involving also the government of the country of origin), access to micro-credit, immigration procedures, job placement and initial social integration. Second, annual recruitment quotas should be established on the basis of estimated regional skills shortages, family/humanitarian/student immigration, and worker out-migration.
Third, unlike work permits that are explicitly tied to specific employers, or implicitly through occupation, sector, region and/or recruitment agency-specific restrictions, open work permits would minimise barriers for migrant workers to exercising their rights. Fourth, as soon as forced (im)migrant labour no longer fills at low cost the most dangerous and/or difficult jobs, authorities will have to implement strong incentive programmes to ensure workforce attraction and retention in essential but substandard occupations and regions.
Fifth, to further protect all workers’ right to a meaningful access to justice and to reparation in case of a rights violation in the country, authorities will additionally need to ensure that all (im)migrant workers admitted under a work permit are granted unconditional access, upon arrival, to a permanent status recognition procedure. Thus, while permanent status will not systematically lead to permanent immigration, it remains a necessary condition for (im)migrant workers to fully exercise their rights and access justice in their country of residence and employment. In this context, to ensure that such a human rights-compatible immigration regime is demographically, economically and politically sustainable in the long term, out-migration facilitation measures (our sixth element), and in particular unemployment/work-related accident/pension benefits, also accessible from abroad, must be prioritised. Such a wellbeing mindset will also need to include the promotion of (im)migrants’ rights to (international) family life.
Finally, to ensure minimisation of (im)migrant workers’ fundamental rights violations, labour (im)migration regimes must be complemented by sanctions for employers and intermediaries offering employer-tying/modern servitude work contracts (our seventh element), and by ongoing legal status regularisation procedures accessible at all time to migrant workers who find themselves unable to meet in time all the conditions required by general and fast-tracked work permit renewal procedures (our eighth element).
In sum, regarding labour (im)migration policies, yes, a better world is possible and, as demonstrated by historical best practices and judicial lessons, emancipatory policies for unfree workers are achievable every time a strong court declaration creates the momentum for political will.
Eugenie Depatie-Pelletier is a law researcher and activist, and currently research director at the Association for the Rights of Household and Farm Workers. The Association works to advance the rights of household and farm workers in Quebec and Canada through several activities such as strategic litigation, advocacy education and research. The Association is currently involved in a constitutional class action advocating the right for temporary migrant workers to change employer.
Image credit: Manuel Sardo via Unsplash