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Thesis

Judicial Review and Temporary Labour Migration Programs Declared a “Modern Form of Slavery”: State Restrictions of (Im)Migrant Workers’ Right to Liberty and Security (Not to Be Held Under Servitude) Through Employer-Tying Policies (Initial submission)

This document is a key resource

Date

2016-12-23

Authors

Eugénie Depatie-Pelletier

Abstract

An international judicial controversy was consolidated in 2011 when the Constitutional Court of the Republic of Korea contradicted a 2006 decision of the Supreme Court of Israel. In the 2006 ruling unanimous Israeli justices held that employer-tied work permit systems, even if incorporating a “change of employer procedure”, create a “modern form of slavery” and, more specifically, constitute a state violation of migrant workers’ fundamental rights to liberty and dignity. Thus, the few court decisions on temporary labour migration programs leave, in particular, one key judicial issue unsettled: could one or various “harm reduction” policies negate the destructive impact of restricted work authorizations on the fundamental liberty and security of the person of (im)migrant workers? The Canadian Seasonal Agricultural Workers Program (SAWP) is characterized by the three harm reduction policies discussed by Israeli and South Korean highest court justices. However, when analyzed using the Supreme Court of Canada’s “liberty/security harms” doctrine, empirical evidence shows that under such harm reduction policies (im)migrant workers do face (1) restrictions to their physical liberty, (2) increased risk of harms, (3) denial of procedural fairness, (4) barriers to the making of fundamental choices to quit one’s employer, one’s occupation, or one’s place of residence, (5) obstacle to access justice and reparation in the country, and (6) state-induced psychological stress ̶ including state denial of the fundamental right to family unity. By reproducing legal mechanisms characteristic of past state practices which tied former slaves to employers, contemporary immigration frameworks, as in Canada, often incorporate employer-tying policies excluding workers from access to permanent legal status recognition while compelling them – in some cases for more than 25 years – to, at all times, “obey and comply with all rules set down by the employer.” In sum, empirical findings are compatible with the conclusions reached by Supreme Court of Israel’s justices in 2006, which state that, unless based on the issuance of unrestricted work authorizations, temporary labour migration programs always constitute state restrictions of workers’ fundamental right to liberty and security. Furthermore, recent empirical evidence, in particular on workers’ conditions under employment-based immigration schemes, such as the longstanding Canadian Caregiver program, confirms that unless such unrestricted work authorization is associated with the automatic issuance of work permit/status allowing access to school for accompanying spouse/child(ren) and an independent access to permanent status upon arrival, temporary labour migration schemes will always at least result in state restrictions on (im)migrant workers’ capacity to claim rights, access justice, and enjoy the protection of the law.

Academic department

Faculté de droit - Université de Montréal

Links


  • Pdf (https://www.academia.edu/32119286/Judicial_Review_and_Temporary_Labour_Migration_Programs_Declared_a_Modern_Form_of_Slavery_State_Restrictions_of_Im_Migrant_Workers_Right_to_Liberty_and_Security_Not_to_Be_Held_Under_Servitude_Through_Employer-Tying_Policies_-_Initial_submission)

Economic sectors

General relevance - all sectors

Target groups

Policymakers, Researchers, Unions, and NGOs/community groups/solidarity networks

Geographical focuses

America - North, European Union, Canada, United States, Ontario, Alberta, México, Manitoba, Quebec, British Columbia, Other provinces, Middle East, Africa - North , America - Central & Caribbeans, America - South, Africa - Subsaharian, Europe Non-EU, Federal, Asia, China, Guatemala, Jamaica, South Africa, International Organizations, Philippines, Pacific and Oceania, Honduras, Colombia, Equator, Other Caribbean States, Haiti, Cuba, Dominican Repulic, Bangladesh, India, Thailand, El Salvador, Nova Scotia, United Kingdom, France, Italy, Spain, Germany, Albania, Moldova, Ukraine, Romania, Saudi Arabia, Qatar, Vietnam, Japan, Australia, Taiwan, South Korea, Netherlands, Sweden, Austria, Lithuania, Hungary, Poland, Kuwait, Peru, Sri Lanka, Nepal, Pakistan, Malaysia, Global relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, Regional relevance, National relevance, Cambodia, Belize, Kenya, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Greece, Ireland, Latvia, Luxembourg, Malta, Portugal, Slovakia, Slovenia, Americas, New Zealand, Africa, Israel, UAE, and Singapore

Languages

English