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Employer-Tying Policies as State Deprivation of (Im/Migrant) Workers’ Right to liberty and security (Right "Not To Be Held Under Servitude")

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2016.09.18, 2:15 PM translation missing: tl.time.to 2:15 PM

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Eugénie Depatie-Pelletier, Université de Montréal

An international judicial controversy was consolidated in 2011 when the Constitutional Court of the Republic of Korea contradicted a 2006 ruling of the Supreme Court of Israel (SCI). In the 2006 ruling the SCI held that employer-tied work permit systems create a ‘modern form of slavery’ and, more specifically, constitute a state violation of migrant workers’ rights to liberty and dignity. The few court decisions on temporary labour migration programs thus leave unsettled one key judicial issue: the impact of common ”harm reduction” policies (such as supervision by foreign gov representatives) on the liberty and security of (im)migrant workers under restricted work authorizations. The Canadian Seasonal Agricultural Workers Program (SAWP) in particular is characterized by the three ‘harm reduction policies’ suggested or validated by court justices. However, when analyzed using the Supreme Court of Canada’s “liberty/security harms” doctrine, the available empirical evidence shows that under such “harm reduction policies” (im)migrant workers 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 (in particular to the right to quit an employer),(5) an obstacle to the access to justice in the country, and (6)state-induced loss of control over their body and associated psychological stress. More precisely, by reproducing legal mechanisms characteristic in particular of past British and American laws and state practices which tied ex-slaves to their employers, the current Canadian immigration framework, and the SAWP in particular, incorporates “employer-tying policies” compelling workers to “obey” to a specific employer which deny in particular - especially according to the American jurisprudence - the workers’ "right not to be held under servitude." Contemporary empirical findings are therefore compatible with the 2006 conclusions reached by the Supreme Court of Israel’s justices (“quasi-unrestricted” work authorizations are essential), and in fact further confirm the necessity of an independent access to permanent legal status and recognition of the right to family unity upon arrival.




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