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[ 31. Jul 2004 ]

The relation of European labour and migration policies

migration und arbeit

Articel by Markus Termonen - presented on July 12, 2004 at the noborder - Camp in Imatra / Finland.



This presentation is not very detailed - even if it"s quite long. Rather, it is an attempt to constitute a general framework for the discussion on the relation of labour and migration policies.

First, let"s have a look at the decralation of self-organized migrants" groups in the European Social Forum, Paris, November 2003. The first two addressed points in the declaration go like this:
"1. Underline that the sans papiers are only the visible tip of an iceberg of precariasation that includes all other migrants and all other workers.
2. Underline the particular role held by sans papiers in the process of the restructuring of the work sphere by the generalized precariasation."

The main point of this presentation and this workshop is to think about these aspects more closely. I will mostly concentrate on migrants that are not EU nationals. One exception that I make is the labour of the new EU member countries and its situation as a special case of the European labour policy. Of course, internal migration inside the "old" EU member countries is significant in numbers but it is worth noting that in many cases the labour market position of these migrants that are EU nationals is not any worse in comparison to the general population. Regarding labour force participation, its position is even higher; it often has high position in the international corporations, and so on.

Therefore, it"s important to not think of migrants as a homogeneous entity with clear common features. Moreover, it"s also true that when the position of a migrant is naturalized - in other words, when he or she gets a citizenship - it does not necessarily mean that the problems that this person has faced as a migrant will end. The legal problems - such as problems with residence permits - will end of course, but many of the problems regarding discrimination of minorities may prevail. It is evident that we are facing a very complex topic also because the statistical and legal definitions of "a foreigner" or "a migrant" differ from country to country, which makes comparisons quite difficult. Questions of legal status are important also because immigration policy and minority policy can be regarded as contradictory: whereas the former is a producer of discrimination, for example by causing problems to foreign workers, the latter functions against discrimination by protecting the minority groups enjoying legal status.

What does the word "precariasation" mentioned in the declaration mean? Shortly, it refers to the changes that have taken place in the labour, in other words the tendency towards more flexible jobs, the increased part of part-time, fixed-term and temporary agency work. In general, these changes are not really a result of some "political decision", and therefore it would be wrong to say that they derive from somekind of consistent labour policy in public administration. Rather, "precariasation" is a product of both labour market power dynamics and productional transformations, that have been supported by administration policies to some extent.

Why is it important to make connections between labour and migration policies? In other words, why is it important to comprehend migration policy as being simultaneously a part of the general labour policy? Shortly: new borders of citizenship are defined through the practises of migration policy. These borders correspond the new ethnic stratification and the hierarchization of labour. The migrants are a part of the market commodity called labour, a special part whose performance in the market is greatly affected by the legal policy-making in the area of immigration. Understanding this is important because if we want to find explanations for the treatment and management of migrants, a lot can be explained by the general labour policies. Therefore, it is not enough to think of migration as a "humanitarian" issue, that deals with questions like how ethical relationship we have towards accepting refugees and how we "tolerate" minorities, and so on.

This presentation consists of five parts:
1) General features of the current European border regime
2) Aspects of the labour market position of "illegal" migrants in the EU
3) Aspects of the labour market position of "legal" migrants in the EU
4) The transition period (the restriction of circulation of labour from the new EU countries)
5) Conclusions and proposals for discussion

1) General features of the current European border regime

I will make some points that are included in the draft paper by Enrica Rigo called "Citizens and foreigners in the enlarged Europe" written in November 2003 in European University Institute, Florence.

The debate about citizenship has been largely dominated by competing ideas of a traditional, exclusive model of membership based on nationality, versus an inclusive post-national model based on personhood.. The case of the European Union illustrates a more complex system of memberships which does not allow us to speak in the context of this dichotomy.

The signing of the Schengen agreements, their incorporation in the Amsterdam Treaty and the enlargement process have caused structural changes in border control regimes. The common assumption that controls have been relocated from national borders to the external frontiers of the European Union is only partially true. In reality, the very concept of borders has underwent deep transformation. Borders delocalise governmental policies over populations and individuals far beyond either the territory of national states or the territory of the European Union. At the same time, the internalization of borders results from the institutions of expulsion and the detention of aliens.

European states have increasingly coordinated and harmonized their immigration and asylum policies with the aim of combating illegal immigration and redistributing the burden of hosting asylum seekers. The two main instruments of the member states are the "safe country principle" and "readmission agreements". The "safe country principle" was adopted by the European member states shortly after it was introduced in the German Federal Constitution in 1993, and soon all countries bordering the Union were defined as "safe". Asylum seekers coming from a "safe country" are denied entry and subjected to removal, just like in the case of Roma people coming from Slovakia to Finland earlier this year. "Readmission agreements" are the instruments which enable the actual removal of aliens from a state"s territory and are therefore essential to the functioning of the "safe countries" policy.

The "safe country" policy had the effect of transforming countries bordering the EU into "buffer zones" for asylum seekers and transit migration. From a legal point of view, the readmission agreements have developed from rather general documents into detailed documents which also regulate the readmission of nationals of third countries who have entered or stayed illegally in the territory of one of the contracting parties before moving to the other.

European borders do not coincide with the European Union territory nor the territory of those states that will become EU members in the forthcoming "waves" of enlargement. Readmission agreements are dispositives of control over population movements. They constitute administrative borders whose function is not simply to keep out those who are perceived as "trespassers" but, first and foremost, to govern populations both inside and outside a state"s territory. A descriptive example of the new border regime is the recent plan presented by the British government that considers the relocation of centres for the detention of aliens outside the territory of member states.

Of particular importance are the legal conditions of detention and expulsion of aliens as these are the sanctions that legal systems typically reserve to illegal migrants. For example in Poland, the same act of illegally entering or staying in Polish national territory leads, firstly, to a penal sanction of a fine, and secondly, to an administrative procedure that can end with the actual punishment of one year of detention. In other words, a serious limitation of individual freedom is based on an administrative, rather than criminal, procedure. These norms are indicative of the increasing connection between penal institutions and administrative procedures in the case of foreigners. This process has characterized the evolution of migration laws of the member states and is now influencing the changes to legislation of candidate countries.

2) Aspects of the labour market position of "illegal" migrants in the EU

The tightening of asylum and migration polices has lead to a situation where many migrants that are in need of protection, find illegal stay a better option. For these people it seems that it"s better to avoid any contact with authorities because the possibilities of getting an asylum are so unlikely anyway. It may also seem as if trying to get a refugee status leads almost certainly to expulsion, whereas you have at least some chance of staying if you choose the illegal way. However, it"s extremely difficult to estimate how many of the illegal migrants in Europe would have some grounds for getting an asylum according to the legal norms, because, understandably, there are no statistics available.

If we think about the position of the illegal migrants in the labour market, it"s quite obvious that we are talking about a group whose situation is the most precarious. It"s a group that is highly vulnerable to exploitation because it does not have a lot of alternatives. It"s easy for the employers to "blackmail" illegal migrants in order to get lower working terms regarding wage, safety, working hours, and so on. Also, because we are talking about the informal sector, normal benefits such as health care or holidays are not available for the illegal migrants. However, there are considerable differences - between migrants of different backgrounds within a country, depending on the nature of employment, and between different countries, depending on what informal employment opportunities are available. The most extreme are the cases of migrants who work as slaves in order to pay for their travel to the smugglers.

Illegal employment is particularly usual in specific economic sectors, for example in agriculture, in domestic services and in the construction industry. Partly, the massive scale of informal sector employment among immigrants in Southern Europe is a reflection of the importance of the agricultural sector in these countries, especially in particular regions (for example Southern Italy, Andalusia, Northern Greece), where it is particularly widespread in seasonal activities. It is not surprising that a lot of illegal migrants have been naturalized especially in a country like Spain, simultaneously as it is fighting against illegal migration.

An example of the European management of the illegal labour force can be taken from the Italian legislation: when the migrant makes an official working contract, his or her residence is permited. In other words, the need of the labour of the illegal migrant is admited simultaneously as work is a condition for his or her membership in the community. For the migrant, this kind of possibility is - of course - partly a positive one, but it is also a clear example of exploitation that forces him or her to accept almost any kind job in order to obtain the residence permit. In addition, when the renewal of residence permit is tied to labour market performance, in other words when the renewal is denied in case of unemployment, this will push migrants to choose continuous illegality rather than the insecurity of a short residence permit and formal status.

In some countries (for example Spain and France) illegal immigrants are supported by trade unions in some ways. However, their attitude towards undocumented workers is quite ambiguous, because their focus is on the preservation and extension of social rights tied to formal employment.

Also detention centers should be understood in the context of labour market policies. The detention centre is a chamber that diffuses tensions accumulated in the labour market. These places represent the other face of capitalism"s new flexibility: they are concrete spaces of state oppression as well as a general metaphor of the despotic tendency to control labour"s mobility.

3) Aspects of the labour market position of "legal" migrants in the EU

The following points have been taken from a report by the European Monitoring Centre on Racism and Xenophobia called "MIGRANTS, MINORITIES AND EMPLOYMENT: EXCLUSION, DISCRIMINATION AND ANTI-DISCRIMINATION IN 15 MEMBER STATES OF THE EUROPEAN UNION", published in October 2003 (

Roughly speaking, the countries of the European Union can be put in three groups according to their immigration histories and their fundamental concepts of migrants and minorities. The first group consists of those with a history of colonial immigration, where a large part of the current minority population is from their former colonies (France, the Netherlands, United Kingdom). These minorities have been present in the country for a long time and the larger part of them have citizenship status. The second group has immigrant populations mainly from countries, where they actively recruited so-called "guest-workers" from the 1950s to the 1970s (Austria, Belgium, Denmark, Germany, Luxembourg, Sweden). These countries have significant immigrant populations who are non-nationals of their countries of residence and are commonly referred to as "immigrants". The third group can be labeled "new immigration countries", who experienced significant immigration only since the late 1980s or 1990s and have often been countries of emigration until that time (Greece, Italy, Spain, Portugal, Finland, Ireland). In this last group of countries data on foreigners may, in fact, capture the majority of the immigrant population. Nevertheless, there are of course large differences within this group, for example if we compare Finland and southern European countries.

If we compare the situation of the legal migrant to the position of illegal migrant, we can see the same features, such as the general trend towards the exploitation of precarious position, but not to such an extreme degree, of course. Despite signs of increasing diversity, national labour markets are still highly segmented along national or ethnic lines.

Among more recent migrants, there is a clear polarization between a highly mobile financial and technical elite on the one hand; and immigrants working in the low-paid, sometimes informal economy, on the other. Third country nationals, in particular, are often employed in low-skilled, low-paid, dirty and dangerous professions and tend to hold precarious employment positions (fixed-term and flexible labour contracts). The lower wage levels can largely be explained by lower occupational status, concentration in certain industries, length of residence, vulnerability to unemployment, educational background and geographical location. Immigrants from outside the EU are still heavily concentrated in certain industrial sectors (for example manufacturing, construction), parts of the service sector (for example personal services, cleaning, catering) and sectors that are subject to strong seasonal fluctuations (for example tourism and agriculture). Women with a migrant background are often restricted to certain segments of the labour market, such as personal and domestic services, cleaning, catering and care.

Third country nationals usually have much lower labour force participation rates. In addition, immigrants and ethnic minorities from non-Western countries are typically confronted with much higher unemployment rates than the majority population. In Finland, the unemployment of "foreigners" is about three times higher than the general unemployment. The unemployment rate for former Soviet citizens was 47 % in 2000, and for Estonians it was 29 %. Unemployment rates are particularly high for recent refugees.

These differences indicate exclusion, disadvantage and even discrimination. However, it would be much too simple to blame "racism" in general for all these things. There are many factors influencing the employment performance of migrant and minority groups, and not all of them are caused by discrimination, such as educational qualifications, language skills, structural changes in the economy, and so on. However, even if these factors are taken into account, there still remains an unexplained residual disadvantage that is an indirect evidence of discrimination.

The member states" legislation concerning immigrants is highly similar. For example, it"s a common tendency to place lesser restrictions on highly qualified immigrants and self-employed and allow the recruitment of seasonal labour. Also, all but one country clearly differentiate between recent arrivals and long established foreign citizens, and grant different types of residence/work permits according to the duration of the foreigner"s residence/employment.

Concerning geographical distribution within countries, two patterns can be observed. In general, migrants are highly urbanized throughout Europe. This is first of all a reflection of the major trends in labour migration, in other words migrants go where there is a structural demand for foreign labour. The second pattern that can be observed is migration to rural areas, where migrants are often employed as seasonal workers in agriculture.

Regarding the typical professions for non-EU immigrants in Finland, a large proportion of citizens from the former Soviet Union is employed in health care, as well as in transport and cleaning. Those from former Yugoslavia and Somalia are largely employed in manufacturing, whereas immigrants from Eastern and Central Europe are predominantly employed in entertainment and technical occupations. Nationals from Turkey, India, China, Thailand and East Asia were particularly active in catering.

The number of non-EU nationals in self-employment has increased significantly during the recent decades. Compared to native entrepreneurs, self-employed immigrants rarely receive financial support from society and have less access to financial loans. Therefore, they have to establish themselves in non-sheltered branches of businesses and their entrepreneurships remain small-scale. Entrepreneurial spirit is not the only reason why migrants might choose self-employment. Other reasons include frustration with low-paid labour, disappointment with the absence of promotion in working life, trying to escape unemployment or discrimination in employment. Moreover, structural economic changes in many (post-)industrial economies have diminished the demand for traditional "guest-worker" occupations. Typical branches of the new "ethnic" businesses include: merchandise, restaurants, cleaning services, barbershops, wholesale, retail trade (especially groceries), tourism and manufacturing. Immigrant self-employed are mainly middle-aged and have been living in a host country for quite a long time.

4) The transition period

The transition periods were enacted in order to restrict the circulation of labour from the new EU countries, the only exceptions among the "old" member countries being Ireland and Sweden. The actual time of the transition period is not certain: it can be prolonged or shortened depending on what is needed according to the individual decisions of the member countries.

The Finnish discussion regarding the phenomenon is actually a descriptive example of the discussion all over Europe. The trade unions have been worried that in the case of mass immigration they could loose control of the collective labour market agreements between the employers" and the emloyees" organisations. There has also been fear that the employers would use the situation as a weapon to lower the general labour conditions. Nevertheless, we must admit there have been some changes in the attitudes of the trade union movement recently. It was only some years ago that they, for example, published a research implying extremely high figures of possible migration from Estonia. This exaggeration was made in the context of "protecting" the national labour. Nowadays, the trade unions are more careful and try to emphasize how they have no problem with foreign labour and that they only want to make sure that it is not exploited and that hopefully it will be organized in the unions. An implication of this is for example how the service workers" trade union is trying to make clearer rules in the context of temporary agency work.

For the employer, the "protectionist" attitude of the trade unions is a possibility for a "tolerant" and "liberal" image. And it might be true in the case of some employers that they are objecting the transition period because of problems with finding suitable labour. For the employers in general, however, the transition period is very useful in many ways. Firstly, in the area of traditional industrial production, the new EU member countries can be used as the "little China" of Europe, a place where to relocate production plants for low costs and where the bargaining position of the workers is low. The transition period is a method of keeping the wages low in the new EU countries. Secondly, within the domestic labour market, this situation can be used as a weapon for lowering the general labour conditions, for example by threatening with the relocation of the production plant. And thirdly, even if the employers can"t employ labour from the new member countries, they are free to use the services of companies renting labour from these countries for a very low price. According to Finnish legislation, collective labour market agreements of the given sector must be followed also in the case of temporary agency work, but of course, when a Finnish company rents Estonian workers from an Estonian company, it is extremely difficult to control that the agreements are followed, because it is the Estonian company that is responsible for the workers" wages. However, at the moment, it is the Finnish officials that are responsible for controlling the realisation of the collective agreement. The new service directive of the European Union (which has not been confirmed yet) would remove this responsibility to Estonia. The Finnish trade union movement is opposing this change.

At the moment, when approximately two months of the transition period have passed, some conclusions of the real situation in Finland can already be made. Just like it was estimated before the period, it is mostly Estonians that are coming to Finland for temporary agency work. Their working areas are mostly cleaning and construction work. They have been marketed with low prices privately to the Finnish employers. Another important detail is that often a part of the deal for the worker is a very small and low-equipped apartment. Groups of temporary agency workers have been put to live in the same small apartment with just mattresses on the floor.

The opinion climate in the new EU member is mostly against the transition period. There, it is quite common to think that the transition period is an infringement of the rights of their population as citizens of the European Union. Nevetheless, the measures of the European community to correct the problems indirectly causing the transition period seem to be quite low. For example, if we regard the neoliberal economic policy in Estonia, for example the low and non-progressive income taxation, as one of the reasons for the implementation of the transition period, it"s important to notice that according to the recent constitutional agreement the member countries will retain their autonomy of taxation decisions and no minimum levels will be enacted. And moreover, for example Estonia strictly objects the harmonization of its taxation policies to a higher, general European level.

5) Conclusions and proposals for discussion

One of the things that has been emphasized in this presentation is the comprehension of the migrant population essentially as a labour force. The negative side is - of course - that this essence means that it is a commodity in the labour market and, therefore, an object of exploitation. However, what this essence also means is that it consists of active subjects, active producers, builders of new reality, builders of new social formations, subjects with particular desires. It"s very important to stress this aspect, the constituent essence rather than the derogatory essence of victims or objects of exploitation. Only by undestanding this subjective essence, it is possible to think of the migrants as a social movement, rather than a phenomenon like a natural force ("migration waves" etc.).

In addition, I"d like to point out some dangers involved in this discourse regarding the relation labour and migration policies:
a) The first danger is deeply present in the view of the migrants as objects of exploitation and victims. When this view is not transcended, migration is regarded as a "humanitarian" question and handled by "helping the exploited" rather than by supporting the self-organization of migrants that are struggling for a better future.
b) Secondly, often we may find ourselves stressing the great positivity and constituent essence of the circulation of subjects, their "nomadism" and "uprooted freedom". Even if we regard autonomous circulation as a way of challenging power and control, we must be careful to not simplify the diverse experiences (such as desperation) involved in migrational movements into an abstract figure of "the nomad".
c) Another danger is that when we emphasize the right to free movement for the human being and not only for capital and commodities, it may seem as if the problem is only that the market mechanism is not perfect. According to this view, the free movement of people would be the perfection of the market mechanism and the "liberal" tendency in general. We must keep in mind that discrimination does not only contradict the market mechanism but that rather it is produced by the market mechanism. In other words, capital always needs to find ways of maximing its profit and exploiting people in a vulnerable position is one these ways. "Free market" is not
the solution.
d) The fourth danger is "legalism". It would be a mistake to think of the problems in this field only as a question of how to develop legislation against discrimination. This kind of legislation is important but it is not the solution in the case of illegal migrants, because the anti-discrimination legislation is only directed towards the citizens or foreigners with a residence/working permit. The discriminating essence of migration policies continue even in the case of good anti-discrimination policies. Moreover, "legalism" may also forget that exploitation of migrants is related to its function in the labour market and not only to "racist" attitudes.
e) The fifth aspect is that we should never forget that also gender is a highly important factor in this context. I have touched gender only briefly in this presentation, so I"m a victim of this danger too. But let"s say at least, that in general the problems facing migrant workers, such as low wage, dirty and dangerous conditions, flexible position or low labour force participation, concern migrant women in an even more problematic way.