Migration and Social Protection: Claiming Social Rights Beyond Borders (Rethinking International Development)

Rethinking International Development Series Series Editors: Andy Sumner, Fellow of the Vulnerability and Poverty Research Team, Institute of Development Studies, UK. Ray Kiely, Professor of International Politics, Queen Mary University of London, UK. Palgrave Macmillan is delighted to announce a new series dedicated to publishing cutting-edge titles that focus on the broad area of ‘development’. The core aims of the series are to present critical work that: – – – –

is cross disciplinary; challenges orthodoxies; reconciles theoretical depth with empirical research; explores the frontiers of development studies in terms of ‘development’ in both North and South and global inter-connectedness; – reflects on claims to knowledge and intervening in other people’s lives. Titles include: Simon Feeny and Matthew Clarke THE MILLENNIUM DEVELOPMENT GOALS AND BEYOND International assistance to the Asia-Pacific Niamh Gaynor TRANSFORMING PARTICIPATION? The politics of development in Malawi and Ireland Sue Kenny and Matthew Clarke (editors) CHALLENGING CAPACITY BUILDING Comparative perspectives Sara C. Motta and Alf Gunvald Nilsen (editors) SOCIAL MOVEMENTS IN THE GLOBAL SOUTH Dispossession, development and resistance Eric Rugraff, Diego Sánchez-Ancochea, Andy Sumner (editors) TRANSNATIONAL CORPORATIONS AND DEVELOPMENT POLICY Critical perspectives Rachel Sabates-Wheeler and Rayah Feldman (editors) MIGRATION AND SOCIAL PROTECTION Claiming social rights beyond borders Jens Stilhoff Sörensen (editor) CHALLENGING THE AID PARADIGM Western currents and Asian alternatives Andy Sumner and Meera Tiwari AFTER 2015: INTERNATIONAL DEVELOPMENT POLICY AT A CROSSROADS

Rethinking International Development Series Series Standing Order ISBN 978–0230–53751–4 (hardback) (outside North America only) You can receive future titles in this series as they are published by placing a standing order. Please contact your bookseller or, in case of difficulty, write to us at the address below with your name and address, the title of the series and the ISBN quoted above. Customer Services Department, Macmillan Distribution Ltd, Houndmills, Basingstoke, Hampshire RG21 6XS, England

Migration and Social Protection Claiming Social Rights Beyond Borders Edited by

Rachel Sabates-Wheeler Research Fellow, Centre for Social Protection, Institute of Development Studies, Sussex, UK

Rayah Feldman Honorary Visiting Research Fellow, Department of Arts and Human Sciences, London South Bank University, UK

Introduction, selection and editorial matter © Rachel Sabates-Wheeler and Rayah Feldman 2011 Individual chapters © contributors 2011 Preface © Don Flynn 2011 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their rights to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2011 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978–0–230–24591–4 hardback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Migration and social protection : claiming social rights beyond borders / [edited by] Rachel Sabates-Wheeler and Rayah Feldman. p. cm. Includes index. ISBN 978–0–230–24591–4 (hardback) 1. Emigration and immigration. 2. Human rights. 3. Immigrants— Civil rights. 4. Foreign workers—Civil rights. 5. Refugees—Civil rights. 6. Illegal aliens—Civil rights. I. Sabates-Wheeler, Rachel, 1971– II. Feldman, Rayah. JV6035.M5423 2011 323.3 291—dc22 2011001484 10 9 8 7 6 5 4 3 2 1 20 19 18 17 16 15 14 13 12 11 Printed and bound in Great Britain by CPI Antony Rowe, Chippenham and Eastbourne

Contents

List of Tables, Figures, and Boxes

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Preface by Don Flynn

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Acknowledgements

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Notes on Contributors

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Part 1 Frameworks Introduction: Mapping Migrant Welfare onto Social Provisioning Rachel Sabates-Wheeler and Rayah Feldman

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1 Migration and Citizenship: Rights and Exclusions Tendayi Bloom and Rayah Feldman

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2 Structures of Access to Social Provision for Migrants Ian MacAuslan and Rachel Sabates-Wheeler

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Part 2 Policies and Policy Spaces 3 Social Security for Migrants: A Global Overview of Portability Arrangements Rachel Sabates-Wheeler, Johannes Koettl and Johanna Avato 4 Political and Regulatory Dimensions of Access, Portability and Exclusion: Social Security for Migrants, with an Emphasis on Migrants in Southern Africa Marius Olivier

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Part 3 Case Studies 5 ‘An Increasingly Uncomfortable Environment’: Access to Health Care for Documented and Undocumented Migrants in the UK Rosalind Bragg and Rayah Feldman v

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6 A Market Place for Migrants: Mobility, Settlement and Social Protection in Kerala Mythri Prasad-Aleyamma

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7 Crossing Internal Boundaries: Political and Physical Access to the Public Distribution System in India Ian MacAuslan

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8 Social Protection as a Multi-Actor Process in Ecuadorian Migration: Towards a Transnationalism of Social Rights? Paolo Boccagni

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9 Coping and Investment Strategies of Migrants in the South: Malawian Migrants in South Africa Rachel Sabates-Wheeler

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10 Bangladeshi Labour Migrants in the Gulf: Coping with a Large Unmet Need for Social Protection Chowdhury R. Abrar

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Index

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List of Tables, Figures, and Boxes

Tables I.1 Determinant of disadvantage for migrants 2.1 Access constraints in different distribution systems 3.1 Global migrant stock estimates and bilateral portability arrangement by origin and host income group (2000) 3.2 Global emigrant stock estimates by origin region and portability regime (2000) 6.1 Number of contractors registered in different sectors under Inter-state Migrant Workmen Act, Ernakulam district 7.1 Categories of migrants’ disadvantage 7.2 PDS households in Delhi 2007, various estimates 7.3 Fair Price Shop prices, Delhi, 2007 7.4 Rules for the ration card queue, Delhi, 2007 7.5 Summary of migrant-related disadvantage in the PDS in Delhi 8.1 Emigrant policies as a source of social protection from above: a typology of the realms of action and of the key strategies 9.1 Demographic indicators by country of destination, means 9.2 Level of education by country of destination 9.3 Investments for the future of South–South labour migrants in home locations, per cent indicating ‘yes’ 9.4 Percentage of migrants having access to standard employment-based SP at origin and at destination 9.5 Variable description and mean values (standard deviations in parentheses) 9.6 Probit regression estimates for determinants of a positive change in income due to migration

12 73 104 106

177 185 187 188 189 203

217 240 241 249 250 255 257

Figures 7.1 Venn diagram of relationship between migration, poverty and slum-dwelling in Delhi vii

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9.1 Pre-migration and post-migration poverty status, by country of destination, in percentages 9.2 Prior occupation in origin, by country of destination 9.3 The impact of migration on physical assets in home country (percentage saying yes)

245 246 248

Boxes 3.1 Differential access to welfare services at destination 9.1 Bribery and extortion 9.2 ‘Parallel’ systems of social protection

96 243 253

Preface by Don Flynn The new global economy, which emerged in phases from the drive towards deregulation and the expansion of capital markets in the 1980s, firmly strapped prospects for high future growth rates to the ever more rapid movement of the factors of production and commerce across national frontiers. The capacity of the nation state to act on its own to stimulate the levels of demand needed to counter downturns in the business cycle was reduced, as the levers which allowed for economic management – control of exchange rates, direct state involvement in sectors commanding the heights of the national economy, and extensive regulation of production and markets – were dismantled in favour of an economic liberalism which assumed that more rapid growth would be assured by the unfettered operation of market forces. This model, aggressively pursued by the governments which were at the core of the Washington Consensus that had emerged in coherent ideological form by the end of the 1980s, produced consequences which are highly relevant to the issues discussed in this collection of essays on migration and social protection. In developing countries it led to a sharp reduction in the levels of social provision made for welfare and protection against hardship as the structural adjustment programmes imposed by the International Monetary Fund on fragile economies bit deep. The public sector contracted, incomes fell and systems of governance came under huge strain as countries in the developing South struggled to find a place in the globalized economy. In response to these changes, hundreds of thousands of people from the regions of Africa, Asia, Latin America and the Caribbean were obliged to consider migration as a livelihood strategy to replace the work which had formerly been available on farms, in the education and health sector, and in government-sponsored infrastructure development projects. For most of these people, the migration trail took them on journeys measured in hundreds rather than thousands of miles, as they moved from rural to city areas or across the immediate borders of their countries to seek employment in neighbouring states. For this group at least, being close to home meant that some semblance of the social protection structures that had existed in their home countries could be rebuilt in the often informal networks of mutual aid and support which are typical of transnational communities. ix

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Yet one of the notable effects of globalization was to open up options for migratory journeys, which took some individuals far beyond their home regions to seek employment opportunities in the developed economies of the North. This group typically had occupational skills or education qualifications which had derived from previous global expansions, reproducing the education systems of the metropolitan heartlands, and their forms of management and administration, in the countries of their various peripheries. For this group, migration had extended the lines of communication with their home regions and thinned the capacity of networks of co-nationals to provide even basic levels of mutual aid and support. However, the reduced opportunities for these types of solidarities could be compensated for by access to social rights and protection provided by mature welfare systems in the host countries. The immediately preceding generation of migrants, whose entry into the metropolitan countries had been facilitated by the old relations of colony and empire, had benefited from the relative equality of access to health, education, welfare and social security systems they usually enjoyed with the citizens of those states. But equality of access can less safely be assumed for the migrants who were propelled into movement by the new economic order of the 1980s and onwards. For one thing, the same restructuring that had changed the prospects for livelihoods in the developing countries was also rolling over the forms of welfare state which had been established in developed countries on the presumption of social and political control over markets during the immediate post-Second World War period. The greater ease of movement now enjoyed by capital rendered the revenue basis for the welfare state markedly less secure. The emerging political elites accommodated themselves to this dilemma by rethinking the principles of universalism which had underpinned the more radical versions of welfare societies, changing the rules governing entitlement and access for many categories of citizens and other residents. With these political moods driving welfare reform in many countries it is perhaps not surprising that migrants would be particularly vulnerable to exclusion from the mainstream forms of social welfare and protection available in the developed countries. Yet if these matters stopped at this point, the accounts of welfare dilemmas and migrants’ lives would not be as intriguing and suggestive of vibrant political discourse as those described in the chapters in this collection. For the fact is that the story is not one of simple, straightforward migrant exclusion from mainstream welfare provision, but a much more complex and

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nuanced narrative, which takes into account regional integration, political contest, civil society activism and the perennial striving of migrants themselves for agency and influence within systems which appear to be driving down exactly this possibility. The authors of these studies invite the reader to consider actual experiences and the real practices of welfare and social protection systems, including the ways in which they interact with the strivings of migrant communities for inclusion. The example of the European Union is cited on several occasions as having singularly paradoxical features in that it aims simultaneously for strict control of migrant inflow (‘Fortress Europe’) but at the same time also for the rapid integration of those who do cross its frontiers. Among the best protected, in formal terms at least, are those migrants who hold citizenship of a member state and who therefore benefit from the right of equality of treatment in respect of welfare and social security. But the EU also provides for the position of long-term migrants, who reside lawfully in any one member state for five or more years, and who are at this point assimilated into the protection of the free movement regime. But a more complete account of the story requires that we look beyond what is prescribed in formal law to examine the relations which exist between host societies and people who have newly arrived in them. The studies here draw attention to asymmetries which exist even when the law provides for equality, in the form of the vulnerabilities which derive from cultural uncertainty, language deficits and presumptions in favour of the power of employers over wage earners, which are critical elements in determining the outcomes of social protection. A further component of these dilemmas comes from the reassertion of the category of citizenship in deciding matters of access, which is a feature of the ways in which migration is managed in many countries. The holding of full citizenship is increasingly the condition of access for a growing range of social welfare services. Even for some EU nationals, the imposition of transitional arrangements limiting access to social security and welfare arrangements for citizens of the ‘accession 8’ countries which joined the EU in 2004, and the ‘accession 2’, who joined in 2007, has had a significant impact on their integration into the realm of legal rights and entitlements.1 In the case of the UK, limitations on inclusion were intended to expire after one year of registered employment, and thereafter the migrant acquired full equality with British citizens. But the experience of the recession from 2008 onwards has revealed the fact that the concentration of these workers in employment in casual and informal sectors has meant that many were not able to accrue the

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required record of continuous employment and are now experiencing real hardship. These often young migrant workers remain excluded from mainstream social security systems even after contributing through tax and national insurance for four or more years. Indeed, as the contributors to this book point out on many occasions, complexity is the dominant feature of modern social welfare systems, producing not only the rules which include and exclude, but which also organize citizens and residents into multi-layered hierarchies where nationality and immigration status open doors to access some types of service or benefits, but not others. Bilateral and multilateral arrangements which set out the availability of reciprocal relations between citizens of specified states are a feature of the systems operating in Europe and the Americas, and to a much lesser extent in Africa and Asia. This complexity might be considered an undesirable component of modern administration but for the fact that, in the immigration context, it provides a justification for enrolling welfare agencies and services into the task of maintaining surveillance over the movements of migrant groups and a theoretically increased capacity to enforce rules and regulations. All of these factors provide a very difficult set of circumstances for migrants as they attempt to pursue their livelihood strategies in host countries. On the face of it, the question of whether they succeed or not wholly depends on their good fortune in finding a decent employer who is prepared to honour legal and moral obligations to pay the fair rate for the job and provide a safe and secure working environment. The absence of accessible mainstream welfare systems means that there appears to be precious little scope for the migrant to endure any level of adversity, such as sickness and unemployment, or to counter the actions of an employer whose business strategy requires excessive exploitation. In practice, the very worst of these experiences are mitigated by the actions of migrants in establishing networks which provide a degree of mutual aid. The motivation for this activity can be, and often is, altruistic and springs from moral, ethical and sometimes political sentiments which mandate solidarity with co-nationals or other migrants involved in the same area of work. Traditions of savings clubs allow people to pool resources and plan escape from particularly exploitative sectors, typically by gaining access to business and self-employment opportunities. Migrant networks provide information resources which improve the chances of gaining better standard accommodation, jobs with decent employers or general practice doctors indifferent to the immigration status of their patients.

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Migrant networks can also be the starting point for the accumulation of the social capital needed to open negotiations with representatives of the mainstream host society. Providers of public health services or local authorities concerned with public health standards in the private rented sector will often find aspects of their work facilitated by good working relations with groups which represent migrant interests. Migrant communities in turn will see the benefits to be had from nurturing individuals equipped with the language and personal skills needed to make the case for better treatment. In time the process can advance to the stage where formal alliances are made with organizations rooted in the civil mainstream, like trade unions, faith communities, tenants and residence associations, and others working for integration and social cohesion. However, this process also produces its own tensions and dilemmas. Communities can be preyed on by individuals selling self-proclaimed skills as legal experts or go-betweens, often asking high prices for indifferent services. The trust required to maintain voluntary networks can be abused, with one-time representative advocates abandoning their associations in pursuit of personal advantages. These uncertainties can make migrant support networks unstable and unreliable mechanisms for promoting welfare over longer periods of time, but they are nevertheless an important feature of the social protection systems which are discussed in this volume. The theoretical perspectives set out here, and the detailed discussions of actual experience make this a valuable book that will hopefully inspire more research and thinking into what is currently a poorly considered aspect of migrant life. But one final feature of the approaches taken by virtually all the chapters which follow is the rigorous insistence on addressing the situation of undocumented migration at the heart of the dilemmas which need to be considered in this area of social policy. Undocumented, or irregular, migration is commonly presented by government and immigration control agencies as a choice made on the part of an individual to attempt to defraud a system in order to gain benefits and entitlements to which he or she has no legal or moral claim. From this perspective it is a criminal activity that fully deserves the proscription of ‘illegal migration’ and the heavy penalties it merits. This is an unworthy approach to understanding a phenomenon which properly needs to be understood as the outcome of a prolonged social and economic process in which the formal and legal choices of the migrant are successively closed down to the point where only the options of marginality and undocumented survival are left. What pushes migrants

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in the direction of irregular migration is seldom a cynical desire to gain an advantage at the expense of others, but rather the fact that it becomes the only remaining way of pursing a livelihood strategy. For this reason the consideration of irregular migration as a set of circumstances which take place largely within the realm of action-promoting welfare, security and protection is wholly appropriate, and the insights gained from situating the subject in this context in the various chapters in this book should be thoroughly welcomed. This book is a valuable addition to the currently small but growing literature on the welfare dimension of migration and it will no doubt take its place as a resource used by academic researchers. But its perspective and core arguments also need to be assimilated into the working practices of those dealing directly with the needs of migrant communities, such as policy makers, public service administrators, civil society activists and the proponents of the rights of migrants. Current trends towards the exclusion of migrants from systems providing adequate levels of protection from risk and hardship might become more entrenched during what is likely to be a long period of recovery from the financial crisis of recent years. Nevertheless, arguments for placing limits on such exclusion and returning to a logic of protection and inclusion will be available to those who follow closely the dynamics of migration in the years ahead.

Note 1. The 2004 enlargement of the European Union concerned the following countries: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. Part of the same wave of enlargement was the accession of Bulgaria and Romania in 2007.

Acknowledgements This book arose from a conference on Social Protection and Migration at the University of Sussex in November 2008. The conference represented the culmination of a four-year piece of research on Social Protection for Migrants that was conducted as part of the DFID-funded Development Research Centre (DRC) on Migration, Globalisation and Poverty at the University of Sussex, England. Many individuals and organizations have been helpful in encouraging, funding and supporting the production of this book. We are extremely grateful to the DRC and the DFID Migration team for funding much of the research contained here. In particular we would like to thank Richard Black (the Director of the DRC) and Charlotte Heath (then Head of the DFID migration team) for their commitment to support this area of work, and in particular for supporting Rachel in developing her work on migration, poverty and social protection. Collaboration with colleagues at the World Bank, especially Johannes Koettl, Robert Holzmann and Johanna Avato, enabled this research to move to a ‘global’ level. We also wish to thank the many other collaborators who supported this work, through providing background papers, facilitating fieldwork, commenting on research findings, and attending conferences and meetings. These include: Colette Solomon, Sarah Coll-Black, Wendy Buta, Don Flynn, Bilsoni Itaye, Mythra Waite, Maxine Reitzes, and the many migrants and their families who willingly gave up their time to answer surveys and recount their migration histories. For helping with getting this manuscript into shape – editing, formatting, indexing, chasing contributors and much more – we are extremely grateful to Marion Clarke. She has provided consistent, professional and calm support throughout.

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Notes on Contributors Chowdhury R. Abrar is a Professor of International Relations and the Executive Director of the Refugee and Migratory Movements Research Unit, University of Dhaka, Bangladesh. He has been working on issues relating to refugees, statelessness and labour migration. With Janet Seeley, he co-edited the book Social Protection: Marginalised Migrants of South Asia. He is currently involved in research on labour recruitment industry in Bangladesh. Johanna Avato is an Economist consulting for the World Bank’s Human Development Network for Social Protection and Labor (HDNSP) in the field of international migration. She works primarily on migration and skills, and on the portability of social security benefits for migrants. Before joining the World Bank, she was a visiting scholar at the Institute for the Study of International Migration at Georgetown University. She holds a PhD in economics from the University of Tübingen, Germany. Paolo Boccagni, PhD, is a Research Fellow at the University of Trento. His main areas of work are migration studies, social policy and transnational studies. He has recently analysed patterns of immigrant integration and transnationalism of Latin American migrants in Europe through a combination of different methods, including policy analysis, surveys, and ethnographical and biographical analysis. Tendayi Bloom is a PhD student in the School of Law at Queen Mary University of London, and Research Associate in the Centre for the Study of Migration, also at Queen Mary. Her research looks at ways of exploring state obligations towards territorially present non-citizens, and her published papers examine the interactions between theories of justice and the real-world concerns of migrants. Rosalind Bragg is Director of the UK charity Maternity Action, which works to challenge inequality and promote the well-being of all pregnant women, new mothers and their families. She has worked on issues of social exclusion and health inequality in voluntary organizations in the UK and Australia. Rosalind has a particular interest in social protection for vulnerable migrant women. xvi

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Rayah Feldman is Honorary Visiting Fellow at London South Bank University, where she was formerly a Senior Lecturer in Social Sciences. She is now a freelance researcher with a special interest in refugee and women’s health. She has campaigned for women’s and migrants’ rights for many years and is the chair of Hackney Migrant Centre, a dropin centre for asylum seekers and other new migrants in Hackney, east London. Johannes Koettl is an Economist at the Human Development Department of the World Bank’s Europe and Central Asia unit. He has been working on issues related to labour markets, migration, health and social protection at the World Bank since 2004. Previously, he completed an MA in International Relations at Johns Hopkins University’s School of Advanced International Studies and a PhD in Economics at the University of Vienna. Ian MacAuslan has been a Consultant in Oxford Policy Management’s Poverty Reduction and Social Protection portfolio since 2007. Ian conducts research and gives policy advice on the design, implementation, evaluation and politics of social protection programmes for vulnerable populations. He works across Asia and Africa, but mainly in India and Kenya, for governments, NGOs and international organizations. Marius Olivier is Director of the International Institute for Social Law and Policy (IISLP), an independent institute which has as its objective the rendering of in-depth and high-quality research, and advisory, policy and capacity-building services in the areas of social law and policy. Marius has been specializing in labour law and social security for several years, and has, in particular, been doing extensive work on the social security position of non-citizens, also in South and southern Africa. He holds adjunct professorial positions with universities in Australia and South Africa and is the chair of the SADC Core Group of Social Security Specialists. Mythri Prasad-Aleyamma is a PhD student at the Centre for Development Studies, Thiruvananthapuram, Kerala. Her areas of interest include migration, city studies and labour geography. Her doctoral thesis is on migration, settlement and urban transformation in Kerala, focusing on workers who have migrated from north and north-eastern Indian states. Her publications include ‘Spatial Strategies and Sojourner Workers: Mapping Roadwork in Kerala’ in C. R. Abrar and Janet Seeley (eds) Social

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Protection and Livelihoods: Marginalised Migrants of South Asia and ‘Mobility, Migrancy and Globalisation: City-spaces in Kerala’, in Antipode: A Radical Journal of Geography. She also dabbles in poetry and theatre. Rachel Sabates-Wheeler is a Development Economist with over 15 years of experience working on the themes of rural development, social protection and migration. Rachel is Research Fellow at the Institute of Development Studies (IDS), and has been the Director of the Centre for Social Protection since 2006. She is also a Senior Researcher with the Migration, Globalization and Poverty Research Centre, Sussex, and has led a large research programme on social protection and migration. Her key publications in the field of social protection include: Transformative Social Protection: The Currency of Social Justice and IDS Bulletin Debating Social Protection. She has published other articles on this theme in Applied Economics and Food Policy. Rachel’s work on migration has informed the Human Development Report 2009, the World Migration Report, and has been published in journals including World Development, European Journal of Development Research and Development.

Part 1 Frameworks

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Introduction: Mapping Migrant Welfare onto Social Provisioning Rachel Sabates-Wheeler and Rayah Feldman

1. Purpose of the Book International migration of all kinds has grown significantly since the mid-twentieth century. It has become an important element of globalization, with political, economic and social implications for both sending and receiving countries. Inevitably there has been a concomitant increase in scholarly attempts to understand and theorize migratory processes. Recent studies of migration have recognized the complexity and variability of migratory flows as well as the political and economic factors which shape patterns of migration. There has also been a growing interest in how social networks of family and community operate among migrants, linking both migrants and others in and across sending and receiving countries (Castles and Miller, 2003, p. 27; Gardner and Ahmed, 2006). A relatively new feature of migration studies is an interest in the ways in which migrants, through their own agency, are constructing new forms of ideological, cultural, economic and political ‘transnationalism’, which shape their relationships with both sending and receiving countries (Vertovec, 2004). For some commentators this includes the creation and development of parallel institutions, such as unregistered labour recruitment and travel agencies, which constitute part of the contemporary ‘migration industry’, and are responses to government’s migrant control policies and migrants’ strategies to counter them (Broeders and Engbersen, 2007). These recent studies focus on migrants’ agency in contrast with others which draw attention to the social inequality characterizing relationships between migrants and indigenous or settled populations, and which focus primarily on migrants’ vulnerabilities (Kothari, 2002; Abrar 3

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and Seeley, 2009). Discussions of irregular migration and welfare, in particular, draw on a tradition of urban studies which stresses the polarization of ‘global’ cities. This approach emphasizes the exclusion of certain groups, notably migrants and some settled ethnic minorities, from social benefits and other rights normally available to citizens in modern advanced capitalist states (e.g. Freeman, 1986 and Schierup et al., 2006). Interwoven with these concerns is a recognition of the diversity of forms and goals of migration both between and within given migrant populations, and a more intermittent acknowledgment of the gender dimensions of migration. Taken together, all these considerations present a formidable task for research and analysis. Analysis is made more difficult by the cat-andmouse nature of contemporary migration policy continually pitting more stringent immigration controls against migrants’ efforts to bypass them. This process is especially characteristic of Europe but is also, as some of the chapters in this book show, a feature of migration in other regions, and even internal migration in federal states such as India (for example MacAuslan, Chapter 7). One writer has suggested that certain forms of illegal migration are ‘unanalysable’ as they represent constantly mutating situational responses to unpredictable economic and political constraints imposed by states and markets (Bade, 2004, p. 355). The plethora of rules and restrictions surrounding entitlements to social rights means that migrants often find themselves excluded from or in ill-defined relationships with states, markets and mainstream social institutions. This results in political and economic forms of disadvantage, including restricted access to ‘normal’ welfare provision. These formal processes reinforce a range of barriers to welfare, such as entitlement confusion, migrant-specific vulnerabilities, informational blockages and bureaucratic hurdles. Migrants’ access to formal systems of social protection is, therefore, dependent on political decisions about the social rights of non-citizens, and on how far welfare is used as a means of controlling migration. Migrants may choose or be forced not to engage with formal provisioning systems; instead they may go without social protection or may attempt to access it through alternative routes and institutions. A number of the case studies in this book explore the tension between the idea of social provisioning as a risk insurance and poverty reduction strategy and the reality of migrants’ situations and experience (for example Bragg and Feldman, Chapter 5; MacAuslan, Chapter 7; Boccagni, Chapter 8). This involves both examining how governments use welfare as a means of regulating migration, and exploring what specific forms

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and arrangements for social protection might improve the welfare of migrants. In compiling this volume we recognized that the contested nature of migrants’ rights means that migrant-specific needs for social protection cannot be considered without a parallel examination of the relevant state-specific policies and practices. In particular, various contributions to this book: • identify failures and inequalities of social protection and welfare provision in relation to migrants; • explore problems of migrants’ access to social protection; • consider what constitutes appropriate social protection for migrants; • illustrate social protection in practice in different migration situations; • examine the contradictions between ideas of global rights to social protection and exclusion from welfare as a strategy for immigration control. In this Introduction we briefly discuss the main conceptual and policy concerns that arise in the varied contributions to this book. They are difficult to disentangle in practice, but for the purpose of exposition we distinguish between: (1) forms and processes of migration; (2) migrants’ vulnerabilities and increasing insecurities; (3) approaches to welfare, citizenship and social protection for migrants; and (4) issues of access and the politics of migration policies. We then go on to outline the proceeding chapters of the book.

2. Migrant classification and migratory flows At the outset we must distinguish between different types of migrants and different types of migration. It is important to question simplistic definitions of migrants because different categories can carry very different rights, entitlements and associated exclusions. 2.1. Classifying migrants Distinguishing between different types of migrants and migration is not as simple as it seems. An apparently simple distinction between forced and voluntary migration may founder on a change of personal or geo-political circumstances. For example, a student or visitor may find they cannot return to their home country because of political changes which have taken place during their absence. A woman who voluntarily migrated to get married may have had to leave a violent partner but

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be unable to return to her home country. On the other hand, members of minority groups such as the Roma, fleeing ethnic discrimination and persecution in some of the A10 European Union accession countries, may have been asylum seekers in an EU country before 2004. On 1 May that year, when their own country became a full member of EU, the same people would have lost their asylum-seeking status and become voluntary migrants with full rights of work, residence and movement, as well as limited welfare rights in the receiving EU country. Typically, voluntary migration is perceived as economic or labour migration, but forced migrants also have to work, unless they are entitled to receive state support. Depending on their stage in the process of having a claim for protection accepted, and on the rules of the country in which they find themselves, they may be working legally or illegally, but either way they are by definition migrant workers as well as refugees or asylum seekers. Further complicating any distinction between forced and voluntary migration is the definition of what constitutes ‘forced’. People who move in response to violent conflict or ethnic cleansing would appear to sit relatively securely in the ‘forced’ category. However, whether the category should include migration as a response to grinding poverty or fear of hunger and family food security has been the subject of recent debate (Gibney, 2009). Many poor people migrate as a risk reduction or livelihood promotion strategy due to limited or inadequate opportunities at home. In reality there may be multiple reasons for migration; however, migrants typically become categorized within a forced–voluntary spectrum for immigration and entitlement purposes. Migration is often classified by whether settlement is permanent or temporary. However, again, the distinction may be spurious. People originally seeking to work for a period in the receiving country and to save for a specific purpose before returning to their home country often stay longer than planned. This may be because they do not earn enough to go back, or because they find partners in the receiving country, or arrange for spouses and families at home to join them. The question of permanent or temporary residence is as much one of subjective meaning for the migrant as of conceptual accuracy for the researcher. The confusion and construction of that meaning is expressed in the concept of the ‘myth of return’ (for example Zetter, 1999). With improved telecommunications and cheap transport, the categories of temporary or permanent settlement in any case may have become too narrow. In an attempt to expand them, Vertovec (2004) explores the implications of transnational migration in terms of dual orientation, identities, social

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practices and material exchange, which may be fuelled by visits in both directions. There has been much attention in recent years to the ‘legality’ of different categories of migrants, given the increasing range of legal restrictions placed on non-citizens and legal meanings of ‘residence’. In practice legal and illegal migrants are not clearly distinguishable from each other, as people may be both ‘legal’ in one respect and ‘illegal’ in another (Düvell, 2006). According to Migration Work and Migrants’ Rights Network (2009, p. 3), people are characterized as ‘irregular’ or undocumented if they ‘are not complying with some aspect of immigration law and rules’. These authors prefer the term ‘irregular’ to ‘illegal’, on the grounds that the migrant’s offence is administrative rather than criminal. Irregular migrants commonly enter the country legally as students, tourists or workers, and then either stay beyond the authorized length of stay, work without a permit, or breach other conditions of their visa. Some enter illegally using false documents or by making false claims. Many irregular migrants are hidden from the rest of the population because they fear being made known to the authorities and because their twilight existence keeps them apart from the formal agencies and institutions of the state. In addition they are frequently very poor, working long hours in unregulated conditions for very low wages. Their lives are often mediated by parallel institutions through which they can find work, housing, advice, and even health services. Depending on the particular nature of their legal ‘irregularity’ they may engage with some or no state agencies and institutions and receive some state services with or without formal entitlement. In the UK it is relatively easy for children of irregular migrants to become enrolled in school whatever the immigration status of their parents, but less easy for the family to receive free health care. Whether they can engage with the tax and benefit system is variable and may depend on whether they have National Insurance numbers, or are working using false documents or without documents. They are, therefore, often without the safety-nets that are regarded as the basic minimum of state welfare systems in industrial societies. It is partly in response to a desire to understand the nature of these apparently ‘hidden’ communities of irregular migrants, that ‘microstructures’ of migratory processes and migrant experience are being increasingly studied and acknowledged. Earlier studies of migration demonstrated the importance of social ties and networks for helping both international and rural-urban migrants within countries to organize their journeys, find accommodation and work, and adapt to new

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environments (for example Boyd, 1989). Such networks are often presented as undifferentiated ‘informal’ arrangements. Yet, within these networks, class, ethnicity, education and gender are among the key factors determining how people can differentially utilize and benefit from them. Some recent studies have explored migrant networks in detail, showing, for example, the way that migrant residence patterns in a big European city are shaped by networks that vary according to different patterns of ‘ethnic incorporation’ or by interaction within different ethnic communities (Engbersen et al., 2006). Gardner and Ahmed show how highly structured hierarchies of relationships between transnational and non-migrant individuals and households in a village in Bangladesh determine the unequal distribution and conditions of social protection for the local poor. The amount, if any, of assistance that the local poor may receive from wealthier transnational migrants is highly dependent on the closeness of the kinship tie between them, or on other specific personal patronage (Gardner and Ahmed, 2006). The specificities of kin, community and transnational networks need to be further explored, taking into account how they reshape themselves in the face of the constantly changing context of migration policies and migrant lives (Broeders and Engbersen, 2007). Migrant communities and networks, rather than being seen as simply informal forms of welfare and protection, should be understood as social systems embodying rules and power relations, and responsively and creatively reconstituting themselves. Such systems may indeed operate outside the framework of state or even international laws, and are more likely to do so as laws and rules in developed countries increasingly restrict the rights of international migrants to enter, work and utilize services in them. Furthermore, existing studies suggest that migrants’ dependence on extra-legal systems are likely to increase the precariousness of their situation and may indeed force more migrants into criminal activity.

2.2. Migratory flows The most recent Human Development Report (HDR) on ‘Human Mobility and Development’ (2009) estimates the total global migrant stock at 214 million people, approximately 3 per cent of the world’s population. This represents a substantial increase since 1960, where the stock was 75 million, and even more recently 2005, where estimates indicated that the total migrant stock was 191 million. Furthermore, it is expected that if the migrant population continues to increase at a similar pace then

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by 2050 there will be a stock of around 235–415 million (40 per cent higher than now1 ). In part this reflects the increasing world population, estimated to increase to between 7.8 and 11.9 billion by 2050 – more people translate to more migrants and non-migrants. However, projections of increasing migration flows also reflect larger demographic shifts due to climate change, urbanization, conflict and opportunities. In the last two decades migration literature has burgeoned but it has mainly been focused on South–North and North–North migration flows. ‘South-South migration is not new. It is just ignored by economists’ and many others (Hatton and Williamson, 2002).2 The extent of migration between developing countries, and issues surrounding it, remain poorly understood, largely because data on migration is sparse and unreliable. Ratha and Shaw (2007), using recent data to estimate bilateral migration stocks, provide some hypotheses of the determinants and socio-economic implications of South–South migration. By a rough estimate, in 2005 two out of every five migrants on the globe – some 78 million out of 191 million migrants – were residing in a developing country.3 Most of these migrants are likely to have come from other developing countries. Ratha and Shaw estimate that South–South migration is nearly as large as South–North migration. Almost 80 per cent of South–South migration is estimated to take place between countries with contiguous borders, and mostly appears to occur between countries with relatively small differences in income. In Africa, for example, more emigration (relative to population) occurs from low-income than middle-income countries, and most emigrants from low-income countries go to neighbouring countries, unlike emigrants from middle-income countries, more of whom go to industrial countries (Lucas, 2005). Given the size of these estimates it is clear that South–South migration is economically important. World Bank research (2005) reports that income, proximity and networks are the major drivers of migration from developing to industrial countries.4 As South–South income differentials are relatively modest, proximity and networks are likely to have a proportionally greater impact. Unlike South–North migration, available data indicate that differences in average country income play a limited role in South–South migration. About 38 per cent of identified South–South migrants come from countries with higher incomes than their host country (Ratha and Shaw, 2007). And of the migrants from lower-income countries, most go to countries with incomes only slightly above that of their home country. Only about 20 per cent of identified South–South migration from lower- to higher-income countries is to countries with very

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large differences in income. Several factors are likely to explain the muted impact of country-income differences on South–South migration. Income differences among developing countries are, of course, much smaller than between developing and industrial countries. Lack of resources, limited access to travel documents and the location of networks may limit migrants’ ability to travel far beyond neighbouring countries, where income differences are often low. Ratha and Shaw (2007) further find that migrants who travel to other developing countries enjoy much lower increases in income, are more likely to be irregular migrants, are subject to greater risks of exploitation and are more likely to be expelled than those who migrate from developing countries to industrial countries. While the economic benefits of South–South migration are limited in absolute terms, given that migration enables most migrants to move out of poverty, even small increases in income can have very substantial welfare implications. Short-distance migration between developing countries has some important features, specifically, dense social networks, high prevalence of irregular migration, repeat migration flows. Several chapters in this book explore what these differences imply for migrant welfare and social protection systems (Chapters 3 and 9).

3. Migrants’ vulnerabilities and increasing insecurities Social protection and welfare provisioning are fundamentally about helping people manage the negative effects of risk as well as to facilitate positive improvements in livelihoods. Clearly, migrants face many of the same risks and hazards as anyone else in the population, however, they also face migrant-specific risks, such as those related to their documented status. Furthermore, some risks are intensified for migrants due to the fact that migrants may be disproportionally located in ghettos or in sectors where work practices are unsafe. Moreover, public policy may create some special vulnerabilities for migrants, such as exclusion from access to welfare services. For instance, in the case of migrants living in urban informal settlements, the source of vulnerability stems from spatial factors,5 whereas predominantly socio-political factors underlie the creation and maintenance of the informal sector. In this case vulnerabilities are intensified for migrants based on the fact that they are over-represented in these sectors as a proportion of the population. These types of vulnerabilities can be referred to as migrant-intensified vulnerabilities as opposed to migrant-specific vulnerabilities. Migrant-specific disadvantage applies by virtue of having migrated.

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Migrant-intensified disadvantage occurs when a negative outcome is intensified for a migrant. Concerns for migrants’ welfare can emerge at all stages of a migration process as different vulnerabilities characterize the ‘deciding migrant’, the ‘mobile migrant’, the ‘arrived migrant’, the ‘returned migrant’ and the migrant’s family that may remain at home. Disadvantages or vulnerabilities specific to migrant status define and shape the parameters of outcomes for migrants, such as social welfare, security, dignity, associational participation and inclusion.6 Furthermore, vulnerability and insecurity has implications for downward spirals into poverty. In an analysis of 27 studies from developed and developing countries, Yaqub finds that economic insecurity, understood as the exposure to transitory fluctuations in income, is one of three key factors explaining downward mobility among households. Similarly, in a review of literature on vulnerability, Dercon asserts that ‘persistence in poverty is caused by the presence of risk and its consequences’ (Dercon, 2001, p. 11). It is clear then that from the perspective of planning for the protection of migrants’ rights and poverty reduction, there is a strong need to implement social protection policies, to protect the migrants against the adverse economic and social consequences of their vulnerability. Locating migration within social protection literature is interesting as it can be conceptualized in a variety of ways depending upon the unit of analysis. Conceptualizing vulnerability as a characteristic of the migrant individual or group we can focus on the migrant’s access to social protection during and after the migration process.7 We can also think about the changing social protection needs of the migrant’s family, who may remain in the origin location. Alternatively we can think about the fundamental causes of vulnerability that affect migrants and families of migrants. In this book we highlight four categories of vulnerabilities that migrants are especially prone to: temporal, spatial, socio-cultural and socio-political. Temporal determinants of disadvantage factor largely in migrants’ lives. In a static sense the migrant faces different vulnerabilities associated with different points in the migration process (migrants in transit, migrants at destination, and the migrant’s family at source). In a dynamic sense the temporal vulnerabilities of a migrant and the family of the migrant at the source are nuanced by the length of migration (temporary, seasonal, long-term, daily, temporary, lifetime). We have not elaborated on this second dimension of temporal disadvantage here (see Kothari, 2002 for a typology of migration time-spans).

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Intergenerational vulnerability is another type of temporal vulnerability (for instance Zohry, 2002, for Egypt). Table I.1 below illustrates how spatial, socio-political and socio-cultural determinants of disadvantage interact with temporal determinants of vulnerability for migrants. Table I.1

Determinant of disadvantage for migrants

Determinants of vulnerability

Temporal: stages of the migration process

Spatial/ environmental

Transit: Environmental hazards, especially in the case of illegal migrants. Risks associated with dangerous climate/geography/remoteness from points of help; health risks (HIV/AIDS). Destination: Relocation constraints: unfamiliarity with surroundings (especially international migrants); problems in acquiring adequate housing. For illegal migrants: constant need to remain hidden and ‘unidentified’ leads to exclusion from livelihood-promoting possibilities. Hazards associated with work environment; dirty, dangerous, demeaning work. Health risks. ‘Ghettoization’ of immigrant communities (e.g. urban informal settlements). Family at Source: Remoteness from main income earner. Possible decline into poverty over the longer term if remittances are not forthcoming.

Socio-political

Transit: Exploitation; lack of legal representation (illegal); lack of legal protection. Destination: Lack of representation (illegal); lack of rights to formal institutions due to restrictive legislation; lack of access based on discrimination; exploitation; more prone to injustices; discrimination and disadvantage of some groups in relation to education, social services and economic opportunities; unequal distribution of resources; denied participation in political life; lack of rights due to illegal status. Family at source: Lack of representation and voice in the absence of the main income earners (often male); limited decision-making power if resources are in migrant’s name.

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Transit: Social exclusion based on ethnicity or illegal status; cultural devaluation disadvantage (Kabeer, 2000, p. 6); isolation; marginalization; exclusion from participation in social life. Exclusion of certain groups more than others (women, children, elderly); harassment. Destination: (as above); language and cultural barriers, especially in the case of international migration. Family at source: Children may drop out of school in response to the drop in family labour; the elderly may not obtain as much care; burden on family members’ time at source is likely to increase.

A major factor causing vulnerability for migrants is spatial dislocation associated with mobility. In transit, migrants may be ‘remote’ in terms of geography and in terms of access to basic services such as health and education. A large number of illegal migrants are vulnerable to health problems because of inhospitable terrain and isolation during transit. They are also vulnerable to exploitation and poverty due to their spatial dislocation from economic and social opportunities. This latter point also holds for many migrants at their destination, especially illegal migrants. Spatial dislocation, and the remoteness of transit migrations in particular, make it very difficult for the government to provide formal social protection schemes. It is more often the case that migrants use informal social protection mechanisms to help manage risk during transit. Many migrants rely on informal social protection mechanisms, such as migrant networks, to enable them to better manage the spatial dislocation from source to destination. Spatial vulnerability also interacts with vulnerabilities related to environmental hazards. Socio-political determinants of vulnerability refer to the institutional constraints facing migrants and typically reflect the lack of political commitment from the destination government/society to the migrant. This type of vulnerability is especially pronounced for illegal migrants, who by definition are excluded from participation in political life, from access to legal institutions, and also from social and economic benefits. The exclusionary processes resulting from this determinant of vulnerability often causes the illegal migrant to become further marginalized over time and prone to exploitation and discrimination, leading to a spiral into poverty. Furthermore, governments may actively discourage

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legalization of certain categories of migrants so that the economy is able to benefit from access to cheap (exploited) labour. Socio-cultural determinants of vulnerability for migrants reflect differences in the norms, values and customs which constitute local constructions of the ‘migrant’. These constructions are often interwoven with culturally held notions of race, gender and illegality, which can constrain the nature of migrants’ participation in labour markets (obviously depending on different categories of migrants and demographic characteristics). That is, social constraints may militate against their taking up certain occupations. This is likely to hamper migrants’ search for employment, especially in situations of recession and unemployment. These socio-cultural constraints can lead migrants to be relatively excluded from access to public goods, such as health and education, and from civic engagement. Clearly, at any point in the migration process a migrant can be affected by one or more forms of disadvantage. Furthermore, the forms may reinforce each other. All these features point to substantial unmet needs for social provisioning, and at the same time pose significant challenges to the effective provision of both formal and informal protection to vulnerable migrants.

4. Approaches to welfare, citizenship and social protection for migrants How we should think about migrants and social protection is the central concern of this book. From one point of view, we need to examine the kinds of protection migrants require in relation to sickness, social security, education, pensions and so on, which may differ from that of resident populations. We also need to examine who delivers and funds such protection, and how migrants can claim eligibility outside the traditional framework of the nation-state as provider or regulator of services to its citizens. From this point of view, social protection is a question of meeting individual welfare needs and the rights of people to have these needs met, whatever their citizenship or residence status. At the same time, social protection has become a key concept in development policy. In response to the negative social impact of structural adjustment policies, the idea of social protection has changed from being simply an underlying concept of welfare to become a distinct policy agenda, driven by both national and international players (international agencies, donors, NGOs and national governments) to address both welfare deficits and to facilitate growth (in terms of income and

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livelihood security) for lower-income countries. Since the 1990s the scope and ambitions of social protection policies have expanded dramatically, beyond the focus on safety nets, to include activities to help poor people manage stresses and shocks, in order to indirectly stimulate livelihood development and growth (by stimulating asset accumulation and reducing inefficiencies from risk-averse resource use) as well as to directly protect these people’s welfare and livelihoods. Some welfare theorists make a similar case for the evolution of welfare philosophy in the West. Taylor-Gooby and colleagues (2004) make the case that Europe has seen a significant change in social welfare emphasis, with social welfare becoming increasingly framed as the handmaiden to growth rather than vice versa, as evidenced in initiatives such as welfare-to-work and work-for-pay. In the following pages we explore these different approaches to social protection.

4.1. Migrant statuses and welfare systems Much of the literature about contemporary welfare systems in developed countries pays little attention to the implications of increasing migration on welfare provision and eligibilities (Esping-Andersen, 1990), with some exceptions (for example Ginsberg, 1992; Schierup et al., 2006; Brochmann and Hammar, 1999). At the same time, studies of migrants often accept as a given the limited social protection to which they are entitled, and explore the ways in which different groups of migrants negotiate their lives in the face of restrictions on a whole range of social, economic and political rights (for example Castles and Miller, 2003, Düvell, 2006, among others). Yet the combination of pressures on welfare expenditure and growing inequalities between migrant and indigenous populations requires an exploration of the interaction of migration with welfare systems, and how, in this context, social protection for migrants can be achieved. Inevitably, the scale of welfare provision, and its place in the politics and political consciousness of different nation-states, means that migrants are necessarily positioned within an existing context in which social protection or welfare addresses different groups or statuses in a differential way. We have already noted that migrants may have varied and variable legal statuses. The other side of the coin is that they bring their legal statuses into situations in which these statuses are differentially regarded, depending on their particular host nation’s system of welfare provision and rules for dealing with migrants of different statuses. These

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systems are themselves dynamic, responding to particular political and social forces, and limited by the existing institutional structures which frame them (Schierup et al., 2006; Esping-Andersen, 1990; Bommes and Geddes, 2000, among others). Although each country is unique in how it treats migrants, it is possible to use some of the conceptual apparatus of welfare regime analysis (Esping-Andersen, 1990) to explore the relationship between welfare and subordinated ethnic minorities, including migrants. We are not here concerned with typologies of such regimes, which in any case have been criticized by numerous writers for failing to deal with more than a narrow range of regime types (for example Guillén and Alvarez, 2002 and Wood and Gough, 2006). Other writers have also sought to identify features of welfare regimes in developing countries in order to render the typologies more meaningful (for example Davis, 2001 and Abu Sharkh and Gough, 2010). Here we simply use some of the key concepts which underlie welfare regime classification and explore their implications in relation to migrants. Firstly, the idea that welfare regimes or systems contribute to specific forms of stratification can be used to examine the ways in which different categories of migrants may be included or excluded from provision (for example Rosenhek, 1999 and Schierup et al., 2006). Secondly, like other writers on welfare systems, Esping-Andersen takes it for granted that entitlements derive in various ways from citizenship. This obviously raises questions about the entitlements of non-citizens. More importantly though, his recognition that this can be the basis for important solidarities can help us understand how the exclusion of noncitizens from welfare may have popular and significant political resonance. Thirdly, Orloff (1993) has shown how Esping-Andersen’s original focus on decommodification can be extended to include, among other things, the role of the family in welfare provision, in order to understand how welfare systems impact on gender relations. In the case of migrants, we might consider the balance of provision not just between the state, market and family, but also the social networks and parallel systems of provision, which both serve migrants, but also reinforce their exclusion from the mainstream, and may even create different class solidarities (see Mythri, this volume Chapter 6). From the point of view of disadvantaged groups such as women and ethnic minorities, including migrants, the organization of welfare is crucial in shaping both their eligibility and access to decommodified benefits, and also in defining and reinforcing their subordinate statuses (Orloff, 1993; Rosenhek, 1999). Rosenhek’s revealing case study

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shows how Palestinian Israeli citizens are structurally and institutionally excluded from access to welfare benefits despite de jure entitlement as citizens. He argues that this is a product not only of Zionist exclusionary policies, but also of a tendency for the expansion of welfare states to be accompanied by the increasing exclusion of subordinated groups, more commonly foreign workers (Freeman, 1986). The weaker welfare position of Palestinian citizens has made them more dependent on the market, helping to push them into a more unprotected secondary labour market. Rosenhek’s analysis is deliberately about ‘citizens’ rather than foreign workers, and parallels studies and debates about the subordinate welfare and labour market position of black Americans and the exclusion of ethnic minorities more generally (for example Quadagno, 1994 and Lieberman, 1998). However, if it is possible to impose exclusionary criteria on citizens, how much easier is it to do this with non-citizens? Bommes and Geddes (2000) have suggested that national welfare states act as ‘political filters’ which mediate migrants’ efforts at social inclusion by excluding certain types of unwanted migration and defining the legal conditions for immigration and residence, which are then combined with differentiated welfare entitlements. How this is done varies from state to state, but the centrality of how welfare provision can be used as both a tool for inclusion, granting the rights of social citizenship, and for exclusion, indicates the contradictory pressures on contemporary migrants. It also highlights the difficulties facing analysts who seek either to identify the ‘chances for migrant inclusion’ within national welfare states or to devise systems of social protection addressing migrants’ particular needs. In addition, welfare has long been a site of political contestation in relation to both the importance of decommodification in the protection of workers and the social solidarities which underpin the specific organization of any welfare system. ‘Social policy helps define the relevant boundaries of collective identity because, for workers, it constitutes such a vital element in their livelihood. Thus the ways in which social protection schemes are organized comes to delineate social identities, status communities and solidarities’ (Esping-Andersen, 1990, p. 109). This means that the rules that determine who gets what are often underpinned by shared histories of collective struggle and entitlement which have the function not only of defining eligible groups, but also of expressing and legitimizing the criteria of eligibility, and concomitantly of exclusion. The insight that the organization as well as the quantity or terms of provision of welfare ‘help determine the articulation of social

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solidarity, divisions of class and status differentiation’ (Esping-Andersen, 1990, p. 55) can be used to explore both the popular pressures and the relative ease with which certain groups, including migrants, have been marginalized or excluded within systems of welfare. Where groups are excluded or disadvantaged in relation to welfare rights, concomitant problems may lead to special provision being made for them. However, such provision may itself be a mechanism for exclusion and is often stigmatized (Castles and Davidson, 2000, p. 119). At the same time, in response to lack of access, migrants may develop alternative strategies for social support, for example through religious or home-based affiliations, or through involvement in parallel labour markets. Short-distance migrants frequently return to their home country for medical treatment, or use unregistered practitioners from their home country in the country of settlement. Some services may be obtained from other migrants, often under very poor conditions, for instance low-paid, unregistered childcare to enable women to take up employment. Clearly, where migrants lack unemployment or health insurance, their situation in sickness or unemployment may be very precarious indeed.

4.2. Social protection There is a wide variety of views on what factors gave rise to welfare states and their variability in advanced industrial countries. Some writers have seen welfare as an outcome of national patterns of industrialization, while others explain its development in terms of governments’ attempts to pre-empt or subdue working-class struggle. Alternatively, it may be seen as representing gains from class struggle, or resulting from the spread of social democratic ideology. Some explanations involve permutations of these and other ideas.8 Since the late 1980s, the withdrawal of the state from welfare provisioning and livelihood stabilization (that is, through market interventions), followed by the massive failure of structural adjustment to deliver on growth in many developing countries, has effectively drawn a line under the possibility of establishing comprehensive welfare states in the short to medium term. Even in developing countries which had had very limited public welfare provision, structural adjustment policies since the 1980s effectively cut these back, and limited the scope for further public provision. Any likelihood of achieving comprehensive welfare provision in many developing countries is further undermined by: stable patterns of clientalism in many countries; ‘kleptocratic states’;

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tiny proportions of tax payers and limited ability to collect taxes; weak governance; conflict and insecurity; fragmented and weak civil society movements; and large numbers of extremely poor people in many areas. At the same time the welfare vacuum has exposed a huge need for assistance and protection for large parts of the populations. While concepts of social protection are implicit in conceptions of ‘social welfare’ and ‘social policy’ in many Northern states, the terminology of ‘social protection’ is dominant in many developing countries, particularly in Latin America, Africa and Asia. A plethora of social protection instruments has increasingly stepped into the near absence of a welfare state in many countries. In other words, social protection is largely an instrumentalist agenda to ‘mop-up’ vulnerability in the absence of a widespread provision. Some commentators believe that social protection activities will facilitate the evolution of established, permanent and predictable welfare regimes in many countries. In this scenario, donors and governments envisage that the plethora of social protection activities will be subsumed under a nationally owned welfare system embedded in a social contract between civil society and the state. Whether this will happen is yet to be seen. Furthermore, social protection is not necessarily a perfect ‘welfare’ substitute in the absence of a comprehensive welfare regime. One reason for this is that the main framing and implementation of the agenda emphasizes income growth and risk reduction to the neglect of building governance and civil society maturity. That is, economic protection at the expense of social and political protection. As one of us has argued elsewhere, the dominant framing of social protection has been lacking a transformative element (Sabates-Wheeler and Waite, 2003). This element requires responses to structural disadvantage to be included within any social protection initiative: Social protection describes all public and private initiatives that provide income or consumption transfers to the poor, protect the vulnerable against livelihood risks, and enhance the social status and rights of the marginalised; with the overall objective of reducing the economic and social vulnerability of poor, vulnerable and marginalised groups. (Sabates-Wheeler and Devereux, 2008) The main elements in this ‘transformative’ approach to social protection must be: a progressive agenda to move the vulnerable out of dependency and chronic disadvantage; social as well as economic goals for the

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movement into productive spheres of activity; and a focus on needs, assets and rights as a complementary set of initiatives for supporting social protection initiatives. In particular, the approach specifies four functions of social protection and provision: ‘provision’ measures, which provide relief from deprivation; preventive measures, which attempt to prevent deprivation; promotive measures, which aim to enhance incomes and capabilities; and transformative measures, which seek to address concerns of social justice and exclusion from access to social provision. The transformative element is particularly relevant for considerations of migrant welfare (see Sabates-Wheeler and Devereux, 2008, for a full description of transformative social protection). This is a book with a global perspective, at times looking at migrants living in the UK under an established welfare state, at times migrants in Malawi where the welfare state does not exist. For this reason we sometimes use the terminology of welfare states, and, at other times, the language of social protection. Critically, what we are concerned with here is how migrants construct, negotiate and access welfare in relation to legal, physical, state and global structures. This welfare may at times be accessed or negotiated in relation to a welfare state, at times in relation to a plethora of social protection mechanisms within and across countries, at times in relation to clientelistic or altruistic relationships in which migrants and their families are involved.

4.3. Social protection and migration While social protection as an agenda primarily for reducing the vulnerability and risk of low-income households with regard to basic consumption and services has become an important part of the development discourse at both national and international levels, there is very little literature linking migration to social protection frameworks or policies. The need to manage risk and secure livelihoods can be the main driver of migration decisions. However, at the same time a derived demand for various forms of social protection, state and non-state, may arise from the migration process. Migrants often live and gain a living outside the parameters of the state. At times they strategically choose how to interact with state provisioning and negotiate other regimes of provision that may be transnational, cross-border, charity-based or non-formal. However, more often migrants are purposely excluded from welfare systems and social protection initiatives. Neither welfare regime analysis nor social protection frameworks attend to the plight of migrants and their relation to welfare. This is largely because these framings do not

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incorporate institutional, social and political understandings of the barriers to welfare provision, which are characteristics of migrant-specific vulnerability. In concrete terms, social protection for migrants consists of four components: (i) access to formal social protection – that is, social security and social services – in host and origin countries; (ii) portability of vested social security rights between host and origin countries; (iii) labour market conditions for migrants in host countries and the employment recruitment process for migrants in the origin country; and (iv) access to informal networks to support migrants and their family members. First, access to formal social protection is crucial for migrants in order to reduce their vulnerabilities. This includes access to health care benefits, long-term social security benefits like old-age and disability benefits, and short-term benefits like social assistance, maternity and unemployment benefits, family and housing allowances, as well as public housing and education. Migrants often do not fully benefit from these provisions, either because access is only granted some time after arrival, if at all, or because family members are spread across various countries. Second, portability of social security rights is important not only to migrants to avoid financial losses, but also to social security institutions out of concerns of actuarial fairness. Portability ensures the ability to preserve, maintain and transfer vested social security rights or rights in the process of being vested, independent of nationality and country of residence (Cruz, 2004; Holzman et al., 2005). Portability is particularly important for long-term benefits that have an explicit pre-saving element (as in the case of old age pensions) or implicit pre-saving element (as in the case of health care). In the absence of portability, migrants run the risk of financial loss when leaving their host or home country. For example, migrants contributing to an old age pension scheme in their host country could lose part of their contributions and benefits when returning to their home country. Similarly, migrants contributing to health insurance in their host country could lose coverage when moving back to their origin country. They might find it difficult to find affordable health insurance in their origin country after return, in particular when close to or during retirement. By default, they could end up benefiting from the origin country’s welfare or health system, although they might have spent most of their productive life working abroad and contributing to a scheme in another country. This could have important fiscal implications for social systems in origin countries. Obviously this scenario does not apply to the large number of non-contributors within contributory systems.

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Third, labour market conditions are an essential component of social protection for migrants. Migrants are often disadvantaged in foreign labour markets due to information asymmetries and monopsony power of employers. National labour market policies are often intended to overcome failures in the labour market, to strike a balance between the needs of employers and the need for protection of workers. These policies, enacted and implemented on the national level, regulate the workings of labour markets, that is, hiring and firing conditions, minimum wages, benefits, and other rights for workers. For migrants, though, who are often recruited in the origin country to work in the labour market of the host country, many of these regulations might be undermined because of substantial information gaps. These information gaps can be exploited by employers, recruiters and middlemen, who use the promise of high earnings to extract unjustified fees from migrants or to offer unfavourable work contracts. Finally, if immigration policies are too restrictive vis-à-vis the demand for foreign labour, employers and migrants have incentives to meet in the informal labour market and the labour market for undocumented migrants—the latter of which is not subject to regulation and might provide weak or only informal social protection. Finally, less formal systems of social protection refer to the way that migrants manage their risks by relying on a range of kinship or patronage institutions and local or community-based networks that can act as social safety nets. Such networks and groups are an important complement to formal social protection tools and are of particular importance to undocumented migrants, for whom they are often the only source of support in times of crisis. They may also be used as sources of information on how to access indispensable (social) services in the host country. These are more fully explored in Chapters 2 and 9 (MacAuslan and Sabates-Wheeler and Sabates-Wheeler respectively).

5. Issues of access and the politics of migration policies 5.1. Physical, legal and political access As discussed above, some attention has been devoted to the ‘portability’ of social protection for migrants, such that they are able to move with their entitlements (see chapter by Avato et al., 2010). This attention to portability necessarily leads to a focus on formal arrangements such as bilateral social security agreements, permanent labour contracts and regular migration. While this constitutes extremely important work,

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the focus on formal, legal arrangements means that irregular and seasonal migrants are typically overlooked. These groups usually work on non-permanent labour contracts and are largely comprised of the poorest and most vulnerable migrants. Also overlooked are other types of portability arrangements emerging from unofficial arrangements and institutions (such as burial society payments or hometown association membership). While irregular migrants and familial or network-based arrangements pose great challenges for conducting research, we must explore them to understand the constraints for migrants and social protection. Furthermore, where the focus is on international and bilateral arrangements, internal migration may also be overlooked. Of particular interest is an exploration of how access to social protection provisions for migrants interacts with the shape of labour markets in destination locations, both internally and internationally. As well as reflecting a limited view of the nature of migrant labour, current research only investigates one element of a portability story – that of the administrative procedures associated with portability. Further elements, related mainly to access, need also to be explored. Ignoring the issue of access implies a direct cost for government budgets, as employers and migrants are often able to circumvent tax and social security payments. Moreover, if access issues are not addressed this may result in a cost for the migrant as they are often exploited and unable to spread income and consumption over their life cycle. Access to social protection for migrants is of crucial concern for all migrants, regular and irregular. If we are concerned with poverty reduction and inclusive development then access is a prior question to that of portability. What is needed is an investigation into the constraints and conditions of access to specific social protection instruments for migrants. How is access to advanced portability regimes in both sending and receiving countries determined and negotiated? How is the ‘migrant voice’ represented? Which migrants are represented and who determines this? These questions pivot on issues of rights and empowerment, which in many ways overlap with a transformative social protection agenda. The right or entitlement of migrants to social provisions can be examined through the rules that structure access – in other words the physical and legal access structures (see MacAuslan and Sabates-Wheeler, Chapter 2). While the analytical focus on eligibility and data rules can be mundane, the questions raised are crucial in determining access and portability. Specified entitlements and rights are only as useful as the access structures that surround them. Much of this turns on the ability

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of individuals (formally entitled or not) to persuade employers and administrators of their eligibility for the resource. This approach suggests, then, that getting the formal rules right is not enough. A rigorous understanding of access must also examine the negotiations, bargaining, threatening, pleading that take place around those rules, between applicants, rule-setters, employers and administrators – in other words the political access structures. The issue of migrants’ access to social protection and its portability is irrevocably linked to politics. For instance, the government of Delhi has been wary of issuing permanent ration cards to migrants because they are expected to return home, and it was thought that formally entitling migrants to ration cards would encourage migration, putting a greater strain on Delhi’s stretched public services or increasing migrants’ competition with current residents for jobs (see Chapter 7). For similar reasons, governments of in-migration hubs such as the UK and South Africa restrict social benefits to non-citizens (see Chapters 4 and 9). The issue reflects political pressures within states and rule-setters’ interests and perceptions about state sovereignty and the sanctity of territorial borders, as well as social spending objectives. Do states consider migrants as potential political constituencies? Can they build access structures to achieve political goals? On the other hand, do migrants have an interest in subverting the system? What incentive do migrants have to engage in ‘proper’ legal and political access, as compared to pursuing any means to ensure physical access? The discourse around social protection entitlements and rights must incorporate these questions in taking the debate on access to welfare forward.

5.2. Regulating access and regulating migration Migration has become an important and contested political issue in receiving countries and among supranational organizations, notably the European Union. This results in frequent policy changes which affect the conditions and behaviour of migrants and the institutions of host countries as well as the attitudes of their citizens and other existing residents. Migration policies are a response to contradictory political and economic pressures, with governments attempting to reconcile demand for cheap and flexible and/or highly skilled labour, or to meet Refugee Convention obligations, while pacifying xenophobic hostility from some sections of the public and media and demonstrating that governments are in control. Recent flows of migration, whether in response to work opportunities in a much wider range of industries and countries, or to the upsurge

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in flows of refugees following political conflicts and changes in the 1980s and 1990s, have provoked increasing amounts of regulatory legislation, especially to control entry and to regulate the employment of non-citizens. Such regulations, which create delays in processing or have increased migrants’ attempts to evade them, have in turn resulted in the emergence of thousands of ‘undocumented’ or in some sense ‘illegal’ migrants throughout Europe and in other migrant receiving countries, as well as the growth of people smuggling and trafficking. In this process, in the ‘self-perpetuating logic behind . . . policing and security’ (Schierup et al., 2006, p. 67), immigrants have become constructed as existentially illegal. This construction affects all types of migrants, whether originally labour migrants, refugees or even tourists, or family members and dependants of earlier migrants. Traditionally, border controls have served as the primary means of immigration control. However, as migrants find ways to counter existing border controls, other strategies are being developed, including the use of digital surveillance and the incorporation of internal and ‘remote’ bodies in operating control mechanisms at the behest of the state (Broeders and Engbersen, 2007). These include attempts to block access to travel, through penalties exerted on transporters, and to block access to the labour market by policing employers and work premises, as well as exclusion from access to welfare (Düvell, 2006; Migration Work and Migrants’ Rights Network, 2009). Hollifield has drawn attention to liberal states’ preference for external border controls rather than the limitation of foreigners’ rights within states, which may represent an infringement of their civil liberties and be resisted by courts and other civil society organizations (Hollifield, 2000). But the continued development of such internal controls, including detention and expulsion, exclusion from work and welfare and redefinitions of citizenship, suggest that such resistance has not always been adequate to hold the ground in retaining rights for migrants. This is obviously of enormous significance in the discussion of social protection for migrants, where de facto social exclusion because of deficiencies of language, skills, income, and hostility or discrimination by local people may or may not be underpinned by legal and administrative exclusion. For example the guest worker model of labour migration is an extreme form of what Schierup and colleagues (2006) call ‘differential exclusion’, where an attempt is made to draw clear rights boundaries between the temporary migrants and the citizen population. This was the basis of South African apartheid and other temporary labour systems in many countries until now. Moreover, there are numerous examples of states in several world regions recognizing the illegal status of

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undocumented migrant workers, for example by allowing employers to temporarily register their illegal workers for a limited period (see, for example Chalamwong, 2006). This gives the government flexibility to control the flow of cheap labour on terms very different from those granted to citizens. On the other hand, experience in many countries has shown that government efforts to segregate migrant workers in this way may be ineffective, in that settlement and family formation do take place whatever the obstacles. In addition, such exclusionary measures clearly contradict policies for social inclusion and cohesion on the part of the state, and challenge the fundamental objectives of trades unions, health providers and minority groups, as well as other campaigners against racism. They are in conflict with the social rights implied in modern conceptions of citizenship in which contemporary welfare regimes are rooted.

5.3. Social exclusion and citizenship The identification of welfare with citizenship rights, most famously noted by Marshall in 1950, is also at the heart of the concept of social exclusion, denoting the ‘negation of citizenship’ (Schierup et al., 2006, p. 1). Marshall (1950), followed later by Townsend (1979) in his study of poverty in Britain, saw citizenship as including the right and ability to participate as a full member of society. But citizenship in Marshall’s terms took for granted the conception of a homogeneous national community and did not address the question of the rights of non-citizens. Although Marshall attempted to deconstruct the philosophies inherent in the concept of citizenship in order to explore their relationship with social inequality, he did not problematize the notion of ‘membership of a community’ (our emphasis) which underpinned the concept. But it is precisely the question of membership that is problematic in the relationship of migrants to welfare, rather than whether or not citizenship implies social rights. In other words, if national citizenship does imply social rights (and most commentators seem to accept, following Marshall, that it does), then does non-citizenship mean that such rights must be denied? It should be remembered that social rights are not always predicated on membership of a nation-state. One chapter in this volume shows that today such rights may be restricted to states within a federal system as in India (MacAuslan, Chapter 7), and another reminds us that under the English Poor Laws, paupers had entitlements

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deriving from their residence in a parish rather than, more generically, as fellow citizens (Bragg and Feldman, Chapter 5). The particular forms of inclusion that states offer to citizens vary widely and constitute part of the basis of categorizations of welfare regimes. However, how far migrants are included depends not only on the welfare regime, but also on the status accorded to them by the state (Bommes and Geddes, 2000). Schierup and colleagues argue that welfare policies can lead both to inclusion and to exclusion of immigrants. Where immigrants were citizens from the outset (such as colonial immigrants in the UK), welfare systems initially played a positive part in their incorporation into society. Where immigrants had a legal status that denied them normal welfare rights, they were excluded and marginalised. (2006, p. 25) But states have also recognized the use of welfare systems as a tool for managing and controlling migration. How governments choose to manipulate the welfare system in relation to migration is in principle independent of the type of system operating and more a function of the balance of political forces in the nation-state in question (see for example Guiraudon, 2000 and Hollifield, 2000). The beginning of restrictions on migration in Western Europe in the early 1970s coincided with financial pressures on state spending, and many European governments found themselves struggling to limit the cost of welfare provision. But, by then, entitlement to health, education, social security and public assistance had become a widespread public expectation. In this context the ‘crisis’ of the modern welfare state could be used to justify the exclusion of migrants from some types of provision. The position of refugees should be mentioned here. Refugees recognized under the 1951 Geneva Convention have the same citizenship rights as nationals of their host country. This may in part explain the reluctance of governments in receiving countries to grant refugee status to asylum seekers. The German Basic Law or constitution, following the Second World War, offered a guarantee to the right to asylum, but as asylum applications grew from the late 1970s onwards, both administrative restrictions and outright hostility to asylum seekers increased, culminating in the enactment of significant legal restrictions on the granting of asylum by 1993 (Bosswick, 2000). In other places the standard of proof required to justify the granting of refugee status also limits the probability of success of many asylum claims. As a result, ‘asylum seekers’ have

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become another distinctive administrative category in most states, with minimal ability to claim social rights, and usually without the right to work. Refused asylum seekers, many of whom are unable to return to their country of origin, often have still fewer rights. Restrictive changes in nationality laws, which have taken place in a number of European countries since the 1960s, also reflect governments’ attempts to prevent the acquisition of citizenship. The purpose of such changes is to enable governments to retain control over entry, and to specify differential and more limited social rights to those excluded from citizenship. During the 1990s successive French governments restricted and then partially expanded citizenship and the related social rights of migrants (Hollifield, 2000). At the time of writing the British government is proposing much more difficult procedures for the naturalization of immigrants. These would both explicitly exclude non-citizens from welfare, housing and education services and benefits for longer periods than currently, and involve very high costs in acquiring citizenship (Home Office, 2009; Symonds, 2009). This follows several pieces of legislation which, since 1971, have restricted British nationality. While citizenship has not always and uniformly been the basis of access to social rights and social protection within states, it has increasingly come to be used in this way. As eligibility to welfare has become more restricted, so the rules of nationality and the recognition of refugee status have narrowed. It is in this context that this book seeks to explore the conditions of social protection for migrants, including how they deal with the reduced room for manoeuvre in receiving states by creating alternative routes and methods of social protection, and how supranational as well as national policies impact on different classes and groups of migrants.

6. Outline of the book The book is divided into three parts. The first part covers conceptual and ethical debates and frameworks around notions of citizenship, rights, entitlements and access constraints, in relation to social provisioning and migrant welfare. Bloom and Feldman, in Chapter 1, explore some conceptual issues in past and contemporary understandings of citizenship, and their implications for non-citizens, especially migrants. Their chapter presents examples of historical and cross-cultural notions of strangers’ rights to protection and welfare outside their own homeland. In different times and places, ideas of hospitality have supplemented the absence of officially conferred entitlements to non-citizens. The chapter

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discusses how the notion of social rights as a fundamental element in contemporary citizenship can serve to justify denying these rights to migrants who are not citizens. It also explores the international instruments designed to protect the rights of refugees and migrant workers, but, nevertheless, the authors find that many migrants, as non-citizens, continue to suffer from a ‘non-status’ amplified by disadvantages of class and race, which serve to exclude them from legitimating grounds for protection. In Chapter 2, MacAuslan and Sabates-Wheeler start from the hypothesis that specified entitlements and rights are only as useful as the access structures that surround them. Successfully claiming social provisions in practice turns on the way that individuals (formally entitled or not) are able to leverage opportunities for accessing resources. This hypothesis implies, then, that getting the formal rules right is not enough. A rigorous understanding of access must examine not only formal rules of entitlement, but also the distributional mechanisms through which that entitlement is provided, as well as the negotiations and bargaining that take place around those rules, between claimants, rule-setters and providers (such as employers, administrators, friends and family). Migrants can find social protection from a range of sources: from the market, from non-market public distribution, and from charity-based or network-based relations. Using illustrative examples, MacAuslan and Sabates-Wheeler develop a conceptual framework for understanding distribution and access for each type of source. This framework is then applied to the specific access issues affecting migrants. Part II of the book includes Chapters 3 and 4 and reviews the global status of social security provisioning for migrants, as well as the regional policy and legal space that defines, as well as obfuscates, migrants’ access to welfare. In Chapter 3, Sabates-Wheeler, Koettl and Avato first illustrate how social security access and provisioning have very specific remits for migrants. Second, they review the ways in which migrants are able to access (or are constrained from accessing) social security arrangements, and, in particular, the extent to which social security is portable across international borders. Third, they provide some recommendations as to how to extend and strengthen social protection for migrants. The chapter draws out best practice for providing social security coverage to migrant workers, but also identifies areas where best practice cannot be easily implemented. Olivier (Chapter 4) draws out the implications of these different flows for regional coordination efforts that may help to bring about change in the approach to social protection across borders. His chapter focuses on rights, regulation and

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a normative understanding of migrants’ entitlements, in particular in relation to social protection, and with specific reference to migrants in Southern Africa-intra-SADC (Southern African Development Community) migrants. It explores the importance of adopting a rights-based and regulatory approach, addressing the need for appropriate international standards, regional instruments, constitutional frameworks and statutory contexts to be aligned, in order to ensure access to social protection and portability of social security entitlements. The reality is often different. Limitations in social security law effectively restrict social security entitlements. In addition, immigration law regulation and status of migrant categories is often used to effectively restrict access to and portability of social security entitlements, impacting in particular on vulnerable migrants such as asylum seekers and undocumented migrants. The last part of the book presents a range of case studies from across the globe that serve to illuminate themes presented in the first two parts of the book. Bragg and Feldman, in Chapter 5, discuss the politicization of migrants’ access to state health services in Britain, resulting in the exclusion of some of the most vulnerable migrants, despite a historic rhetoric of universalism. They show that this politicization continues to be a highly contested process, involving complex legal challenges. Complementing this, in Chapter 7, MacAuslan draws on the conceptual framework presented in Chapter 2 – yet with evidence from the other side of India – to analyse the physical and political access of internal migrants to formal social protection. The case study is that of Indian migrants’ access to the government of India’s Public Distribution System (PDS), a programme distributing subsidized commodities to all Indian households. Using fieldwork conducted in Delhi in 2007, the chapter explores the actual access of migrants and their ability to change the system to improve their access. The novelty of the work is that it examines the interactions between internal migrants and a formal social protection programme. This is also shown in Prasad-Aleyamma’s chapter on internal migrant workers in Kerala. The parallels between the situation of international and internal migrants described in all the chapters in this section are striking. Taking an anthropological approach, Prasad-Aleyamma, in Chapter 6, uses evidence from a Sunday Bengali market for migrant workers in Perumbavoor in Kerala to critique the dichotomous presentation of formal and informal social protection. This market, which sprang up in response to the specific needs of migrant workers, serves also as a ‘meeting point’ of workers. Prasad-Aleyamma posits that the market could be

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construed as a site of interaction which ensures a form of social protection. It is a site that is used for accessing both formal and informal social protection. In fact, the very existence of a sociality that is deemed ‘informal’ facilitates the protection of more formal rights. At the same time, the ever-changing nature of the migrant population puts limits on the emergence of a right-based formal trade union. Prasad-Aleyamma argues that understanding the ‘social’ in welfare provisioning is important for policy-making which is required to go beyond the formal and informal categories. Widening out the geographical remit of social provisioning, Boccagni provides a comparative analysis of the sources of social protection within a long-distance migration flow, connecting Ecuador to Europe, with a particular focus on the role of the motherland. In Chapter 8, he rehearses the discourse and presents policies emerging in Ecuador with respect to the transnational protection of the citizens. Drawing on an empirical study of Ecuadorian migration to Italy, Boccagni explores the interactions and trade-offs between migrant strategies for protection and resources available to them for protection. He asks, to what extent can the integration between institutional and migrant-led initiatives result in a ‘transnationalism of social rights’? In Chapter 9, Sabates-Wheeler explores some hypotheses and assertions related to the characteristics of South–South migration using new survey data collected from Malawian migrants in and returned from South Africa. The chapter details how migrants use migration as a social protection strategy in terms of consumption security for families back home and income creation, as well as future investment strategies. It also describes how Malawians in South Africa are able to access formal and informal social protection mechanisms, through legitimate and illegitimate routes. The role of networks and the use of networks to achieve a positive change in income from the migration process are highlighted. The conclusion reports that social networks are vital for obtaining positive outcomes from migration. The final chapter of the book, by C. R. Abrar, similarly focuses on the informal provisioning and lack of formal social protection to which Bangladeshi migrants to the Gulf states have access. The primary fieldwork contained therein illuminates the range of vulnerabilities facing migrants at all stages of their migration journey – the deciding migrant, the transiting migrants, the arrived migrant and the return migrant. This brings the reader back to the fundamental problems that we have highlighted, here, in the Introduction.

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Public debates about international migration in developed countries have traditionally failed to address the lacunae in social protection for migrants, often reconstructing social protection as a ‘privilege’ to which migrants can only aspire. At the same time, social protection has come to be seen in development circles as a mechanism to meet the basic needs of the poorest. The chapters in this book explore different aspects of the tension between migrants’ need for protection and the practices and policies which often lead to such protection being denied or, in some cases, made available selectively to certain groups. By taking a global perspective, the book hopes to raise awareness of the multifaceted ways in which questions of social protection for migrants need to be addressed.

Notes This book is both the product of and inspired by a four-year research project on social protection for migrants at the Development Research Centre on Migration, Globalisation and Poverty at the University of Sussex. The driving vision of the DRC is to promote policies to maximize the benefits and minimize the risks of migration for poor people. All the contributions to this book, whether or not their authors were involved in the DRC project, also strive towards this vision. Our hope is that the messages from this book will help clarify issues and encourage academics, policy-makers and activists working with and for migrants and their families, to intensify their efforts to assist migrants to claim their social rights. 1. See Black et al. (2008). 2. Important recent exceptions are papers by Gindling (2009), estimating the impact of migrants from Nicaragua on labour market outcomes in neighbouring Costa Rica, and by Ratha and Shaw (2007), estimating the size of South–South migration and remittances, and discussing key issues related to South–South migration. 3. Avato et al. (2010) provide similar estimates. 4. Motivations for South–South migration also include seasonal patterns and flight from ecological disasters or civil conflict. Other motivations, not recorded in the migration stock data given above, include transit to the North and petty trade. 5. A further study, which is not detailed here, examining spatial segregation and the vulnerability of international migrants, is Iosifides and King (1999). 6. Much of this conceptual framework draws on Sabates-Wheeler and Waite (2003). 7. Here ‘migrant’ can refer to the individual or the migrant family. 8. For summaries of theories of welfare state development, see, for example, Ginsburg (1992), Manning (1999) and Esping-Andersen (1990).

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References Abu Sharkh, M. and Gough I. (2010) ‘Global welfare regimes a cluster analysis’, Global Social Policy, 10(1), 27–58. Abrar, C. R. and Janet Seeley (eds) (2009) Social Protection and Livelihoods: Marginalised Migrants of South Asia (Dhaka: University Press Limited). Avato, J., J. Koettl and R. Sabates-Wheeler (2010) ‘Social security regimes, global estimates and good practices: the status of social protection for international migrants’, World Development, 38(4), 455–466. Bade, K. (2004) ‘Legal and illegal immigration into Europe: experiences and challenges’, European Review, 12(3), 339–375. Black, R. et al. (2008) Demographics and Climate Change: Future Trends and their Policy Implications for Migration. Working Paper T-27, Migration Centre, University of Sussex. Bommes, M. and A. Geddes (eds) (2000) Immigration and Welfare: Challenging the Borders of the Welfare State (London: Routledge). Bosswick, W. (2000) ‘Development of ASYLUM POLICY in Germany’, Journal of Refugee Studies, 13(I), 43–60. Boyd, M. (1989) ‘Family and personal networks in international migration: recent developments and new agendas’, International Migration Review, 23(3), 638–670. Brochmann, G. and T. Hammar (eds) (1999) Mechanisms of Immigration Control: A Comparative Analysis of European Regulation Policies (Oxford: Berg). Broeders, D. and G. Engbersen (2007) ‘The fight against illegal migration: identification policies and immigrants’ counterstrategies’, American Behavioral Scientist, 50(7), 1592–1609. Castles, S. and A. Davidson (2000) Citizenship and Migration: Globalisation and the Politics of Belonging (London: Palgrave Macmillan). Castles S. and M. Miller (2003) The Age of Migration (Basingstoke: Palgrave Macmillan). Chalamwong, Y. (2006) ‘Country report: Thailand’, paper prepared for the Workshop on International Migration and Labour Market in Asia, organized by the Japan Institute for Labour Policy and Training, Japan Institute of Labour, Tokyo, 17 February, available at: http://www.jil.go.jp/foreign/event_r/event/ documents/2006sopemi/countryreport11.pdf. Cruz, A. T. (2004) ‘Portability of Benefit Rights in Response to External and Internal Labour Mobility: The Philippine Experience’, paper presented at the International Social Security Association (ISSA), Thirteenth Regional Conference for Asia and the Pacific in Kuwait, 8–10 March, available at: http://www.issa. int/pdf/kuwait04/2cruz.pdf (accessed 22 October 2008). Davis, P. (2001) ‘Rethinking the welfare regime approach: the case of Bangladesh’, Global Social Policy, 1(1), 79–107. Dercon, S. (2001) Assessing Vulnerability, Jesus College and CSAE, Department of Economics, Oxford University. Düvell, F. (2006) ‘Undocumented migration in Europe: a comparative perspective’, in Düvell, F. (ed.) Illegal Immigration in Europe: Beyond Control? (Basingstoke: Palgrave Macmillan). Engbersen, G., M. van San and A. Leerkes (2006) ‘A room with a view: irregular immigrants in the legal capital of the world’, Ethnography, 7(2), 209–242.

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Esping-Andersen, G. (1990) The Three Worlds of Welfare Capitalism (Princeton, NJ: Princeton University Press). Freeman, G. P. (1986) ‘Migration and the political economy of the welfare state’, Annals of the American Academy of Political and Social Science, 485, 51–63. Gardner, K. and Z. Ahmed (2006) ‘Place, Social Protection and Migration in Bangladesh: A Londoni Village in Biswanath’, working paper T18, Sussex Centre for Migration Research and Jahangirnagar University, Dhaka. Gibney, M. (2009) ‘Precarious residents: migration control, membership and the rights of non-citizens’, Human Development Reports Research Paper 2009/10, April 2009, United Nations Development Programme, available at: http://hdr. undp.org/en/reports/global/hdr2009/papers/ (accessed 12 November 2010). Gindling, T. H. (2009) ‘South-South migration: the impact of Nicaraguan immigrants on earnings, inequality and poverty in Costa Rica’, World Development, 37(1), 116–126. Ginsburg, N. (1992) Divisions of Welfare (London: Sage). Guillén, A. and S. Alvarez (2002) ‘Southern European welfare states facing globalisation, is there social dumping?’, in Sigg, R. and C. Behrendt (eds) Social Security in the Global Village (London and Piscataway, NJ: Transaction Publishers), pp. 67–84. Guiraudon, V. (2000) ‘The Marshallian tryptich reordered: the role of courts and bureaucracies in furthering migrants’ social rights’, in Bommes, M. and A. Geddes (eds) Immigration and Welfare: Challenging the Borders of the Welfare State (London: Routledge), pp. 71–88. Hatton, T. and J. Williamson (2002) ‘What fundamentals drive world migration?’, NBER Working Paper Series No. 9159, National Bureau of Economic Research, Cambridge, MA, available at: http://www.nber.org/papers/w9159 (accessed 12 November 2010). Hollifield, J. (2000) ‘Immigration and the politics of rights: the French case in comparative perspective’, in Bommes, M. and A. Geddes (eds) Immigration and Welfare: Challenging the Borders of the Welfare State (London: Routledge), pp. 109–133. Holzman, R., J. Koettl and T. Chernetsky (2005) ‘Portability Regimes of Pension and Health Care Benefits for International Migrants: An Analysis of Issues and Good Practices’, Geneva, Switzerland: Global Commission on International Migration. Home Office UK Border Agency (2009) Earning the Right to Stay: A New Points Test for Citizenship (London: UK Border Agency). Iosifides, T. and King, R. (1999) ‘Socio-spatial dynamics and exclusion of three immigrant groups in the Athens conurbation’, in Baldwin-Edwards, M. and Arango, J. (eds) Immigrants and the Informal Economy in Southern Europe (UK: Frank Cass Publishers). Kabeer, N. (2000) ‘Intergenerational contracts, demographic transition and the quantity-quality trade-off: parents, children and investments in the future’, Journal of International Development, 12(4), 463–482. Kothari, U. (2002) ‘Migration and chronic poverty’, Chronic Poverty Research Centre, Working Paper No 16, Institute for Development Policy and Management, University of Manchester. Lieberman, R. (1998) Shifting the Color Line: Race and the American Welfare State (London: Harvard University Press).

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Lucas, Robert E. B. (2005) ‘Migration and economic development in Africa: A review of the evidence’, paper prepared for the African Economic Research Consortium Biannual Research Workshop, Nairobi, May 28–2 June. Manning, N. (1999) ‘The politics of welfare’, in Baldock, J., N. Manning, S. Miller, and S. Vickerstaff (eds) Social Policy (Oxford: Oxford University Press). Marshall, T. (1950) Citizenship and Social Class (Cambridge: Cambridge University Press). Migration Work and Migrants’ Rights Network (2009) Irregular Migrants: The Urgent Need for a New Approach, London, available at: http://www.migrants rights.org.uk/downloads/policy_reports/irregularmigrants_fullbooklet.pdf. Orloff, A. (1993) ‘Gender and the social rights of citizenship: the comparative analysis of gender relations and welfare states’, American Sociological Review, 58(3), 303–328. Quadagno, J. (1994) The Color of Welfare (Oxford: Oxford University Press). Ratha, D. and Shaw, W. (2007) ‘South-South remittances and migration’, World Bank Working Paper No. 102, Washington, D.C. Rosenhek, Z. (1999) ‘The exclusionary logic of the welfare State: Palestinian citizens in the Israeli welfare state’, International Sociology, 14(2), 195–215. Sabates-Wheeler, R. and S. Devereux (2008) ‘Transformative social protection: the currency of social justice’, in A. Barrientos and D. Hulme (eds) Social Protection for the Poor and Poorest. Risk, Needs and Rights (London: Palgrave Macmillan). Sabates-Wheeler, R. and M. Waite (2003) ‘Migration and social protection: a concept paper’, DRC Migration Working Paper T2, University of Sussex, Brighton. Schierup C.-U., P. Hansen and S. Castles (2006) Migration, Citizenship, and the European Welfare State (Oxford: Oxford University Press). Symonds, S. (2009) ‘Borders, Citizenship and Immigration Act 2009 – the New Provisions for Naturalisation’, paper presented to a meeting of Kalungan at Praxis, London, 12 September 2009. Taylor-Gooby, P. (ed.) (2004) New Risks, New Welfare: The Transformation of the European Welfare State (Oxford: Oxford University Press). Townsend, P. (1979) Poverty in the United Kingdom (Harmondsworth: Penguin). Vertovec, S. (2004) ‘Migrant transnationalism and modes of transformation’, International Migration Review, 38(3), 970–1001. Wood, G. and I. Gough (2006) ‘A comparative welfare regime approach to global social policy’, World Development, 34(10), 1696–1712. World Bank (2005) Global Economic Prospects 2006: Economic Implications of Remittances and Migration (Washington, D.C.: World Bank). Zetter, R. (1999) ‘Reconceptualizing the myth of return: continuity and transition amongst the Greek-Cypriot refugees of 1974’, Journal of Refugee Studies, 12(1), 1–2. Zohry, A. (2002) ‘Rural-Urban Migration in Egypt and Other Developing Countries: A Statistical and Literature Review’ from Rural to Urban Labour Migration: A Study of Upper Egyptian Labourers in Cairo, DPhil Thesis, University of Sussex, Brighton.

1 Migration and Citizenship: Rights and Exclusions Tendayi Bloom and Rayah Feldman

1. Introduction The dominant idea has long been that rights were connected to nationality and citizenship, thereby granting aliens with very limited protection. —De Guchteneire and Pécoud (2009, p. 6) In a time of increasing migration, citizenship as a form of classification has come to assume the kind of importance once reserved for other kinds of discriminatory and exclusionary classifications of status. Distinctions in ancient times or in ante-bellum United States between free men and slaves, in French and Portuguese colonial empires between évolués or assimilados and other colonial subjects, in Nazi-occupied Europe between Aryans and Jews and Roma, or racial classifications in Apartheid South Africa, were all means of granting or denying social and political rights. Although citizenship has many other aspects, for migrants its primary significance is the extent to which it enables them to gain access to a territory and to rights within it. In the contemporary world, having one’s human rights protected and enforced is usually dependent upon one’s status in a state. The rights of non-citizens sometimes appear to be legitimately overlooked when no particular body or state is assigned obligations towards them in the place where they are living. This can be seen most clearly in the case of migrants, both those moving to a country in which they will be noncitizens and those who, in being described as newcomers, are deprived of full citizenship. Migrants’ rights vary according to the state within which they find themselves, and how they are categorized or classified in 36

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those states: for example, whether they are refugees or migrant workers, and according to the state’s current policies about these groups. International conventions on refugees make it clear that people recognized as refugees should enjoy broadly the same rights as citizens in their country of refuge. However, the threshold of a grant of refugee status is extremely high, and governments often try to avoid these responsibilities by requiring unrealistic levels of proof of persecution or danger. Many more international migrants, however, do not seek refugee status but travel for the purpose of finding employment. Of the estimated 214 million migrants in the world today, about 16 million are refugees (United Nations, 2009). Rights of labour migrants have been even more contested than those of refugees, and despite attempts to produce international agreements on their rights, little has been ratified. This chapter explores the rights of different kinds of migrants in the context of contemporary and historical understandings of citizenship. Its purpose is to explore some key assumptions contained in contemporary uses of the term, especially as they pertain to welfare rights. By focusing on these, we try to show that many rights that are taken for granted are linked to, though not necessarily dependent on, citizenship, and that the absence of citizenship status can enable governments to limit the rights of non-citizens, particularly migrants.

2. Presence, residence and citizenship The three terms presence, residence and citizenship are relevant to migrants. Although they are often taken to be distinct, it is not obvious exactly what the distinctions between them are, nor what these distinctions imply. Prima facie, presence is a momentary descriptor while residence happens over time. However, a more precise distinction is needed because different rights can come with the different statuses. In the UK, presence is necessary and sufficient to receive emergency health care, while residence is needed to obtain education and voting rights. Moreover, residence, particularly ‘permanent residence’, is often a necessary precursor for obtaining citizenship. The state can exert coercive power over physically present individuals in a way it does not and cannot exert over someone, even a citizen, who is not territorially present. Thus a state generally cannot prosecute citizens for crimes committed in other states or for actions carried out abroad that are not legal in the state of which the person concerned is a citizen. Common examples of such actions include the use of drugs

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deemed illegal at home, abortion or polygamy. By contrast, in the field of international human rights law, the doctrine of universal jurisdiction allows national courts to try cases of the gravest crimes against humanity, even if these crimes are not committed in the national territory and even if they are committed by government leaders of other states. This principle was used in the attempted prosecution of the former Chilean dictator, Augusto Pinochet, and campaigners have attempted to invoke it against other alleged war criminals, but such violations of human rights are normally the province of the International Criminal Court in The Hague. Although the state where one has presence is the best placed to provide health and welfare services, in practice legal residence, and even citizenship, may be required to obtain them, and even then there may be many restrictions placed on access. States with universal welfare systems, including both Scandinavia and the UK, have sought to limit access by restricting eligibility to citizens or those with very specific residence statuses (Schierup et al., 2006). Linda Bosniak suggests that borders can be conceptual as well as geographical. ‘The “border” – conceived as regulatory sphere – follows the immigrant into the national geographic space and shapes her experience there’ (Bosniak, 2007, p. 397). Other writers, similarly, describe the welfare state itself as being used as an aspect of border control (e.g. Cole, 2010, p. 6; Crowley, 2005). Many debates about immigrant rights can be characterized as debates about how far into the territory the border can come (Bosniak, 2007, p. 397, n. 25). Access to territory cannot be controlled in the same way as access to services inside the territory, although the increasing digitalization of borders makes this less and less true (Broeders and Engbersen, 2007). Residence might indicate a stronger stake in a state than citizenship in relation to political rights, since citizens may have been absent, even for their whole lives, from the state, while residents pay taxes and participate in society. While this is sometimes recognized in local issues, it is not considered to be the case for national ones. While residency in a local jurisdiction may be necessary for a person to have voting rights there, general elections are different. For example, Ecuador has created a ‘Fifth Region’ in its parliament of expatriate citizens, acknowledging a membership separated from any particular geographical area of its territory (see Boccagni, Chapter 8). Thus, continued residence, or even presence, is not required in order to retain crucial citizenship privileges. Furthermore, although residence may carry with it protections of status and rights of abode much like citizenship, citizenship is not a merely

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ceremonial status. For example, with citizenship come travel documents and, usually, the assurance that protection will not be removed in the future. Another crucial difference between presence, residence and citizenship is that the former two can be irregular. This reinforces them as a non-status, as a mere descriptor of physical location, which in turn reinforces the frail rights of a person whose very physical location is described as ‘irregular’ or ‘illegal’. Taran describes what he calls the ‘illegalization’ of migrants, which, he argues, directly contradicts two fundamental human rights enshrined in the Universal Declaration of Human Rights: article six which states that every human being has a right to recognition before the law; and article seven that every person has right to due process. (Taran, 2000, p. 23) People may be present against the state’s wishes in two ways: first, through irregular entry or stay past their agreed date of departure; second, through facts of history and regime change. Some commentators argue that giving anything more than the most basic of rights to irregular immigrants undermines the legitimate immigration regime, and it disadvantages those who have sought immigration by legal routes (Miller, 2008, p. 197). By extension, if controlling such immigration is seen as an important aspect of sovereignty, allocating such rights to migrants could seem to undermine the sovereignty of the state. However, since the arguments for rights based on presence and on residence simply refer to physical location, they need not be undermined by the irregular status of the migrant. Joseph Carens contends that being present without authorization does not have any relevance to the entitlement to basic human rights. There is a wide range of legal rights that people ought to possess (and normally do possess) simply by virtue of being within the jurisdiction of the state, whether they have permission to be there or not and whether they are obeying the laws or not. We can lump these rights under the heading of basic human rights. These rights are possessed not only by citizens and legal residents but also by tourists and temporary visitors. Irregular migrants are entitled to them as well. The right to security of one’s person and property is a good example. After all, the police are supposed to protect even irregular migrants from being robbed or killed. People do not forfeit their right to be

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secure in their persons and their possessions simply by virtue of being present without authorization. (Carens, 2008, pp. 165–166) Irregular entry and presence, he argues, are normally not treated as crimes, but as administrative misdemeanours, and so should not even give rise to the minimal rights loss of convicted criminals. For this reason, Carens advocates the institution of a ‘firewall’ around welfare services, so that basic human rights, and indeed the much wider range of rights he would bestow, can be obtained without fear of apprehension by immigration services.1 However this is to be resolved, it is clear that of all the groups discussed, irregularly present non-citizens are the most vulnerable in a wealthy, stable state, since as non-citizens they lack any automatic status and as ‘irregulars’ they often lack the ability to access any legitimizing status for protection.

3. Citizens and non-citizens in the pre-modern world While one must be careful not to draw unwarranted conclusions from selective historical and geographical examples, they can show that the use of citizenship as a political tool has far-reaching antecedents and that its meaning can change according to circumstances. Even a cursory historical examination of the status of migrants in relation to citizens indicates that both political and ethical considerations have long played a part in shaping the treatment of migrants and may help illuminate contemporary understanding of the concept of citizenship. A very brief exploration of citizenship and migration in the classical and medieval worlds also shows the erratic past of a concept which can sometimes seem timeless. Greek city states started to emerge in around the eighth century BCE, likely influenced by the practices of the Phoenicians, among other factors (Ferguson, 1991, p. 177). In the polis (city state), the institution of citizenship came to be important, though many inhabitants of city states and surrounding lands were not citizens. Aristotle explained that, in an ideal state, agricultural workers should be ‘slaves, or non-Greeks dwelling in the country roundabout’ (Aristotle, 1992). This was intended to enable citizens to be virtuous and to fulfil their citizenly role, while leaving labour to others. This persists today, where the high standards of living in wealthy states are often supported by the work of the poorest, including marginalized foreign labourers. Taran notes:

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Migrant labour has long been utilized in developed and underdeveloped economies as a low cost means of sustaining economic enterprises, and sometimes entire sectors that are only marginally viable or competitive. For example, migrant labour has been used in many countries to ensure low cost provision of agricultural produce, to provide domestic services, and to provide services in the ‘sex industry’. (Taran, 2000, p. 14) In ancient Greece and in ancient Rome, some non-citizens received special protections: those seeking refuge and those who held religious office, as well as traders, heralds and envoys (Phillipson, 1911, pp. 269, 271–272; Ferguson, 1991, p. 189). However, in both ancient Greece and Rome, non-citizens did not receive legal protection. This has parallels today, when good treatment of non-citizens depends on them being able to show entitlement to some special status, or membership of a state that is feared or is willing to intervene on their behalf. In ancient times, this was partially mitigated by the strong Roman and Greek cultural belief that protecting foreigners was required by the gods (Lillich, 1984, p. 21). Weissbrodt argues that this strong cultural protection arose because, in the absence of official respect for strangers, if it were not for hospitality foreigners would have been without any protection (Weissbrodt, 2008, p. 19). ) meant someone who ‘flees In ancient Arab society, mustajir ( his land seeking protection and welfare’, regardless of the reason. In the early Muslim state, this term came to refer to both Muslim and non-Muslim asylum seekers and refugees (Shoukri, 2008, p. 101), and it retains a similar meaning today (Faruqi, 1972). The two main under) and musta’min standings of migrant in Islamic Law, muhajir ( ( ), provide an interesting categorization of migrants. Muhajir refers ), that is, left one land for to anyone that has performed hijrah ( another, or cut ties with someone or somewhere (Elmadmad, 2008, p. 53). Given its connection to the Mohammedan Hijra, muhajir is often used to refer specifically to Muslim migrants, but hijrah seems in the literature to refer to refugees more widely. Musta’min literally means someone that has received aman ( ), that is, ‘safety, protection, safe conduct’ (Shoukri, 2008, p. 107). Historically, this was used for nonMuslim migrants entering the Muslim world. Today, aman is presented by one theorist ‘as the official or legal instrument by means of which protection is extended, not only to refugees and asylum seekers, but

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also to foreign traders, diplomats and visiting scholars’ (Al-Rahim, 2008, p. 20). This historically differentiated use of muhajir and musta’min prima facie implies an inherent distinction between Muslim and non-Muslim migrants akin to the initial exclusively European focus of the 1951 Refugee Convention. However, both groups were afforded at least the protections currently articulated in the 1951 Convention with its 1967 Protocol. A tension between three means of citizenship acquisition can be observed throughout historical discussions of citizenship. These are: • ius soli – citizenship acquired through attachment to a place • subjecthood – citizenship acquired through attachment to a ruling authority • ius sanguinis – citizenship acquired through descent or membership of particular ethnic groups. The priority given to different bases or criteria of citizenship has varied over time and place. It becomes an issue, as in the contemporary world, where there is mass migration, or as empires collapse or are reconstituted. The colonization and settlement patterns following the First Crusade highlight the complex relationship between tribal, imperial and locality affiliations. For example, the twelfth-century chronicler, Fulcher of Chartres, took part in the First Crusade as a member of the domus (or immediate retinue) of one of the crusade’s leaders, Godfrey of Bouillon. After the crusade Fulcher transferred his loyalties to Baldwin of Boulogne and thereby received a fief in Edessa (overlapping modern Syria, Turkey and Iraq) (Riley-Smith, 1983, 1988). Fulcher wrote, ‘we who were Occidentals now have been made Orientals, he who was a Roman or a Frank is now a Galilean or an inhabitant of Palestine. One who was an inhabitant of Rheims or of Chartres has now been made a citizen of Tyre or Antioch’ (Phillipson, 1911, p. 51). This suggests that the apparently historical and permanent connection of a people to a place is not certain or fixed. The affiliations to place that Fulcher describes derived from people whose initial allegiance was to a nobleman who led his followers to set up settlements in the Holy Land. These settlements, in the course of time, became places to which they developed an allegiance and from which they gained an identity as citizens. Geary has argued that a view of a people based on place stems from the Romans, and that it is their rejection of Herodotus’ description of a

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Europe of changing and evolving peoples in favour of a world of distinct peoples tied to geographical place that roots many modern nationalist problems in Europe. The alternative picture Geary paints of ancient Europe in the time of the Greek and Roman empires involves many peoples moving, jostling, forming alliances, conquering and disappearing, with changing customs and dress, speaking many languages and belonging to a variety of groupings (Geary, 2002, ch. 2).

4. Issues in contemporary citizenship In the last two decades, interest in citizenship has resurfaced in the face of large-scale international migration, increasing ethnic diversity within nation states and the growth of transnational institutions. Citizenship has increasingly come to represent social as well as legal and political rights, following the classic analysis by Marshall (1950). Yet it is precisely in the area of social rights that migrants often find themselves deficient. At the same time, the relevance of citizenship as the basis of rights has been called into question as dual nationality increases and international institutions set standards which have global referents. 4.1. Social rights and migration In 1950, T.H. Marshall criticized earlier work that held that ‘the inequality of the social class system may be acceptable provided the equality of citizenship is recognised’ (Marshall, 1950, p. 2). Marshall contended that the equality of citizenship does not mean much if other inequalities preclude an equal assumption of full citizenship (Marshall, 1950, p. 7). Taking England as his locus, he traced a three-part development of citizenship from the seventeenth to the twentieth centuries. While civil rights developed in the eighteenth century, representation and welfare were not given importance until the nineteenth century when political rights gradually increased. However, these were not fully realized until the next century. In England, voting for all men over 21 and all women over 30 in was instituted 1918, and women between the ages of 21 and 30 were only enfranchized in 1928. Marshall charts a progression in social rights in the twentieth century, so that eventually all three categories of rights came to hold the same status. Thus, while the apparent movements from subjecthood to citizenship occurred in England much earlier, it is only later that citizenship in its modern sense developed. Marshall describes how the usually described ‘second generation rights’ of social protection and welfare are in reality necessary for the full realization of ‘primary rights’ of political

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participation, so that until the full triumvirate of civil, political and social rights were available, any individual category of rights was of less value. Following Marshall, citizenship in developed countries today has certain core ‘hallmarks’, including numerous social as well as legal and political rights. Medjouba and colleagues (2008) describe these as including rights to freedom of movement, to a passport, to vote, to stand as a candidate in national and local elections, of access to public office and public service, to protection, to welfare benefits, to health care, to education, to employment, to housing, and to linguistic freedom and non-discrimination. They also include duties of allegiance: undertaking military or alternative service, paying taxes and national insurance contributions. One of Marshall’s most significant contributions to our understanding of citizenship was his perception that, without social rights, it was not possible for poorer citizens to benefit from civil and political rights. Subsequent writers have added other social divisions, especially those of race, ethnicity and gender as involving further inequalities which might lead to such exclusion (for example Lister et al., 2007; Castles and Davidson, 2000). The focus on exclusion is less concerned with whether or not a person is a citizen, but whether the social rights available actually address disadvantages produced by unequal social relationships of class, ethnicity, gender, or by other conditions such as age or disability. Although such social rights are not exclusively the preserve of citizens, their identification with citizenship makes migrants who lack citizenship in the country of destination potentially vulnerable, particularly as they are especially susceptible to social exclusion. This is a consequence of economic, social and political marginalization, including the effects of racism, but can also be due to state policies of ‘differential exclusion’ (Castles and Miller, 2003). This occurred formally in rules concerning guest workers in pre-unification West Germany, where immigrants were incorporated into the labour market but excluded from welfare, citizenship and political participation. However, the term can also be used to describe the position of undocumented migrants more generally (Schierup et al., 2006). In such cases the denial of citizenship is only part of a larger cluster of mechanisms which promote exclusion. The specific forms of exclusion faced by migrants can be seen as a consequence of how welfare and immigration regimes interact (Sainsbury, 2006), though this is not a given but itself a product of particular historical circumstances and accompanying social forces.

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During the 1990s much literature on migration in Europe focused on the coercive measures taken by states to segregate refugees not yet granted status, often denying them the right to work or to claim the same benefits as citizens (see for example Bloch et al., 2000). With a decline in numbers of asylum seekers but an increase in migrant workers, other measures involve excluding migrant workers who do not have particular skills and accompanying permits, restricting conditions for family formation or reunion in order to prevent permanent settlement, and strictly regulating the numbers of migrants entering, in terms of particular professions and skills. All this creates distinctions between ‘respectable’ (regular) migrants with work permits who are in work, refugees with status and those awaiting asylum decisions, and ‘illegal’ (irregular or undocumented) migrants – refused asylum seekers, overstayers, people who breach their conditions of stay by working more hours than permitted or illegally changing employers. In order to survive, undocumented migrants are thus forced to seek out work in unregulated sectors of the economy (Clandestino Project, 2009). Schierup and colleagues combine different categories of migrants and minority ethnic citizens in contemporary Europe: ‘people of immigrant and ethnic minority background who become trapped in the fragmented occupational ghettos of casualised labour in the post-Fordist service industries and in deregulated municipal services’ and others, ‘citizens of immigrant background subsisting on shrinking welfare in ethnically or racially segregated neighbourhoods’ (Schierup et al., 2006, p. 2). Others included undocumented migrant workers, contract labourers, asylum seekers and other kinds of working poor. Schierup and colleagues argue that these groups suffer a common ‘racialised exclusion’, which has been exacerbated by a retrenchment of public welfare. It is clearly not exclusion from citizenship per se which results in the conditions that Schierup and colleagues describe, but unequal social and economic spaces, which are the only ones available to the most vulnerable and marginalized people, among whom undocumented migrants figure prominently but by no means exclusively. Deregulation of economic activity has helped to create increasingly segregated labour markets, where the least regulated segment is most attractive to those workers who command the least rights. As migration becomes more and more restricted and controlled, irregular migrants with little chance of regularization are likely to occupy precarious jobs in the most unregulated sectors of the economy (Clandestino Project, 2009).

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Migrants are often further excluded by language. Until a critical mass of migrants can effectively create a language of equal or almost equal social and political importance, migrants who do not know the language of the destination country inevitably remain at a disadvantage. Language is one of the most potent markers of cultural difference, but bi- or multilingualism is entirely compatible with a pluralist framework. Yet the requirements to learn the language of the country of destination as a precondition for acquiring citizenship, without concomitant provision and funding, can be exclusionary rather than integrative, particularly to women in some communities (Lister et al., 2007). A study by Gill and colleagues, of three minority groups in England (Indian, Pakistani, Chinese), found that women and older people are particularly disadvantaged regarding local language competency. This necessarily limits them in their access to social rights and also serves to disenfranchise them, as individuals from these groups cannot participate politically (Gill et al., 2009). One Bangladeshi academic has described the ‘shelter’ of the family and home as an ‘enforced dependence on men both for protection and provision’ (Huq, 2005, p. 169). A lack of language skills, where the new language is essential for daily tasks, reinforces this dependence. Suppressing the languages of subordinate groups has historically often been used as a strategy of domination, as can be seen at different times with the British suppression of Irish-medium education in the nineteenth century or the Turkish suppression of the Kurdish language. In Latvia, after the break-up of the Soviet Union, citizenship laws contained stringent language requirements for naturalization, thus excluding much of the large ethnic Russian population who had been forcibly relocated there under Stalin (Schmid, 2008).

4.2. Increasing transnationalism Changing relations within and between states since the mid-twentieth century have prompted a great deal of debate about changes in the meanings of citizenship. Kivisto and Faist (2007), reviewing recent debates on citizenship, discuss contrasting views that the ‘efficacy and salience’ of citizenship is either expanding or eroding. Some argue that neo-liberal forces are shrinking the welfare state and the social rights of citizenship contained in it, while others see citizenship as becoming progressively more inclusive in terms of the rights granted to women and minorities. It has also been suggested that the nation state has become less significant with the development of transnational bodies such as the

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United Nations and World Trade Organization or the European Union, and the development of international human rights standards. Several international and transnational groups of states have developed since the Second World War. The League of Arab States, formed in 1945, offers freer movement for citizens of member states: so, for example, the Syrian government classifies people entering the country as nationals, Arab non-nationals and non-Arab non-nationals. This has enabled discrimination against non-Arab groups, such as the Kurdish minority, though facilitating freer movement of Arabs. An advantage for Arabs of this freer movement can be seen in Syria’s response to the Iraqi displacement crisis after the hostilities in that country began in 2003. Syria hosts over a million new Iraqi migrants and has offered schooling and health care to large numbers. The African Union has discussed the possibility of a form of African citizenship that could sit alongside national citizenships (African Union, 2004). There have also been suggestions of some sort of secondary citizenship arrangement for the African diaspora (African Union, 2005). The European Union also has special arrangements for citizens of other European member states, described as ‘second country nationals’, as opposed to ‘third country nationals’. The EU is widely considered to be the most integrated and extensive regional international body (for example Medjouba et al., 2008, p. 8). The 1991 Maastricht Treaty discussed the notion of a new EU citizenship, which was more clearly elaborated in the 2007 Lisbon Treaty. Consequently, many of the hallmarks traditionally associated with citizenship, like health care, freedom of movement and settlement, employment and the right to vote, are now available to citizens across EU member states. Sabates-Wheeler and colleagues highlight the EU as a model for the portability of social protection across national boundaries (see Chapter 3). While the benefits for citizens of such groupings may be huge, the consequences for non-citizens are less clear. Some commentators see developments like the EU, combined with an increased emphasis on individual human rights, as making national citizenship less important in the contemporary world, and so enabling foreigners to acquire similar rights to those of citizens (Soysal, 1994). On the other hand, the increased integration of states within regional associations like the EU has been accompanied by greater protection of the external border. This can be seen, for example, in the strong border controls around the EU, leading to what is often termed ‘Fortress Europe’, and a denial of citizenship and other rights to people who are outside it.

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4.3. Dual citizenship Widespread dual citizenship is recent and increasing dramatically (Sejersen, 2008, p. 531). The 1930 Hague Convention stated that ‘every person should have a nationality and one nationality only’. From then, and throughout the Cold War, dual citizenship was perceived as a possible threat to national security (Dahlin and Hironaka, 2008, p. 54). However, by 2000, one study showed that 89 countries recognized some form of dual citizenship (quoted in Dahlin and Hironaka, 2008), and in Serjensen’s 2008 study, only 28 of the 115 countries studied never allow dual citizenship. Historically, opposition to dual citizenship centred mainly on fears of divided loyalties. The increased acceptance of dual citizenship has been attributed to varied factors including the dissolution of old empires, and, particularly, increased immigration and the concomitant dualities of migrants’ orientation (Vertovec, 2004). Moreover, governments in migrants’ countries of origin have an interest in retaining their citizens who have naturalized elsewhere, to maintain remittances and investments (Kivisto and Faist, 2007). Dual nationality may have also become more common as a result of growing gender equality, which has increasingly equalized the terms for women of acquiring citizenship, and has enabled children to take the nationality of both parents (Kivisto and Faist, 2007, p. 108). As international human rights have become more significant, states’ treatment of citizens and non-citizens has had to become increasingly similar, making dual nationality less threatening to individual states (Kivisto and Faist, 2007). If this is true, it suggests that, paradoxically, states are being forced to treat residents more equally, which may partially explain the increased efforts on the part of many states to exclude non-citizens, and greater differentiation between citizens and non-citizens. Recent changes in British nationality and immigration laws, for example, represent harsher exclusionary measures against some migrants while others are constructed as ‘probationary citizens’ allowing them limited yet growing rights. At the same time, some states have refused to accept dual citizenship for historic political reasons, primarily to resist the real or feared persistence of colonial influence (Dahlin and Hironaka, 2008). This can be seen in states of the Baltic. For example, in Estonia, many ethnic Russians have been stateless since its independence in 1991, and in Latvia over 365,000 people remain stateless as a result of nationality laws which excluded ethnic Russians. Many of them had lived in Latvia all their lives but had not obtained Russian citizenship, and after the

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break up of the Soviet Union could not get Latvian citizenship either (Forced Migration Review, 2009, p. 27; Goris et al., 2009).

5. The rights of non-citizens in a scenario where borders are taken as given, membership is assumed, and outsiders are invisible. – Goodwin-Gill (2007, p. 170) Hannah Arendt defined citizenship as ‘the right to have rights’, acknowledging that in the twentieth century certain protections and benefits are only available to someone with the status of citizenship. This is seen most clearly when we consider those without such a right. Thus, ‘although national rights theories granted every individual rights at birth, these rights could only be recognized and enforced in a practical way through membership in a state, which alone could prescribe the criteria for membership’ (Weissbrodt, 2008, p. 25). Although there are many rights-conferring statuses that can be held by non-citizens, where citizenship is used as a basis for eligibility to public services and other benefits, non-citizens need to demonstrate other claims to rights or protection. In situations where the central state lacks power, citizenship may be less significant for accessing political or social rights, giving noncitizens power. In some cases, individuals are able to bypass citizenship requirements for benefits. This occurs in Kamal Sadiq’s discussion of irregular migrants in Malaysia who obtain the ability to vote by way of criminal networks and financial influence, while many poor Malaysian citizens remain unable to vote. This skews electoral politics in the country, as government policies become increasingly favourable to irregular migrants, further consolidating the power of the irregular migrant vote and in turn the criminal networks that enfranchised them (Sadiq, 2005). John Wheeler shows how some Brazilian favelas function almost as if independent states, controlled by the ‘poder paralelo’ (‘parallel power’) of drug trafficking groups (Wheeler, 2005, p. 101). This has led to increased irrelevance of formal political rights for the poor. Wheeler’s interviews with favela residents indicate that they do not associate citizenship with national identity, individual rights or the democratic process, but focused on their family or community and access to services needed for daily life. Dignity was also important, with 74 per cent of his interviewees reporting this as ‘citizenship’s most important characteristic’ (Wheeler, 2005, p. 109).

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International obligations do not require a state in which a non-citizen is present to ensure the full range of his or her human rights. To claim protections, non-citizens must prove eligibility or ‘desert’ (merit) by virtue of some other rights-conferring status, such as worker, woman or refugee (or, sometimes, citizen elsewhere). They can then claim protections of rights in virtue of this status. This can be shown through the example of refugee status. The 1951 Convention relating to the Status of Refugees (the Geneva Convention) allocates someone a status they can use to claim preexisting human rights against a particular state or body, supporting the view that a person is presumed rights-less in a state unless he or she can prove otherwise. Accompanying eligibility is desert. While citizens are presumed deserving of services in virtue of their status, non-citizens may have to prove this. For example, the right to work is usually only available to non-citizens who can prove they meet certain criteria applicable only to them, while it is available to citizens on the basis of more universal criteria such as age. Similarly, while citizen criminals are released after serving their sentence, non-citizen criminals are often either deported or re-detained as it is commonly presumed that non-citizen criminals ought to be elsewhere (London Detainee Support Group, 2009). Principles of double jeopardy or of completing a punishment seem to be thought not to apply in their case. David Weissbrodt (2008) offers an important and sustained analysis of the international position of non-citizens. He notes the absence of international agreements, treaties or conventions relating to non-citizens per se. Weissbrodt is concerned at their resulting vulnerability, arguing: ‘It is useful to see the human rights of non-citizens not as an amalgamation of the rights of various non-citizen subgroups (refugees, asylum seekers, migrant workers, and so on), but rather as a unified domain’ (Weissbrodt, 2008, p. 5). He argues that it is preferable to consider the rights of non-citizens as a distinctive group, rather than obscuring their common situation by focusing discussion on non-citizen subgroups. Although the general franchise is usually not available to non-citizens, a range of benefits are bestowed on many non-citizens in many states, although there are important variations as to their universality and accessibility. Many restrictions are imposed on the basis of residence and other criteria (see Sabates-Wheeler, Koettl and Avato, Chapter 3). Hammar (1990) has suggested an additional status of denizen to characterize foreigners with legal and permanent residence status. Owen (2010, pp. 55–58) lists countries where even voting rights are available to different degrees to non-citizens. However, there are also numerous examples

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of non-citizens denied basic benefits. Indeed, ‘virtually all categories of non-citizens encounter racism and xenophobia; difficulty realizing all their economic, social, and cultural rights, particularly the right to work, the right to education, and the right to health care; difficulty obtaining identity documents; and the lack of means to challenge effectively or have remedied violations of their human rights’ (Weissbrodt, 2008, p. 17). In the absence of a meaningful status applicable to all noncitizens, there is no official protection of these rights. In this sense it is possible to describe non-citizenship as a non-status: as a condition of having no status, of being particularly vulnerable. International human rights declarations take the rights of citizens as a reference point. Statelessness, by being the most extreme type of ‘noncitizenship’, provides a useful indication of the rights which citizens enjoy and take for granted. Stateless people cannot vote or participate in the political process. They are likely to be excluded from employment, education, social services, and public health services or health insurance. They cannot travel and may live in constant fear of expulsion. In some states they may be subjected to indeterminate periods of detention if they have been refused asylum because they cannot be removed to any country (Gibney, 2009). The effects of statelessness can be mitigated either by the grant of citizenship in a new country or by acquiring denizen rights associated with residence and permanence. However, stateless people may actually find it hard to obtain these statuses because their stateless status has prevented them from meeting the required criteria. Similar examples can be found in the UK where people who have lived in the UK legally or illegally for 14 years or more and who have not been convicted of a criminal offence may be granted indefinite leave to remain or settlement. Such long-term residents often find it practically or psychologically impossible to return to their country of origin. However, because they have not had legal residence status (and therefore many rights) for a long time, if they become ill or become unemployed, they are ineligible for benefits. They are thus frequently destitute by the time they are able to apply for settlement and cannot then afford the fees required by the Home Office.2 These kinds of situations illustrate how Weissbrodt’s concept of noncitizens’ absence of status can express itself in practice. Migrant workers and refugees are in principle protected by international conventions, but, as we see below, refugee status is hard to achieve, and international conventions on migrant workers’ rights have little clout and little support among migrant-receiving states.

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5.1. The rights of refugees The idea of respecting universal human rights has, in recent years, become increasingly accepted as a basic principle of conduct and of citizenship rights, although, how human rights should be interpreted and legislated for in practice in individual states has been highly contested. In relation to non-citizens and migrants, nevertheless, human rights instruments have sometimes been successfully invoked to protect migrants either from expulsion from their current country of residence or from exclusion from social protection there. However, the incorporation of human rights into international instruments only began in the twentieth century as wars and revolutions led to the dismantling of European and global empires and created population movements and statelessness on a huge scale. The League of Nations, set up in the aftermath of the First World War, had drafted treaties offering protections and rights of entry to various specific groups of ‘refugees’ – Russians (1926), Armenians (1928), Germans (1933), perpetuating the ideal of nation state that had entered at the time of the Enlightenment. After the Second World War, however, the scale of displacement was of a new magnitude. Europe itself had more than 10 million displaced persons and the partition of India and Pakistan in 1947 left swathes more people suddenly displaced. The United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) in 1948. The UDHR gave rights, not only to states, but to individuals within sovereign states, which made two important new claims in relation to non-citizens. First, that there are rights that individuals should have, irrespective of which state they happen to live in. This means that outside agencies can legitimately judge a state’s behaviour towards its own citizens. Second, it recognized the right of people to freedom of movement, and to asylum in other countries. This was an acknowledgement of a moral requirement that states accept people fleeing persecution and observe certain obligations towards them. However, it was still vague as to how this was to be manifested. The Universal Declaration of Human Rights included a right to nationality in response to the massive population movements and ‘denationalisations’ stemming from the Second World War (Goris et al., 2009). Hundreds of thousands of Jews who survived the war fled from their home countries, millions of ethnic Germans were expelled from Eastern European states, and millions more members of minority populations fled or were expelled from the Soviet Union. While some of these

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were accepted by other countries as refugees, others remained stateless for many years. The Geneva Convention laid out a new definition of refugee status which referred to events before 1951. This was extended by a Protocol in 1967, which removed earlier spatial and temporal constraints on claiming refugee status. The definition of a refugee in the Geneva Convention is: Someone who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it. (United Nations, 1951, 1967) The Geneva Convention assured certain protections to refugees in relation to issues such as housing, education, social security and employment rights. These were to be equivalent to those of citizens. There is no equivalent international instrument covering protections for other non-citizen groups. However, in 1966, two further human rights instruments were adopted by the UN General Assembly – the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights were adopted (United Nations, 1966a, 1966b). These introduced broader basic rights than the UDHR and, more importantly, had a stronger legal status. Both reiterated the nation state ideal, yet the International Covenants on Civil and Political Rights proclaimed that a state must respect the rights of ‘all individuals within its territory’, irrespective of ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Part II, Article 2 (1)). Reference to national origin and birth status, in particular, indicate that the rights in these conventions are intended for non-citizens as much as for citizens. The Geneva Convention is necessarily limited to people who have fled human rights abuses and who fall within the categories identified in the Convention, or within the definition of ‘a particular social group’. Increasing attention to issues such as rape and violence against women have raised further questions of how far women can be construed as a social group, and the value of adding a concept of gender persecution

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to the Convention (Crawley, 2000; Anker, 2002). Women and others fleeing persecution on grounds which are not interpreted in the destination state as falling within the remit of the Convention are likely to be denied protection and the concomitant rights it offers. Nevertheless, despite these and other limitations, the Convention is a crucial instrument recognizing the rights of states as they relate to a particular category of non-citizens.

5.2. The rights of migrant workers It was estimated that approximately 86 million of the world’s 175 million international migrants in 2004 were economically active. Women, most of whom now migrate as primary income earners, comprise about half of all migrants (International Labour Conference, 2004). Yet international Convention rights for migrant workers are much less recognized than those pertaining to refugees, despite several major concerns being widely recognized by many authorities including international human rights, legal and church organizations and the International Labour Organization, as well as academic authors and NGOs (Taran, 2000; Clandestino Project, 2009). Such concerns include, particularly, the many hardships faced by migrant workers, especially low wages, poor working conditions, virtual absence of social protection, denial of freedom of association and workers’ rights, discrimination, xenophobia and social exclusion. There are gaps between national and regular migrant workers in terms of working conditions and treatment at work as well as in wages, job security and unemployment rates (International Labour Conference, 2004). Both the International Labour Organization (ILO) and other authorities have drawn attention to the particular problems of irregular migrants, partly encompassed in the epithet ‘three-D’ jobs – dirty, demeaning and dangerous (Taran and Geronimi, 2003). The Clandestino Project argued that irregular migrants have the least access to social rights and are thus particularly vulnerable and most at risk of poverty and social exclusion. They also find themselves in the most exploitative work situations (Clandestino Project, 2009, pp. 18–19). Irregular migrants often have few opportunities to regularize their status. It is also suggested that fee-charging recruitment agencies profit from the prevalence of irregular migration, with many engaging in unethical practices (International Labour Conference, 2004). Recognition of migrant workers as a distinct category goes back to the founding of the ILO in 1919, with ‘the protection of the interests of

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workers when in employed in countries other than their own’ explicitly set out in the preamble to its Constitution (ILO, 1919, Constitution). It passed two conventions relevant to migrant workers in 1949 and 1975, the first, the Migration for Employment Convention, 1949 (No. 97), demanding equal treatment between national and regular migrants with respect to legal issues concerning employment practice, procedures and conditions. It also included reference to living standards, and access to justice, tax and social security regulations. The second, the Migrant Workers (Supplementary Provisions) Convention (No. 143), was adopted in response to increased concern about irregular migration (Taran and Geronimi, 2003). These conventions formed the basis of the 1990 UN International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (United Nations General Assembly, 1990) This is regarded as one of the fundamental human rights instruments defining basic universal human rights (Taran, 2000). Taran (2000, p. 17) attributes the importance of this Convention to seven key points – that it: 1. sees migrant workers as people with rights 2. recognizes migrant workers’ lack of protection either in their own state or in the state of residence 3. provides an international definition of migrant workers and international standards of treatment of the human rights of migrant workers and their families 4. extends fundamental human rights to both documented and undocumented migrant workers, with additional rights accruing to documented workers 5. seeks to prevent and eliminate exploitation of all migrants by ending irregular movements and situations 6. seeks to establish universally acknowledged minimum standards of protection for migrant workers and their families. 7. would, if fully implemented, provide significant protection for all migrants, especially those with irregular status. In spite of its importance and despite a Global Campaign launched in 1998 to obtain the requisite ratification by 20 countries, it took over 12 years from the Convention’s adoption to its becoming legally binding. This was finally achieved in 2003, and the Convention has now been ratified by 42 states, though there is not one Western state among them (UN Treaty Collection, 2010).

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In 1998 the ILO adopted an alternative declaration, ‘Fundamental Principles and Rights at Work’ (ILO, 1998), committing all member states to “respect and promote principles and rights in four categories, whether or not they have ratified the relevant convention” (ILO, 2010, our emphasis). These categories are: freedom of association and recognition of the right to collective bargaining, elimination of compulsory and forced labour, abolition of child labour, and elimination of discrimination in respect of employment or occupation. Reviewing studies which considered why so few states had signed the 1990 Convention, Taran (2000) suggested that the most important reasons were a lack of awareness and knowledge of the Convention, partly consequent on a failure to promote it, but more significantly because of a lack of political will on the part of governments to protect the rights of migrants. One study he discusses suggested that the Convention was adopted in a time of growing unemployment and a relatively hostile climate towards foreigners, where governments felt that the Convention was incompatible with their policies on immigration.3 Another author Taran discusses, Richard Cholewinski, argued that despite the Convention’s underlying aim to end illegal migration, governments saw it as granting rights to illegal migrants, and that in a climate of growing economic disparity between rich and poor nations, and with migrants of different racial and cultural backgrounds, there was little political sympathy on their behalf.4 In other words, governments of receiving countries were inclined to pander to racism rather than to protect migrants’ rights. Although both the Convention and other ILO documents encourage regularized migration, this creates contradictions for those, including the ILO itself, who are seeking to promote the rights of irregular workers. Vollmer has argued that the discourse on irregular migration focuses on the ‘threat’ it poses, and subsumes it under trafficking and human smuggling, thus both stigmatizing and criminalizing irregular migrants (Vollmer, 2009). At the same time migrants’ rights advocates continually stress the ‘marginalisation and vulnerability’ of irregular migrants and argue for more protection. The problem is how to achieve it. For example, a recent ILO report calls for discussion on actions to ‘be taken against unscrupulous employers who employ migrant workers in irregular status in the informal economy’ (International Labour Office, 2008). However, a study of migrant workers affected by the ‘civil penalty regime’ in which the UK government has increased the penalties for employers of undocumented migrants suggests that the system is contributing to increasing vulnerability of undocumented migrants to mistreatment by unscrupulous employers. In addition the policy is

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being enforced in a discriminatory manner, especially affecting minority ethnic employers with small businesses (Migrants’ Rights Network, 2008). The authors argue for regularization rather than punitive measures to reduce the numbers of undocumented migrants and to protect them from over-exploitation.

6. Conclusion Nadine Gordimer’s Nobel Prize-winning novel, The Pickup, describes how Julie Summers, a wealthy white South African and Ibrahim ibn Musa, an irregular migrant from an undisclosed Arab state, fall in love (Gordimer, 2001). Unable to remain in South Africa because Ibrahim is to be removed, and unable to gain access elsewhere, they travel to his home country, where Julie now becomes the non-citizen. Throughout the novel, despite her efforts, Julie is advantaged by her citizenship, her social class and her race, while Ibrahim, despite his efforts, is disadvantaged by his citizenship, his social class and his race. The meaning of citizenship and its relationship to human rights is different depending on country of origin, country of presence, class, employment status and many other factors. This chapter has shown that, while the status of citizen does not protect all citizens equally, and minority groups can be excluded from significant rights of citizenship, the non-status of non-citizen does not currently offer any protection at all until some other status can be proven – and for those irregularly present proving such status is particularly difficult.

Notes 1. Discussions around California’s Proposition 187 give an interesting insight into this. 2. This example is based on personal communication from Hackney Migrant Centre. 3. S. Hune and J. Niessen (1994) ‘Ratifying the UN Migrant Workers Convention: Current Difficulties and Prospects’, Netherlands Quarterly of Human Rights (cited in Taran, 2000). 4. Cholewinski, R. (1997) Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (Oxford: Clarendon Press) (cited in Taran, 2000).

References African Union (2004) Strategic Plan of the Commission of the African Union Volume 3: 2004–2007 Plan of Action:Programmes to Speed up Integration of the Continent, (Addis Ababa: African Union), May 2004.

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African Union (2005) ‘Report of the Meeting of Experts from Member States on the Definition of the African Diaspora’, (Addis Ababa: African Union), Ethiopia, April. Al-Rahim, M. (2008) ‘Asylum: a moral and legal right in Islam’, Refugee Survey Quarterly, 27, 15–23. Anker, D. (2002) ‘Refugee law, gender, and the human rights paradigm’, Harvard Human Rights Journal, 15, 133–154. Aristotle (1992) The Politics in Aristotle the Politics, trans by Sinclair, T. and revised by Saunders, T. (London: Penguin Books). Bloch, A., Galvin, T. and L. Schuster (2000) ‘Editorial introduction’, Journal of Refugee Studies, 13(1), 1–10. Bosniak, L. (2007) ‘Being here’, Theoretical Inquiries in Law, 8(2), 389–410. Broeders, D. and G. Engbersen (2007) ‘The fight against illegal migration: identification policies and immigrants’ counterstrategies’, American Behavioral Scientist, 50(7), 1592–1609. Carens, J. (2008) ‘The rights of irregular migrants’, Ethics and International Affairs, 22, 163–186. Castles, S. and A. Davidson (2000) Citizenship and Migration (New York: Palgrave Macmillan). Castles S. and M. Miller (2003) The Age of Migration (Basingstoke: Palgrave Macmillan). Clandestino Project (2009) ‘Undocumented Migration: Counting the Uncountable. Data and Trends Across Europe’, Final Report, available at: http:// clandestino.eliamep.gr/ (accessed 3 April 2010). Cole, P. (2010) ‘Border crossings – the dimensions of membership’, in Calder, G., P. Cole and J. Seglow (eds) Citizenship Acquisition and National Belonging (Basingstoke: Palgrave, 2009). Crawley, H. (2000) ‘Gender, persecution and the concept of politics in the asylum determination process’, Forced Migration Review, 9, 17–20. Crowley, J. (2005) ‘Where does the state actually start? The contemporary governance of work and migration’, in Bigo D. and E. Guild (eds) Controlling Frontiers: Free Movement into and Within Europe, 140–160, (London: Ashgate). Dahlin, E. and A. Hironaka (2008) ‘Citizenship beyond borders’, Sociological Inquiry, 78(1), 54–83. De Guchteneire, P. and A. Pécoud (2009) ‘The UN convention on migrant workers’ rights’, in De Gucheteniere, P., A. Pécoud and R. Cholewinski (eds) Migration and Human Rights (Cambridge: Cambridge University Press, with UNESCO), pp. 1–44. Elmadmad, K. (2008) ‘Asylum in Islam and in modern refugee law’, Refugee Survey Quarterly, 27, 51–63. Faruqi, Harith S. (1972) Faruqi’s Law Dictionary Arabic-English (Beiruth: Librairie du Liban). Ferguson, Y. (1991) ‘Chiefdoms to city-states: the Greek experience’, in Earle, T. (ed.) Chiefdoms: Power, Economy and Ideology (Cambridge: Cambridge University Press), pp. 169–192. Forced Migration Review (2009) ‘Statelessness around the world’, Forced Migration Review, 32. Geary, P. (2002) The Myth of Nations: The Medieval Origins of Europe (Princeton, NJ: Princeton University Press).

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Gibney (2009) ‘Statelessness and the right to citizenship’, Forced Migration Review, 32, 50–51. Gill, P., A. Shankar, T. Quirke and N. Freemantle (2009) ‘Access to interpreting services in England: secondary analysis of national data’, Public Health, 9, 12. Goodwin-Gill, G. (2007) ‘Migrant Rights and “Managed Migration” ’, in Chetail, V. (ed.) Mondialisation, Migration et droits de l’Homme: le droit international en question II (Bruxelles: Bruylant), pp. 161–187. Gordimer, N. (2001) The Pickup (London: Bloomsbury). Goris, I., Harringron, J. and S. Köhn (2009) ‘Statelessness, what it is and why it matters’, Forced Migration Review, 32, 4–6. Hammar, T. (1990) Democracy and the Nation-State: Aliens, Denizens and Citizens in a World of International Migration (Aldershot: Gower). Huq, S. (2005) ‘Bodies as sites of struggle’, in Kabeer, N. (ed.) Inclusive Citizenship (London: Zed Books), pp. 164–180. International Labour Organisation (1919) Constitution, available at: http://www. ilo.org/ilolex/english/constq.htm (accessed 30 April 2010). International Labour Organisation (1998) Declaration on Fundamental Principles and Rights at Work, available at: http://www.ilo.org/declaration/thedeclaration/ textdeclaration/lang--en/index.htm (accessed 30 April 2010). International Labour Organisation (2010) Programme for the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work available at: http:// www.ilo.org/declaration/lang--en/index.htm (accessed 30 April 2010). International Labour Conference (2004) Provisional Record 22 Ninety-second Session, Geneva, available at: http://www.ilo.org/public/english/standards/relm/ ilc/ilc92/pdf/pr-22.pdf. International Labour Organisation (2008) Migration, Human Rights and Development: Protecting the Rights of Migrant Workers – A Shared Responsibility, Global Forum on Migration and Development, Manila, 27–30 October 2008. Kivisto, P. and T. Faist (2007) Citizenship: Discourse, Theory, and Transnational Prospects (Oxford: Blackwell Publishing). Lillich, R. (1984) The Human Rights of Aliens in Contemporary International Law (Manchester: Manchester University Press). Lister, R., and F. Williams et al. (2007) Gendering Citizenship in Western Europe (Bristol: Policy Press). London Detainee Support Group (2009) Detained Lives: The Real Cost of Indefinite Detention (London: London Detainee Support Group). Marshall, T. H. (1950) ‘Citizenship and Social Class’, in Marshall, T. H. and T. Bottomore (eds) (1992) Citizenship and Social Class (London: Pluto Press), pp. 1–51. Medjouba, F., J. Stefanelli and M. Sanchez (2008) The Rights and Responsibilities of Citizenship (London: British Institute of International and Comparative Law). Migrants’ Rights Network (2008) Papers Please (London: Migrants’ Rights Network). Miller, D. (2008) ‘Irregular migrants: an alternative perspective’, Ethics and International Affairs, 22, 193–197. Owen, D. (2009) ‘Resident aliens, non-resident citizens and voting rights: towards a pluralist theory of transnational political equality and modes of political belonging’, in Calder, G., P. Cole and J. Seglow (eds) Citizenship Acquisition and National Belonging (Basingstoke: Palgrave), pp. 52–73.

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Phillipson, C. (1911) The International Law and Custom of Ancient Greece and Rome vol.II (London: Palgrave Macmillan). Riley-Smith, J. (1983) ‘The motives of the earliest crusades and the settlement of Latin Palestine, 1095–1100’, English Historical Review, 98, 721–736. Riley-Smith, J. (1988) ‘The Latin clergy and the settlement in Palestine and Syria, 1098–1100’, Catholic Historical Review, 74(4), 539–557. Sadiq, K. (2005) ‘When states prefer non-citizens over citizens: conflict over illegal immigration into Malaysia’, International Studies Quarterly, 49, 101–122. Sainsbury, D. (2006) ‘Immigrants’ social rights in comparative perspective: welfare regimes, forms of immigration and immigration policy regimes’, Journal of European Social Policy, 16, 229–244. Schierup C. U., P. Hansen and S. Castles (2006) Migration, Citizenship, and the European Welfare State (Oxford: Oxford University Press). Schmid, C. (2008) ‘Ethnicity and language tensions in Latvia’, Language Policy, 7, 3–19. Sejersen, T. (2008) ‘I vow to thee my countries’, International Migration Review, 42(3), 523–549. Shoukri, Arafat M. (2008) ‘Refugee status in the Arab and Islamic tradition’, PhD Thesis, SOAS. Soysal, Y. (1994) Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago, IL and London: University of Chicago Press). Taran, P. (2000) ‘Human Rights of Migrants: Challenges of the New Decade’, International Migration, 38(6), 7–51. Taran, P. and E. Geronimi (2003) Globalization, Labour and Migration: Protection is Paramount (Geneva: International Labour Office, International Migration Programme). United Nations High Commission for Refugees (UNHCR) (1951, 1967) Convention and Protocol Relating to the Status of Refugees, available at: http://www.unhcr.org/ 3b66c2aa10.html (accessed 27 April 2010). United Nations (1966a) International Covenant on Civil and Political Rights, available at: http://www.hrweb.org/legal/cpr.html (accessed 27 April 2010). United Nations (1966b) International Covenant on Economic, Social and Cultural Rights, available at: http://www2.ohchr.org/english/law/cescr.htm (accessed 27 April 2010). United Nations (2009) Department of Economic and Social Affairs, Population Division Trends in International Migrant Stock: The 2008 Revision (United Nations database, POP/DB/MIG/Stock/Rev.2008), available at http://esa.un. org/migration/ (accessed 27 April 2010). United Nations General Assembly (1990) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, available at: http://www2.ohchr.org/english/law/cmw.htm (accessed 27 April 2010). Vertovec, S. (2004) ‘Migrant transnationalism and modes of transformation’, International Migration Review, 38(3), 970–1001. Vollmer, B. (2009) Political Discourses on Irregular Migration in the EU, CLANDESTINO Policy Brief, available at: http://clandestino.eliamep.gr/policy-briefs/ (accessed 3 April 2010). Weissbrodt, D. (2008) The Human Rights of Non-Citizens (Oxford: Oxford University Press). Wheeler, J. (2005) ‘Rights without citizenship?’, in Kabeer, N. (ed.) Inclusive Citizenship (London: Zed Books), pp. 99–113.

2 Structures of Access to Social Provision for Migrants∗ Ian MacAuslan and Rachel Sabates-Wheeler

1. Introduction Low-income migrants are often more vulnerable and have poorer access to social provisioning than low-income non-migrants. The ethical and legal arguments for the right or entitlement of migrants to social provision have been discussed in Chapter 1. In this chapter we start from the hypothesis that being entitled or having a right to social provision does not guarantee that it is actually received. Of course, receiving welfare provision depends on formal entitlements specified in international and national laws, regulations and policies. Provision can be granted, denied, controlled and obscured at this level. However, successfully claiming social provision in practice turns on the way that individuals (formally entitled or not) are able to leverage opportunities for accessing resources. This hypothesis implies that getting the formal rules right is not enough. A rigorous understanding of access must examine not only formal rules of entitlement, but also the distributional mechanisms through which that entitlement is provided, as well as the negotiations and bargaining that take place around those rules between claimants, rulesetters and providers (such as employers, administrators, friends and family). Even where migrants are formally entitled to social provisioning (and often they are not), they have unequal access for various reasons. Unequal access leads migrants to secure social provision from a range of sources: from the market, and from non-market distributions, including public distributions, and charity or network-based relations. Using illustrative examples specific to migrants, this chapter develops a framework for analysing access to each type of source. 61

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2. The basic components of an access framework This chapter proposes a theoretical framework for analysing migrants’ access to social provisioning. The foundation of this framework is a recognition that in practice people lack equal access to productive opportunities and social provisioning. Differential endowments and imperfections in markets for goods, services and labour combine, in almost every society, to regularly and repeatedly exclude some groups and individuals (often including migrants) from both productive opportunities and social provision, despite their formal entitlements to both. Delivering effective social provisioning for vulnerable groups and individuals, such as migrants, requires a deeper understanding of the structures that underlie this exclusion. Our framework begins from two claims. First, individuals everywhere face threats (or risks) from various sources which affect their ability to provide adequately for themselves and those who depend on them. Second, inequalities in endowments and in access to human, financial and physical capital – and the associated inequalities in confidence and self-esteem – produce unequal outcomes that increase the frequency and negative consequences of these threats for those individuals and groups with poorer endowments and access. These threats to livelihood and the injustices of unequal opportunity and outcome motivate social provisioning, in order to protect people from threats and to reduce inequality. Social provisioning, or what is (often pejoratively) referred to as welfare, relates to the provision of goods, services to protect people from, and prevent, the negative livelihood impacts of risk, and to reduce structural inequalities in opportunity. Consider three approaches to understanding social provisioning. Social provisioning can be seen as motivated by an ethics that condemns the unfairness of inequality (Rawls, 1971) and the injustice of some individuals and groups having significantly different levels of insecurity of livelihood than others (Sen, 2009). In another way, social provisioning that produces security and welfare can be seen as a ‘necessary supplement’ of the very social-political-economic world that generates these threats and inequalities: insecurity and ‘ill-fare’ (Bevan, 2004; Gough et al., 2004). By distributing some of the fruits of that world and maintaining a workforce in reasonable health, skill and contentment (at least content to the point of not radically challenging the status quo), social provisioning sustains the world that makes social provisioning necessary in the first place (Polanyi, 1944). Third, social provisioning can be

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analysed as another type of resource potentially available in this insecure world – susceptible to the same inequalities and problems of access and requiring the same negotiation and contestation. These three ways of understanding social provisioning are not mutually exclusive, but suggest different approaches to the analysis of the distribution and receipt of provisioning. The ethical understanding typically analyses recipients as members of a group that confers certain entitlements, whether as a citizen of a nation state with legal rights to shared state resources or as a human with universal rights to a minimum level of well-being. If, however, social provisioning is seen within a world that generates inequality and threat, and particularly if social provisioning is seen as a resource that must be negotiated, why should we expect access to social provisioning to be unproblematic, equal or fair? Even if we can show that all citizens or humans should be eligible for provisioning, this does not mean that all citizens or humans actually receive provisioning, in an equal way, or receive provisioning according to their needs (rather than the needs of the dominant economic system). To the contrary, there is a mass of evidence suggesting that social provisioning is not equally distributed and that it is in fact quite poorly distributed according to need. For example, it is found that the actual acquirers from nonmarket distribution systems are often not the intended beneficiaries: the ‘rich’ embezzle food distributed for the ‘poor’, homeless individuals are rarely included in cash distribution programmes (Dorward et al., 2006), and children who do not attend school are not provided with nutritional supplements (Britto, 2005). Case studies throughout this book give examples of migrants often receiving worse provisioning than non-migrants, despite greater specific need. Our theoretical framework therefore focuses on the difference between eligibility and actual access to social provisioning. Our framework accommodates the wide range of sources and distribution systems of social provisioning. Social provisioning includes tax-funded benefits, emergency food aid, private insurance, individual charity, and support to home production through subsidized input markets. Social provisioning can be provided through a spectrum of market and non-market distribution systems. At one extreme, perfect markets have no formal restrictions on access, price or quantity (this is non-existent in practice, but consider an open market with unlimited quantities available), and at the other, non-market systems restrict access to certain individuals, and provide a fixed quantity at a fixed price (consider food aid provided in fixed quantities for free

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to all registered households in an internally displaced persons camp). Provisioning may be formal (consider governments or organizations who distribute to those who meet a fixed criterion, such as chronic illness) or non-formal (consider individuals distributing alms outside a temple or church to those that appear needy). Furthermore, provision and distribution may be ‘legitimate’ (consider a regular migrant receiving free health care under the NHS) or ‘illegitimate’ (consider, for instance, the practice whereby irregular migrants ‘borrow’ national insurance numbers from regular migrants in order to enter the labour force). In between, there are many combinations of these extremes and many variations on these features (consider, for example, market-based pensions that are topped up by state non-market distribution). As we are specifically concerned with access from the point of view of the migrant at the point of need, we suggest analysing the underpinning norms, rules and procedures that govern access with respect to their relationship with those seeking to participate in the system. We refer to these participants as ‘claimants’ (who may be applicants to non-market distributions, buyers of products in a market, workers, or recipients of informal or network-based assistance) and providers (who may be rulemakers or rule-administrators of non-market systems, sellers, employers or patrons). These concerns suggest a range of questions. For instance, what are the physical, financial, relational and institutional constraints to welfare provisioning at any given point? What are the structures of access at the point at which a migrant interfaces with a provider? And, how does the migrant or patron strategize to overcome constraints? These questions are useful for analysing any system of provisioning. However, the answers play out differently according to the relational or distributional basis underpinning each system. Below we investigate these relationships in order to build a conceptual framework for understanding access.

3. Access under different distribution systems Let us consider the two extremes of market and non-market access. In a perfect market, all constraints of knowledge, market existence and supply are assumed away: the only requirement is that the buyer provides sufficient exchange value to obtain the good or service required. Acquiring goods from non-market distribution systems requires the

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applicant to have knowledge of the provision, perhaps to provide an exchange value, and to meet some eligibility/targeting criteria (such as nationality, poverty or age). This often requires providing data (such as a passport or an income or birth certificate), or having the right social relations (such as being part of a church or community) or being part of the right networks (such as a savings group).

3.1. Market systems It is evident that it is not straightforward to obtain resources from either perfect markets or non-market systems. Under the strict assumption of perfect markets, information, services, goods and supply would all adjust and re-adjust to clear the market at any given price. The resulting allocation would be Pareto efficient.1 For instance, if an insurance product was made available, people would have full information on the product, would demand the amount of insurance that would reflect their risk preference, and supply would respond perfectly as there would be no moral hazard constraints (such that no one would engage in riskier behaviour because they were insured). The only restriction to an equitable market outcome would be the unequal distribution of resources that would exclude some people from entering the market at a given price. Because of this exclusion, a role exists for the state (even within neo-liberal welfare economics) in ensuring that some wealth is redistributed to those at the bottom. However, in the real world of imperfect markets, while the market will be able to provide many welfare needs around obtaining and sustaining an adequate income (from labour markets, markets for private insurance, house insurance, health insurance, childcare provision and so on), the availability of these welfare provisions will depend on a range of formal rules, institutional constraints, missing markets, informational asymmetries, access to resources and access to political capital. Specifically, in imperfect markets many markets may not exist (for instance, credit, labour, finance and insurance). Those seeking to acquire goods may not know about the markets, or may not be able to engage with them (for instance if they do not speak the right language). Sellers may be unwilling to sell to certain buyers because they discriminate against them, or because they lack the basic trust required for any exchange to take place (for example, they may not believe that the buyer will actually provide the exchange value for the good or service provided, or vice versa).

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The brief discussion above has illustrated that simply relaxing the ‘perfect’ market assumption (while staying within the parameters of mainstay economic theory), creates space for inequities in access beyond those determined by income. However, more fundamental access problems arise once we problematize the notion of the market as a neutral place of exchange. The vibrant critique of the notion of ‘neutral’ markets comes from the feminist economics literature (Folbre, 1994; Elson, 1999) and can be summarized as follows. The market, as defined by economics, is a neutral arena in which buyers and sellers interact. These agents may be differentiated by a number of characteristics, such as gender, class, ethnicity and nationality, and they will have a range of endowments and preferences. ‘Discrimination’ in the market is acknowledged by economists as the existence of significant pay differentials that are unexplainable by education, training and work experience. This discrimination is interpreted as a residual in economic models, reflecting employers’ and employees’ preferences that are not formalized. But within market theory this remains a puzzle as it does not reflect a profit-maximizing strategy. The problem with this ‘preference’ approach to explain ‘discrimination’ is that it ignores broader structures of disadvantage and maldistribution. These structures translate into certain groups being less educated and less able to accumulate the same experience as the more dominant or powerful group in any given society. Elson (1999) provides a useful discussion of these processes and structures of disadvantage, embedded in labour market institutions, which serve to maintain and entrench gender inequalities and exclusion. Building on Whitehead (1979), Elson begins from the idea that markets are institutions which are ‘bearers of gender’. This refers to the notion that there are social stereotypes about what constitutes men’s work and what constitutes women’s work.2 This analysis readily applies to the case of migrants and their position relative to native populations at the destination. If markets as social institutions are ‘bearers of gender’ or class or nationalism, this means that market systems and rules, such as payment systems, job evaluation criteria, trade unions, policies and so on, always have scope for discretion in their application. It is often assumed that free or perfect markets equate with economic efficiency in terms of resource use. However, it is clear that the notion of a ‘free’ market is only an ideal and that anything less than a ‘free’ market will mean that distribution will be discretionary based. This is particularly important for the case of migrants as it implies that access to provision is not based on merit or need but on discretion and possibly

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discrimination. Markets will always need to be regulated to some extent, which necessarily requires a governing authority (Sawyer, 1995). This authority is typically overseen and vested in the hands of the state. The questions then become: whose interests does the regulation serve? What kinds of norms and perceptions does it promote? The fact is that those in power are not only interested in economic relations but in perpetuating their advantage in the social and political spheres – whether they be based on gender, nationality, class or ethnicity. Furthermore, once we acknowledge that not everyone in markets is equally well informed and has complete information about opportunities, and that these asymmetries can be created and entrenched by discretion-based distribution systems, it is clear that some less empowered groups will have more difficulties accessing markets than other more powerful groups.

3.2. Non-market systems In non-market systems, we find a slightly different mix of access constraints. Non-market distribution systems are not set up directly for economic gain, but are deliberate attempts to achieve some welfare or political objectives. Non-market distributions therefore differ from markets by deliberately restricting eligibility for the resource distributed and requiring evidence to prove eligibility. Usually an exchange value is not required, but such markets retain a similar set of access constraints as imperfect markets: claimants may lack information about the distribution, and may suffer resource constraints (such as time, money and so on). All social provisioning that provides resources through non-market distribution systems restricts eligibility, whether explicitly (for example, through published programme eligibility criteria) or implicitly (for example, by personal charitable choice). These restrictions have the intention of ‘targeting’ a particular group. Targeting helps, for instance, to improve administrative efficiency or reduce programme costs (Sharp, 2001); improve equity outcomes (Schaffer and Lamb, 1981), exclude some undesirable or undeserving group (Wood, 1985), or solve a problem of distributing insufficient resources. A second difference from markets is that non-market systems are often public. This means that claimants and non-claimants can influence the eligibility rules, access structures and eventual distribution through advocacy and protest (‘voice’). Voice usually aims to improve allocations for the group as a whole (Schaffer, 1986). Finally, non-market distribution systems, like imperfect markets, are open to manipulation where claimants seek to improve their individual allocations using social ties,

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authority and influence or payments (Schaffer and Wen-Hsien, 1975). Likewise, individual administrators negotiate around the formal rules (von Benda-Beckmann et al., 1989) and interpret the rules unfavourably for some claimants and favourably for others, and may invent their own informal, changeable, unpredictable rules (as patrons do in personal charity). Non-market systems are operated by governments, civil society organizations (such as non-government organizations (NGOs) or faith-based organizations (FBOs)), or by individuals seeking to distribute charity. In each case, actual access to the resources distributed depends on negotiations between claimants and providers. The formal rules and access structures merely provide a framework for this negotiation. Each type of system, however, implies rather different objectives, rules and structures for restricting access, and different opportunities for expressing ‘voice’ and for negotiation. The question is whether migrants are well equipped for these negotiations, relative to the rest of the population. Government non-market distribution systems (re)distribute resources to influential or vulnerable groups (or both), reflecting political and economic strategy or a concern for equity and welfare, depending on each context. Some groups, such as non-citizens or the non-poor, are simply excluded by the rules. For example, the distribution of government food aid to all citizens may require that citizens provide some form of identification, such as a passport, which they may not have or which administrators may not trust. This requirement makes it very difficult for non-citizens to obtain the resource. Other groups may be excluded by administrators who bend rules because they are motivated by prejudice or time pressure (Lipsky, 1980). The first options for redress for those excluded might be negotiation with providers or administratively sanctioned appeal. These low-cost attempts to improve individual allocations can be seen as ‘competitive’, since improvements in individual allocations come potentially at the expense of others’ allocations. However, eligibility and selection rules and the rules for allocating resources can also be influenced by ‘collective’ voice. Collective voice influences the distribution of power within a polity, through democratic debate or by direct access to rule-makers such as politicians and civil servants. Particularly in the case of government provision, (excluded) claimants can therefore resort to mobilization: ‘the forming of like minded groups, of parties and rallies, and of . . . riots’ (Schaffer and Lamb, 1974, p. 83). Mobilization is more likely when allocation rules are simpler and therefore more difficult to manipulate (Schaffer, 1986). This collective voice may lead to better improvements for migrants than competitive voice.

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There are various examples of immigrant political participation, as part of wider groups or alone, leading to improvements in their provisioning. For instance, immigrant workers may join domestic colleagues in mobilizing for improved labour conditions (see Però and Solomos, 2010, for an overview of migrant mobilization). The rules of civil society distributions (through NGOs or FBOs, for example) also deliberately exclude groups. An NGO may decide to provide support to people living with HIV and AIDS (PLWHA), which requires identifying PLWHA and excluding those not identified. Actual allocations are also subject to negotiation between claimants and providers (and there is plenty of evidence showing this, as is clear from any analysis of programmes’ targeting performance that finds inclusion and exclusion errors). However, these rules may be harder to influence through collective action, unless the organization invites participation in the definition of eligible groups or selection rules. Consider, for instance, programmes that consult the community when designing targeting criteria or rules – a consultation that often reflects migrants’ interests poorly if they are not considered ‘part of the community’. Usually, civil society distributions are based on a decision made independently by the organization, and eligibility criteria and rules are designed on a basis of need (for example, poverty targeting) or group membership (for example, being Catholic). This contrast with government distributions arises from their different relationships with the groups with whom they work. Civil society organizations need the permission of local authorities and informal acceptance by members of local populations to work. However, they are typically not directly and formally accountable to these populations and there are rarely formal channels for collective voice around civil society organizations. Governments, by contrast, are usually subject to a formal social contract (such as a Constitution), elections and the threat of expulsion. Individual distributions restrict access not through formal rules or requirements for payment, but through decisions made by the individual who is distributing. Sometimes, these decisions have a system (consider, for instance, the distribution of alms after church each day), and sometimes these decisions are more random (such as giving money to a beggar on the street). The eventual allocation of resources will depend on knowing about the distribution, being noticed and not suffering discrimination, and luck. In each type of non-market distribution, claimants attempting to negotiate better access or rule changes typically use brokerage through three types of intermediaries. ‘Representatives’ have better knowledge

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of the rules or better ways of circumventing them, ‘Fixers’ may change the rules or secure particular application by intervention higher up in the institutional hierarchy and ‘Agents’ find alternative sources of provisioning (Schaffer, 1986, p. 374). Migrants exercising voice frequently associate with these intermediaries (Però and Solomos, 2010). They may indeed rely on them, given migrants’ own often precarious relationship with the state. In India, for instance, middle-class activists advocate to policy-makers on migrants’ behalf for better social provisioning (see Chapter 7). The risk is that migrants are fragmented, poorly incorporated politically, and that professional advocates can act paternalistically, or arrogantly (Self, 1986) or unsystematically.

3.3. Network-based systems Social provisioning can also be found in informal non-market systems, such as networks. Social networks and relationships act as a form of club good. In the market framework entry conditions to club goods are determined by financial, status and knowledge barriers. Formal nonmarket systems have explicit rules. In network systems, by contrast, entry is based on relations of trust and reciprocity, necessarily built up through repeated interactions between the people involved. Financial conditions for entry also play an important role (for instance, in the case of burial societies, rotating savings funds or hometown association membership). However, the primary condition for entry is through relational and status-based affiliation (family relations or ethnic solidarity). Stewart’s theory of group behaviour helps to inform our understanding of how these types of groups work to ensure positive outcomes. She labels Trust/Reciprocity (T/R) groups as those characterized by members’ high degree of commitment to the group, which leads to trust, so that actions are carried out in the belief that they will be reciprocated at some time. This mode of operation generally evolves as a result of repeated interactions of long duration. Societal norms, as well as individual values, are relevant to the strength and nature of the T/R norms. T/R groups may also be efficiency enhancing because T/R minimizes government involvement and monitoring and makes the most of local knowledge (Baland and Platteau, 1996; Stewart, 1996; Heyer et al., 2002). Network-based affiliation and distribution provide important functions under high levels of uncertainty. Subsistence assurance and risk mitigation are the most valuable functions (see work by Sabates-Wheeler (2005), in the context of transition agriculture). To the extent that people are cut off or excluded from formal insurance and social service

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provision, they need to insure downside risk through other avenues. Similarly, in places with thin state-sponsored and market-provided social protection, migrants face the full risk and uncertainty of market fluctuations and institutional/legal changes. In these cases the group substitutes for imperfect markets. Various social provisioning systems are rooted in cultural norms, for instance payment into hometown associations. Pooling of resources and mutual assistance (for example, savings groups, burial societies, fostering and childcare) can lower the risk for a particular individual or household from livelihood crises. In this way the network is seen as an insurance mechanism for maintaining a certain level of livelihood. Furthermore, different risks may be minimized through different strategies. That is, a regular migrant may choose to opt into formal health insurance but not into a formal pension scheme. This could be because the migrant’s time preference may mean she or he would rather invest in property or children’s education at source location than a pension at destination. Or it may be that pension payments are difficult to claim upon leaving the country. The point is that migrants will choose and invest in a portfolio of risk management mechanisms; some labour market based, some non-market based and some network based. Clearly, some migrants will be more constrained than others in this choice, depending on their migration status and the resources available to them. However, this is not a trade-off between distribution systems. Instead, distribution systems are mixed to achieve optimal risk insurance under the constraints given. While social networks built on repeated personal interaction and trust provide, in many cases, a comfortable fall-back position, acquiring goods and services through these networks is not straightforward. First, there is the issue of covariate risk and shocks that hit the entire network. Group cooperation gives some protection against idiosyncratic risk and mild to medium covariate risk. For instance, in the case of unemployment of one member, the group can provide subsistence support (food and housing) while that member finds another job. However, if all the members of the group are made redundant at the same time then the outcome may be devastating. Second, and in the same vein as a club good provided by market-based systems, network-based systems typically use exclusion-based eligibility criteria, where certain individuals and households living in traditional sending localities may be discriminated against because of issues of culture and identity such as gender, ethnicity, religion, family association and caste. Certain groups may lack access to migrant networks, where these develop within cultural boundaries.

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4. A framework for access Drawing the above discussions together, Table 2.1 sets out the range of access constraints in different distribution systems. Very approximately, financial constraints are more likely to be significant in markets, and other constraints (aside from formal eligibility rules) tend to increase in magnitude as distribution systems become more personalized, ad hoc and discretionary. In this table, the darker shades represent ‘harder’ access constraints. In market systems, for instance, financial constraints (insufficient financial endowments) present serious constraints as claimants need to buy provisioning (such as insurance). Financial constraints are rarer in most non-market distribution (and non-contributory) systems. In perfect markets there are only financial constraints, but in imperfect markets, and especially in command economies, buyers may lack information or be discriminated against, or the market may simply not exist. In command economies, some claimants may be excluded by the rules of the economy or may lack the networks needed to obtain the resource. In non-market distributions, information can also be a constraint, and the absence of networks is a more serious restriction than for most markets, particularly for the more personal and network-based distributions where individual patrons’ relationships affect their distributions. Group affiliation is relevant to both market and non-market distributions, but it is differentiated by the nature of the exchange. In non-market, network-based systems the affiliation is based on reciprocity and trust, while in market systems rules and contracts are required to uphold exchange relationships. Non-market distributions may also involve more discrimination than found in most markets, especially where individual patrons distribute their goods/services personally. Finally, most non-market distributions operate according to fixed rules that may exclude many claimants, and often require demonstrations of legality that can exclude migrants.

4.1. Migrants in market-based distribution systems Even without elaborate theorizing, it is easy to see that markets necessarily find their modus operandi within political-economic structures. In any national labour market, for instance, the ability of people to participate is defined by immigration laws and labour laws. Entry

Table 2.1

Access constraints in different distribution systems Access constraints Financial

Information

Network-based (Trust)

Targeted/ Discretion

Legality

Perfect markets Market

Imperfect markets Command economy Government distribution Charitable distribution

Non-market

Personal distribution Group/ network affiliation

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is prohibited for certain categories of people due to their legal relation to the state in which the market functions. This equally applies to financial markets. For example, in South Africa and increasingly in the UK, it is very difficult to open a bank account and access a range of private markets without a permanent residency status as ascribed by the state and, in South Africa, reflected in a specific 13-digit ID number. Furthermore, many financial systems for remitting income safely require a form of ‘legitimate’ ID. In this way markets, through their subordination to states, become discretionary and exclusionary, translating into access constraints for some and not for others. It is obvious that in the context of labour markets and financial markets, exclusion is intensified for migrants. It is not merely the case that the state imposes demands on how the market functions, but that the market requires the state for smooth functioning. In order for the multitude of arms-length contracts that comprise any market to be upheld, a regulatory framework must be in place that enables the smooth functioning of the market. This regulation, by definition, excludes and includes on a discretionary basis. As early as 1967, Rex and Moore argued that exclusion of immigrants in the Sparkbrook area of Birmingham, UK, from both council housing and from mortgages drove them into ownership and tenancy of poor quality, overcrowded and high rent lodging houses. Immigration status is an important component of racial and ethnic disparities in health insurance coverage and access to care. In the United States, non-citizen immigrants and their children have large gaps in their health insurance coverage and access to health care, even when the children are citizens. The disparity in access has two components. First, non-citizens and their children are much more likely to be uninsured. Since insurance strongly increases access to care, lack of insurance reduces immigrants’ ability to get care. Second, even insured non-citizens and their children have less access to medical care than insured native-born citizens have (Ku and Matani, 2001). This is suggestive of the discretionary and value-laden workings of the market. From a policy perspective, the insurance gaps for citizen children in immigrant families are distressing, since they are eligible for health insurance through Children’s Medicaid and the Children’s Health Insurance Program (CHIP) and are a major target of outreach campaigns. In fact the insurance coverage of the US-born children of immigrants

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has fallen in recent years. Furthermore, non-citizen families have poor access to both ambulatory medical and emergency room care. The gap in emergency care is particularly relevant because federal policy lets non-citizen immigrants, including undocumented aliens, receive emergency Medicaid services, even if they are ineligible for full coverage. Non-citizens and their children also have worse access to both regular ambulatory and emergency care, even when insured. It is thus important to consider strategies to foster private job-based health insurance for immigrant workers and their families. A recent study found that non-citizen workers in California were offered health insurance less often than citizens were, but that their take-up of insurance offers was similar. Immigrants encounter other non-financial health care barriers that relate to information. Language problems were the leading barrier to child health services cited by Latino parents; they may also increase medical errors because of misdiagnosis and misunderstanding of physicians’ orders. Another example comes from the UK. Legal status, defined by the nature of residency within the UK, defines the rights of any category of migrant to different types of social protection. Migrants to the UK who hold entry visas but not work permits are not permitted to obtain employment within the UK. They are entitled to public health care in cases of emergency, but no other social benefits. However, evidence shows that a substantial number of Ghanaians and Malawians visiting the UK on entry/tourist visas obtain employment without work permits. Many of them work in the informal sector, however, many also work in the health sector, as nurses and doctors, and others work in business. Within these groups, many incur ‘deductions’ from their salaries (for national insurance or other taxes) yet are unable to claim standard social security benefits from their place of employment (such as maternity and sick leave or redundancy packages). However, in cases of health emergencies some employers provide informal payments to illegal workers. Some employers also provide housing (typically highly inadequate) to attract cheap workers. Access to these benefits is discretionary and clientelistic. While employers may be willing to employ ‘illegal workers’, thus enabling irregular workers to acquire an income, employers may have incentives to illegally ‘tax’ the irregular worker’s income. This arrangement is clearly beneficial to both parties. However, it represents forgone income for the national government budget and often the migrant becomes severely exploited as their legal status does not privilege them with the right to question their

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employment situation. The extent of infringement on human rights versus labour rights/entitlements becomes highly blurred in the context of irregular migrant labour. Many times migrants are ignorant of their rights or are scared to pursue these rights, making access highly political. This example highlights the complexity of access within market environments. ‘Free markets’ work well once one has fulfilled a range of criteria related to residency and employment as defined by a ruling body. In this way the market acts as a club good. But if one’s relation to the state is ambiguous or ill-defined, as these examples of migrants have shown, then markets will never produce effective outcomes for migrants.

4.2. Migrants in non-market systems Migrants may be relatively disadvantaged in their access to non-market distributions because (1) the formal rules exclude them, (2) eligible migrants often face higher costs of proving eligibility, (3) they fare poorly in negotiations with administrators, and (4) they are less able than non-migrants to engage with the rule-makers. Formal rules render migrants ineligible for social provisioning when governments are trying to deter migration (usually of low-income groups in the informal economy) or are unwilling or unable to adjust distribution systems to mobile populations, or because migrants are not seen as a core part of a constituency or risk pool. Research on India’s Public Distribution System (PDS, a national food subsidy programme) provides examples of the first two kinds (see Sabates-Wheeler and MacAuslan, 2007; MacAuslan, Chapter 7 in this volume). The Delhi government decreed that households migrating to slum areas between 1998 and 2007 would be ineligible for the programme, partly in order to deter migration (as membership of the programme also implies residence rights). Interviews with officials and some official documents betray a concern about additional migration. Moreover, migrants are de facto rendered ineligible because local quotas for programme membership are fixed for several years, and are not updated to account for new migrants, irrespective of need. To take another example, many European social security programmes de jure or de facto exclude illegal immigrants from contributing to or receiving from social insurance on the basis of their illegal status.3 Despite the value of illegal immigrants’ participation to both the social security system and members of the system, immigration law trumps social security rationales.

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Migration comes with non-trivial costs of establishing eligibility. For many programmes, migrants need to acquire new documentation proving their eligibility every time they cross an administrative boundary. The exclusionary effects of high time costs imposed on migrants to reapply for their entitlements after moving is evident in the case of the PDS, where many temporary migrants to Delhi are unable to meet these costs and so do not benefit from subsidized grain. Moreover, many migrants simply cannot obtain the required identity documents (Smita, 2006), particularly if they are irregular (see chapter 5 in this volume on migrants’ problems accessing health care in the UK). Migrants’ ability to negotiate with administrators is constrained by their precarious legal status or lack of personal connections. For instance, while claimants can often use administratively sanctioned modes of appeal, Schwartz (2001) suggests immigrants may avoid this in claiming food stamps to avoid disclosing their immigrant status. For similar reasons, migrants’ political access is often restricted. MacAuslan (Chapter 7 this volume) argues that temporary migrants’ political access to alter Public Distribution System rules is limited by their disorganization and transience, which together mean they do not form a visible political constituency. Their ability to work through intermediaries is limited by their social dislocation.

4.3. Migrants in network-based systems Network-based sources of welfare and provision are especially critical for people who are ineligible for, or excluded from, formal or marketbased provisions. As illustrated in Table 2.1, ineligibility and exclusion from more formal systems can be due to a lack of finance, information, voice and representation, but can also be due to the legal structures and social norms that may purposely (or not) serve to exclude. For many poor people, and poor migrants in particular, access and distribution through social ties is often the only form that their safety net provision takes.4 For instance, social networks and affiliations with institutions such as trade unions, community-based organizations, and other relatives or friends facilitate labour migration by providing initial accommodation and employment at destination or information on employment opportunities, thus facilitating job searches. Another example is childcare provision for working female migrants. This is often accessed reciprocally through network-based relationships. Health care networks are also vital. Qualitative research with Ghanaians in the UK

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found that elaborate network-based systems exist within the organized Ghanaian community that enable irregular migrants to access a ‘parallel health service’ to that provided by the British public sector. For example, a pregnant irregular migrant can be assigned a Ghanaian midwife for most antenatal care. She can access this ‘parallel system’ until the point of delivery, at which point she will present herself to public sector emergency care (Sabates-Wheeler, 2008). While network-based systems can offer a range of provisioning to migrants, they may also constrain the migrant. In a similar way to the possibility described by Wood (2003) of adverse incorporation into market and formal provisioning systems, people may be unable to exit from a network once they become embedded into it. In networkbased provisioning systems, moral economy factors exist to ensure cooperation in times of hardship. While network-based forms of social provision can provide a stable safety net, they may also act as a constraint, in the sense that people engaged in these networks are not always free to leave due to possible recriminations from relatives and other family members. In other words, there is a social lumpiness that comes with grouping around family and friends that can be both constraint alleviating and choice constraining. Hence, risk management in the present involves loyalty to institutions and organizations that presently work and deliver livelihoods, whatever the longer term cost. For instance, on the latter point, domestic and familial responsibilities as well as traditional divisions of labour limit migration opportunities for women, particularly in sub-Saharan Africa. For example, Hampshire (2002) found that Fulani women have inequitable access to migration networks used by men. Furthermore, relatively low levels of education and lower wages at destination discourage female migration, as Agesa and Agesa (1999) found in their study of rural to urban migration in Kenya. The impact of widespread male labour migration can lead to long-term disempowerment of women who become dependent on men for cash, as evidenced in Bihar in India as well as parts of eastern and southern Africa (Francis, 2002). So, in a similar way to market- and state-based distribution systems, network-based systems represent both opportunities and constrains to welfare provision. The ‘trust’ pillars upon which they build are qualitatively different to other distribution systems, and in this sense they could be argued to be more stable and reliable over time. However, the level of provision is constrained by the homogeneity of the group characteristics as well as by eligibility criteria.

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5. Rules of inclusion and exclusion in a relational framework How can we analyse the relational content of these different distribution systems? In our framework, distribution is carried out by organizations composed of ‘rule-makers’ and ‘providers’ that admit or exclude ‘claimants’ through certain criteria and processes (Schaffer, 1973, 1986; Schaffer and Lamb, 1981). Each system may be different in the way that the relation between claimant and provider presents itself. For instance, in a market-based system the rules for participation may be hidden and covert (hiring and employment practices), whereas in a governmentbased system the criteria are more likely to be explicitly stated. Any institution that provides goods, services or jobs sets up an access structure that regulates how resources are obtained. This may be explicit or implicit and through the market, or through non-market distributions including personal distribution, or through networks. Each access structure has three basic components described by metaphors (sometimes real) of the ‘gate’, the ‘line’ and the ‘counter’ (Schaffer, 1973; Schaffer and Lamb, 1974). Interactions at these points follow different types of rules (Schaffer and Wen-Hsien, 1975). The ‘gate’ requires the claimant to claim eligibility: admission rules. The ‘line’ is a mechanism that places eligible claimants in some order: line rules. The ‘counter’ is the office or meeting point where the actual allocation or refusal takes place, dictated by rules concerning what types of data will be considered to prove eligibility: counter rules. Together, these components and their rules dictate the structure of the ‘queue’. Schaffer and colleagues initially developed this metaphor for nonmarket formal distribution systems, but we suggest that this applies to informal systems and market-based systems of distribution as well. The metaphor of the queue can be applied to a market system, where buyers access the market subject to certain admission criteria are ordered in some way, and then purchase the resource when they provide certain exchange values. In perfect markets, there are no admission criteria and there is no ordering or waiting, and the only thing that buyers need to present is an exchange value. In imperfect markets, however, admission and line rules may apply and counter rules can become more complex. For example, in credit or insurance markets buyers often need to provide collateral or evidence of health. In informal distribution systems, eligibility rules are often based on subjectivity (being known to the distributors) and counter rules require merely the appearance of need (to those distributing).

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In a perfect market, or in a Weberian ideal type non-market distribution system, success in the queue requires meeting the eligibility criteria, waiting in line and producing the correct data at the counter. Since claimants know the rules (and therefore the cost of applying) and the value of the resource that is offered (distributed, sold or given away), they can calculate whether or not to enter the market or apply for the resource. However, the ideal type queue, like the perfect market, never obtains in reality. Instead, we find ‘complex queues’ that can deviate from the ideal type (Schaffer and Wen-Hsien, 1975) in terms of structure, claimants’ behaviour and providers’ behaviour. These deviations may disadvantage migrants for a number of reasons, as already described. First, complex queues have different structures with supplementary gates of language, social class or ethnicity that can exclude migrants very easily. Queues may be contiguous: the resource sought in one queue may be the eligibility criterion for joining another. For instance, acquiring cash under Mexico’s PROGRESA system required enrolment and attendance at schools and health clinics. Migrant households whose children do not attend school are formally excluded from this cash distribution system, despite their poverty (Stecklov et al., 2005). Second, claimants in complex queues deviate from their ideal type. They may not have the basic ‘cultural resource’ of knowing which queue to join (Schaffer, 1971, p. 14), as in distributions from patrons whose habits are known to few recipients, and rarely to migrants. They may not know or understand their relationship to the admission rules (see also de Haan and Maxwell, 1998; and Sen, 2000), and line rules can be ‘strange, unfamiliar and frightening to applicants’ (Schaffer, 1973, p. 8). Even if the migrant does know the requirements, at ‘the counter . . . [claimants] may not know how to present the information. The needier the [claimant] the greater this difficulty tends to be. This is a problem of literacy, time, research, legal processes, entitlement and registration conflicts, indebtedness, disputes, contests, and arrears’ (Schaffer, 1973, p. 8). Studies indicate that migrants lack the knowledge, language skills and confidence required to access health care (Stephenson and Matthews, 2004) or food stamps (Schwartz, 2001). Migrants seeking to benefit from charity-based distributions may not know where individuals distribute their donations, or may not be able to gain access to a church to receive alms if they look different from other churchgoers (and may be assumed not to be the relevant religious denomination) or cannot communicate effectively with church authorities. Claimants may also feel put off by admission, line or counter rules

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that carry additional connotations that suggest unfairness or stigma (see also Sen, 2000).5 Third, providers exercise discretion over gate, line and counter interactions, either because the rules require it (they are ambiguous or conflicting, see Schaffer, 1973) or because they have objectives that will not be met by following the rules (see Lipsky, 1980, for a more detailed treatment of discretion in the provision of public services). In the queuing process, claimants present themselves as simplified and compartmentalized ‘cases’, detached from their personalities, histories and stories (Lamb, 1975; Wood, 1986). In these circumstances, migrants are often not able to demonstrate that they are the intended recipients (the income-poor, HIV/AIDS sufferers, the elderly and so on). Faced with these challenges, rule-makers may clarify access criteria (often under pressure from claimants or their representatives). Where this does not happen (perhaps because complex access structures limit claims in a way that benefits rule-makers) providers resort to nonformal criteria in admitting claimants, deciding in which order to serve people and accepting data. Very often, these criteria take the form of exchanges, often pejoratively called corruption (Schaffer, 1986). Other criteria include affinity, friendship, social ties and subjective perceptions of influence, or of suitability for the resource (most commonly in personal charity but present also in formal schemes).

5.1. Reconciling the relationship between claimant and provider Queues for social provisioning are complex. The features of complex queues suggest that claimants’ endowments and needs will not necessarily be reconciled easily with providers’ access structures (Schaffer, 1971, 1973, and 1986). ‘Reconciliation’ will not involve a simple pairing of applicant characteristics with bureaucratic rules, or exchange values with resources, or need with availability, but will depend on claimants’ power, interests, attitudes and strategies (see also Keeley and Scoones, 2003, for parallels with complex policy processes). What strategies, then, can claimants deploy? And are any particular groups, such as migrants, who are disadvantaged in deploying these strategies? Claimants’ attempts to access distribution from which they are excluded will tend to produce three types of action. They may exit from the system where the costs of deploying successful strategies are too high (or en masse as a form of boycott). They may remain loyal to the system that might involve adverse incorporation and dependency. They

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may use voice, negotiation and protest (Hirschman, 1970; Schaffer and Lamb, 1974). As discussed in Section 4.2 above, loyalty can involve uncritically accepting whatever investments (of time, money and so on) are required in order to obtain the resource. Claimants may do this because they feel that protesting against the implicit or explicit rules of the distribution will have longer term consequences or consequences in other queues. For instance, migrants may not protest against non-receipt of health benefits because they fear deportation. Alternatively, group members may not protest against unfair allocations of benefits for fear of being forced out of the group. Or it may be because claimants feel they lack the right to protest, as when they receive charity from individuals on an ad hoc basis. Wood (2003) proposes that poor people are dominated by dysfunctional time preference behaviour (in the sense that pursuit of current consumption may outweigh future well-being), in which the pursuit of immediately needed security places them in relationships and structures which then displace the longer term prospects of a sustained improvement in livelihoods. This is likely intensified for poor migrants. For instance, irregular labour migrants in the domestic service sector may be ‘bonded’ to their employers through positive dependency or threat. Similar to the possibility of adverse incorporation into market and formal provisioning systems (described above), people may be unable to exit from a network-based system once they are embedded into it (also discussed in Section 4.3 above). Under adverse circumstances, many claimants will choose the more activist, complex and pervasive option of voice (described in Section 3.2 above). Schaffer and Lamb (1974, p. 79) argue that ‘[claimants] themselves will be forced to employ voice so as to handle their opportunities, to defend themselves, to succeed, to refute stigma, etc., at all points of the access experience’. When denied opportunities to purchase in a market, buyers can protest at the high price of goods (this is especially common where the government plays a role in setting prices), or organize in groups to boycott sellers or buyers (consider a strike) or engage in barter with the seller. Recipients of charity, such as beggars, may protest at small allocations or at being ignored in order to increase their gift. In networks, claimants may strategically emphasize their need to increase their share by advertising their poverty or bemoaning their ill luck. In terms of non-market systems, the recognition that claimants’ voice pervades all access situations could complement social protection literature that refers to programmes’ ‘inclusion’ and ‘exclusion’ errors. Claimants use different forms of voice depending on their resources,

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the rules of the distribution system and their relationship to them, and the importance of the resource sought.

6. Conclusions We believe that migrant welfare can best be secured by exploring and responding to access constraints to social provisioning. The right or entitlement of migrants to social provision can be examined through the rules that structure access. While the analytical focus on eligibility and data rules can be mundane, the questions raised are crucial in determining access. Specified entitlements and rights are only as useful as the access structures that surround them. Much of this turns on the ability of individuals (formally entitled or not) to persuade employers and administrators of their eligibility for the resource. This approach suggests, then, that getting the formal rules right is not enough. A rigorous study of access must also examine the negotiations, bargaining, threatening and pleading that take place around those rules, between claimants and providers. With the above framework in mind it is possible to check whether access structures enable those in need of social provisioning to obtain it and, in our case, whether migrants are disadvantaged in terms of their ability to acquire resources. To do this, one can examine the constraints at various points of access to resources in markets and through non-market systems. For example, an imperfect market for insurance will not yield effective social provisioning for low-income individuals if this requires providing an exchange value (a premium) that is beyond the means of applicants, or if they are required to present identification documents (such as utility bills) that they do not have. Queue rules may disadvantage the vulnerable, and migrants specifically, as in the USA where legal immigrants have to meet additional criteria (such as employment duration) to qualify for food stamps, despite higher average poverty rates (Schwartz, 2001). Or in India where Smita (2006, p. 66) reports that poor seasonal migrants are excluded from most programmes, despite being the ‘most disadvantaged’. Another example is food distribution systems that require complex processes of registration that may exclude those with little time or who are illiterate, who again may be those most in need of the distribution (see Chapter 7 on the Public Distribution System in India). Or, we could ask, are some of those who gather outside a church for alms better able to reach the attention of the alms-giver, perhaps because they are able to take their place at the front of the queue through strength or know-how?

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This chapter has set out a framework for analysing access to social provisioning through a range of distribution structures (we apply this framework explicitly in Chapter 7). Recognizing the connections between the sources of risk and threat that demand provisioning, and social provisioning itself, research must take a critical approach to provision from markets, formal schemes, networks and personal charity. Given that migrants are often more exposed to threats, it is unsurprising that they are less well incorporated into social provisioning. Just as in the job market, formal rules may exclude migrants from provisioning, while informal rules, discrimination or negotiations may disadvantage them, or they may be adversely incorporated and dependent, lacking the political, social and economic certainty to protest. Indeed, the issue of migrants’ access to social provisioning is irrevocably linked to politics. The government of Delhi has been wary of issuing permanent ration cards to migrants because they are expected to return home, and it was thought that formally entitling migrants to ration cards would encourage migration, putting a greater strain on Delhi’s stretched public services or increasing competition with current residents for jobs. For similar reasons, in-migration hubs such as the UK and South Africa are concerned about extending social benefits to ‘foreigners’. The issue concerns rule-setters’ interests and perceptions about state sovereignty and the sanctity of territorial borders, as well as social spending targets. Do they consider migration worth encouraging? Do they desire migrants as potential political constituencies? Can they build access structures to achieve these goals? Or do they, alternatively, perceive a value in a subdued labour force, and therefore design access structures to disorganize, confuse and subdue migrants? On the other hand, do migrants have an interest in subverting the system and what incentives do migrants have to engage in ‘proper’ legal and political access as compared to pursuing any means to ensure physical access? The vibrant discourse around social protection entitlements and rights could usefully incorporate these questions in taking the debate on access forward.

Notes ∗

While overlapping, ‘social provision’ is a broader concept than ‘social protection.’ The latter typically has a remit defined by instruments of provision and/or targeted populations. In this chapter we use the term ‘social provision’ as we are interested in the conceptual basis of access and distribution to all types of welfare provision and all types of groups.

1. Pareto efficiency describes a situation where it is not possible to make anyone better off without making someone else worse off.

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2. For a range of evidence supporting this theory, see Elson (1999) and Hodgson (1984). 3. We are grateful to Klaus Kapuy for pointing this out. 4. See de Haan et al. (2002) on the importance of kinship networks in Mali for access to food and housing, and Zohry (2002) on the Egyptian experience of network-based help with finding residence, employment and new community. Other examples are in King (2003), Mosse et al. (2002) and Rogaly et al. (2002). 5. The resource itself can also be stigmatized. In some African communities, accepting food marks poverty, where accepting cash does not (Dorward et al., 2006).

References Agesa, J. and R. Agesa (1999) ‘Gender differences in the incidence of rural to urban migration: evidence from Kenya’, Journal of Development Studies, 35(6), 36–58. Baland, J. M. and J. P. Platteau (1996) Halting the Degradation of Natural Resources (Oxford: FAO and Clarendon Press). Bevan, P. (2004) ‘Conceptualising in/security regimes’, in Gough et al. (ed.) Insecurity and Welfare Regimes in Asia, Africa and Latin America (Cambridge: Cambridge University Press). Britto, T. (2005) Recent Trends in the Development of Latin America: An Analysis of Conditional Cash Transfers (Brazil: Ministry of Social Development). de Haan, A. and Maxwell, S. (1998) ‘Poverty and social exclusion in north and south’, IDS Bulletin, 29(1), 1–9. de Haan, A. et al. (2002) ‘Migration, livelihoods and institutions: contrasting patterns of migration in Mali’, Journal of Development Studies, 38(5), 37–58. Dorward, A., Sabates-Wheeler, R., MacAuslan, I., Penrose Buckley, C., Kydd, J. and Chirwa, A. (2006) ‘Promoting Agriculture for Social Protection or Social Protection for Agriculture: Strategic Policy and Research Issues Discussion Paper’, paper prepared for the Future Agricultures Consortium. Elson, D. (1999) ‘Labor markets as gendered institutions: equality, efficiency and empowerment issues’, World Development, 27(3), 611–627. Folbre, N. (1994) Who pays for the Kids?: Gender and the Structures of Constraint (London: Routledge). Francis, E. (2002) ‘Gender, migration and multiple livelihoods: cases from eastern and southern Africa’, Journal of Development Studies, 38(5), 167–190. Gough, I. and Wood, G. (2004) ‘Insecurity and welfare regimes in Asia, Africa and Latin America’, in I. Gough, G. Wood, A. Barrientos, P. Bevan, P. Davis and G. Room (eds) Social Policy in Development Contexts (Cambridge: Cambridge University Press). Hampshire, K. (2002) ‘Fulani on the move: seasonal economic migration in the Sahel as a social process’, Journal of Development Studies, 38(5), 15–36. Heyer, J., F. Stewart and R. Thorp (2002) Group Behaviour and Development: Is the Market Destroying Cooperation? (Oxford: Oxford University Press). Hirschman, A. O. (1970) Exit, Voice, and Loyalty: Responses to Decline in Firms, Organisations, and States (Cambridge, MA: Harvard University Press). Hodgson, G. M. (1984) The Democratic Economy (Harmondsworth: Pelican Books).

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Keeley, J. and Scoones, I. (2003) Understanding Environmental Policy Processes: Cases from Africa (London: Earthscan). King, R. (2003) ‘Across the sea and over the mountains: documenting Albanian migration’, Scottish Geographical Journal, 119(3), 283–309. Ku and Matani (2001) ‘Left out: immigrants’ access to health care and insurance’, Health Affairs, 20(1), 247. Lamb, G. (1975) ‘Marxism, access and the state’, Development and Change, 6(2), 119–135. Lipsky, M. (1980) Street-level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation). Mosse, D., S. Gupta, M. Mehta, V. Shah, J. Rees and the Kribp Project Team (2002) ‘Brokered livelihoods: debt, labour migration and development in tribal western India’, Journal of Development Studies, 38(5), 59–88. Però, D. and Solomos, J. (2010) ‘Introduction: migrant politics and mobilisation: exclusion, engagements, incorporation’, Ethnic and Racial Studies, 33(1), 1–18. Polanyi, K. (1944) The Great Transformation (Boston, MA: Beacon Press). Rawls, J. (1971) A Theory of Justice (Boston, MA: Belkap). Rex, J. and R. Moore (1967) Race, Community and Conflict: A Study of Sparkbrook (London: Oxford University Press). Rogaly, B., Coppard, D., Rafique, A., Rana, K., Sengupta, A. and Biswas, J. (2002) ‘Seasonal migration and welfare/illfare in eastern India: a social analysis’, in A. De Haan and B. Rogaly (eds) ‘Labour Migration and Rural Society’, Journal of Development Studies, 38(5), 89–114. Sabates-Wheeler, R. (2005) Co-operation in the Romanian Countryside: An Insight into Post-Soviet Agriculture (Lanham, Maryland: Lexington Books). Sabates-Wheeler, R. (2008) report prepared for DFID, available from author. Sabates-Wheeler, R. and MacAuslan, I. (2007) ‘Migration and social protection: exposing issues of access’, Development, 50(4), 26–32. Sawyer, M. (1995) ‘The operation of labour markets and the economics of equal opportunities’, in J. Humphries and J. Rubery (eds) The Economics of Equal Opportunities (Manchester: Equal Opportunities Commission). Schaffer, B. (1971) ‘Easiness of Access: A Concept of Queues’, IDS Communication Paper 104 (Brighton: Institute of Development Studies). Schaffer, B. (1973) ‘Improving Access to Public Services’, IDS Discussion Paper 23 (Brighton: Institute of Development Studies). Schaffer, B. (1986) ‘Access: A Theory of Corruption and Bureaucracy’, Public Administration and Development, 6(4), 357–376. Schaffer, B. and Lamb, G. (1974) ‘Exit, Voice and Access’, Social Science Information, 13(6), 73–90. Schaffer, B. and Lamb, G. (1981) Can Equity be Organised? (Farnborough: Gower Publishing Company). Schaffer, B. and Wen-Hsien, H. (1975) ‘Distribution and the theory of access’, Development and Change, 6(2), 13–36. Schwartz, S. (2001) ‘Immigrant access to food stamps: overcoming barriers to participation’, Clearinghouse Review Journal of Poverty, Law, and Policy, September–October 2001, 260–275. Self, P. (1986) ‘What’s gone wrong with public administration?’, Public Administration and Development, 6(4), 329–338.

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Sen, A. (1981) Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford: Clarendon Press). Sen, A. (2000) ‘Social Exclusion: Concept, Application, and Scrutiny’, Social Development Papers No. 1, Office of Environment and Social Development, Asian Development Bank. Sen, A. (2009) The Idea of Justice (Cambridge, MA: Harvard University Press). Sharp, K. (2001) ‘An Overview of Targeting Approaches For Food-Assisted Programming’, report prepared for CARE’s PHLS Unit (Atlanta, Georgia: CARE). Smita (2006) Locked Homes, Empty Schools: The Impact of Distress Seasonal Migration on the Rural Poor (New Delhi: America India Foundation). Stecklov, G., Winters, P., Stampini, M. and Davis, B. (2005) ‘Do conditional cash transfers affect migration? a study using experimental data from the Mexican PROGRESA program’, Demography, 42(2), 769–790. Stephenson, R. and Matthews, Z. (2004) ‘Maternal health-care service use among rural-urban migrants in Mumbai, India’, Asia-Pacific Population Journal, 19(1), 39–60. Stewart, F. (1996) ‘Groups for good or ill’, Oxford Development Studies, 24, 9–25. von Benda-Beckmann, K., van Eldijk, A., Spiertz, J. and Huber, F. (1989) ‘Interfaces and Janus-Faces: A critical appraisal of the interface approach in development sociology from a social-legal studies perspective’, in N. Long (ed.) Encounters at the Interface: A Perspective on Social Discontinuities in Rural Development (Wageningen: Agricultural University of Wageningen). Whitehead, A. (1979) ‘Some preliminary notes on the subordination of women’, IDS Bulletin, 10(3), 10–13. Wood, G. (ed.) (1985) Labelling in Development Policy (London: Sage). Wood, G. (1986) ‘ “Don’t give them my telephone number” – Applicants and clients: Limits to Public Responsibility’, Public Administration and Development, 6(4), 475–484. Wood, G. (2003) ‘Staying secure, staying poor: the “Faustian Bargain” ’, World Development, 31(3), 455–471. Zohry, A. (2002) ‘Rural-urban Migration in Egypt and other Developing Countries: A Statistical and Literature review’, in Rural to Urban Labour Migration: A Study of Upper Egyptian Labourers in Cairo, DPhil Thesis, University of Sussex, Chapter 3.

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Part 2 Policies and Policy Spaces

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3 Social Security for Migrants: A Global Overview of Portability Arrangements Rachel Sabates-Wheeler, Johannes Koettl and Johanna Avato

1. Introduction The most recent Human Development Report (HDR) on Human Mobility and Development (2009) estimates the total global migrant stock at 214 million people, approximately 3 per cent of the world’s population. This represents a substantial increase since 1960, where the stock was 75 million, and even more recently 2005, where estimates indicated that the total migrant stock was 191 million. Due to the underlying economic and demographic global imbalances, this trend is likely to persist and calls for policies that effectively manage migration to the benefit of all – migrants, origin countries and host countries (Holzmann and Muenz, 2004). These substantial and increasing migration flows raise questions about social security for international migrants. The atypical life cycle of migrants requires special provisions for their social security to ensure that they can adequately manage their risks. Migrants move between countries and hence between distinctively regulated labour markets and social security systems, which creates specific vulnerabilities. Newly arrived migrants are in a particularly vulnerable position as they are away from their home community and have no access to important informal social networks and safety nets. In addition, access to formal social services in the new host country is often restricted for many reasons, such as informal labour market involvement, employer monopsony and delayed access until some months or years after arrival. Exacerbating this, many richer receiving countries have tightened the provisions of their social security systems so that migrants cannot gain access. 91

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At the same time, migrants might have contributed to formal social security systems in their country of origin or former host countries, yet any rights to benefits from these systems might cease to exist or substantially diminish with their arrival in the new host country. Similarly, any contributions made to the social security system of the new host country might be lost after the migrant departs because the associated social rights and benefits might not be portable across international borders. Finally, migrants – in particular low-skilled, undocumented migrants – face challenging labour market conditions leading to exclusions from national security systems in host countries related to crossborder recruitment, information asymmetries between employers and migrants, and visa requirements tied to employment. Trends in international labour migration such as the increasing dominance of migrant workers, particularly women and children, in domestic work, give rise to concerns that there is a trade-off between migrant numbers and rights (International Labour Organization (ILO, 2008a). Various sectors in receiving countries are growing dependent upon migrant labour – notably the service industry – and upon domestic work in particular. The ILO reports that over the last 30 years regions including Europe, the Gulf countries and the Middle East have seen migrant women become the majority of domestic labourers. Workers such as these often find themselves at the intersection of various types of informality relating to age, gender and sector, and thus tend to be barred from contributing to social security systems in their host country, and subsequently unable to claim any benefits when they return home (ILO, 2010). Out of the 63 countries surveyed by the ILO in 2009, 23 considered domestic employees ineligible for basic protections such as the minimum wage. In the resolution on migrant workers’ protection passed at the 92nd Session of the International Labour Conference, 2004, the ILO noted the challenge raised by these especially vulnerable groups. The resolution singled out female, irregular and temporary migrant workers as especially in need of improved regimes for protection and access to rights (ILO, 2004a). An increasing proportion of migrant workers move as part of temporary migration schemes, designed by developed countries to remedy labour market gaps. These schemes pose difficult questions with regard to migrants’ integration in receiving countries, of which social security is an important dimension. One current trend is the search for new arrangements to mediate the international mobility of such workers, such as Mode 4 of the General Agreement on Trade in Services (GATS), which governs service provision. However, there is concern (ILO, 2008a)

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that treating migration as a trade issue leads inevitably to the devaluing of such workers’ protection. The ILO warns particularly of the importance of keeping such negotiations transparent with regard to workers’ rights, since the low-skilled workers who might become subject to such agreements are those least able to safeguard their own rights. Work by Avato and colleagues (2010) shows that it is predominantly North–North migrants who enjoy access to and portability of social benefits, which translates into 23 per cent of all migrants worldwide. The most disadvantaged migrants are those moving within low-income regions. In these regions, formal social security provisions are less developed, and migration is characterized by high numbers of undocumented migrants. The lack of access to social services and lack of portability of social rights for migrants not only raises concerns about the vulnerabilities of migrants, but also creates distortions in labour markets and in migration decisions. If migrants do not fully benefit from social security contributions or tax contributions because the associated benefits are not accessible or not portable, they might decide to avoid contributions and work informally or understate earnings. If migrants have made considerable contributions, but the acquired social rights are not portable, migrants’ decisions to return to the home country or to stay in the host country might be biased towards the latter because of the expected income loss due to, for example, forgone pension benefits. Lack of portability of social rights could, therefore, undermine return migration and deprive origin countries – many of them developing countries – of important beneficial development effects. The rest of this chapter is organized into six sections. First we review what is meant by social protection and how it relates specifically to migration. We then focus on the ways in which migrants are able to access (or are constrained from accessing) social security arrangements. This is followed by two related sections dealing with the coverage of existing bilateral and multilateral social security agreements. The final two sections draw conclusions, first for the special case of South–South migrants and finally for more general policy implications.

2. Social protection for migrants Social protection for international migrants consists of four components: (i) access to formal social protection – that is, social security and social services – in host and origin countries;

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(ii) portability of vested social security rights between host and origin countries; (iii) labour market conditions for migrants in host countries and the recruitment process for migrants in the origin country; and (iv) access to informal networks to support migrants and their family members. For the purposes of this chapter we focus only on the first three components. First, access to social services is crucial for migrants as it impacts their level of vulnerability. Social services include health-care benefits, long-term social security benefits such as old-age and disability benefits, and short-term benefits such as social assistance, maternity and unemployment benefits, family allowances, as well as public housing and education. Migrants often do not benefit fully from these social services, either because access is only granted some time after arrival, or because family members are spread across various countries. If migrants fail to generate sufficient income to cover all their needs – and in many cases the needs of their family left behind – their situation worsens significantly if they have no access to safety nets (that is, social assistance). At the same time, according to Borjas’ selection model, countries with generous social security systems could attract low-skilled immigrants through unintended self-selection, which is why many host countries follow policies of limited or delayed access (see Borjas, 1987). Second, portability of social security rights is important to migrants to avoid financial losses, but also to social security institutions out of concerns for actuarial fairness. Portability is the ability to preserve, maintain and transfer vested social security rights or rights in the process of being vested, independent of nationality and country of residence (Cruz, 2004; Holzmann et al., 2005). Portability is particularly important for long-term benefits with pre-saving elements that are either explicit (as in the case of old age pensions) or implicit (as in the case of health care). In the absence of portability, migrants run the risk of financial loss when leaving their host or home country. For example, migrants contributing to an old age pension scheme in their host country could lose part of their contributions and benefits when returning to their home country. Similarly, migrants contributing to health insurance in their host country could lose coverage when moving back to their origin country. They might find it difficult to get affordable health insurance in their origin country after return, particularly when close to or during retirement. By

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default, they could end up benefiting from the origin country’s social system or health system, although they might have spent most of their productive life working abroad and contributing to a foreign social system. This could have important fiscal implications for social systems in origin countries. It is important to distinguish portability from exportability of social benefits. In order to achieve full portability, some cooperation between the social security institutions of the origin and the host country is required in order to ensure a joint determination of benefit levels for a particular migrant. In the case of pensions, for example, this is done via a totalization of periods of contribution in both countries. That is, social security contributions from both countries are taken into account when determining eligibility for a pension and the pension amount.1 Third, labour market conditions are an essential component of the social protection for migrants. Migrants are often disadvantaged in foreign labour markets due to information asymmetries and monopsony power of employers. Countries have created labour market policies to overcome failures in the labour market in order to strike a balance between the needs of employers and the need for protection of workers. These policies – enacted and implemented on the national level – regulate the workings of labour markets, that is, hiring and firing conditions, minimum wages, benefits and other rights for workers. For migrants, though, who are often recruited in the origin country to work in the labour market of the host country, many of these regulations might be undermined because of substantial information gaps. These information gaps can be exploited by employers, recruiters and middlemen who use the promise of high earnings to extract unjustified fees from migrants or to offer them unfavourable work contracts. In addition, if work permits and visas are tied to work contracts and migrants are facing limitations to choose their employer freely, the bargaining power is tilted towards the employer, creating possibilities for exploitation and abuse. Finally, if immigration policies are too restrictive vis-à-vis the demand for foreign labour, employers and migrants face incentives to meet in the informal labour market and the labour market for undocumented migrants, which is not subject to any regulations and might provide weak or only informal social security. In principle, access to social services, such as health and education, is governed by the UN International Convention on the Protection and Rights of All Migrant Workers, which in 2007 was ratified by 37 (mainly low- and middle-income) countries. High-income countries

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were reluctant to sign the Convention, perhaps because it provides (too) many entitlements for migrant workers. Clearly, the issue of migrants’ access to social security is irrevocably linked to politics and the way that political opinion affects the interpretation of rules and rights. For instance, in-migration hubs such as the United Kingdom and South Africa are concerned about extending social benefits to ‘foreigners’ because it is thought that formally entitling migrants to benefits could encourage migration, putting a greater strain on stretched public services or increasing competition with current residents for jobs. This issue involves rule-setters’ interests and perceptions about state sovereignty and the sanctity of territorial borders, as well as social spending targets. Also, the way the migrant is ‘constructed’ within the local culture can facilitate or constrain access for migrants to a range of social provisioning. Drawing on qualitative surveys described in Chapter 9, Box 3.1 illustrates the way that access to social assistance can differ by country of destination.

Box 3.1 Differential access to welfare services at destination Access to social welfare is highly dependent upon the welfare state and supporting legislation and structures within each country. For instance, many migrants were able to access state health and education services in the United Kingdom (UK), but migrants in South Africa were largely excluded from these services. In both cases, however, access to transnational social networks arguably served as the migrants’ main ‘safety net’ against the risks posed by international migration. This difference is in large part due to the fundamentally different welfare systems of the receiving countries. In the United Kingdom, free public health care and schooling based on universalistic principles has led to limited policing of ‘foreigner’ abuse of the system. To be enrolled in school all that is required is evidence of permanent residence (and address). The immigration department does not regularly share information with the education and health departments. On the other hand, in South Africa health and education are largely within the private sphere. Furthermore, identity (ID) cards are required for registration for all social services. Where ID numbers are less that 13 digits long (indicating non-citizen status), rights and entitlements are severely restricted. Irregular migrants have extremely limited opportunities to access services.

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Speaking about the UK health and education systems, a Malawian migrant claims: It is not difficult for the children of illegal migrants to get into a school or even for illegal migrants to get seen by an NHS doctor because schools and surgeries don’t ask questions about the status of people who come to them. There is no communication between the Home Office and Education and Health. So, even if you are an illegal, the school or surgery won’t ask for any documentation. You are free to register. The past lax immigration laws have also allowed otherwise nonresidents access to the education system. Others have made arrangements like my wife’s. She brought her sister’s children to the UK as her own. No questions were asked at the airport: she simply claimed that they were her own children. Now they are both in school, living with their mother. It is common among migrants to do this for each other. The South African situation is very different. An irregular female migrant recounted that: I came to South Africa because my husband was here and I was pregnant with our second child. We didn’t know that you needed a South African ID number to go to hospital. Luckily, when the time came to have the child, I used the ID of a Malawian woman who has managed to get an ID. We look nearly the same, so I was able to deliver the baby in hospital. Source: Sabates-Wheeler (2008): transcripts available from author.

3. Access to national social security schemes Existing social security measures for workers are often a problem for migrants in developed countries. A Canadian report (Elgersma, 2007) notes that migrant workers who are legal derive no benefit from basic employment insurance and often work in non-unionized sectors, reducing their recourse in cases of employment or other economic shocks and generating systemic instability in certain sectors. Even in a nation

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as wealthy as the United States (US), the comparative financial disadvantage of being undocumented, and the concurrent lack of access to basic social security programmes that cover poor families, leads to concerns surrounding health and nutrition for this group in particular. A 2008 study (Hadley et al.) indicates that among undocumented migrants living in the United States, uncertain and unpredictable work schedules and limited access to public assistance seem to contribute to high levels of food insecurity and hunger, which in turn may also negatively affect mental and physical health. The study also finds that the longer an undocumented migrant lives in the United States, the poorer their health indicators. Formal social security for international migrants is essentially a matter of national legislation. The host country regulates what benefits migrants have access to and under what conditions. However, even where national laws dictate that the law must apply equally, protection for migrant workers is limited. This has to do with the application of the law but also with the high proportion of migrants located within informal labour markets. An ILO Migration Survey (ILO, 2004b) showed that one-third of countries surveyed did not apply their antidiscrimination laws to migrant workers, meaning that minimum wage legislation and access to social services could not be enforced by them, or on their behalf. Furthermore, according to the survey, many states dictate that service providers must call the immigration authorities when migrants try to appeal for the provisions for equal treatment to be enforced, making it unlikely that irregular workers, in particular, would be able to access their rights. An ILO report (2003) estimated that only around 10 per cent of agricultural workers globally were organized, something especially problematic considering that agriculture has a disproportionately high number of workplace hazards but very few sources of compensation for non-citizen workers. Exacerbating this is the lack of unionization characterizing informal migrant workers. Where formal legislation is effective, it defines what benefits can be received after leaving the country. The European Union (EU) has the most advanced and complex system of portability of social benefits. EU nationals enjoy full non-discriminatory access to all and portability of most social benefits. With respect to third-country nationals, equality of treatment is granted after a certain period of residence (no later than after five years according to EU Directive 109/2003). This means that even third-country nationals enjoy full access to and portability of social benefits within the EU no later than after five years of residence.

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Additionally, EU nationals can export their pensions to literally any country in the world. The coverage of health care outside the EU is much less developed. Canadian and Australasian social security systems also include provisions for international migrants. Canada allows access to the taxfinanced universal pension, health-care benefits and the earnings-based pension to all residents, including most migrants.2 All migrants in New Zealand have immediate access to education, accident compensation, public health services, and in some cases emergency benefits for special hardship. After two years of residence, migrants gain access to services such as housing assistance, unemployment benefits, sickness benefits and interest-free student loans for tertiary education. In Australia, access to social services differs for temporary and permanent migrants. Temporary migrants have no immediate access to social security benefits and public health services. However, upon leaving Australia, they are refunded for the contribution they were required to pay. Permanent migrants have access to some benefits immediately and to the full range of social services after 104 weeks of residence. Similarly to Canada, Australia has a dual social security system, including a meanstested national pension and a mandatory, earnings-based occupational pension. Two categories of social security systems exist in the main East Asian host countries and economies. Hong Kong (China), Japan and the Republic of Korea have multi-tiered schemes, consisting of a basic part covering all residents and an occupational scheme. Malaysia and Singapore have provident funds that collect resources not only for retirement, but also for financing health care, education and housing. The social security provisions in these countries allow some limited portability of long-term benefits, either in the form of pensions paid abroad (Republic of Korea) or in the form of lump sum payments when leaving the country for good (Malaysia). The Gulf Cooperation Council (GCC) countries in the Middle East are special in the sense that they do not grant immigrants any access to the social system.3 Migrants (and their employers) do not have to contribute to the system (at least not directly), so the issue of portability of benefits and lost contributions is not relevant. This leaves the migrant with the responsibility to provide for certain benefits like old-age or disability pensions on his or her own. If the migrant’s origin country is sufficiently developed, this could happen in the form of voluntary contributions to the public system of the origin country or by buying financial products from the private insurance market. Regarding health care, the visa

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sponsor of the worker is obliged by law to provide health insurance for the migrant, but it is unclear how well these provisions work. In middle-income countries, much less is known about provisions in national law regarding the access to social services and exportability of benefits for migrants. The middle-income regions of the Caribbean, Eastern Europe, Latin America and North Africa all have well-developed social security systems with relatively good coverage of the native labour force. Some of the countries in these regions host significant numbers of immigrants, for example, Argentina, Belarus, Russia, Turkey, Ukraine and Venezuela. The social security provisions for immigrants in these countries are likely to be similar to those of high-income countries with contribution-based social security systems. The low-income regions of Central Asia, South Asia, South-East Asia and sub-Saharan Africa include various major host countries – such as Burkina Faso, Côte d’Ivoire, India, Kazakhstan, Pakistan, South Africa, Tanzania, Thailand and Uzbekistan – yet even less is known about the social protection status of their immigrants. Many of these host countries have weak social security systems that cover only a small portion of the labour force. Large numbers of immigrants are undocumented and participate in the informal sector, which raises concerns about their social protection status. Most formal social security is provided through tax-financed social assistance and migrants seem, by and large, to be excluded from these benefits.4 An important regional effort affirming the significant contribution of migrant workers to the society and economy of both host and sending states has been made by the Association of Southeast Asian Nations (ASEAN). In 2007 the Cebu Declaration on the Protection and Promotion of the Rights of Migrant Workers acknowledged the difficulties that migrant workers and their families often encounter in exercising their rights. The Declaration committed all the ASEAN countries to strengthen the protection afforded to migrant workers (see Tamagno, 2008). At the global level, legal provisions relating to social security for international migrants are scarce, with the exception of bilateral (and multilateral) social security agreements.5 These currently constitute the best practice on how to coordinate access to and portability of social benefits for migrants.

4. Bilateral and multilateral social security agreements Bilateral social security agreements usually include provisions on nondiscrimination between nationals and migrants with respect to social

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security and rules of cooperation between the social security institutions of the signatory countries. The latter coordinate the totalization of periods of contribution that migrants accrue in the two countries and regulate the transfer and payment of acquired social security entitlements. Most agreements refer to long-term benefits like old age, disability and survivors’ pensions and other annuities. Health-care benefits are subject to social security agreements to a much lesser extent. Also, purely tax-funded – as opposed to contributory – benefits such as social assistance or maternity allowances are usually explicitly exempt from portability. Social security agreements are also arranged on the multilateral level, as shown by the EU, CARICOM (Caribbean Community), MERCOSUR (Mercado Común del Sur) and, in the future, the Ibero-American Social Security Convention. The EU is also leading efforts to enhance social security cooperation within the Euro-Mediterranean Partnership (EMP).6 Social security agreements with Morocco, Tunisia and Algeria have been concluded under this initiative. The ILO has noted its concern that such multilateral agreements, where they do not involve countries with comparable rights regimes, should give attention to workers’ protection. Its ‘Multilateral Framework on Labour Migration’ provides guidelines on the equal treatment of migrants in temporary worker schemes, focused on establishing and enforcing international standards (ILO, 2006). While several processes exist for establishing and discussing migrant workers’ rights, forums for realizing and enforcing them may still be lacking. The ILO (2008a) suggests that some candidates include the Global Migration Group, formed in 2006 to coordinate responses within the United Nations system, and the Global Forum on Migration and Development, a multinational consultative process first held in 2007. The ILO also notes that Regional Consultative Processes such as the Bali, Budapest and Puebla Processes may offer a framework within which to address these issues. However, it warns that so far they have been insufficiently transparent and inclusive to serve as forums for discussions of workers’ rights, and furthermore have been mainly devoted to security issues (ILO, 2008a). Outside this multilateral framework, many EU member states have also concluded bilateral social security agreements with non-EU countries and have created an extensive global network of portability arrangements. The United Kingdom, which receives and sends large numbers of migrants, is a good example of an EU country having extensive national, bilateral and multilateral legislation in place. In the Latin American and Caribbean region (LAC), migrants can take advantage of social security provisions that have been established

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in the multilateral frameworks of CARICOM and MERCOSUR. To the extent that these countries have social security provisions, accrued benefits are made portable within the regions, though limitations apply. The MERCOSUR agreement came into force only in 2004, while the CARICOM Agreement on Social Security (CASS) was concluded in 1996.7 Forteza (2008), however, concludes that its impact has been limited due to factors such as differing social security systems and the lack of awareness among the populations. More recently, the Ibero-American Social Security Convention has been signed; it includes 19 LAC countries8 as well as Andorra, Portugal and Spain. The arrangement will mostly apply to contributory systems of social security, including disability benefits, old age pensions, widows’ pensions and workers’ compensation.9 The degree to which countries coordinate the portability of social security benefits via bilateral agreements varies greatly across regions. For example, the EU and other Western European countries have concluded 1628 bilateral social security arrangements – either through bilateral or multilateral agreements – of which 1034 are intra-EU arrangements. East Asian and Pacific (EAP) countries, on the other hand, have concluded only 181 such arrangements, although they provided the highest share (22 per cent) of all migrants worldwide as of 2000. South Asian countries only concluded three arrangements, and even though sub-Saharan African countries have concluded 177 arrangements it should be noted that a large number (75) have been created by Reunion, which is counted as part of France in all French agreements.10

5. Migrants potentially covered by international social security agreements This section elaborates on the data regarding bilateral and multilateral social security agreements and provides global estimates on how many migrants are potentially covered by such agreements and how many migrants have access to social services in host countries. Following Holzmann and colleagues (2005), bilateral migrant stocks are categorized into one of four regimes: Regime I includes all legal migrants enjoying indiscriminate access to social security in their host country. In addition, home and host country have concluded a bilateral or multilateral social security arrangement guaranteeing that benefits are payable overseas (exportability), and also the social security institutions of both

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countries jointly determine eligibility for and level of the benefit. Regime I is the most favourable regime in terms of formal social protection for migrants. Regime II includes all legal migrants who have access to social services and social security in their host country in the absence of a bilateral arrangement between their host and origin country. In such cases, the national social law of the host country alone determines to what extent benefits are payable overseas, which might result in limited exportability of benefits. Totalization of periods of contribution is not possible, so acquired social security rights are not fully portable. Regime III includes all legal migrants who do not have access to social security in their host country – either because they are excluded or because there is no social security system in their host country. This is the case for most of the large migrant-receiving countries of the Gulf Cooperation Council (GCC) and some African countries. Access to other social services, like education and health care, might be granted. Despite the limited access to social security, an advantage of Regime III is that it does not require migrants to contribute to long-term benefits like old age pensions, and hence they do not run the risk of losing benefits and rights associated with mandatory contributions. Regime IV includes all undocumented migrants who arguably face the greatest challenge regarding their social protection. They have limited access to social services and social security and work in a largely unregulated labour market. The tables below illustrate global coverage of social security for migrants in different regimes. The global estimates on the status of social security for international migrants are based on data from the Development Research Centre on Migration, Globalisation, and Poverty (Migration DRC).11 For details of these estimates, see Avato and colleagues study (2010) which details the methodology and estimates of bilateral social security provisioning for different groups of migrants. The main migration flows are from lower to higher income countries, but there is also considerable migration between lower income countries. About 130 million migrants (70 per cent) originate from low- or lower middle-income countries, while they host only 40 per cent of migrants (see Table 3.1). In contrast, high-income countries host about 93 million migrants (50 per cent) while sending only 19 per cent of

Global migrant stock estimates and bilateral portability arrangement by origin and host income group (2000)

Origin country income group

Host country income group OECD high-income countries

Total

% global stock

3,332,615

11,128,178

53,622,241

29

9,099,077

5,592,653

29,162,504

76,487,150

41

2,095,454

1,447,944

1,110,490

16,293,585

21,639,214

12

195,520

1,270,164

332,871

205,867

3,844,703

5,849,125

3

1,147,634

2,689,451

1,721,117

949,142

22,410,626

28,917,970

16

30,192,416

44,859,803

17,433,118

11,190,767

82,839,596

186,515,700

100

16

24

9

6

44

100

1157

2937

Low-income countries

Lower middle-income countries

Upper middle-income countries

Low-income countries Lower middle-income countries Upper middle-income countries Non-OECD high-income countries OECD high-income countries

23,339,921

10,989,418

4,832,109

4,817,600

27,815,316

691,741

Total % global stock

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Table 3.1

Non-OECD high-income countries

Number of bilateral portability arrangements concluded by countries in each income group:∗ 92 404 823 461

∗ Each bilateral portability arrangement is counted twice, once for both countries involved. Also, some bilateral agreements cover more than two countries. This is the case if one or both of the contracting countries have overseas territories, which are usually included as national territory in their contracts (for example, France, United Kingdom, United States). Some bilateral arrangements are part of a multilateral treaty, as in the EU. Source: Migration DRC (2007) and Avato et al. (2009).

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migrants. Yet, when exploring the data in more detail, it also becomes clear that global migration is not a one-way street from lower to higher income countries. Almost 67 million migrants from low- and lower middle-income countries live in another low- or lower middle-income country. This is no surprise due to high intra-regional migration. What is somewhat surprising, though, is that the large majority of migrants from low-income countries live in another low-income country – while for all other country-income groups, the majority of migrants go to high-income Organisation for Economic Co-operation and Development (OECD) countries. It seems that migrants from the poorest countries tend to go to other, similarly poor countries.12 About 23 per cent of global migrants move under the favourable Regime I that potentially provides them with full access and full portability of social benefits (see Table 3.2). The share of migrants under Regime I varies significantly among the regions. The EU-27 countries and other European countries have 80 per cent of their migrants covered, followed by North America with 68 per cent. Migrants from poorer regions are much worse off: practically no migrants from South Asia, and only 4 per cent of migrants from sub-Saharan Africa move under Regime I. Most migrants under Regime I, though, are from and go to highincome countries. More than half of the 43 million Regime I migrants originate in high-income OECD countries. These countries cover 86 per cent of their emigrants under this favourable regime. Also, the social security status of migrants seems to increase with migrants’ origin income-country group. Moreover, almost all migrants (98 per cent) moving among high-income OECD countries – so-called ‘North–North’ migration – are covered by bilateral agreements. Unlike migrants from upper middle-income countries, migrants from developing countries are very poorly covered by Regime I. In fact, the top migrant-sending countries with emigrant stocks between 6 and 13 million – Russia, Mexico, India, Bangladesh, Ukraine and China – have concluded next to no bilateral portability arrangements.13 Thus, protecting their emigrants through bilateral agreements seems indeed to be a practice that is primarily common in high-income countries – migrants from developing countries mostly fall into Regime II. Consequently, migrants from poorer regions depend much more on national legislation regarding the provision of social security. In fact, this results in another disadvantage because within Regime II, poorer migrants are more likely to move short distances and to other poor regions. While migrants moving to high-income countries have, by and large, access to better social security systems and services, those migrants moving to low- or middle-income

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Table 3.2

Global emigrant stock estimates by origin region and portability regime (2000)

Origin region

Regime I

Regime II

Regime III

Regime IV

Total

% global stock

East Asia and Pacific % total

3,189,217 14

15,588,651 67

825,255 4

3,609,755 16

23,212,878 100

12

Eastern Europe and Central Asia % total

5,231,252

27,484,317

358,591

8,442,567

41,516,727

22

13

66

1

20

100

EU-27 and other European countries % total

23,101,222

4,214,004

281,310

1,284,324

28,880,860

80

15

1

4

100

Latin America and Caribbean % total

4,117,978

16,137,106

167,538

7,921,363

28,343,985

15

57

1

28

100

Middle East and North Africa % total

3,713,448

6,751,815

2,713,785

2,342,802

15,521,850

24

43

17

15

100

North America % total

2,439,139 68

1,054,736 29

55,805 2

35,773 1

3,585,452 100

2

20,105 0

16,528,148 66

4,413,451 18

4,220,898 17

25,182,602 100

14

714,570 4

14,104,664 70

627,117 3

4,824,994 24

20,271,345 100

11

42,526,931 23

101,863,440 55

9,442,851 5

32,682,476 18

186,515,698 100

100

South Asia % total Sub-Saharan Africa % total Total % total

Source: Migration DRC (2007) and Avato et al. (2009).

15

15

8

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countries will have access to only weakly developed social security systems. In many lower and lower middle-income countries, migrants (and most likely many nationals too) are often left in a situation where they cannot rely on the provision of public social services in times of need. Nevertheless, some low and lower middle-income countries have successfully managed to protect their migrants by concluding bilateral social security agreements. For example, countries such as Morocco, Algeria and Turkey have managed to cover 89, 87 and 68 per cent of their emigrants, respectively, under Regime I. In addition, there are also the regional agreements of CARICOM and MERCOSUR countries, which have made efforts to grant non-discriminatory access to social services and make benefits portable for intra-regional migrants. These cases prove to be the exception rather than the norm. What then are the options facing South–South migrants?

6. Options for coverage for migrants from the South It is no surprise that southern countries have little to offer with respect to portability of benefits. Most benefits are tax-financed social assistance benefits and social security often relies primarily on provident funds, if there are any. The weak development of social security provisions in low-income countries and the lack of administrative capacity are likely to be the reasons why poorer countries are not in a position to engage in bilateral or multilateral negotiations regarding the social security for their emigrants. Since the large majority of emigrants from lowincome countries go to other low- or lower middle-income countries, the concern is not so much how developing countries can coordinate with high-income countries in order to enhance the social security of their emigrants, but how low-income countries can coordinate among themselves to enhance the social protection of South–South migrants. Regional efforts may help to bring about change in the approach to social protection across borders; however, their impact may be limited for the same reasons that deter the implementation of comprehensive social security systems. The Southern African Development Community (SADC), for example, has agreed on a Social Code which touches upon migrants’ rights; it encourages members to protect their immigrants, to give them equal access to the social security system, and to offer at least basic protection to undocumented migrants. Furthermore, member states are encouraged to introduce, by way of national legislation and bilateral or multilateral arrangements, cross-border coordination principles, such as maintenance of acquired rights, aggregation

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of insurance periods and exportability of benefits. However, the Social Code is not a legally binding agreement and, given the status quo of the welfare systems in SADC, it may constitute wishful thinking. South Africa has also entered into so-called labour agreements with a range of SADC countries, but most of the agreements do not cover public social security schemes, they constitute merely employer-based occupational arrangements, and the enforcement of employers’ compliance with such regulations is questionable. Also, it should be noted that all these arrangements obviously do not provide the desired features of coordinating regimes, such as maintenance of acquired rights, aggregation of insurance periods and equality of treatment with nationals of the receiving country in social security matters. Although protection for less-educated migrants is frequently lacking, the example of Sri Lanka demonstrates how origin countries can take increased responsibility for their migrants’ social protection, even in the absence of receiving country commitments. The country responded to the fact that migration for work often leaves migrants and their families cut off from origin-country insurance systems by setting up an Overseas Workers Welfare Fund to provide social insurance for migrants and families left behind (ILO, 2008c). The fund covers payments to migrants and their families in the case of death, disability or a need to cover travel expenses. Overall, the agenda to facilitate formal social protection for South– South migrants is not very well developed. Consequently, one question is whether there are lessons to be learned from other regional agreements. The EU has probably been the most successful region in concluding multilateral and bilateral agreements. However, the EU is a fairly homogeneous region with similarly well-developed social systems. On old age pensions, for example, most countries in the EU rely on defined benefit systems. Equally well-developed systems are easier to connect and to coordinate, in particular with regard to complex actuarial transactions. Also, the capacity to administer such agreements, including record-keeping and tracing contributions, as well as executing complicated actuarial operations like totalization of periods of contribution, is well developed. These observations about EU social security arrangements and the previous analysis which mainly gave examples from SADC make clear that many low-income countries might be far from being ready to conclude such agreements. Their welfare systems are too unprepared to engage in these complex issues. Social security is not even ensured as a social right for citizens in many countries.

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Hence, it seems that there is no strong model of how to move forward on social security provisioning for South–South migrants. This is not to say, however, that formal social protection for South–South migrants is irrelevant. Yet, the priorities are different to those in the case of South–North or North–North migration and one has to differentiate when looking into policy implications. Given the limited provisions and low overall coverage by social security of the labour force in low-income regions, it seems that concerns about the lack of portability of benefits are premature. Instead, it seems that a more effective policy direction to improve the social protection position of international migrants from and within poorer regions would be to: i) create a proper policy framework to manage migration in the region, in particular undocumented migration; ii) focus on the social protection for the most vulnerable groups – women, children, refugees and undocumented migrants – by improving their legal status in the host country and ensuring that their most basic rights are respected; and iii) develop standards on how to coordinate social systems in the future to ensure portability of acquired social security rights. In other words, the critical issue is to find ways to bring the ‘uncovered’ under a formal social security umbrella within the countries that they reside. This may or may not require immediate attention to portability; it will depend on the country of interest and the state of social security provisioning within that country.

7. Policy conclusions When the member states of the Global Forum on Migration and Development discussed migrant social protection at their 2008 meeting (GFMD, 2008), they did so within a framework that apportioned different responsibilities to states according to the migrants’ location and the stage of the migration process. For sending states, the discussion centred around the provision of information, holding all those involved in the chain of recruitment responsible where migrants are not awarded protection, and both simplifying and making affordable the administrative processes migrants have to go through. Once migrants are abroad, their home countries are able to contribute to their protection by negotiating bilateral agreements with receiving countries (for example, the agreement between Spain and Ecuador, which incorporates guarantees

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of social protection and access to benefits), and by establishing labour attachés at their consular services to advise migrant workers on their rights. Some sending countries (Sri Lanka, Pakistan and the Philippines) have established welfare funds offering death and disability insurance for migrants and their families. Receiving countries’ responsibilities were outlined as consisting mainly of ensuring effective provision and monitoring of migrants’ access to rights and services, and labour standards. The main avenues for provision include migrant resource centres, help lines and information in the migrants’ native languages. The GFMD response to social provisioning for migrants is refreshing in its holistic response to the multiple vulnerabilities facing migrants and their families. Importantly, it recognizes the different needs of different migrants at the various stages in their migration journey. Irregular migrants working in the informal sector have specific social security needs that are likely to be met through international conventions, national legislation, regulation and increased awareness of rights. As noted in the introduction, the resolution on migrant workers’ protection (2004) argued that protection for less skilled migrant workers has a high potential for poverty reduction via both earnings and remittances. Regular migrants working as professionals also benefit from legal provisions but are likely also to influence and be influenced by receiving country employment-related benefits, certain types of state assistance and bilateral arrangements setting the parameters for transfers of benefits upon return. Policy measures for northern countries primarily concern reforms of current defined benefit systems into more defined contribution-type welfare systems, and move towards more actuarial structures. The goal would be to improve individual and fiscal fairness as well as the administrative burden associated with the coordination between social security authorities. More importantly, northern countries need to look into models of how to include health-care benefits into bilateral arrangements, a task that is certainly challenging due to the complexity of health care systems. While bilateral social security agreements can currently be seen as the best practice to enhance social security of migrants from and to high-income countries, this might be insufficient in the case of developing countries that do not have very well-developed social security systems. The analysis shows various examples of how different regional blocs and countries deal with formal social protection and portability. There seems to be no ideal model yet for regional economic blocs of mainly low-income countries on how to enhance the formal social protection for their emigrants and immigrants. Thus, the above

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discussion leads to the conclusion that migration among developing countries needs to be looked at from an entirely different perspective. In fact, migration itself provides one of the main social protection instruments for migrants and their families. The policy challenge is to make South–South migration safer for migrants in order to maximize benefits from this important livelihood strategy. Some general policy conclusions can be drawn, which relate to all migrants, with regard to improving their access to social security: 7.1. Ensure portability of those occupational benefits that are legally also available to migrants, in particular workers’ compensation, severance payments and benefits from provident funds One opportunity to enhance the formal social protection for migrants would be to improve the portability of some of the few occupational benefits that are available to formal workers, for example workers’ compensation benefits, severance payments and payments from provident funds. These benefits are present in most low-income countries, and migrants – legal and undocumented – frequently seem to make contributions to these occupational benefits. Although most of these benefits are legally portable – in most cases benefits are simply paid out as a lump sum – the provisions on cross-border payments seem to be poorly implemented, so that more often than not payouts from these benefits never reach migrants or their survivors in the migrants’ home countries. Hence, it is crucial to ensure the proper implementation of such provisions as a first step to improving the formal social security of migrants. Italy has been innovative in offering pension portability to non-EU workers: since 2002, employers have paid social security contributions for migrant workers separately from their citizen employees, through the National Social Insurance Institute (INPS), which then transfers their contributions to the social security authorities in the migrants’ countries of origin. The law also covers the families of permanent resident foreign workers, and offers survivorship or transferred pensions, which are portable across national borders and can be claimed at the Italian retirement age of 65, regardless of national laws. 7.2. Ensure basic human and social rights to all migrants, independent of their status Given the large number of undocumented migrants and their weak legal and social position, it appears that the most effective way to enhance

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the social security of migrants is to ensure basic human and social rights for them. Due to their undocumented status, many migrants easily fall victim to exploitation, particularly vulnerable groups like women. Other problems migrants may face are lack of freedom of association, isolation, exclusion and xenophobia. These problems erode the benefits of migration for all parties and seriously undermine its development impact, including productive employment and decent work. Governments need to be serious about upholding human rights laws such that migrants are entitled to basic services, freedom from exploitation and the right to a fair trial. Taking the Decent Work Agenda seriously must translate into more labour market monitoring and ensuring workplace safety. Granting basic human and social rights is also in the interest of native workers because without such provisions employers have an incentive to favour more vulnerable and thus cheaper labour over native workers. In other words, discrimination against migrants in terms of social rights also makes migrants cheaper for employers – at the expense of native workers. Where necessary, countries of origin and destination need to put policies, legislation and mechanisms in place that provide migrant workers protection and support from any abuses in the labour migration process. Perhaps the best way to move forward on a basic human and social protection rights agenda is to establish a country-specific minimum ‘social floor’ which all people have a right to regardless of residency status or legal status. Such a floor would necessarily include access for migrants to emergency health care and access to education for children. Canada’s Seasonal Agricultural Worker Program offers a best practice example for a number of reasons. First, the rules surrounding it give migrants rights to social protection that are similar to those of Canadian workers. Second, the government involves employers in designing and implementing the programme, and gives administering agencies discretion in implementing the rules (Martin, 2007). 7.3. Support migrant networks and associations Access to informal social protection is critical for achieving positive outcomes from migration, particularly for poorer migrants. Encouraging and facilitating social networks and informal social security will help migrants reap the benefits from migration. For example, governments could actively support and provide funding for migrant associations as well as migrant rights non-governmental organizations (NGOs) as a way of supporting current migrants – or at the minimum should not undermine informal migrant networks and instead provide them with

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an environment where they can duly develop. Informal networks could also be used as a channel to improve safety during the migration process. They could be used to inform migrants about benefits, costs and risks of migration during and ideally prior to migration. Governments in both sending and destination countries may also attempt to connect with migrant networks to learn details about exploitation incidents – for example, at the workplace – and feed this information into their monitoring process of labour market conditions. One particular concern about informal networks is that their usability for migrants could crucially depend on the migrants’ duration of stay: a sufficient length of stay is important so that migrants have to time to build strong ties among themselves. Clearly it is politically impossible for governments to openly encourage and support the activities of undocumented migrants. However, by supporting registered and recognized migrant groups, localities and diaspora networks, policies will have the indirect effect also of strengthening avenues by which undocumented migrants can report instances of abuse and exploitation as well as claim basic rights, and at least facilitate spaces where migrants can access networks. Many migrants are primarily concerned with the welfare of their families back home and remittances are the means by which families are supported, homes are built, basic needs are met, children are schooled and investments are made. Migrants, especially the undocumented ones, are often denied access to the financial system (be it a bank, a post office account or a financial intermediary), which is of crucial importance for all migrants who want to safely transfer remittances to their families. Governments and donors must think creatively about secure and efficient ways of encouraging and facilitating access to remitting services for all migrants. This would be an obvious advantage for the migrant and for the destination economy. It may likely have a longer term spin-off effect whereby migrants begin to save and access credit lines. 7.4. Develop a migration policy framework Given that migration is, first, not a unidirectional, permanent phenomenon, and, second, it is, to a large extent, informal and temporary, demand-driven migration programmes might offer the best policy framework for migration. Many migrants do not want to stay in the host country for very long but rather come to earn money for certain purposes and leave after having earned enough. Thus, a temporary migration scheme that would grant work permits to migrants to work

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in seasonal jobs and specific sectors for a limited time would be one way to move forward. Additionally, a migration framework should consider the significant number of regular cross-border traders. These circular migrants, who contribute significantly to the destination economy, should be equipped with trade visas to enter the country legally. These measures would lift many migrants to the status of legal migrants, which may make it easier for them to improve their livelihoods (at destination, in transit and at source) and eventually to improve their access to formal social security.

Notes 1. Exportability, on the other hand, requires no such cooperation as eligibility and the level of benefit are determined by the social security institution of one country alone. 2. Seasonal agricultural migrant workers are excluded. See United States Social Security Administration (2007). 3. The GCC countries are Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates. 4. The shortcomings of social protection for migrants in low-income regions are discussed in more detail below. 5. The ILO and the UN have adopted a series of conventions concerning social protection for international migrants, most notably the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families. This Convention, however, had limited success; it was adopted by the UN General Assembly in 1990, but came into force only after 13 years, with just 22 ratifying states. Similarly, the ILO adopted a number of conventions dealing with non-discrimination and equal opportunity for migrants in their host countries, all of which suffered from weak support in terms of ratification by member states. ILO Convention 157, for example, aims at establishing a global regime of portability of benefits, but has only been ratified by three countries. 6. Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia, Turkey and the Palestine. 7. Suriname is not included in the agreement as it has an incomparable social security system. 8. Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Peru, Paraguay, Uruguay and Venezuela. 9. See Online Pioneer (2007). For a copy of the Convention in Spanish, see Organización Iberoamericana de Seguridad Social (OISS, 2007). 10. Numbers are based on data presented in the next section. 11. See Migration DRC (2007), Global Migrant Origin Database. Available at http://www.migrationdrc.org/research/typesofmigration/Global_Migrant_ Origin_Database_Version_4.xls (accessed 29 March 2008). 12. The largest hotspots of migration between low-income countries are South Asia, West Africa and Central Asia.

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13. Nevertheless, the efforts of Mexico and India to negotiate an agreement with the United States, and India also with various European countries should be acknowledged.

References Avato, J., J. Koettl and R. Sabates-Wheeler (2010) ‘Social Security Regimes, Global Estimates and Good Practices: The Status of Social Protection for International Migrants’, World Development, 38(4). Borjas G. J. (1987) ‘Self selection and the earnings of immigrants’, American Economic Review, 77(4), 531–553. CARICOM (1996) CARICOM Agreement on Social Security, available at: http://www.sice.oas.org/agreements_e.asp (accessed 14 October 2008). Cruz, A. T. (2004) ‘Portability of Benefit Rights in Response to External and Internal Labour Mobility: The Philippine Experience’, paper presented at the International Social Security Association (ISSA), Thirteenth Regional Conference for Asia and the Pacific in Kuwait, 8–10 March 2004, available at: http://www.issa.int/pdf/kuwait04/2cruz.pdf (accessed 22 October 2008). Elgersma, S. (2007) ‘Temporary Foreign Workers’, report prepared for Parliamentary Information and Research Service, Canada, 2007, available at: http://www. parl.gc.ca/information/library/PRBpubs/prb0711-e.pdf. Forteza, A. (2008) ‘The Portability of Pension Rights: General Principles and the Caribbean Case’, Social Protection Discussion Paper No. 0825, Washington, D.C.: The World Bank. Hadley, C. et al. (2008) ‘Hunger and health among undocumented Mexican migrants in a US urban area.’, Public Health Nutrition, 11:151–158. Holzmann, R. and R. Muenz (2004) Challenges and Opportunities of International Migration for the EU, Its Member States, Neighboring Countries and Regions: A Policy Note, Washington, D.C.: World Bank; Stockholm: Institute for Futures Studies. Holzmann, R., J. Koettl, and T. Chernetsky (2005) Portability Regimes of Pension and Health Care Benefits for International Migrants: An Analysis of Issues and Good Practices (Geneva, Switzerland: Global Commission on International Migration). International Labour Office (ILO) (2004a) Towards a fair deal for migrant workers in the global economy, Report VI, Sixth item on the agenda, Ninety-second Session of the International Labour Conference, 2004, Geneva. ——. (2004b) Migration Survey 2003: Country summaries (Geneva). ——. (2006) ILO Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration (Geneva). http://www.ilo.org/public/english/protection/migrant/download/ multilat_fwk_en.pdf (accessed 24 August 2010). ——. (2008a) International labour migration and development: The ILO perspective, International Migration Brief, International Migration Programme (Geneva). Available at http://www.ilo.org/public/english/protection/migrant/download/ mig_brief_development.pdf (accessed May 2009). ——. (2008b) Best practices in social insurance for migrant workers: The case of Sri Lanka, Working Paper 12, ILO Asian Regional Programme on Governance of Labour Migration (Geneva).

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——. (2009) Decent work for domestic workers, Report IV(1), Fourth item on the agenda, Ninety-ninth Session prepared for the International Labour Conference, 2010, Geneva. ——. (2010) Decent Work for Domestic Workers. Report IV(1), Fourth item on the agenda, Ninety-ninth Session of the International Labour Conference, 2010, Geneva. International Labour Organization (ILO) (Geneva). http://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/ meetingdocument/wcms_104700.pdf (accessed 24 August 2010). Martin, J. (2007) Towards Effective Temporary Worker Programs: Issues and Challenges in Industrial Countries, International Migration Paper No. 89 (Geneva, ILO). Sabates-Wheeler, R. (2008) ‘Migration Outcomes, Legal Status and Social Protection: A Quantitative Study of Malawian Returnees from South Africa and the UK’, report prepared for DFID, 2008, available from author. Tamagno. E. (2008) Strengthening social protection for ASEAN migrant workers through social security agreements, Working Paper No. 10, ILO Asian Regional Programme on Governance of Labour Migration (Bangkok). United States Social Security Administration (U.S. SSA) (2007) Social Security Programs Throughout the World: Africa (Baltimore, MD: U.S. SSA).

4 Political and Regulatory Dimensions of Access, Portability and Exclusion: Social Security for Migrants, with an Emphasis on Migrants in Southern Africa Marius Olivier

1. Introduction This chapter focuses on rights, regulation and a normative understanding of migrants’ entitlements, in particular in relation to social protection, and with specific reference to Southern African intra-SADC (Southern African Development Community) migrants. It explores the importance of adopting a rights-based and regulatory approach, addressing the need for appropriate international standards, regional instruments, constitutional frameworks and statutory contexts to be aligned, in order to ensure access to social protection and portability of social security entitlements. The reality is often different. Limitations in social security law effectively restrict migrants’ social security entitlements. In addition, immigration law regulation and the status of migrant categories is often used to effectively restrict access to and portability of social security entitlements, impacting in particular on vulnerable migrants such as asylum seekers and undocumented migrants.

2. Contextual framework: migration data, nature and trends Worldwide, there are 175 million people – about 3 per cent of the world’s population – currently residing outside of their countries of origin. Of these, 90 million are migrant workers. For a range of reasons, reliable data on the extent and volume of migration within and to SADC is hard 117

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to obtain, even in the major migrant-receiving country in the Southern African region, South Africa. In Southern Africa, political migration has largely been the result of instability in countries such as the DRC and, earlier, Angola and Mozambique. Economic migration appears to be by far the most prevalent form of migration. The majority of SADC migrants target countries with better economies. Therefore, ‘the migration flow is towards Botswana, Namibia and South Africa because these countries have stronger economies and also experience skills shortages. These countries, therefore, offer migrants better prospects for improving their quality of life’ (Kaseke, 2007, p. 2). South Africa in particular attracts by far the majority of intra-SADC migrants. From the available evidence, subject to some exceptions, it appears that most of the migration from SADC is actually to other SADC countries: intra-SADC movement is therefore the prevailing characteristic of migration from SADC countries. In fact, migration has been a longstanding feature of the labour market framework in Southern Africa, in particular as far as work on the mines and in agriculture is concerned. Apart from informal cross-border trade-related migration, work on the mines, in particular in South Africa, served as a magnet for both internal and external migrants. From a historical perspective, as is supported by data on modern-day migration movements within SADC (Crush et al., 2005, pp. 5–6), it could be said that systems of labour migration in Southern Africa are deeply entrenched and have become part and parcel of the generations-long movements of people, primarily in search of better living and working conditions (Kanyenze, 2004, pp. 2–10). While a large number of cross-border migrants in Southern Africa remain circular migrants and their visits to the host country are generally seen as temporary, contrary to the increasingly temporary nature of international labour migration, migration patterns within SADC have largely been characterized by their permanent or ongoing nature. Once immigration linkages are established, they are very difficult to break, and migration flows are almost impossible to reverse. This is particularly true of the mining and agricultural industries in Southern Africa. In fact, a recent five-country migration study in SADC indicated that migration is now clearly regarded as a career rather than a passing phase in the working lives of most people who have been migrating, despite the fact that they maintain strong links with the home country (Pendleton et al., 2006, pp. 2–3, 15). This also flows from the fact that more migrants from the respective countries are older, married and, in most cases, heads of households. In addition, the same study indicates that many migrant-sending households have a migration ‘tradition’

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which is passed on from one generation to the next – parents and even grandparents worked outside the home country. It is generally accepted that SADC-related migration is characterized by several elements (see Kanyenze, 2004, pp. 1–2): • Labour contract migration – in particular on South African mines; • Declining levels of legal migration to and within the region and the increase in clandestine and undocumented (irregular) migration; • Substantial brain drain migration to countries outside SADC; • While most intra-SADC migrants continue to be male, there is an increased feminization of cross-border migration; • Growth in intra-regional informal cross-border trade; • Despite the largely voluntary nature of migration within SADC, there are two broad exceptions: increased human trafficking and mass internal and external refugee movements;1 • Remittances are a primary source of household income in migrantsending SADC countries;2 • And, generally, growth in the volume and complexity of cross-border movements.

3. The precarious position of intra-SADC migrants and prevailing policy approaches Cross-border migration in SADC is characterized by the precarious position of those who migrate and their dependants. There are several reasons for this. The inchoate immigration, social security and labour market frameworks applicable to migrants are major contributing factors. For those who migrate, working and living conditions are often, and often have been, inadequate. Cross-border migrants are mostly unskilled or semi-skilled and are typically found at the lower end of the labour market in receiving countries. Irregular migrants in particular suffer exploitation of their workers’ and human rights. Migrants are especially affected by the restructuring and conditions prevailing at the environments where they are usually employed. In the mining industry in South Africa, for example, between 1989–2000 a large number of regular jobs were shed, causing a drop in mining jobs from almost 422,000 to about 231,000, and there was little effort made, either by the employers or on the part of the state, to ameliorate the effects of retrenchments (Kanyenze, 2004, p. 16). Also, it has been noted that the mining sector in particular has a stubbornly high rate of disablement and deaths (Kanyenze, 2004, p. 17). In addition to their precarious

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position in SADC labour markets, migrants also suffer from negative official and community responses, which flow from severely restrictive policy and legislative approaches and the widespread prevalence of xenophobia, particularly in South Africa. From a policy perspective, the SADC member states have no clear common approach towards immigration. Few, if any, countries have proactive immigration policies. In fact, security concerns in the form of control and deportation appear to characterize their migration laws and policies. Migration of people within the region is viewed as a ‘problem’ rather than an opportunity. Governments in Southern Africa, and in other parts of Africa, do not as a rule understand migration as a livelihood strategy which is crucial for the welfare of migrants, as well as contributing to the development of the host country. The position of migrants is further complicated by the fact that the status they enjoy is based on which of the different categories of noncitizens, including non-citizen workers, they are designated as belonging to. National laws, and often also international instruments, differentiate between permanent residents, temporary residents, migrant workers, refugees, asylum seekers and illegal/irregular/undocumented non-citizens. The interplay between immigration and social security laws is crucial to the understanding of the status of non-citizen workers, and yet it is evident that these laws often espouse conflicting policy objectives. 3.1. Social security law limitations National social security laws often contain provisions which adversely affect the social security rights of non-citizen workers. Sometimes nationality conditions apply. Such conditions may exclude foreigners from the scope of application of the social security schemes. Alternatively, these conditions may restrict access to social security benefits, in particular upon the departure of the non-citizen worker from the host country. In many of the systems in SADC, non-citizens are wholly or partially excluded from the sphere of social protection. However there are exceptions, notably Mauritius, where permanent residence status and a number of years actual residence are sufficient for social security coverage, or in SADC countries where non-citizens are entitled to participate in social insurance-based schemes, such as public pension schemes. In South Africa, non-citizens who have acquired permanent residence status are eligible for social protection on the same basis as South Africans, for purposes of both social assistance and social insurance. However,

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other categories of non-citizens do not necessarily qualify for equal treatment with South African citizens and permanent residents, for example in the area of unemployment insurance. Workers’ compensation legislation to a certain extent restricts the right of a returning non-citizen resident to claim benefits, but simultaneously provides for the portability of benefits, albeit not on a regular basis. However, little use has been made of it, partly because of the mismanagement of funds transferred to Mozambique for this purpose and partly because of migrants’ unfamiliarity with this arrangement. In accordance with the provisions of refugee legislation, refugees in principle enjoy full legal protection, which includes the rights set out in the bill of rights chapter of the South African Constitution. Persons who have obtained refugee status therefore qualify for the constitutionally entrenched right to access to social security, including appropriate social assistance, if they are unable to support themselves and their dependants. However, the social assistance legislation does not fully extend protection to refugees. An apparent conflict thus exists between the two laws. 3.2. Immigration law restrictions Entitlement to benefits is sometimes linked to the immigration status of the worker. Typically, legal residence may be required and may be subject to the requirement that the non-citizen worker does not become a burden on the state. In South Africa, for example, the Immigration Act of 2002 regulates non-citizens’ entry into and residence in South Africa. Given the specific legal requirements that have to be met, the majority of SADC migrants to South Africa are employed in low-skilled jobs and do not qualify for a general work permit under the available categories. The Act distinguishes between permanent and temporary residence. Permanent residents are not regarded as ‘foreigners’ as they are granted all the rights of a citizen, except for those that a law or the Constitution explicitly ascribes to citizenship (for instance, the right to vote). As such they are the elite of non-South Africans. The second category consists of temporary residents. The crucial provision in this regard is that, in accordance with Section 10 of the Act, a temporary residence permit is issued on condition that the non-citizen is not, or does not become a ‘prohibited or undesirable person’. In terms of Section 30, an undesirable person includes anyone who is likely to become a public charge. This may imply that a non-citizen is deemed to be undesirable and denied entry if they lack financial resources and are in need of social assistance or welfare.

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The picture described above generally applies to other SADC member states also. Economic grounds constitute grounds for exclusion. As remarked by Klaaren and Rutinwa (2004, p. 55), ‘[N]early universally, the status of being likely to become a public charge leads to prohibited immigrant status.’ The same applies when a person has insufficient funds. In SADC countries, the employment of illegal/irregular/undocumented foreign workers is also prohibited and may imply that such a worker is not entitled to the protection of the various labour and social security laws. However, a recent Labour Court judgement in South Africa (Discovery Health Limited v. CCMA & others, 2008) held that a foreigner whose work permit has expired still has a valid employment contract and is entitled to the unfair dismissal protection provided for in South African labour laws. It is submitted that this judgement has important consequences not only for labour law purposes, but also for (employment-based) social insurance arrangements. Special provision is also made for refugees and asylum seekers in most national systems. Unlike most countries with refugee camps, South Africa’s policy promotes local integration, which allows refugees to settle anywhere in the country. As a result of this policy, refugees are required to survive without any assistance from government. They are allowed to work, but are sometimes by law excluded from working in particular industries. Attempts to prevent asylum seekers awaiting procession of their applications from working or studying were not upheld: these provisions were held to be ultra vires the Constitution (Minister of Home Affairs and Others v. Watchenuka and Another, 2004). 3.3. Marginalizing impact The prevailing evidence is clear: through available legislative mechanisms SADC governments are able to give precedence to immigration laws over labour and social security laws. Secondly, the legislative policy in both South Africa and the other SADC member states is geared towards restricting access, controlling movement and regulating presence in the host country, and not towards honouring a human rights approach and encouraging and supporting migration. Immigration laws and policy in SADC countries generally focus on the effects, rather than the underlying causes of migration. A recent study (Crush et al., 2005, pp. 10, 24) remarked that ‘[N]o country, with the possible exception of Botswana, has migrant or immigrant-friendly legislation on the books.’ Thirdly, essential compliance with human rights standards set out in international law instruments may be absent, despite the fact that a

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country may have ratified these instruments. For example, the United Nations Committee against Torture (2006, Articles 3, 2, 12, 13 and 16) recently made the following remark, with reference to South Africa’s non-compliance with the treaty provisions of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment of 1984, in relation to migrants: The Committee is concerned with the difficulties affecting documented and undocumented non-citizens detained under the immigration law and awaiting deportation in repatriation centers, who are unable to contest the validity of their detention or claim asylum or refugee status and without access to legal aid. The Committee is also concerned about allegations of ill-treatment, harassment and extortion of non-citizens by law enforcement personnel as well as with the absence of an oversight mechanism for those centres and with the lack of investigation of those allegations.

4. Regulatory responses 4.1. International standards 4.1.1. General International norms and standards have already had a significant influence on the regulation of labour markets and, to a more limited extent, on the social security frameworks in Southern African countries. It is suggested that much more could be achieved to further strengthen social security systems in SADC and to improve the position of non-citizens. There is indeed a range of relevant norms available in the international realm, in addition to extensive and specialized technical support provided by international agencies, which could be of assistance. Constitutions in the region, such as the constitutions of Malawi, Namibia and South Africa, do sometimes make provision for the role of international law, which potentially impacts on the terrain of social security for migrants. These constitutions contain explicit provisions, which permit the entering into of bi- and multilateral agreements and regulate the potential incorporation thereof in the domestic legal systems of the countries concerned. 4.1.2. The impact of international standards on migrants and their social security status3 The general principle contained in international human rights instruments pertaining to non-citizens is that all persons, by virtue of their

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essential humanity, should enjoy all human rights unless exceptional distinctions, for example between citizens and non-citizens, serve a legitimate state objective and are proportional to the achievement of that objective (Weissbrodt, 2003, p. 4). Various UN and ILO instruments also regulate the rights of noncitizens in the area of social security. The International Covenant on Economic, Social and Cultural Rights of 1966, ratified by most Southern African countries, provides in Article 9 for the right to social security for everyone. In essence this implies that countries may not draw distinctions between citizens and non-citizens as to social rights, including the right to social security. Developing countries, including those SADC member states that ratified the Covenant, are bound by this provision. The recently adopted UN General Comment No. 19 (2008) on the right to social security enshrined in Article 9 of the International Covenant on Economic, Social and Cultural Rights (1966) contains principles which are important for the understanding of the scope and content of the right to social security, in relation to non-citizens. Some of the salient principles which appear in the General Comment in this regard can be summarized as follows: • With reference to the prohibition on grounds of nationality, care should be taken to ensure that migrants should have access to social security in law and practice/implementation. Special attention should be paid to specific vulnerable individuals and groups who traditionally face difficulties in exercising the right to social security, including refugees, asylum seekers, returnees and non-nationals generally. • Non-nationals should be able to access non-contributory schemes for income support, and should have affordable access to health care and family support. Any restrictions, including a qualification period, must be proportionate and reasonable. • Also, all persons, irrespective of their nationality, residency or immigration status, are entitled to primary and emergency medical care. It would appear that this is an unqualified entitlement, given the vulnerable status of those in need of, in particular, emergency medical care. • Special categories of vulnerable migrants, in particular refugees, stateless persons and asylum seekers, should enjoy equal treatment in access to non-contributory social security schemes, including reasonable access to health care and family support, consistent with

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international standards. For these groups, the bar of entitlement is significantly lowered – they are not only entitled to access noncontributory schemes, but also to enjoy this entitlement on the basis of equal access. In the case where non-citizens, including migrant workers, have contributed to a social security scheme, they should be able to benefit from that contribution or retrieve their contributions if they leave the country. Also, a migrant worker’s entitlement should not be affected by a change in workplace. Where persons work temporarily in another country, they should be covered by the social security scheme of their home country. Finally, the General Comment notes the importance of establishing bi- and multilateral agreements or other instruments for coordinating or harmonizing contributory social security schemes for migrant workers, and stresses the importance to take into account the obligations of a state party under the Covenant when entering into a bi- or multilateral agreement.

The International Convention on the Protection of All Migrant Workers and Members of Their Families of 1990 protects all migrant workers and their families, except particular categories of workers, most of whom are protected in terms of other specific international instruments. This Convention, among others, provides for non-discrimination, equality of treatment between nationals and migrant workers as to work conditions and pay, equal access to social security, and the right to repatriate earnings, savings and belongings. The Convention confers specific rights on documented workers, and sets out core rights for both documented and undocumented/irregular migrant workers. Other United Nations human rights instruments, treaties and conventions, such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966), the Convention on the Rights of the Child (1989), the Convention on the Elimination of all Forms of Racial Discrimination (1965), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) and the Convention on the Elimination of All Forms of Discrimination against Women (1981), confer protection on migrants as well. These instruments are of significant importance to the debate in Southern Africa on the position of non-nationals generally and in social security specifically, as these UN agreements have been ratified by most SADC countries.

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Targeted international human rights instruments, widely ratified by SADC countries, deal with the position of refugees and asylum seekers. For example, the Convention and Protocol relating to the Status of Refugees (1951 and 1966) provide that refugees should be entitled to treatment at least as favourable as that accorded to citizens of the country concerned with respect to, among other things, labour legislation and social security. Asylum seekers should also be granted the right to work, while employment and social assistance should not be denied to recognized refugees. Relevant ILO Conventions and Recommendations protect the rights of all workers, irrespective of citizenship. As Baruah and Cholewinski remarked (2006, pp. 154–155), ‘[A]ll current ILO social security standards define personal scope of coverage irrespective of nationality and almost all contain similar clauses on equality of treatment between nationals and foreign workers in the host country, and most of them contain special non-discrimination clauses, such as, for example, Convention 102 of 1952.’ Specific ILO instruments protect migrant workers and their families, although only a few SADC countries have ratified these instruments. Usually certain rights, including the right to social security, are extended only to those lawfully within a territory. Finally, a range of regional human rights instruments would similarly extend protection to migrant workers and their families, also in the area of social security. However, regional adjudicative bodies, such as the European Court of Human Rights and the Inter-American Court of Human Rights, have held that instruments that draw a distinction between nationals of particular countries bound together in a regional framework (such as the European Union) are in principle permissible, on the basis, for example, that member states of a particular regional or supranational entity (such as the European Union) form a special legal order, which has established its own citizenship. The position in terms of the above-mentioned human rights instruments is, in general terms, clear. Human rights protection is, in principle, extended to everyone, regardless of nationality. In social security terms, discrimination against lawfully residing non-national workers and their families is not tolerated. However, coordinating measures adopted at either the bilateral or multilateral level may be needed to ensure the maintenance of acquired rights and the exportability of benefits of migrating workers. The relevant principles are contained in a wide range of international, regional and supranational instruments. These principles are incrementally applied to workers engaged in a self-employed capacity as well as to stateless persons and refugees.

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Special protection is at times extended in an attempt to deal with irregular migration, as is evident from the provisions of the United Nations Migrant Workers Convention of 1990. One of the relevant ILO Conventions that also extends protection, both indirectly and indirectly, is ILO Convention 143 of 1975, which provides in Article 8 that the ‘migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorisation or residence or, as the case may be, work permit’. It further stipulates (in Article 9) that irregular migrant workers shall have the same rights as regular migrant workers concerning social security benefits arising out of past employment. Many of the important UN instruments which impact on the social security rights of migrants, including the specialized UN refugee conventions, have been ratified relatively widely by SADC countries. However, only two SADC countries (Lesotho and Seychelles) have ratified the UN Migrant Workers Convention of 1990. As far as the ILO is concerned, the position is that SADC countries have generally failed to ratify social security conventions, in particular the main social security Convention, Convention 102 of 1952 on Minimum Standards in Social Security, and most of the other post-Second World War social security conventions. However, certain pre-Second World War social security conventions have been ratified by some SADC countries. These conventions require equal treatment of citizens and non-citizens who are citizens of other countries that ratified these conventions. A few SADC countries have also ratified ILO migrationrelated conventions, which affect the area of social security as well. The poor ratification of ILO and to some extent UN conventions within SADC has been deplored, in view of the seriousness of migration issues.4 4.2. Regional normative framework 4.2.1. Regional standards In the foundational instruments of SADC there are several indications towards the creation of a special regime of SADC-wide social security coverage for citizens and residents of the different member states. Recalling the objectives of the SADC Treaty (1992) contained in Article 5 of the Treaty, including regional integration, poverty alleviation and the support of the socially disadvantaged, Article 10 of the Charter of Fundamental Social Rights in SADC (‘Social Charter’) of 2003 imposes on

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SADC member states the obligation to create an enabling environment so that every worker in the region shall have a right to adequate social protection. Persons who have been unable to either enter or re-enter the labour market and have no means of subsistence shall be entitled to receive sufficient resources and social assistance. No distinction is drawn between citizens and non-citizens; the Treaty emphasizes regional integration and the Charter focuses on harmonization of social security schemes. Even more explicit are the provisions of Article 17 of the Code on Social Security in SADC of 2007, which do not allow disparate treatment of foreigners, and encourage member states to ensure that all lawfully employed immigrants are protected through the promotion of certain core principles. According to two of these principles migrant workers should, firstly, be able to participate in the social security schemes of the host country and, secondly, enjoy equal treatment alongside citizens within the social security system of the host country. Member states are further encouraged to introduce, by way of national legislation and bi- or multilateral arrangements, cross-border coordination principles such as maintenance of acquired rights, aggregation of insurance periods and exportability of benefits. The Code further suggests that illegal residents and undocumented migrants should be provided with basic minimum protection and should enjoy coverage according to the laws of the host country. As regards refugees, it stipulates that the social protection extended to them should be in accordance with the provisions of international and regional instruments. It could, therefore, be said that there is a clear tendency in both the Charter and the Code to create a regime within SADC which ensures minimum levels of social protection on the basis of equality, regardless of citizenship. In addition, there are important provisions in the adopted (in 2006) but not yet implemented SADC Draft Protocol on the Facilitation of Movement of Persons (2005), in view of the absence of a right to freedom of movement in other SADC foundational documents. The freedom of movement principle in SADC is couched in much weaker terms than in the EU counterpart. Article 5(2) (d) of the SADC Treaty (1992) does not regulate the matter conclusively, but requires SADC to ‘develop policies aimed at the progressive elimination of obstacles to the free movement of capital and labour, goods and services, and of the people of the Region generally, among Member States’. However,

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it is suggested that the Draft Protocol on the Facilitation of Movement of Persons does not guarantee freedom of movement in a way that is significant for the purposes of enhancing the social security position of intra-SADC migrants. The reason is that while the Draft Protocol recognizes visa free travel for up to 90 days, it nevertheless subjects the right to residence and establishment (in the occupational sense of the word) to restrictions contained in national laws. Finally, the SADC Treaty and, with the exception of the Code on Social Security in the SADC, other SADC multilateral instruments do not display strong incentives for the development of social security coordination measures. The principle of non-discrimination contained in Article 6(2) of the Treaty does not include the prohibition of discrimination based on nationality/citizenship. 4.2.2. Social security cross-border agreements In the absence of a multilateral arrangement regulating coordination and portability issues in SADC, SADC countries have had to rely on bilateral arrangements. However, only a few such agreements are in existence, mostly involving South Africa as one of the parties. The scope of these agreements is limited and, with some exceptions, does not cover public social security schemes, only employer-based occupational arrangements. The obligations contained in the labour agreements between South Africa and several SADC countries are primarily imposed upon employers, not the South African government. There are several other reasons why these agreements, to the extent that they may still be operational, must be seen as limited in scope and effect, and as insufficient from a coordination and portability perspective: (a) The agreements are not reciprocal in nature, as they stand to regulate the position of citizens of only one of the respective countries – that is, the citizens of the country that entered into the agreement with South Africa, and not South African citizens. (b) Repatriation regulation is accorded specific emphasis, alongside labour migration. (c) In view of the above, and given the control and restriction orientation and purpose of the agreements, apart from providing for some measure of portability these agreements do not provide for other arrangements typical of coordination regimes, such as maintenance of acquired rights, aggregation of insurance periods and equality of treatment with nationals of the receiving country in social security matters.

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(d) Institutional capacity appears to be weak. For example, the agreement between South Africa and Mozambique, which allows for payments in respect of employment injuries and diseases to be made in Mozambique has been widely criticized in view of the fact that payments seldom reach beneficiaries (Fultz and Pieris, 1998, pp. 19–20). In fact, these agreements have the effect of excluding most citizens of the sending country who are migrant workers in South Africa from entitlement to benefit from unemployment insurance in South Africa: migrant workers who have to return to their home country as a result of the agreements are not regarded as contributors to, and could not therefore benefit from, the Unemployment Insurance Fund. While this may be seen as an arrangement which benefits employers of such migrant workers, it may leave returning migrants in a precarious position once they are home. However, it has to be noted that recent bilateral agreements and arrangements between some of the SADC countries provide for the regulation of movement across country borders. To some extent this is a reflection of the impact of the considerable migration flows between, for example, South Africa and some of its neighbouring countries, notably Lesotho, Mozambique and Zimbabwe, as well as between Namibia and Angola. Simultaneously, it underscores the need for arrangements which qualify the strict provisions of immigration legislation, particularly in South Africa. Finally, it is important to recognize that the scope for entering into bi- and multilateral social security agreements does exist in SADC. For example, in Tanzania the recently promulgated Social Security (Regulatory Authority) Act (2008) provides for the making of regulations in relation to portability of benefit rights and international reciprocal agreements for the transfer of benefits. In South Africa, similar provisions relating to entering into reciprocal bilateral agreements are contained in the workers’ compensation and social assistance legislation. As mentioned above, the constitutions of countries such as Malawi, Namibia and South Africa recognize both incorporation and transformation as legitimate methods of deriving domestic effects from the state’s international obligations, including obligations flowing from multiand bilateral arrangements – as indicated, these constitutions contain explicit provisions, which permit the entering into of bi- and multilateral agreements and regulate the potential incorporation thereof in the domestic legal systems of the countries concerned.

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4.3. Constitutional rights and jurisprudential perspectives 4.3.1. Constitutional frameworks There are two reasons why SADC constitutional frameworks extend little social security protection to non-citizens. The first reason is that some SADC country constitutions refer to social security in general terms and do not create directly enforceable social security or broader social protection rights. The second reason is that anti-discrimination provisions in these constitutions are rarely made applicable to non-citizens. One notable exception is the South African Constitution. In the chapter dealing with the Bill of Rights, the Constitution (1996, Section 27) grants to everyone ‘[t]he right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance’. It also obliges the state to implement appropriate measures: ‘[t]he state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights’. Furthermore, Section 9 of the Constitution prohibits unfair discrimination, whether directly or indirectly. Discrimination again non-citizens is included in this framework, although nationality is an unlisted discrimination ground. 4.3.2. Progressive judicial pronouncements As far as social security for non-citizens is concerned, the Constitutional Court in South Africa remarked, when considering the purpose of providing access to social security to those in need (Khosa v. The Minister of Social Development; Mahlaule v. The Minister of Social Development, 573A, case headnote summary) that: A society had to attempt to ensure that the basic necessities of life were accessible to all if it was to be a society in which human dignity, freedom and equality were foundational. The right of access to social security, including social assistance, for those unable to support themselves and their dependants was entrenched because society in the RSA valued human beings and wanted to ensure that people were afforded their basic needs. It has to be noted that there is a specific constitutional focus in South Africa on addressing the plight of the most vulnerable and desperate in society. In fact, in the South African constitutional context it has been accepted that non-citizens constitute a vulnerable group in

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society. For example, the Constitutional Court held that excluding permanent residents from access to employment in the public education sector, and excluding permanent residents from the social assistance system would amount to unfair discrimination (Larbi-Odam v. Member of the Executive Council for Education (North-West Province) v. The Minister of Education). As a result of Constitutional Court and High Court intervention, social assistance support has effectively been extended to certain categories of non-citizens, in particular permanent residents and their children (Khosa judgement) and unaccompanied foreign children (Centre for Child Law (Lawyers for Human Rights) v. Minister of Home Affairs). Several of the court cases dealing with the protection of non-citizens relate to the constitutional protection, including social security protection, available to irregular/undocumented non-citizens and refugees. These cases include instances where the judgement ordered the release of unlawfully detained refugees (Centre for Child Law judgement), the processing of applications for refugee status within reasonable time and in accordance with national and international refugee law (South African Human Rights Commission & Forty Others v. Minister of Home Affairs and Dyambu (Pty) Ltd), the removal of unlawful conditions from the asylumseeking process (Kiliko and Others v. Minister of Home Affairs), and the incorporation of refugees who are disabled within the framework of the social assistance grants (Somali Refugee Forum v. The Minister of Home Affairs). Access to employment for non-citizens is an important tool to ensure social insurance-based entitlements for migrants. The court judgements in South Africa, which confirmed access to private and public employment for at least certain categories of foreigners and the right of refugees and asylum seekers to work (see the Larbi-Odam and Watchenuka judgements), effectively imply access to unemployment insurance (at least for permanent residents not employed in government), compensation for occupational injuries and diseases, occupational-based retirement and health insurance. This access is potentially also available to irregular migrants whose work permits may have expired. According to recent case law the expiry of their work permits does not affect the validity of the employment contract between such a migrant and his or her employer (Discovery Health Limited v CCMA). From these judgements it is clear that in South African jurisprudence non-citizens are generally regarded as a vulnerable group which, from the perspective of the constitutional framework, is entitled to legal protection. Save for those rights in the Constitution which are reserved

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for citizens only, the whole gamut of fundamental rights, including the right to access to social security and appropriate social assistance, as well as the right to fair labour practices, is therefore in principle available to non-citizens migrating to South Africa.

5. Conclusion: the rationale for regulation The legal position of non-citizens in social security is generally a weak one. Compliance with standards set at the international and regional level, even if in some respects incomplete, could go a long way to ensure that migrants and their families are extended essential human rights protection in the area of social security. Integrating these standards in SADC domestic legal systems, in particular via the adoption of a fundamental rights framework in country constitutions, would further help to cement the protective framework. With such a constellation in place, as the experience in several jurisdictions around the world, including in SADC (for example, the South African jurisdiction), has shown, courts and other adjudicating institutions through their jurisprudential activity are quick to give legal effect to the embedded rights. In addition, there is a need to adopt targeted statutory provisions to which immigration law provisions are appropriately aligned. Coherence is required, not only between the legal and policy frameworks, but also between law and practice: too often the protective rights framework pertaining to migrating non-citizens and social security, even in SADC countries such as South Africa, has been undermined by inconsistent policy regimes and oppressive treatment of non-citizens. Finally, the value of meaningful bilateral social security arrangements between affected countries, supported by a framework-setting multilateral edifice at the regional or supranational level, has proved to be indispensable, as it clarifies the legal position of the migrants and expresses the joint commitment of the countries concerned. It is evident that the picture in Southern Africa reveals major shortcomings. Ratification of and compliance with relevant international standards are unsatisfactory; underlying and supportive measures, such as the principle of freedom of movement of workers and other categories of persons, are weakly developed; and regional standards in relation to the coordination of social security, among other things, are still being concretized. With the exception of the South African Constitution, and possibly the constitutions of a few other SADC countries, such as Tanzania, fundamental rights frameworks are not in place. Furthermore, across the Southern African region, immigration law and

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policy regimes emphasize selection and control, undergirded by hostile treatment and immigration-unfriendly perceptions. There is no multilateral social security framework agreement in place, and bilateral arrangements are few and weak in content, and hardly cover public social security schemes. The reality is that, apart from the provisions of the Code on Social Security in the SADC (2007), none of the other SADC instruments provide comprehensively for the vision expressed in this chapter in relation to migration and social security. This vision shows that a rightsbased framework and appropriate regulatory responses are crucial for the meaningful extension of social security coverage to migrants. It would, therefore, be necessary to adopt special policy interventions and measures, based on the framework provided for in Article 17 of the Code, to ensure the protection and enhancement of the position of migrants in relation to social security. This should also imply that the said policy and legal interventions and measures should develop minimum levels of social protection for different categories of beneficiaries, on the basis of equality within SADC and (at least as far as social insurance coverage is concerned) with reference to cross-border coordination arrangements, to be adopted by way of national legislation and bi- and/or multilateral agreements.

Notes 1. Internally displaced persons (IDPs) in SADC – the result of, among other problems, political and military instability in some of the countries – make up 2.9 million of the approximately 13 million IDPs in Africa – more than half of the global total of IDPs, dwarfing the number of refugees (Brookings Institution, 2005, pp. 4–6). 2. For example, in 2001 in Lesotho, remittances were estimated to contribute as much as 26.5 per cent of GDP (Crush et al., 2005, p. 18). 3. See also Olivier (2008, pp. 31–35), on which this part is based. 4. At the ILO Tripartite Forum on Labour Migration in Southern Africa held in Pretoria, 26–29 November 2002. The Forum identified migration issues as serious. See Kanyenze (2004, p. 19).

Bibliography Books, articles, reports and internet resources Baruah, N. and Cholewinski, R. (2006) Handbook on Establishing Effective Labour Migration Policies in Countries of Origin and Destination (OSCE (Organisation for Security and Co-operation in Europe), IOM (International Organisation for Migration) and ILO (International Labour Office)).

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Black, R. (2004) ‘Migration and Pro-Poor Policy in Africa’, Working Paper C6, Development Research Centre on Migration, Globalisation and Poverty, University of Sussex. Brookings Institution – University of Bern Project on Internal Displacement (2005) Regional Seminar on Internal Displacement in the Southern African Development Community (SADC) Region, Gaborone, Botswana, 24–26 August 2005. Cholewinski, R. (2008) ‘The human and labor rights of migrants: visions of equality’, Georgetown Immigration Law Journal, 22(2), 177–220. Committee against Torture (2006) Consideration of Reports Submitted by State Parties under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture – South Africa, 37th Session, 6–24 November 2006, CAT/C/ZAF/CO/1, available at: http://www.unhchr.ch/tbs/doc.nsf/898586b1 dc7b4043c1256a450044f331/9f410d04620f0197c125729800544666/$FILE/ G0740324.pdf. Crush, J., Williams, V. and Peberdy, S. (2005) ‘Migration in Southern Africa’, paper prepared for the Policy Analysis and Research Programme of the Global Commission on International Migration, Global Commission on International Migration 2005. Dodson, B. (1998) ‘Women on the move: Gender and cross-border migration to South Africa’, Southern African Migration Project, Migration Policy Series No. 9, available at: http://queensu.ca/samp/sampresources/samppublications/ policyseries/policy9.htm. Fenwick, C. and Kalula, E. (2004) ‘Law and Labour Market Regulation in East Asia and Southern Africa: Comparative Perspectives’, Development and Labour Monograph Series, Occasional Paper 2/2004, also published as (2005) International Journal of Comparative Labour Law and Industrial Relations, 21, 193–226. FIDH (International Federation of Human Rights) (2008) Surplus People? Undocumented and other Vulnerable Migrants in South Africa. Fultz, E. and Pieris, B. (1998) ‘Employment Injury Schemes in Southern Africa: an Overview of Proposals for Future Directions’, ILO/SAMAT Policy Paper No. 7, ILO Harare, Zimbabwe. Olivier, M.P. (2009) ‘Regional Overview of Social Protection for Non-Citizens in the South African Development Community (SADC)’, SP Discussion Paper No. 0908, The World Bank, available at: http://siteresources.worldbank. org/SOCIALPROTECTION/Resources/SP-Discussion-papers/Labor-Market-DP/ 0908.pdf. Global Migrant Origin Database – Version 4 (2007) available at: http:// www.migrationdrc.org/research/typesofmigration/Global_Migrant_Origin_ Database_Version_4.xls. Holzmann, R., Koettl, J. and Chernetsky, T. (2005) ‘Portability Regimes of Pension and Health Care Benefits for International Migrants: An Analysis of Issues and Good Practices’, Social Protection Discussion Paper No. 0519, World Bank (paper prepared for the Global Commission on International Migration). ILO (2006) ‘Changing Patterns in the World of Work’, report of the DirectorGeneral, ILC, 95th Session, ILO, Geneva. IOM (2005) Current Migration Themes in Southern Africa: An IOM Perspective (IOM Regional Office for Southern Africa).

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Jansen van Rensburg, L. and Olivier, M. P. (2003) ‘International and supranational law’, in Olivier, M. P. et al. (ed.) Social Security: A Legal Analysis (LexisNexis Butterworths). Kanyenze, G. (2004) ‘African Migrant Labour Situation in Southern Africa’, paper presented at the ICFTU-AFRO Conference on ‘Migrant Labour’, Nairobi, 15–17 March 2004. Kaseke, E. (2007) ‘The Social Security Context of Migration’, paper presented at an International Conference on Migration and Social Security in SADC: Prospects and Challenges, University of Johannesburg, 3–4 October 2007. Klaaren, J. and Rutinwa, B. (2004) ‘Towards the harmonisation of immigration and refugee law in SADC’, in Crush, J. (ed.) MIDSA Report No 1 (IDASA & Queens University). Landau, L. (2004) ‘Democracy and discrimination: Black African migrants in South Africa’, Global Migration Perspectives No. 5, GCIM (Global Commission on International Migration), Geneva. Maharaj, B. (2004) ‘Immigration to post-apartheid South Africa’, Global Migration Perspectives No. 1, GCIM (Global Commission on International Migration), Geneva. Olivier, M. (2008) ‘The end of labour law in the global workplace context? A South and Southern African response’, in Blanpain, R. and Tiraboschi, M. (eds) Global Labor Market: From Globalization to Flexicurity (Alphen aan den Rijn: Kluwer), pp. 13–52. Olivier, M. (2009) ‘Regional Overview of Social Protection for Non-Citizens in the Southern African Development Community (SADC)’, report prepared for the World Bank. Palmary, I., (2002) ‘Refugees, Safety and Xenophobia in South African Cities: The Role of Local Government’, a research report for the Centre for the Study of Violence and Reconciliation, available at http://www.csvr.org.za/docs/ foreigners/refugeessafteyand.pdf. Peberdy, S. (2005) ‘Hurdles to trade? South Africa’s immigration policy and informal sector cross-border traders in the SADC’, , presented to a workshop of the Southern African Poverty Network (HSRC), Lawyers for Human Rights and the Southern African Migration Project “Regional Integration, Migration and Poverty,” Pretoria, April 2002. Pendleton, W., Crush, J., Campbell, E., Green, T., Simelane, H., Tevera, D. and de Vletter, F. (2006) ‘Migration, Remittances and Development in Southern Africa’, Southern African Migration Project, Migration Policy Series No. 44, IDASA. Reitzes, M. (2003) ‘Regionalizing International Migration: Lessons for SADC’, Migration Policy Brief No. 11, SAMP (Southern African Migration Project). SAMP and IOM (2005) HIV/AIDS, Population Mobility and Migration in Southern Africa: Defining a Research and Policy Agenda (Southern African Migration Project (SAMP) & International Organisation for Migration (IOM)). Standing, G. et al. (1996) Restructuring the Labour Market: The South African Challenge (An ILO Country Review), ILO. UN (Office of the United Nations High Commissioner for Human Rights) (2006) The Rights of Non-Citizens (New York: UN). Weissbrodt, D. (2003) Prevention of Discrimination: The rights of non-citizens (UN Doc. E/CN.4/Sub.2/2003/23) available at: http://burmalibrary.org/docs4/ Rights_of-non-citizens.pdf.

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Williams, V. (2002) ‘An Overview of Migration in the SADC Region’, paper presented at SAMP/LHR/HSRC workshop on Regional Integration, Poverty and South Africa’s Proposed Migration Policy, Pretoria, 23 April 2002.

International and regional instruments Caricom Agreement on Social Security of 1996 (Caribbean). Charter of Fundamental Social Rights in SADC of 2003 (Social Charter) (SADC). Charter of Civil Society for the Caribbean Community (Caribbean). Code on Social Security in the SADC of 2007 (SADC). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 (CAT) (UN) – see also Committee against Torture Consideration of reports submitted by State Parties under Article 19 of the Convention: Conclusions and Recommendations of the Committee against Torture – South Africa (37th Session, 6–24 November 2006, CAT/C/ZAF/CO/1). Convention on the Elimination of All Forms of Discrimination against Women of 1981 (CEDAW) (UN). Convention on the Elimination of all Forms of Racial Discrimination (CEARD) of 1965 (UN). Convention on the Rights of the Child of 1989 (UN). Convention relating to the Status of Refugees of 1951 (UN). Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security (EU). Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes (EU). Council Recommendation 92/441/EEC of 24 June 1992 on common criteria concerning sufficient resources and social assistance in social protection systems (EU). Council Recommendation 92/442/EEC of 27 July 1992 on the convergence of social protection objectives and policies (EU). Draft Protocol on the Facilitation of Movement of Persons of 2005 (SADC). Economic and Social Council, Committee on Economic, Social and Cultural Rights General Comment No. 19: Right to social security (article 9) E/C.12/GC/19 of 4 February 2008 (UN). Equality of Treatment (Accident Compensation) Convention 19 of 1925 (ILO). Equality of Treatment (Social Security) 118 of 1962 (ILO). European Convention on Social Security of 1972 (European Treaty Series 78) (Council of Europe). International Convention on the Protection of All Migrant Workers and Members of Their Families (the UN Migrant Workers Convention) of 1990 (UN). International Covenant on Civil and Political Rights of 1966 (UN). International Covenant on Economic, Social and Cultural Rights of 1966 (UN). Maintenance of Social Security Rights Convention 157 of 1982 (ILO). Malawi/Zambia Bilateral Social Security Agreement (2003). Migrant Workers (Supplementary Provisions) Convention 143 of 1975 (ILO). Migration for Employment (Revised Convention) 97 of 1949 (ILO). Protocol relating to the Status of Refugees of 1966 (UN). Regulation (EEC) 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (EU).

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Regulation (EEC) 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (EU). Regulation 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (EU). Social Security (Minimum Standards) Convention 102 of 1952 (ILO). South Africa/Botswana bilateral agreement of 1973. South Africa/Lesotho bilateral agreement of 1973. South Africa/Malawi bilateral agreement of 1967. South Africa/Swaziland bilateral agreement of 1986. South Africa/Portugal bilateral agreement (re Mozambique) of 1964. Treaty establishing SADC of 17 August 1992 (SADC). Unemployment Convention 2 of 1919 (ILO). Universal Declaration of Human Rights of 1948 (UN).

Laws/statutory instruments and constitutions Compensation for Occupational Injuries and Diseases Act 130 of 1993 (South Africa). Constitution of the Republic of Malawi. Constitution of the Republic of Namibia. Constitution of the Republic of South Africa 108 of 1996. Constitution of the United Republic of Tanzania of 1977. Constitution of Zambia Act 18 of 1996. Immigration Act 13 of 2002 (South Africa). Refugees Act 130 of 1998 (South Africa). Social Assistance Act 13 of 2004 (South Africa). Social Security (Regulatory Authority) Act, 2008 (Tanzania). South African Citizenship Act 88 of 1995 (South Africa). Unemployment Insurance Act 63 of 2001 (South Africa).

Case laws Advisory Opinion on the Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (OC-4/84) (Advisory Opinion of the Inter-American Court on Human Rights). Belgian Linguistic Case, 6 Eur. Ct. H.R. (ser. A) (1968) (European Court of Human Rights). C. v. Belgium, Eur. Ct. H.R., Reports 1996-III (1996) (European Court of Human Rights). Centre for Child Law & Another (Lawyers for Human Rights) v. Minister of Home Affairs & Others 2005 (6) SA 50 (T) (South Africa). Discovery Health Limited v. CCMA & others [2008] 7 BLLR 633 (LC) (South Africa). Khosa and Others v. The Minister of Social Development and Others; Mahlaule and Others v The Minister of Social Development and Others 2004 (6) BCLR 569 (CC) (South Africa). Kiliko and Others v. Minister of Home Affairs and Others 2006 (4) SA 114 (CC); [2007] 1 All SA 97 (C) (South Africa). Larbi-Odam v. Member of the Executive Council for Education (North-West Province) v. The Minister of Education 1997 BCLR 1655 (CC) (South Africa).

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Lawyers for Human Rights & Another v. Minister of Home Affairs 2004 (4) SA 125 (CC) (South Africa). Minister of Health & others v. Treatment Action Campaign & others 2002 BCLR 1033 (CC) (South Africa). Minister of Home Affairs and Others v. Watchenuka and Another 2004 (2) BCLR 120 (SCA) (South Africa). Somali Refugee Forum and Another v. The Minister of Home Affairs and Others (Case no. 32849/2005, High Court) (South Africa). South African Human Rights Commission & Forty Others v. Minister of Home Affairs and Dyambu (Pty) Ltd (Case no. 28367/99, Witwatersrand High Court) (South Africa). The Union of Refugee Women & others v. The Director: The Private Security Industry Regulatory Authority 2007 (4) BCLR 339 (CC) (South Africa). Watchenuka and Another v. Minister of Home Affairs and Others 2003 (1) BCLR 62 (C) (South Africa).

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Part 3 Case Studies

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5 ‘An Increasingly Uncomfortable Environment’: Access to Health Care for Documented and Undocumented Migrants in the UK Rosalind Bragg and Rayah Feldman

1. Introduction In spite of the much vaunted claim to universalism of the British National Health Service (NHS), entitlements to treatment of people from outside Britain have been open to challenge since its inception in 1949. The 1949 Act, which established the NHS as a service free at the point of delivery, included powers for a Minister of Health to draw up regulations imposing charges for people not ‘ordinarily resident’ in the UK. These powers were also included in the NHS Act of 1977, although were not implemented until 1982. However, long before such charges were actually imposed, there were attempts to restrict access to services. For example, in 1963, the Ministry of Health had issued a circular to hospitals instructing them to restrict NHS treatment to those ‘ordinarily resident’. And in 1976, the Liberal peer Lord Avebury reported that 185 Asian women attending Leicester General Hospital antenatal clinic were asked to produce their passports. One woman, who refused to do so as she had already had one confinement at the hospital, was refused antenatal care (Cohen and Hayes, 1998). Some writers have viewed attempts to restrict NHS care to foreigners as directly bound up with increasing immigration controls (Manchester Law Centre, 1982; Cohen and Hayes, 1998). This is certainly suggested in the way that NHS regulation in this area has proceeded in line with immigration legislation: the 1963 Ministry of Health circular was issued one year after the first Commonwealth Immigration Act of 1962, and 143

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the 1982 NHS (Overseas Visitors) charging regulations followed the 1981 Nationality Act with its dramatic changes to conditions of citizenship for Commonwealth citizens. Whatever the recent connection between immigration control and the provision of public welfare, the relationship between welfare and mobility has very long historic roots in Britain, certainly going back to medieval vagrancy legislation and the Elizabethan and Victorian Poor Laws. Such legislation restricted poor relief to ‘local’ people, and local authorities of various kinds were empowered to remove people who might be a burden on the parish back to their parish of origin. Indeed ‘parish officers kept a “lookout” for those newly arrived in a parish “who might apply to it for poor relief” ’ (Gordon and Newnham, 1985, citing Sharma, ‘Second Class Claimants’: Race and Social Security, Leicester, CPAG 1981). Immigration rules have operated in similar ways, primarily to control international movements of poor people. Since the 1905 Aliens Act, migrants to Britain could be denied entry if it was believed they would not be able to support themselves or their dependants, and they could be deported for the same reason. Supposedly, exceptions were made for bona fide refugees from persecution, but in practice this was not always the case (Cohen, 2003). Immigration and nationality legislation from 1962 onwards redefined the rights to settlement of British citizens so as to exclude Commonwealth citizens, and routinely invoked the rule that migrants should have ‘no recourse to public funds’ (Gordon and Newnham, 1985, pp. 7ff.; Southall Black Sisters, 2007). As international mobility has grown in the wake of colonialism, post-colonialism and globalization, concerns about ‘undesirables’ have acquired more explicitly xenophobic and racist overtones. These include the widely held claims that foreigners bring with them disease and crime, and steal not only ‘our’ money but also ‘our’ jobs, and in an era of increasingly state provided public services, ‘our’ houses and ‘our’ welfare. What changes is not the content of the argument but the category of foreigner invoked – Irish, alien, Jew, immigrant, coloured, black, bogus asylum seeker, failed asylum seeker, health tourist – and the specificity of the policy solutions proposed at any particular time. The terminology may suggest something new, but the ideas are definitely old and unremittingly xenophobic. This background is important because in recent years ‘abuse’ of free NHS services has been presented by significant sections of the media, politicians and government in terms of a novel crisis attributable to

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increases in rates of migration in the last two decades (Department of Health, 2003; Kyambi, 2005; Cooley and Sriskandarajah, 2007). We believe it is important to note the historical precedents for such perceptions of crisis, at least as a reminder to retain a degree of critical distance from claims made on this issue. This chapter explores recent changes and attempts to further restrict entitlements to NHS services. We will explore both the issues associated with the legal term ‘ordinarily resident’ and the way in which attempts to exclude undocumented migrants, especially refused asylum seekers, has become conflated with the new and confusing bogeyman of ‘health tourist’. After setting out the trajectory leading to current changes in entitlement to NHS health care, and disputes about the current regulations and further proposed changes, we will discuss the implications of existing and proposed restrictions on both documented and undocumented migrants.

2. Definitions There is considerable debate about the most appropriate terminology to use when referring to individuals without regular immigration status (IPPR, 2006). The international NGO, Platform for International Cooperation on Undocumented Migrants (PICUM), uses the term ‘undocumented migrant’ to refer to migrants without a permit authorizing them to regularly stay in the country of destination (PICUM, 2007). The UK think tank, Institute for Public Policy Research, uses the term ‘irregular migrant’, which it defines as people who are liable to be deported for issues related to immigration (IPPR, 2006). This refers to a broader group than undocumented migrants as it includes those who have a current permit but are in breach of their immigration conditions, for example legal migrants working without permission. The UK government, the European Union and some media outlets use the term ‘illegal immigrant’, and this term is often used synonymously with ‘asylum seeker’ in public debate (IPPR, 2006), resulting in much confusion. This chapter uses the PICUM term ‘undocumented migrant’. When using this terminology, it must be recognized that the distinction between the two categories ‘documented’ and ‘undocumented’ is blurred, as people may shift from ‘legal’ (documented) to ‘illegal’ (undocumented) status for numerous reasons, or indeed shift the other way, for example if they manage to get asylum refusals overturned in the courts. For this reason we are concerned with both groups. More

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importantly, we seek to show that whether ‘undocumented’ or not, all migrants are adversely affected by entitlement restrictions ostensibly directed at only the undocumented. Data on undocumented migrants is limited. Estimates of the number of undocumented migrants in the UK range from 310,000 to 570,000, with the Home Office adopting a median estimate of 430,000 (Woodbridge, 2005). The Home Office calculates that undocumented migrants make up less than 0.7 per cent of the UK population and compares this favourably with the US where the figure is 2.5 per cent, particularly in view of amnesties for illegal migrants in the US which have served to reduce the numbers of such migrants there. A more recent estimate suggested that the irregular migrant population in the UK in 2007 was 725,000 (range 524,000 and 947,000), a lower proportion of all immigrants than in the EU as a whole (Vollmer, 2009). Undocumented migrants are a diverse group whose social and economic circumstances can vary widely. The group includes individuals who have overstayed their visas, refused asylum seekers and individuals who have been trafficked or have otherwise entered the country without a visa. It also includes women (and men) who have entered the country on a two-year spouse visa but whose partner has refused to regularize their status. The number of undocumented migrants in the UK is likely to increase, since the recent introduction of a ‘points-based’ immigration system in the UK means that many low-skilled workers from outside the EU will not be able to renew their work visas (Wintour, 2007). In addition, the number of asylum seekers whose claims are refused continues to exceed the number returned to their home country (National Audit Office, 2005).

3. Context During the 1990s and over the millennium there was widespread media hostility to people seeking asylum in the UK and frequently levelled accusations that asylum seekers were fraudulently trying to access Britain’s welfare system. There were repeated changes in legislation to make asylum seekers ‘less eligible’, in effect to make the conditions of asylum seekers worse than they might face in their country of origin. People seeking asylum lost the right to work and to claim general state benefits. Instead, the government established a dedicated and more restrictive benefits scheme for asylum seekers (Cohen, 2003; Somerville, 2007).

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3.1. Health tourism In this section we explore the background and context of recent changes to NHS entitlements. In particular we show how changes to the National Health Services (Charges to Overseas Visitors) Regulations 1989 were initially justified in terms of preventing ‘abuse of the NHS’, and only later have become incorporated into a broader policy of ‘shutting down the privileges of the UK to those here illegally’ (Department of Health, 2003; Home Office, 2007). In the contemporary debates about NHS charges, the terms used have become significant tools in shaping government agendas as well as influencing popular attitudes to migrants and migration. In particular, the term ‘health tourist’ and the concept of ‘health tourism’, concepts hitherto barely known in 2003, have dominated discussions about NHS charging. With their connotations of both fraud and greed, these terms have struck a chord with fears of spiralling health costs fuelled by ‘failed’ and thus fraudulent asylum seekers. We conducted a cursory search using Google and selected websites (BBC, Daily Mail, Guardian and Hansard) to try to find when the term health tourism began to be associated with fraudulent use of the NHS, and how it became identified with ‘failed’ asylum seekers. In Hansard in 2002, we found only two references to health tourism, with two quite different meanings, neither of which related to migrants, the NHS or any kind of abuse of services. The first one extolled the market opportunities offered by health tourism, citing the English Tourism Council’s claim that health tourism is worth £6 billion a year (Hansard, 2002a). The second used it to scoff at MPs who try to implement policy ideas gained from brief trips abroad (Hansard, 2002b). However, ‘health’ or ‘medical’ tourism has for some time been widely used to refer to overseas travel to purchase health care, a sector which has been promoted as a key source of export earnings by a range of countries including India, South Africa and Cuba (Oswald and Henthorne, 1999; Chinai and Goswami, 2007). A wholly new usage seems to have been coined by Shadow Health Secretary Liam Fox in January 2003 when he ‘warned of the impact that the asylum seeker crisis [sic] is having on the National Health Service’ in a story posted on the Conservative Party website. He claimed that ‘the government’s long-term failure to control the number of asylum seekers is impacting hard on the ability of the NHS to treat UK citizens’. Dr Fox was cited as saying: ‘It is reasonable to treat the health demands of genuine asylum seekers. However, it is not acceptable to give them preferential treatment ahead of UK taxpayers. And it is

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certainly not the duty of the NHS to act a health tourism destination for economic migrants’ (Conservative Party, 2003). In June of that year Dr Fox enlarged on the theme, calling for a health entitlement card on the grounds that ‘the NHS is becoming the health equivalent of Disneyland for tourists . . . Hundreds of thousands of people who have failed the asylum process are trying to use our health care system. This means British citizens already waiting for treatment have to wait longer’ (BBC, 2003). Health tourism quickly became a euphemism for abuse of the NHS by ‘foreign visitors’. The government freely admitted that it had never collected data on the numbers of ‘health tourists’ who used the NHS (Hansard, 2004a). Indeed, the Secretary of State for Health stated very clearly that they had no data because ‘trusts are not required to submit data on the numbers of overseas visitors treated or the costs of doing so, not least because overseas visitors, as defined by the charging regulations, are not automatically “health tourists” ’ (Hansard, 2003). The distinction between ‘health tourists’ and other ‘overseas visitors’ (note the terminology here too) was recognized and sometimes even commented on, but not without constantly re-emphasizing health tourism. For example, the government’s 2003 Consultation on amending the 1989 (Charges to Overseas Visitors) Regulations began its justification for making new proposals with reference to the ‘considerable public concern about the abuse of the NHS by health tourists’ (Department of Health, 2003, p. 7). It followed this by adding that much media coverage was ‘confused and inaccurate’, but throughout it repeated unsubstantiated suggestions of ‘abuse’ due to ‘loopholes’ in the regulations (Department of Health, 2003, p. 7; Kelley and Stevenson, 2006). Not all government ministers were equally circumspect in differentiating ‘health tourists’ from other overseas users of health services. Beverley Hughes, then Minister of State for Immigration, Citizenship and Counter Terrorism, wrote that the purpose of the proposals to amend the regulations was ‘to remove certain loopholes that have been exploited by health tourists. In particular anyone who has no legal basis to remain in the United Kingdom will be liable to be charged for NHS treatment, except for emergencies or conditions for which they were already receiving treatment before the final determination of their status’ (Hansard, 2004b, our emphasis). If the Home Office itself was conflating this issue, small wonder that others were picking it up. Distinctions between the groups being targeted by the proposed policies were easily eroded in both the press and in parliament. This could be

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done simply by linking or identifying health tourists with other ‘suspect’ foreigners. For example, one contributor to a House of Lords debate stated that: ‘A report last May by the Centre for Policy Studies suggested that some health tourists run up bills of over £50,000. In that report, one senior consultant estimated that 20 per cent of patients on his inner-city ward were asylum seekers, refugees and foreign nationals who were not entitled to NHS treatment’ (Hansard, 2004c). So ‘health tourists’ became a catch-all concept suggesting the most mercenary type of abuse of the NHS which all foreigners could be perceived to be party to, and which in some vague way also implicated ‘failed’ asylum seekers, the group in the public mind with the least legal claim to services. Indeed, even sympathetic commentators remain confused. An article in the social work magazine Community Care said of later proposals to charge for primary care, that ‘They are designed to tackle so-called health tourism, where people come to the UK and present false asylum claims to receive health care’ (Ahmed, 2007). 3.2. Enforcing the rules Increased restriction of NHS entitlements serves also to provide a basis for new government policies on surveillance and identity cards. The less comprehensive and universal a public service, the more possibilities exist for fraud or perceived fraud, and the more procedures need to be implemented to distinguish the eligible from the ineligible. The presumption of a widespread risk of fraud helps to justify increased surveillance, in particular the creation of ‘entitlement cards’ whose object is to deny access to many basic rights, including that of access to health care. But even without legislation for identity or entitlement cards, complex regulations have had to be developed on how to implement charges. Within the NHS, a good part of the current regulations address themselves to the statutory role of hospital trusts to determine the eligibility of patients to free care (NHS, 2004, p. 5). This represents a shift from the earlier 1989 regulations, which merely expected the relevant Health Authority to make ‘reasonable’ enquiries as to a person’s liability to charges ‘including the state of health of that overseas visitor’ (NHS, 1989). What has alarmed many people, including health workers at all levels, as well as those working with migrants, is both the non-clinical criteria for eligibility that are now applied and the close and deliberate integration of this process with attempts to curb ‘illegal’ immigration. Thus responsibility for ensuring that patients who are not ‘ordinarily resident’ in the UK are identified has now been devolved to agencies

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not normally charged with law enforcement. This procedure forms an explicit part of the government’s new enforcement policy as set out in the Home Office’s strategy document Enforcing the Rules: A Strategy to Promote or Enforce Compliance Without Immigration Rules (Home Office, 2007, p. 19). This strategy sought to justify a more open policy towards migrant workers at the expense of those it was prepared to deem illegal, to force them into the category which we have called ‘undocumented’. To do this it sought ways increasingly to criminalize the undocumented and to restrict their ‘privileges’, many of which, including the rights to shelter and health care, are regarded by many as basic human rights. It went still further by proposing the development of mechanisms to involve civil society agencies such as health and other public service providers, and private agencies such as banks, in accessing information and determining themselves whether or not ‘migrants are here legally and entitled to services’ as a means of applying sanctions to those living ‘illegally’ (Home Office, 2007, p. 5). It is this Home Office strategy, Enforcing the Rules, that helps us understand that restrictions to access are not about cost. The document acknowledged that illegal migrants ‘were unlikely to place a great strain on the NHS as most are thought to be young and therefore relatively healthy’ (Home Office, 2007, p. 13) but it planned ‘a review of access rules for NHS care for foreign nationals to simplify the process of applying controls’ (Home Office, 2007, p. 14, our emphasis). Enforcing the Rules was not about costs or cost recovery to the NHS or even about preventing specifically defined ‘abuses’. It sought to redefine the idea of comprehensive welfare, in order to ‘shut down inappropriate access that are privileges for people who are in the UK legitimately’ (Home Office, 2007, p. 24). This is the clearest re-statement of the Victorian distinction between the deserving and undeserving poor. Presenting a continuum of ‘harm’ caused by illegal immigration, it assigned culpability to migrants for anything from involvement in terrorism to responsibility for ‘reduced community cohesion’ and ‘undermining public confidence in the immigration system’ (Home Office, 2007, p. 11). Such harm must be challenged by sanctions, and it is here that we find a shift in the underlying basis of NHS charging and restrictions on entitlement: For those that cause the most harm for example criminal activity, this will mean prosecution, detention and removal or deportation . . . For others, the sanctions will increase with non-compliance to ensure

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that living illegally becomes ever more uncomfortable and constrained until they leave or are removed. (Home Office, 2007, pp. 23–24) In this scenario the object of NHS charging was to be part of a wholesale plan to drive people away. This remains the premise behind continuing government attempts to sustain and define eligibility for free treatment in the face of legal challenges. Thus, in the face of criticism that denial of access can damage physical or mental health, the assumption is that it doesn’t matter – they shouldn’t be here anyway. We have moved a long way from Aneurin Bevan’s affirmation that ‘One of the consequences of the universality of the British health service is the free treatment of overseas visitors’ (Bevan, In Place of Fear, 1952, cited in Manchester Law Centre, 1982).

4. Current entitlements to NHS health care The rules governing entitlement to free NHS care in the UK are extremely complex. Cross-cutting rules relate to nationality, immigration status, type of illness and type of care. Some foreign nationals are entitled to care as a result of health care agreements between their home country and the UK or through EU arrangements. Some visa categories carry with them immediate entitlement to free care on arrival in the UK, while other visa categories disentitle the individual to free NHS care throughout their stay in the country. For many migrants, their entitlement depends on whether or not they are ‘ordinarily resident’ in the UK. To be ‘ordinarily resident’, an individual must be lawfully in the country and demonstrate that they are ‘settled’ in the UK. There are no hard and fast rules about what is required to establish that an individual is ‘settled’ in the UK. Department of Health guidance states that an individual who has been in the country for less than six months is unlikely to be able to establish that they are ‘ordinarily resident’, however, this is not a rigid timeframe (NHS, 2004). There are exemptions from this entitlement system for some medical conditions and some specific types of care which apply to all migrants. Free NHS care is available for compulsory mental health treatment and treatment for communicable diseases including tuberculosis (TB) and sexually transmitted infections. HIV/AIDS testing is free; however treatment is not. Emergency care provided in Accident and Emergency is available free of charge, however subsequent care is charged for. All care

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which is classed as ‘immediately necessary’ must be provided without delay irrespective of the individual’s ability to pay, but the person will subsequently be charged for their care. The definition of ‘immediately necessary’ is unclear and dependent on clinician judgement, but does include all maternity care. Anyone who is not entitled to free NHS care and whose condition does not fall within the exemptions is required to pay for NHS secondary care in advance. Secondary care consists of hospital-based and other specialist care. For migrants who are destitute or on low incomes, this can be an insurmountable barrier to accessing hospital care. Primary care, consisting of GP and other direct access health services, is subject to different rules. Access to primary care is dependent on GPs, who retain the discretion to provide free NHS care to anyone, irrespective of their immigration status. The complex rules governing charging for secondary care for refused asylum seekers and other migrants were introduced in 2004. In that year, the government also consulted on a proposal to introduce charging for GP and other primary care although this did not proceed. The following sections focus on the situation of asylum seekers, refugees and undocumented migrants as prime examples of migrants whose entitlements to free NHS care have become unclear or have been called into question since the 2004 changes to hospital charging regulations and the proposals to charge for primary health care. 4.1. Entitled to free NHS secondary care Individuals in the UK who are escaping persecution in their home country are classified in a number of ways by the UK government. Those who have made a formal claim for refugee status are classed as ‘asylum seekers’. Those whose claim has succeeded are described as ‘refugees’ or as ‘having leave to remain’, depending on the specific status granted to them. Those whose claim has been refused are described as ‘failed’ asylum seekers.1 These terms are constructions which relate not to the person’s experience of persecution and flight, but to their location within the UK immigration system. Asylum seekers have leave to remain in the country while they seek to prove their claim. They have full entitlement to free NHS care during this period. If their claim is successful, they have the same entitlement to health care as any other UK resident. If their claim is unsuccessful then their circumstances become more difficult. The entitlement of refused asylum seekers to free NHS care is contested. This is discussed below.

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Asylum seekers and refused asylum seekers may be subject to incarceration in detention centres prior to deportation or, in some cases, throughout the consideration of their claim. Health care in detention centres is provided free of charge but is not provided by the NHS. A recent official report criticized the quality of care provided and described it as unsuitable for individuals with serious health problems and for those in detention for long periods (HM Chief Inspector of Prisons, 2006). Refugees and asylum seekers often have very poor health. They face health problems related to poverty and overcrowding, in common with other deprived or excluded groups. Many have experienced the psychological and medical effects of fleeing war and conflict in their home country. They may have undergone torture and or other traumatic experiences. They may have unrecognized or untreated medical conditions such as congenital heart disease or TB (BMA, 2002; Burnett and Fassil, 2002). This group faces significant barriers to accessing health care. Language and cultural barriers may affect attendance for health care and effective communication with their clinician. They may have difficulty obtaining information about how the UK health system works. In addition, the practice of dispersing asylum seekers to new locations can contribute to poor continuity of care. Confusion about entitlement to care can also affect access to care, with evidence of hospital trusts requesting payment from asylum seekers who are entitled to free care (Joint Committee on Human Rights, 2007).

Case 1 A Chinese woman asylum seeker sought maternity care from a hospital shortly after her arrival in the country. The hospital gave her a scan as emergency treatment, but refused another appointment. Instead, the midwife asked her to go to the Overseas Visitor Manager. When she saw the Overseas Visitor Manager, there was no interpreter and she did not know what was going on. Midwifery staff refused subsequent appointments and referred her back to the Overseas Visitor Manager. She sought assistance from a voluntary organization. An advocate advised the hospital that, as an asylum seeker, the woman was entitled to care and she was given an appointment (Medact, unpublished research).

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The experiences of the asylum process in the UK can also impact negatively on health. There is evidence that the health status of refugees and asylum seekers worsens in the two to three years after entry to the UK (BMA, 2002). A small-scale study of female asylum seekers in Scotland found that 54 per cent reported worse health in the UK than in their home country (London School of Hygiene and Tropical Medicine and Scottish Refugee Council, 2009). Of these women, 57 per cent met the criteria for Post Traumatic Stress Disorder and 20 per cent reported suicidal thoughts in the past week. The ultimate effect of these policies is to exacerbate the very poor health of the individual affected. In maternity care, for example, refugee and asylum seekers made up 12 per cent of all maternal deaths in 2003–2005 (G. Lewis, 2007), despite this group constituting less than 0.5 per cent of the population. 4.2. Not entitled to free NHS secondary care Undocumented migrants, including refused asylum seekers, are not entitled to free NHS secondary care. As with all migrants, they may access primary care at the discretion of the GP. There are numerous reports of undocumented migrants who have been unable to obtain primary care. This can result in individuals approaching Accident and Emergency services for primary care (Project London, 2006; Feldman, 2008).

Case 2 J is a Roma woman with diabetes and high blood pressure. She was referred to the Refugee Council after being turned away by every local GP in her area. When she went to her local Accident and Emergency department, they too turned her away, saying her condition wasn’t life threatening or an emergency, that if she wanted health care, she would have to pay. J is destitute. (Kelley and Stevenson, 2006)

One anomaly in the rules governing entitlement to free NHS care is the set of primary care services covered by the HC2 form. The NHS charges for NHS prescriptions, dental care, sight tests, wigs, and spinal and other supports. These services are free of charge to people on low incomes who hold a HC2 certificate. This certificate also entitles the holder to

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vouchers to assist them with the costs of glasses and contact lenses, and some assistance with transport costs. The HC2 certificate is unusual in that it is available to all who meet the income test irrespective of their immigration status. Many undocumented migrants who are not entitled to free NHS hospital care can obtain a HC2 certificate. Indeed, current entitlement rules from the Department of Health recommend that practitioners who come into contact with asylum seekers should encourage them to apply (our emphasis). The rules also state specifically that ‘failed asylum seekers can also apply’ (Department of Health, 2008). The denial of free NHS care to refused asylum seekers has been contested. New rules introduced in 2004 left refused asylum seekers without entitlement to free NHS care even if they receive ‘Section 4’ support, discussed below. If they were receiving care at the time that they had exhausted all their appeal rights, that care could continue free of charge. However, new care which did not fall within the exemptions was only available if they could pay in advance. A 2008 court case reviewed the relevant regulations and guidance and decided that many refused asylum seekers were entitled to free care. This decision was overturned in 2009 (see ‘The Court Challenge’ below). For refused asylum seekers, restrictions to NHS entitlements are compounded by the denial of the right to work and restricted access to state benefits and services. If their claim is refused, asylum seekers will have their regular support from the UK Borders Agency (UKBA) terminated. But if they find themselves destitute, they may apply for ‘Section 4’ support, which is granted subject to very stringent conditions. This support consists of accommodation and a weekly supermarket voucher for £35 per individual in a family, redeemable at a specified supermarket chain. The value of this voucher (less than 60 per cent of the adult income support rate) is extremely low, leaving refused asylum seekers in poverty. There is no access to cash to cover costs such as transport, nor is there any choice in the location of the accommodation. Section 4 support is not available to all refused asylum seekers, leaving many refused asylum seekers in destitution. In order to claim Section 4 support, refused asylum seekers must either sign up to return to their home country, which many are not prepared to do, or seek support on other grounds, mostly following the submission of a fresh asylum claim or the inability to travel for physical or medical reasons. However, support for medical reasons may be for short periods only. For example, pregnant women can only claim this form of Section 4 support from ‘late pregnancy’ (approximately 34 weeks gestation) till six weeks after

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the birth, unless there are significant complications earlier in the pregnancy. All applicants for Section 4 support must also provide evidence that they are destitute. It is not sufficient to demonstrate that they are not entitled to work or to receive other benefits. Destitute refused asylum seekers not granted Section 4 support are also denied access to other forms of social housing and to most government services. Local authorities have child protection responsibilities in relation to children and young people who are dependents of refused asylum seekers, but have no obligations in relation to adults unless they have care needs covered by the National Assistance Act 1948 (National AIDS Trust and Hackney Community Law Centre, 2008). Many refused asylum seekers rely on support from church groups and friends. Many are homeless and live in extremely difficult circumstances (H. Lewis, 2007; The Children’s Society, 2008).

5. The court challenge Denial of free NHS hospital treatment to refused asylum seekers was challenged in a recent judicial review, (R (A) v. Secretary of State for Health). In April 2008, the High Court judgement resulted in changes in entitlement to free NHS care for refused asylum seekers. The case concerned A, a Palestinian man, who suffered from chronic liver disease. He was a refused asylum seeker living on UKBA Section 4 voucher payments of £35 per week. The hospital trust asked him to pay for care and initially refused care when he was unable to pay. After A commenced legal action, the trust agreed to provide free treatment. The claimant sought permission to continue the case against the Secretary of State and this was granted. The case addressed the narrow legal question of the meaning of ‘ordinarily resident’. In a departure from previous decisions, the court concluded that an individual did not need leave to remain in the UK in order to be ‘ordinarily resident’ but did need to be lawfully present. Refused asylum seekers who applied for asylum at their port of entry and received temporary admission to the UK are lawfully present in the country. Refused asylum seekers who entered the country illegally and then applied for asylum, referred to as ‘in country application’, are not lawfully in the country. The judge considered the implications of the practice of drawing a distinction between ‘port of entry’ and ‘in country’ applicants, and concluded that it was not workable for clinicians. He decided that all asylum seekers granted temporary admission should be considered ‘ordinarily resident’ so long as they can demonstrate an intention to remain here.

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In practical terms, this meant that individuals who could show evidence that they had been granted temporary admission were entitled to access free NHS care unless they had been issued with removal directions. The Department of Health overturned this decision on appeal in 2009 (The Queen (on the application of YA) v. Secretary of State for Health). The court decided that an individual was not ‘ordinarily resident’ unless there was some kind of positive authorization to be in the UK. It was not enough that an individual had been granted temporary admission. This meant that refused asylum seekers are not entitled to free NHS care. The applicant’s inability to obtain Legal Aid funding has meant that it has not been possible to mount a challenge to this ruling in the new Supreme Court. The judicial review also examined the Department of Health guidance on charging for secondary care and concluded that this was unlawful. It ruled that the guidance on the interpretation of ‘urgent’ and ‘immediately necessary’ treatment was too restrictive as the guidance does not specify what hospitals should do if a patient is unable to pay and cannot return to their home country for the time being.

6. New legislation Meanwhile, at the same time as this appeal was underway, the government was pursuing other legislation to address entitlement to health care for new migrants. The consultation document on the proposed Immigration and Citizenship Bill 2008 stated that the government would simplify the complex legislation on access to benefits and services (Home Office UK Border Agency, 2008). They would review terms such as ‘ordinarily resident’ and ‘lawfully present’ to ensure that the terms met the policy objective of restricting access to benefits and services to those migrants who have ‘earned the right to them’. The Border, Citizenship and Immigration Act was passed in 2009. It did not address entitlement to health care or to other benefits and services. A proposed second bill in 2010 to address outstanding issues was not completed because of the General Election. At the time of writing the new government’s intention is still not clear. This legislation follows a series of policy reviews and public consultations on the question of overseas visitors’ entitlements to NHS care. In 2004, the government consulted on proposals to restrict entitlement to free NHS primary care (Department of Health, 2004). In 2007, the Home Office policy document, Enforcing the Rules, announced a review of entitlement to health care for foreign nationals (Home Office, 2007). This was expected to consider further restrictions on entitlement to

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primary care for refused asylum seekers. Neither the outcome of the 2004 consultation nor the review promised in Enforcing the Rules has been released. In 2010, the government consulted again on proposed changes to entitlement to health care for foreign nationals. Proposals included entitlement to free healthcare for some refused asylum seekers and for unaccompanied minors, and the introduction of new obligations to disclose personal information which would be used in recovering debt. The consultation began prior to a change of government and the fate of these proposals remains unclear.

7. Emerging restrictions on access to NHS primary care While entitlement to primary care is based on different rules from entitlement to secondary care and is subject to the discretion of GPs, there are emerging practices within the NHS which are restricting access to primary care for people currently ineligible for free secondary care but who hitherto have been entitled to free primary care. Primary Care Trusts (PCT), which fund primary care at a local level, play an important role in this process. Voluntary organizations and lawyers working with undocumented migrants have reported that some GPs have been wrongly informed by their PCTs that they are not permitted to register undocumented migrants (Maternity Action, unpublished research, 2008–10). In some areas, the PCT Counter Fraud Teams have sought to prevent GPs providing care to undocumented migrants. Counter Fraud Teams usually focus on theft, fraud or other criminal activity. There is evidence that confusion about entitlement and the intervention of PCTs is affecting access to primary care services. Project London, which provides medical care to undocumented migrants, contacted 150 GPs in London asking about registering a fictitious pregnant woman with their practice (Project London, unpublished research, 2008). Of the practices contacted, 6.5 per cent said that they would register the woman, 56 per cent refused to register the woman, 6.5 per cent said the decision would be at the GP’s discretion, and the remainder asked for additional documentation.

8. Implications of current policies Many commentators have drawn attention to public health issues in response to proposals to change entitlements to hospital care and to

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proposals to introduce charges for ‘overseas visitors’ in primary care. Particular concerns have been raised about the impact on public health of delayed detection of TB or HIV, leading to failure to treat these conditions (House of Commons, 2005; Wood et al., 2007; Medsin, 2008). While TB treatment is exempted from charges, TB is only treatable if it is detected. Fears of being reported to the authorities, threats of charging, experience of billing, a decline in trust between patient and doctor, recourse to parallel and even illegal markets in drugs all act as barriers to speedy and effective access to health care. Altogether, public health strategies involving mass childhood immunization, TB reduction and maternal and infant mortality are likely to be undermined (Hargreaves et al., 2006, pp. 33–58). The health of individual migrants, often presented as a ‘humanitarian’ as opposed to a public health issue, is, of course, also at risk of being compromised if problems are not identified and treated. In a 2001 critique of government policies which adversely affected the health of asylum seekers, when there was not yet a debate about their entitlements, the British Medical Association and Medical Foundation published a dossier of 22 cases reflecting ‘the suffering of refugees’ (BMA and Medical Foundation for the Care of Victims of Torture, 2001). The cases described delayed child development and failure to thrive, skin conditions, severe mental health problems, and ongoing effects of torture in countries of origin, as well as health problems stemming from the physical and social conditions in which asylum seekers were living. More recent studies have documented examples both of the impact of charging in secondary care and confusion about eligibility to both primary and secondary care. Cases include descriptions of unattended home birth delivery, refusal of post-natal follow-up, denial of cancer treatment, problems obtaining essential insulin for diabetics, lack of treatment for prior injuries, and mental health problems, sometimes exacerbated by failure to treat serious conditions, leading to physical pain and ill-health (Cheedella, 2006; Kelley and Stevenson, 2006; Project London, 2006; Feldman, 2008). Moreover, the consequences of health policy go beyond health impacts alone, whether on individuals or on groups. Invidious distinctions between different groups in relation to their rights of access to health services are likely to increase barriers to access for all whose status is uncertain to the gatekeepers. Legitimizing discriminatory practice against foreigners – a form of racism based on xenophobia rather than on particular physical or cultural characteristics – feeds further discrimination (Hargreaves et al., 2006). Studies in two London Primary

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Care Trusts found evidence of lack of access to GPs for people who were legally quite entitled to primary care, including more stringent demands for documentation to prove eligibility (Hargreaves et al., 2006; Feldman, 2008). While anti-discrimination legislation requires all potential patients to be treated in the same way, in practice demands to prove eligibility are more likely to be made of foreigners than of apparently native born people, whatever the entitlements of each group.

9. Conclusion The complex charging regulations which the government is still in the process of developing have been justified in terms of costs to the NHS and fraudulent ‘health tourism’. Closer scrutiny reveals that they are part of a long tradition of attempts to exclude foreigners and ‘outsiders’ from health care and public welfare more broadly, despite failure to provide any empirical justification in terms of cost, or consideration of their impact on other policy goals such as public health. At present the imposition of charges is part of a broader attempt to integrate immigration controls with the administration of public services. This is itself costly but is also invidious and leads to contradictory outcomes in terms of health policy. It results in increased use of emergency services when the policy is to reduce inappropriate use of such services, poorer maternal health in particular, and increased risks to public health. The NHS charging policy also risks undermining other social policies such as race equality, refugee integration and programmes to integrate skilled migrant workers, and is in danger of creating a more intolerant and unequal society.

Note 1. When not discussing government-defined categories, we use the term ‘refused’ rather than ‘failed’ asylum seekers to refer to those whose claim for asylum has been refused by the Home Office.

References Ahmed, M. (2007) ‘Primary health care charges to apply if asylum claim fails’, Community Care, 15 November, available at: http://www.communitycare. co.uk/Articles/2007/11/15/106461/Primary-health-care-charges-to-apply-ifasylum-claim.htm BBC (2003) ‘Tories target “health tourism” ’, 1 June, available at: http://news.bbc. co.uk/1/hi/uk_politics/2954438.stm.

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British Medical Association (BMA) (2002) Asylum Seekers: Meeting their Healthcare Needs (London: British Medical Association). British Medical Association and Medical Foundation for the Care of Victims of Torture (2001) Asylum Seekers and Health, available at: http://www.bma.org.uk/ ap.nsf/Content/Asylumseekershealthdossier. Burnett, A. and Fassil, Y. (2002) Meeting the Health Needs of Refugees and Asylum Seekers in the Uk: An Information and Resource Pack for Health Workers (London: Department of Health). Cheedella, K. (2006) Barriers for Failed Asylum Seekers to Accessing NHS Services Including Charging for Healthcare, and the Consequences of Destitution: A Study in Leeds, United Kingdom, unpublished B.Sc. dissertation, University of Leeds, available at: http://www.medact.org/article_refugee.php?articleID=592. The Children’s Society (2008) Living on the Edge of Despair: Destitution amongst Asylum Seeking and Refugee Children (UK: The Children’s Society). Chinai, R. and R. Goswami (2007) ‘Medical visas mark growth of Indian medical tourism’, Bulletin of the World Health Organisation, 85(3), 164–165. Cohen, S. (2003) No One is Illegal (Stoke on Trent, UK and Sterling USA: Trentham Books). Cohen, S. and D. Hayes (1998) They Make You Sick: Essays on Immigration Controls and Health (Manchester Metropolitan University: Greater Manchester Immigration Aid Unit and Department of Applied Community Studies). Conservative Party (2003) Asylum Crisis Undermining NHS Care, available at: http://www.conservatives.com/tile.do?def=news.story.page&obj_id=50595 (accessed 3 October 2008). Cooley, L. and D. Sriskandarajah (2007) ‘Facts and figures: a context for understanding the issues’, in D. Flynn and Z. Williams (eds) Towards a Progressive Immigration Policy (London: Compass, Migrants Rights Network, Barrow Cadbury Trust). Department of Health (2003) Proposed Amendments to the National Health Service (Charges to Overseas Visitors) Regulations 1989: A consultation (London: Department of Health publications). Department of Health (2004) Proposals to Exclude Overseas Visitors from Eligibility to Free Nhs Primary Medical Services (London: Department of Health publications). Department of Health (2008) ‘Table of entitlement to NHS treatment (correct as of May 2008)’, http://www.dh.gov.uk/en/Healthcare/International/ asylumseekersandrefugees/index.htm (accessed 14 September 2008). Feldman, R. (2008) ‘Evaluation of Hounslow Health Advocacy Project for Refugees and Asylum Seekers’, Report to Hounslow Primary Care Trust. Gordon, P. and A. Newnham (1985) Passport to Benefits? Racism in Social Security (London: Child Poverty Action Group). Hansard (2002a) Baroness Blackstone, 20 March. Hansard (2002b) Lord Clement-Jones, 19 November. Hansard (2003) Hutton, 30 October. Hansard (2004a) Ladyman, 12 January. Hansard (2004b) Hughes, 2 March. Hansard (2004c) Earl Howe, 5 March. Hargreaves, S., J. Friedland, A. Holmes and S. Saxena (2006) ‘The Identification and Charging of Overseas Visitors at NHS Services in Newham: a Consultation’,

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Final Report (London: Newham Project Board, Newham Primary Care Trust, London Borough of Newham). HM Chief Inspector of Prisons (2006) Inquiry into the Quality of Healthcare at Yarl’s Wood Immigration Removal Centre (London: HM Inspectorate of Prisons). Home Office (2007) Enforcing the Rules: A Strategy to Ensure and Enforce Compliance with Our Immigration Laws (London: COI). Home Office UK Border Agency (2008) Making Change Stick: An Introduction to the Immigration and Citizenship Bill (London: HMSO). House of Commons Health Committee (2005) New Developments in Sexual Health and HIV/AIDS Policy, Third Report of Session 2004–2005, Volume I, HC 252-I. Institute for public policy research (IPPR) (2006) Irregular Migration in the UK (London: Institute of Public Policy Research). Joint Committee on Human Rights (2007) The Treatment of Asylum Seekers: Tenth Report of Session 2006–7, Volume 1 (London: The Stationery Office). Kelley, N. and Stevenson, J. (2006) First Do No Harm: Denying Health Care to People Whose Asylum Claims Have Failed (London: Refugee Council). Kyambi, S. (2005) Beyond Black and White: Mapping New Immigrant Communities (London: Institute of Public Policy Research). Lewis, G. (ed.) (2007) ‘The Confidential Enquiry into Maternity and Child Health (CEMACH) Saving Mother’s Lives: Reviewing Maternal Deaths to Make Motherhood Safer 2003–2005’, the seventh report on Confidential Enquiries into Maternal Deaths in the United Kingdom (London: CEMACH). Lewis, H. (2007) Destitution in Leeds: The Experiences of People Seeking Asylum and Supporting Agencies (Leeds: Joseph Rowntree Charitable Trust). London School of Hygiene and Tropical Medicine, and the Scottish Refugee Council (2009) Asylum-Seeking Women, Violence and Health: Results from a Pilot Study in Scotland and Belgium (London: London School of Tropical Medicine & Scottish Refugee Council). Manchester Law Centre (1982) From Ill Treatment to No Treatment (Manchester: Manchester Law Centre Immigration Handbook No. 8). Medsin (2008) Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services (Cambridge: Global Health Advocacy Project), available at: www.wherestheconsultation.org. National AIDS Trust and Hackney Community Law Centre (2008) Advice for Asylum Seekers in Receipt of Section 21 Support (London: National AIDS Trust), available at: http://www.nat.org.uk/document/478. National Audit Office (2005) Returning Failed Asylum Applicants (London: The Stationery Office). National Health Service (1989) (Charges to Overseas Visitors) Regulations 1989, available at: http://www.opsi.gov.uk/si/si1989/Uksi_19890306_en_1.htm. National Health Service (2004) Implementing the Overseas Visitors Hospital Charging Regulations: Guidance for Nhs Trust Hospitals in England, (as amended 2007). Oswald, S. and T. Henthorne (1999) ‘Health tourism: A Niching strategy for marketplace survival in Cuba’, Global Development Studies, 1(3–4), 220–233. Platform for International Cooperation on Undocumented Migrants (PICUM) (2007) Access to Health Care for Undocumented Migrants in Europe (Brussels: PICUM).

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Project London (2006) Helping Vulnerable People to Access Healthcare (London: Médecins du Monde). The Queen (on the application of YA) v. Secretary of State for Health [2009] EWCA Civ 225. R (A) v. Secretary of State for Health and West Middlesex University Hospital NHS Trust (interested party) [2008] EWHC 855 (Admin).Somerville, W. (2007) Immigration under New Labour (Bristol: Policy Press). Southall Black Sisters (2007) No Recourse Campaign Leaflet, available at: http:// www.southallblacksisters.org.uk/publications.html. Vollmer, B. (2009) Irregular migration in the United Kingdom: Counting the Uncountable, Policy brief CLANDESTINO Project, available at: http://clandestino. eliamep.gr/policy-briefs/#more-105. Wintour, P. (2007) ‘Smith seeks to restore trust in immigration system,’ The Guardian, 6 December. Wood, C. et al. (2007) ‘Global health and foreign policy’ (letter), The Lancet, 369, 1688–1689. Woodbridge, J. (2005) Sizing the Unauthorised (Illegal) Migrant Population in the United Kingdom in 2001 (Home Office).

6 A Market Place for Migrants: Mobility, Settlement and Social Protection in Kerala Mythri Prasad-Aleyamma

1. Introduction This chapter focuses on a Sunday Bengali market for migrant workers in Perumbavoor, a small town situated close to the city of Kochi in Kerala, South India, to interrogate the concept of social protection. The market, which sprang up in response to the specific needs of migrant workers from West Bengal, Bihar and Nepal, serves also as a ‘meeting point’ of workers. Such markets, by acting as a point of contact, facilitate a network of migrant workers, contractors, traders and trade unions. The Sunday market is a place where workers seek leisure, make friends, send money home through agents and settle disputes. The migrant workers who visit the market are mainly from north and north-eastern states of India, namely West Bengal, Orissa and Assam and, to a lesser extent, from Jharkhand and Bihar and from the neighbouring country, Nepal. They work in stone quarries, construction sites, and plywood, chemical and plastic factories in Angamaly, Aluva and Perumbavoor and other small towns in Ernakulam district. Migrant labour is involved in all sectors which involve manual labour. The conditions that underpin these migrations are varied, including low wages, lack of employment, natural calamities and feudal land relations in places of origin, and the development of an elaborate recruitment network especially for construction companies. Exploitative conditions of work prevail in these work sites, including discriminatory wages, long working hours, cheating by contractors regarding wages and lack of safety measures. I do not intend to take up these issues for the present chapter unless they are relevant to or are helpful in addressing 164

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the central concerns of the chapter, which could be summarized in terms of the following questions: what are the connections between community formation and social protection? Is a dichotomous understanding of social protection as formal and informal analytically useful? What, if any, are the contradictions between migrant mobility and concepts of social protection, or, do concepts of social protection carry a sedentary bias within them? In this chapter I use the Sunday market in two ways: firstly as an important social institution in its own right, and secondly as a vehicle to explore these questions concerning migrant labour and social protection. The fieldwork was carried out in 2008 and 2009 and involved interviews with migrant workers, their employers and officials of the government labour department. The fieldwork in the market involved participant observation as well as interviews with workers and hawkers to understand the nature of activities and actors in the market and how these contribute to an understanding of the nature of social protection for these migrants. The chapter also uses archival material from the government labour department.

2. Making of a market This section presents a brief ethnographic description of the market, showing the range and complexity of the activities that the migrant workers engage in there. It first introduces the concept of ‘place making’ and discusses how migrant workers use or ‘make place’ in the market, as a means of community formation and political mobilization. Migrant labour makes place in two different but inseparable ways: by contributing labour to build physical space like roads, buildings and bridges, and by using and interpreting and extracting meaning out of spaces like Sunday markets. While these city forms – roads and bridges – displace local communities, their very building engenders new spatial practices and communities like Sunday markets in another part of the city or its periphery. I use the term ‘place making’ in the sense of Gieryn (2000) who said, drawing on the seminal work of de Certeau (1984), that ‘places are endlessly made, not just when the powerful pursue their ambition through brick and mortar, not just when design professionals give form to function, but also when ordinary people extract from continuous and abstract space a bounded, identified, meaningful, named, and significant place’. A sense of place and geographical proximity are crucial to community formation and the ability to make claims on the state as a community.

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Perumbavoor, where the market is situated, is a municipality in Ernakulam district that has a population of 26,547 and an area of 13.6 square kilometres as per the 2001 census. Agriculture remains the main occupation and economic activity that provides the economic base of the town. However, the town has seen a spurt in industrial production as small and medium-sized industrial units started mushrooming in the adjacent areas and towns. Some of these units are situated in the industrial estates in Aluva, another town in the district. These units produce chemicals, plywood and garments as well as process food, rubber and agricultural products. Migrant workers form the primary source of manual labour in these units. The local population of Malayalis also work in these factories, but mostly in management and supervisory positions.1 There has also been a rise in construction and quarrying activities in the area, which has led to an increase in construction and stone quarry workers. Getting off at Gandhi junction and walking downtown to Jyothi theatre junction in Perumbavoor, one can see the crowds of workers haggling with roadside vendors selling various goods, mainly secondhand clothes, plastic utensils and CDs of Oriya and Bengali songs and movies. Bidis (cigarettes) are brought in from as far as Murshidabad in West Bengal since Bengali workers prefer them to bidis produced locally. Besides construction workers, there are men working in clothmaking units, spice factories, plywood factories, plastic factories and so on. The workers in plywood factories started the practice of coming to town on Sundays, as Sundays are holidays. As quarrying and building work increased as the building boom set in, the number of workers went up. Workers from Aluva, Angamaly and other towns and industrial centres in the district, as well as from nearby districts like Kottayam and Thrissur, started joining them. Shereef, a Malayali shop owner in the market, remembers that the market came into its present form gradually over the past five years, though migrant workers used to come to the market even ten years back, which is when large scale migration to the district from north and north-eastern India started. The big shops remain closed on Sundays while the space in front of them becomes the Sunday market, with traders coming in from Tamilnadu to sell their wares exclusively to the migrant workers. The market is divided into ‘Oriya and Bengali sections’ with a less apparent ‘Assamese section’ a few yards away on the other side of the road. On other days of the week the market acts as a ‘pick-up point’ for workers. Contractors come in trucks to hire workers for construction

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sites and quarrying units. Siddique, a shopkeeper who acts as a go-between explains the hiring process at the market: I do business here. I inherited the shop from my father. Workers tell me to inform them if there is work in any company. The employers also tell me to inform them when workers come down from Bengal or Orissa. They leave their phone numbers with me. I call them up and tell them that workers have come down. This is all I do. The employers [muthalalimar, literally meaning capitalists] give something in return as I spend money on making calls. These workers smoke and chew pan and so they come here early in the morning. Once I started putting the workers and contractors/employers in touch, workers started coming in search of Siddikkakeda kada [Brother Siddique’s shop]. I also give tools like pick axes, shovels etc on loan to workers especially to Tamil workers as Bhayeemar [a slang word used to refer to North Indian workers, originating from the Hindi word bhai] do not do earthwork. Manoj who sits in AM Street, the Oriya section of the market, sells rings blessed by a holy man in Orissa. He has been coming to the market for the past eight years. He said that the market started attracting people in 2000 when the plywood factories began employing migrant workers from Assam and Nepal. Manoj lives near Aluva. He said that he had been to many cities in the country. Another man chipped in, introducing himself as Ajay Mallick from Cuttack in Orissa. He works in a plywood company Palikkavila near Perumbavoor. He described the process as ‘people and things attracting more people and things’. The market has further social and political functions. It operates as a meeting point for workers from the same village in Orissa or West Bengal who have settled in different parts of the district of Ernakulam. Ajay, from Rayagada in Orissa, said that all meetings between friends and gaavvalen (people from the same village) occurred in the market. It was a place where they borrowed and lent money. Transfer of money to villages also happens in the market. Disputes and quarrels are discussed and solved in the market. The market is, furthermore, a place where trade unions attempt to address the workers. The Trade Union Centre of India (TUCI), a trade union owing allegiance to the Communist Party of India (Marxist Leninist) organizes meetings, bringing comrades from Orissa and West Bengal to speak in the market.2 The trade union had successfully campaigned for compensation for workers who died in an accident in a labour quarter.3 However, the attempts by the trade union

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to organize the construction and quarry workers in the area have not been successful. The highly unionized Malayali construction workers in the district are recruited through trade unions in a system known as ‘site pidikkal’ (capturing the site) whereby unions negotiate with the builder regarding the number of workers, wages and the amount of work. Hiring Malayali construction workers is done either through unions or through contractors; Malayali construction workers do not stand in markets or intersections waiting to be picked up. Various trade unions affiliated to political parties have organized Malayali construction workers since the 1980s. However, the unions do not give membership to migrant workers and have not attempted to organize them. In the plywood industry, the migrant workers have replaced local Malayali male workers, and women workers from neighbouring districts in Kerala and Tamilnadu. However, this replacement has happened gradually as new units sprang up and existing ones increased in scale. Malayali workers in the plywood industry have remained largely non-unionized. Workers have acted in solidarity with their employers in the Sunday market. For example, in September 2008, the plywood factory owners organized a meeting against a move by the police to introduce identity cards for the workers. These were to be obtained after receiving a police clearance certificate from the police station in the migrant’s place of origin stating that he/she has no criminal record. Many of the workers returned home because they did not have these identity cards. Salim, a plywood factory owner who employs migrant workers, estimated that 10,000 went back. Plywood factories had to close down temporarily or slow down operations. Large numbers of workers participated in the meeting organized by the factory owners in protest against the police. The police did not pursue the issue of clearance cards. Other meetings were organized by Communist Party of India (Marxist) and the trade union affiliated to it, Centre of Indian Trade Unions (CITU), demanding more government intervention and the issuing of identity cards. Abdul Majeed, the president of the plywood manufacturers’ association and an employer of migrant workers says: They [migrant workers] are harassed here. The police asked them to bring police clearance certificates from their native places. We told the police that they cannot harass them. They are also Indian citizens. You can wait for a truck in Perumbavoor market, right? If somebody tells you that you cannot, what will you do? We were with the workers. Or rather, they were with us. We took out a procession.

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I, P K Abdul Majeed, organized the procession and spoke in the public meeting. They are like migratory birds. Should we destroy the ecosystem and drive away the migratory birds? The police snatched the voter’s ID card of a worker and tore it away when he was standing in the Perumbavoor market. That is the only identification card these workers have. When they were making trouble to our workers, we acted. They were harassing them unnecessarily. They [the police] thought that we will stop the industry if they threaten us. Due to the harassment, many workers started leaving and that’s when we organized the procession and meeting. We took them to streets. Why do they want to harass these poor people? We said it is not possible to harass them. We will take out a procession again if needed. Many left Perumbavoor to work in the construction industry in Bangalore where wages were higher than what we paid. So we had to stop work for some days. This crisis coincided with the onset of recession. It was a terrible crisis. This example shows how distinctive solidarities are forged between small capital and migrant labour in the face of state power and surveillance. However, this solidarity is not between traditional unionized labour and capital but between a particular section of labour (migrant workers) whose interests here coincide with those of small local capitalists. This brief exploration of the range of social and political relationships in the Sunday market has shown how migrant workers attempt to reduce the precariousness of their position within Perumbavoor. Observation of activities and relationships in the market helps to understand the strategies migrants use to protect their position, many of which do not follow formal channels. Following from this, the next section explores how far we can characterize such strategies as ‘informal’, and whether the formal–informal dichotomy can hold together the concrete reality of the Sunday market in its empirical complexity.

3. Market as a space of informality Informal economies have been shown to be the dominant rather than the marginal form of economy in most parts of the world (Portes, 1996), and are often backed by political might. ‘Informality’ is characterized as the realm of the personal, tacit, casual and often the chaotic. The ‘formal’ is often defined as the realm of the legal, and more importantly that of the state. Misztal (2000) points out that while the latter is necessary for liberal democracy’s sense of universal rights and contractual

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justice, the former is important for communication, trust and emotional commitment. Migration facilitates ‘informalization’ of the economy in many ways. By providing cheap labour, it might erode the bargaining power of organized local labour. It introduces labour practices which rely on informal networks. Such networks shape recruitment and settlement by using ethnicity and kinship for the mobilization of labour. The ethnic and caste identities of the workers, supervisors and recruiters play an important role in the work process and in labour disciplining (Chakrabarty, 1989). Social relations and networks, which are often characterized as informal, play an important role in shaping the Sunday market. Recruitment networks, the casual and temporary nature of employment, the pavement traders, the credit networks, and even the pre-used clothes on sale, are all markers of a perceived informality in practice. The segregation of the market into Bengali and Oriya sections also points to the nature of solidarities forged here. These solidarities are based on affinities of language, village and kinship. They are also usually categorized as constitutive of informal social and economic relations. These relationships provide a moral and practicable basis for social protection. What are the forms of social protection offered in the market? Information is exchanged about employment opportunities, wages in various sectors and factories, and about the practices of contractors. When contractors or employers cheat on wages or on the nature of work, they are summoned up before the owner of the Bengali restaurant, who is a Malayali, and a settlement is reached regarding the defaulted wages. When a migrant dies, his friends from the same village or his co-workers contribute towards the expenses of transporting the dead body to the village and do the bureaucratic work necessary for such transportation. The market is the place from which such efforts are coordinated. The market is also a site of resistance against the intervention of the state to monitor and police the workers by insisting on police clearance cards. As already mentioned, the workers and the employers joined hands in this resistance against the state. On the other hand, the market is also a site where the trade union has made attempts to organize the workers. The claims made by trade unions are formal in the sense that trade unions are formally constituted organizations and operate within formally established rules. The process of organization of a trade union is also viewed as formal. Does this process thus fall outside the scope of informality? We therefore need to ask how useful the concept of informality is as a way of characterizing the multiple and complex relationships forged

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in the market. The very tangibility and contextual embeddedness of informality defies definitions. Defining informality as a residual category, something that remains after definitions, makes it a nebulous term. Benjamin and Bhuvaneswari (2007) point out that the dualistic views ‘formal and informal’ have been shown long ago to be conceptually faulty and operationally fuzzy. For them, the persistent use of such concepts can only be explained from an ideological viewpoint which prioritizes the needs of capital over that of poor groups in cities by perpetuating a situation of forced illegality. In the context of cities like Bangalore and Chennai, such ideologies are harnessed to rework institutional structures and the policy environment to further claims of big business on locations in these cities. Papola (1980) also questions the analytical significance of the idea of the informal sector and notes that a dichotomous frame might not be adequate to analyse the multiple and varied elements of urban economies. Both formal and informal strategies and relationships shape the space of the market. As Linda J. Seligmann (2004) notes in her book on Peruvian street vendors, the boundaries between the formal and the informal are as porous and permeable as national borders, as people and things flow across them. She notes in the context of a market in Cuzco in Peru that formal and informal markets are intertwined, and considers the market and the activities of the street vendors as capable of dissolving dualities such as formal and informal. The Sunday market, by letting people and things flow across these borders, acts as a fluid and at times a convivial space. In the face of exclusion from mainstream economic and social institutions like trade unions, political parties and local governing bodies like panchayats, the Sunday market is where citizenship is established, however briefly and albeit in a limited manner. Seeing the market as only informal, and hence residual, precludes seeing its empirical complexity as a space offering social protection in crucial situations involving state oppression and surveillance. These forms of social protection do not fall within the boundaries of formality or informality. Moreover, the varied social relations that form the basis for social protection are not captured by the term informality.

4. Settlement and social protection Social protection should not be viewed merely as a set of given policies and legal formulations. Rather, it is activated through a political process of negotiation and struggle. Any discussion on social protection for migrant workers needs to take into account the parameters in which such a negotiation and struggle is framed and the political and economic

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context of the migration. For example, settlement, or at least an intention to settle down, is seen by the state as an important prerequisite in determining the eligibility of a person or a community to be welfare recipients. In fact, most of the time, the moral basis for a community is forged only if the families or persons in question are settled in close geographic proximity. Partha Chatterjee (2004), while discussing the political practices of marginalized communities in West Bengal, describes this process as one that ‘gives the empirical form of a population group the moral attributes of a community’. He notes that marginalized communities access welfare and resist state power by opening up sites of negotiation and contestation with governmental agencies. He calls these sites of negotiation ‘political society’, and thereby opens up a critique of the concept of civil society which he feels is too sanitized to accommodate such complex forms of politics. This political society is in active relationship with the procedures of governmentality. One of the cases Chatterjee takes up to substantiate his point is that of a heterogenous migrant colony in Calcutta (where migrants come from East and West Bengal). The empirical population group of the colony is given the moral attributes of a community by defining the neighbourhood in terms of kinship, by calling it a ‘family’. However, he notes that the geographical boundaries of the ‘colony’ are important in determining the neighbourhood and community. Settlement or an intention for settlement is important in deciding the kind of claims a migrant is able to/wants to make. A ration card, often, is a crucial document which could activate any mechanism of social security. A proof of residence, which is required to obtain a ration card, is also a proof of prolonged settlement and a relative lack of mobility. Settlement is no longer, if it ever was, the central feature of much of the movement occurring around the globe (Papastergiadis, 2000). Authors writing on migration in rural India (Breman, 1996; De Haan, 1997) note that the predominant pattern of labour mobility is not migration, but circulation. Deshingkar and Farrington (2009) also note that livelihoods are multi-locational for many rural households, with important implications for settlement. My own previous work (PrasadAleyamma, 2009) suggests that journeys, rather than settlement, characterize the life of many of the workers, especially those who are engaged in construction work since large construction companies keep shifting their worksites as projects move. The workers who had come to Kerala from Saharsa district in Bihar to build a road had worked in Delhi, Belgaum (Karnataka), Ludhiana (Punjab) and Guwahati (Assam) before

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coming to Kerala. Labour migration in the post-liberalization era, particularly to sites of infrastructure building, has been characterized by disparate journeys rather than circular movements to a specific place, such as a factory or a mine. Most of the migrant workers to construction sites in Kerala are men. Many of the young workers frequenting the Sunday market tell me of their intention to go back to their village and get married and ‘settle down’. These temporary movements shape agency and determine the potential ways in which workers negotiate their everyday lives and work. Rogaly (2009) points out that much of the labour geography on migration is concerned with ‘settledness’ and that the spatial embeddedness of the migrant worker, who is relatively mobile for short periods of time, is neglected. He argues that temporary migrants spend shorter periods of time working together than settled workers, and live in temporary accommodation, which means fewer possibilities for developing class-based antagonism and consciousness. Mobility/lack of settlement have to be considered in any discussion of social protection, which is at present heavily biased in favour of settled communities. Policy research on migrant workers needs to incorporate human mobility as an active element in evaluating and formulating social protection policy. Deshingkar and Farrington (2009) note that pro-poor schemes are based on the assumption that populations are more or less static. Castles (2010) points out that a certain ‘sedentary bias’ cripples policy and research, which assumes away continuous mobility, and that this sedentary bias practised by developmental agencies has its roots in colonial policy, which viewed mobility of poor people as a threat to public order and prosperity. Social protection does not begin or end in policy but is a continuous process of negotiation and contestation which uses both formal and informal strategies. In Perumbavoor, although the idea behind the identity cards was to monitor and police the workers and employers, it was also supposed to eventually grant the workers access to some means of social security and rights. However, the workers resented this act of formalization since it effectively restricts their mobility across employers and places. This problematizes social protection, especially the attempts to formalize it, as efforts to ‘protect the migrant’ could very well turn into those of ‘protection from the migrant’. Invariably, procedures of governmentality and social security are bound together. As in the case of identity cards, the ‘formal’ is also the realm of the state, the motives of which are often at variance with the interests of the migrant and the employer, who share a space of informality.

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Political society, in the sense used by Partha Chatterjee, works in a complex way in the case of the migrant. It could be said that the local is not easily negotiated by the unsettled migrant who considers himself/herself as transient. Even those who have stayed for as many as eight years in Perumbavoor (and never visited their village since) do not consider themselves to be residents of Perumbavoor. This perceived transience has important implications for the formation of a rights-based trade union. This could be one reason why, even after the earnest and persistent efforts of activists like T. C. Subrahmanian, these workers remain unorganized even in the face of wage discrimination and workplace accidents. Other trade unions have been hostile to the organizational work that TUCI has undertaken among migrant workers.

5. Threats to citizenship T. C. Subrahmanian remembers a strike he organized in a construction site after a worker died in an accident: It was a lightning strike. I had organised it along with other comrades. The workers were really enraged by the death of a fellow worker. The workers used to stay in the construction site itself. Suddenly a group of men belonging to the CITU head load workers’ union4 led a few goons into the site. They carried big lathis (canes) and started beating the workers. The workers got scattered and were thrown out from work. Many went back to their villages of origin. The construction companies pay local CITU men a commission for protection. The hostility of the head load workers’ union, composed entirely of Malayalis, is not necessarily because they perceive the migrant workers as a threat to their jobs, since Malayalis do not engage in construction work in an extensive manner. The trade unions are embedded in structures of power which are not always shaped by class consciousness. Rather, they collude with small capital (as in the example above) and the state (as in the case of the identity card) and form part of a political society composed of contingent interest groups and makeshift alliances. In this sense, the formality associated with a trade union withers away as its relationship with capital and local power structures comes to the fore. The lone entry point to political society for migrants in Perumbavoor hitherto had been via their employers. It is easy to dismiss this as an instance of the demonstration of strength by the plywood factory owners and lose sight of the state power and oppression against which they

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were protesting, bound up as it is with the lack of emergence of classbased action. At times, migrants’ protests against the state gain more urgency than those against exploitation within factories. This is not to obscure such exploitation, which is itself predicated upon the refusal of the state to accept the migrants as citizens. The social relations in the market which could be construed as ‘informal’ facilitate the articulation of more formal rights, as in the case of the identity cards and the resultant resistance based at the market. But, as the example of the strike in the construction site suggests, this resistance is made tenuous by local power structures, which include trade unions. The erosion of citizenship as people move within national boundaries is made clear by the police clearance certificates which the police insisted upon in Perumbavoor. This also makes it clear that, in a multiethnic society, citizenship does not just relate to territorial borders. In other words, substantive citizenship rights and entitlements which actualize citizenship (Levitt and Schiller, 2007) may erode even as nominal citizenship (formal membership of a political unit) continues when people, especially the poor, move within a country. This erosion is intensified by local power structures, including political society. Organized labour forms part of this political society in Kerala and is another axis of the local which threatens citizenship along with police. Local, here, is constructed out of the intersections and interactions of social relations and social processes (Massey, 1991). Migration is a process which is underpinned by a host of social relations: class, ethnicity, gender and kinship. The market is a locality constructed out of various interactions between these social relations, the nature of which could be collaborative, conflictual or contesting. Clearly, as has been demonstrated by authors writing on class and ethnicity, citizenship is seriously questioned in the context of ethnic tensions.5 But what is important in the context of relatively recent migration of north and north-eastern Indian workers to Kerala is that the lack of permanent settlement has thwarted community formation and the processes of making a claim, which could lead to acquisition of citizenship. Social protection for workers has been an important element of the development experience of Kerala and is very well known in development literature. Policy-making was the result of political action by workers (Duvvury and Sabu, 1997), and trade union membership has become the primary criterion for occupational identity for the purposes of eligibility in social security arrangements, such as receiving state pension and membership in welfare fund schemes (John, 2004). However, such social protection has not been extended to migrant workers.

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For example, the construction workers’ welfare board, which operates through trade unions, does not consider migrant construction workers in its various schemes for social protection. This lack of inclusion becomes institutionalized as only unionized workers are considered for welfare benefits. Social protection policy thus has to be evaluated, keeping in mind the historical context and the political actions and struggles that shaped it. The highly influential mainstream trade unions in Kerala have not made any attempt to unionize migrant workers or to critically examine the implications of migration for local labour. Union membership also throws up interesting questions on the formation of class-consciousness in Kerala, which perhaps recognizes only a Malayali as a thozhilali (worker). The ethnic bias of welfare systems comes to the forefront when welfare systems come in contact with migrant populations. The study of the Perumbavoor Sunday market also demonstrates that social protection does not just relate to policy but is continuously claimed and accessed through contestations. In the absence of such struggles, social protection can easily bypass migrants, even in the presence of the most progressive policies and welfare systems in practice. Migration in Perumbavoor, especially its unsettled nature, prevents the development of a rights-based trade union. This unsettledness is not merely about an all too easily attributed informality, , but is embedded in the varied and multiple relationships forged in the market. The trade unions of Malayali workers constitute ‘the local’, which is at times hostile and discriminatory. The working class is a category which is broken up at the local level when it comes into contact with ethnicity, gender or caste. The ability of migrants to negotiate the local is seriously undermined by local power structures and is affected by the intersection of different identities and other social divisions within class. These factors are also crucial in attaining social protection and welfare. A visit to the district labour office in Ernakulam reveals that from 2006 to 2009, only 8257 workers figure in the archives of registration under the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act (1979), which requires contractors to obtain recruitment licenses specifying the number of workers to be employed from t he District Labour Office. The labour officers admit that this number is only a fraction of the actual number of workers who came to work in the district. Looking closely through the archives of the labour department, I found that only some of the contractors who recruited migrant workers for factories and establishments have been registered, whereas

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the construction sector seems to have been totally outside the purview of the act until 2007.6 Two construction workers from Orissa died as the dilapidated building in which they lived collapsed in September 2007. The TUCI marched to the labour office with the dead bodies of the workers demanding compensation. It was a moment in public when migrants came out and participated in confrontational political activity. The construction company paid Rs. 360,000 as compensation to the family members of the workers after negotiations with the labour department and the trade union. The accidents in construction sites which happened before this were suppressed by companies, either by paying meagre compensation or by using violence. After this event the labour department woke up and started registering contractors in the construction sector (see Table 6.1). The district labour officer explained that the Inter-state Migrant Workmen Act stipulates that the worker shall be under a contractor. However, according to him, the factories recruit workers directly. He said that these workers come ‘independently’ with their relatives. Since there is no contractor involved, they are not covered under the act. Though factories mushroomed in different parts of the district since 2004, they were not registered with the labour department. In fact, the names of factories that employed migrants that I visited in Perumbavoor did not figure in the archives. The definition of contractor by the labour

Table 6.1 Number of contractors registered in different sectors under Inter-state Migrant Workmen Act, Ernakulam district Year 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Factories and establishments 10 8 8 5 3 2 4 6 4 7 9 7

Construction 2 1 0 1 − − 1 2 − 26 90 58

Source: Data collected by author from the District Labour Office, Ernakulam.

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department did not include small time contractors or workers who brought in relatives to these factories. The Inter-state Migrant Workmen Act, 1979, is an important piece of legislation to protect migrant workers. It stipulates: • Provision for payment of a displacement allowance equivalent to 50 per cent of monthly wages or Rs. 75/- whichever is higher. • Provision for payment of a journey allowance including payment of wages during the period of a journey • Provision for suitable residential accommodation, medical facilities and protective clothing as prescribed. However, the workers have to be under a registered contractor to be eligible for these benefits. Due to a narrow definition of the act and lack of understanding of the role of the contractor/agent, the act does not seem to have any teeth. This brings us back to the questions of informality and citizenship. These workers are clearly outside the gaze of the state in terms of access to social protection. It is in the interest of capital to keep the workers outside the realm of the legal and that of the state. However, registration of contractors alone does not ensure that the workers under them get the above-mentioned benefits. Moreover, workers continuously come and go and contractors or agents bring in more workers as and when the need arises. The contractors need to spend Rs. 1000 per worker to get themselves registered. This is a caution deposit, which is refunded when the registration ends. Most of the time, the number of workers they report to the labour department are far fewer than the actual numbers. Inspections are conducted by the labour department regarding working and living conditions. Since most of the workers in factories are considered outside the purview of the act because they are not recruited through licensed contractors, these inspections do not ensure that the workers get the above-mentioned allowances and benefits. As the registration of contractors in the labour department represents only a fraction of the migrant population in the district, it would be easy to mistake this as a question of lack of implementation. However, a closer look reveals that it is again a question of the citizenship of migrant workers. The nominal citizenship of these workers does not translate into the political agency necessary for substantive citizenship. Just as local power structures erode the migrants’ citizenship, being outside the state’s gaze

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can also lead to such erosion, for being enumerated or counted is also part of the complexities of citizenship. Here, we are forced to complicate our ideas about the role of the state as an actor which shapes migrant’s lives.

6. Conclusion: are limits to politics also limits to social protection? The above discussion points to the limits and possibilities of politics for migrant workers. The market is a site where negotiations for social protection in the form of kinship and friendship networks operate to facilitate money lending, saving and exchange of information on employment opportunities. It also acts as a space where attempts are made to organize workers by trade unions, and also as one of protest against state oppression. The attainment of social protection in the case of migrant workers in Kochi is all the more complicated due to the interplay of state power and surveillance through the issue of police clearance cards, which is thought to be a prerequisite for social protection by formalizing the existence and identity of the migrant and the desirability of his/her presence. A dichotomous understanding of social protection as either formal or informal misses these contestations and conflicts around citizenship. The local can become an important locus in these struggles for social protection and citizenship, even though it is fraught with threats to citizenship. That the migrant perceives himself/herself as transient has crucial implications for citizenship and social protection. The unsettled migrant develops a stake in the local that is different from that of a settled migrant. A possible way to think about social protection would be to problematize the ‘social’ as the terrain of contestations and conflicts through which citizenship and rights are negotiated and established. However, to understand the social in social protection, it is important to think beyond policy-making as mere law making and implementation or as benevolent civil society initiatives. It is important to recognize the social field in which each stream of migration occurs, including relationships in recruitment, settlement and work. Such a reframing of the idea of social protection can reflectively assist policy-making by understanding mobility for work as one of the contemporary human conditions, and by emphasizing that social protection also might have to become as portable as capital and labour have turned out to be. However, portable social protection is usually enabled and activated through elaborate

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identification and tracking systems which are potentially oppressive and exclusionary and can restrict mobility of workers even though they are not crossing any national border. The question of citizenship and portable social protection raises questions about the limits and possibilities of politics for migrant workers. As elaborated in this chapter, settlement is an important element in shaping the nature of migrants’ political engagement. Many times, the precariousness of short duration migration as a livelihood strategy is made even more so by state oppression. These significant limitations to politics can haunt social protection policy by destabilizing and emptying the constituency it attempts to target.

Acknowledgements This chapter draws on research carried out for my doctoral dissertation at Center for Development Studies, Thiruvananthapuram. I thank Dr K. N. Harilal, Dr Praveena Kodoth, Dr Ben Rogaly and Zainab Bawa for comments and fruitful discussions on earlier drafts of the chapter. I also thank Sunitha A S for early inspiration and for alerting me to the existence of the Sunday market as I was beginning my fieldwork in Kochi. I am also grateful to Dr Rachel Sabates-Wheeler and Dr Rayah Feldman for helpful questions and comments.

Notes 1. It is not clear why Malayalis do not engage in the manual work which migrants do. Different explanations have been put forward by the Malayali informants I have talked to. A factory owner who employs migrant workers in Aluva industrial area said: ‘It is difficult to get labour here. Local labour will not do this work, whatever wage you offer. Who will do manual work? Suppose you want to clean toilets?’ CITU Perumbavoor area committee secretary Beeras, who has organized Malayali workers who do loading and unloading work in the area said that Malayalis would not be able to withstand the chemical odour in the factories even if paid high wages. More research is required to account for the absence or reduced number of Malayali workers in these factories and construction sites. 2. Interview with T. C. Subrahmanian, office bearer of TUCI dated 11 June 2008. 3. Labour quarters are temporary accommodation for migrant workers that are either rented houses which are typically old and dilapidated or tin sheds propped up in the vicinity of construction sites. In this case, it was a dilapidated old building on rent that collapsed causing the accident. 4. The human development report (2005) published by the government of Kerala describes the headload worker in these words: ‘A phenomenon, which has been unique to Kerala, is the category of casual worker, who is referred to

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as a “headload” worker, almost exclusively male. The Kerala Headload Workers’ Act, 1978 (Act 20 of 1980) defined a headload worker as “a person engaged directly or through a contractor in or for an establishment whether for wages or not for loading or carrying on head or person or in a trolley any article or articles for wages” . . . What drew wide attention to these workers was the emergence of a strong trade union movement among them, which was used to extract exorbitant rates for loading/unloading and the “attached” workers became powerful enough to procure a wage even without performing any work’. 5. There have been no instances of large-scale ethnic tensions in the area between migrants and Malayalis. However, there are instances of Malayalis and police rounding up large number of workers when there are murders or thefts, and some protests from the migrants. 6. The archival research was carried out during August–October 2009. Data for 2009 in Table 6.1 represents only units registered till the month of September that year.

References Benjamin, S. and Bhuvaneswari, R. (2007) ‘Urban futures of poor groups in Chennai and Bangalore: how these are shaped by the relationships between Parastatals and local bodies’, in Jayal, N. G., Prakash, A. and Sharma, P. K. (eds) Local Governance in India: Decentralization and Beyond (Delhi: Oxford University Press). Breman, J. (1996) Footloose Labour: Working in India’s Informal Economy (Cambridge: Cambridge University Press). Castles, S. (2010) ‘Understanding global migration: a social transformation perspective’, Journal of Ethnic and Migration Studies, Volume 36, Issue 10, pages 1565–1586. Chakrabarty, D. (1989) Rethinking Working Class History: Bengal 1890–1940 (Delhi: Oxford University Press). Chatterjee, P. (2004) Politics of the Governed: Reflections on Popular Politics in Most of the World (Delhi: Permanent Black). de Certeau, M. (1984) The Practice of Everyday Life (Berkeley, CA: University of California Press). De Haan, A. (1997) ‘Unsettled settlers: migrant workers and industrial capitalism in Calcuttta’, Modern Asian Studies, 31(4), 919–949. Deshingkar, P. and Farrington J. (2009) Circular Migration and Multilocational Livelihood strategies in Rural India (Delhi: Oxford University Press). Duvvury, N. and Sabu M. George (1997) Social Security in the Informal Sector: A study of Labour Welfare Funds in Kerala (Trivandrum: Centre for Development of Imaging Technology). Gieryn, T. F. (2000) ‘A space for place in sociology’, Annual Review of Sociology, 26, 463–496. Government of Kerala. 2006. Human Development Report 2005. (Thiruvananthapuram: Centre for Development Studies). John, C. P. (2004) ‘Social Security and Labour Welfare with Special Reference to Construction Workers in Kerala’, Discussion paper No. 65, Thiruvananthapuram, Centre for Development Studies.

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Levitt, P. and Glick Schiller, N. (2007) ‘Conceptualising simultaneity: A transnational social field perspective on society’, in Sahoo, A. K. and Maharaj, B. (eds) Sociology of Diaspora: A Reader (Jaipur: Rawat Publications). Massey, D. (1991) ‘The political place of locality studies’, Environment & Planning A., 23, 277–281. Misztal, B. A. (2000) Informality: Social Theory and Contemporary Practice (London: Routledge). Papastergiadis, N. (2000) The Turbulence of Migration: Globalisation, Deterritorialisation and Hybridity (Cambridge: Polity Press). Papola, T. S. (1980) ‘Informal sector: concept and policy’, Economic and Political Weekly, 3 May, 817–824. Portes, A. (1996) ‘The informal economy’, in Pozo, S. (ed.) Exploring the Underground Economy (Kalamazoo, MI: W. E. Upjohn Institute for Employment Research). Prasad-Aleyamma, Mythri (2009) ‘Spatial strategies and Sojourner workers: mapping roadwork in Kerala’, in Abrar, C.R. and Seeley J. (eds) Social Protection and Livelihoods: Marginalised Migrants of South Asia (Dhaka: University Press Limited). Rogaly, B. (2009) ‘Spaces of work and everyday life: labour geographies and the agency of unorganised temporary migrant workers’, Geography Compass, 3(6), 1975–1987. Seligmann, L. J. (2004) Peruvian Street Lives: Culture, Power, and Economy among Market Women of Cuzco (Champaign, IL: University of Illinois Press).

7 Crossing Internal Boundaries: Political and Physical Access to the Public Distribution System in India Ian MacAuslan

1. Introduction Although migration is a social protection strategy that allows actors to diversify risk and escape hazards (Stark, 1991), migrants also have migration-related vulnerabilities that imply migrant-related needs for social protection (Rafique and Rogaly, 2003; Sabates-Wheeler and Waite, 2003). As many chapters in this book demonstrate, moreover, migrants often face disadvantages in accessing social protection from governments, non-governmental organizations, markets or individuals. Very often, therefore, migration makes people more vulnerable and less well protected. Until recently, migrants’ vulnerability and lack of access to social protection schemes had not received much policy or academic attention.1 While there has been a welcome increase in the attention given to this topic, most analyses of social provisioning for migrants focus on policy design and the legal provisions for migrants’ access to formal social protection schemes, without examining actual practice. For instance, as discussed in Chapter 4, Holzmann and colleagues (2005) focus solely on laws regarding migrant access, rather than on actual access that reflects both laws and deviations from them. However, broader analyses of social provisioning make clear that, while legal provisions and policy design certainly influence who receives benefits from social protection schemes, who actually secures benefits or not (physical access) is the result of complex interactions between service providers and service (non-)receivers (Schaffer, 1973; Lipsky, 1980; Sen, 2000; Keeley and Scoones, 2003; Sabates-Wheeler and MacAuslan, 2007; 183

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MacAuslan and Sabates-Wheeler, this volume, Chapter 2). Furthermore, service provision is dynamic: legal provisions and policy change, often as a result of negotiations by (non-)receivers for changes that improve their ability to access services (political access). These negotiations often take the form of ‘voice’. Schaffer and Lamb (1974, p. 79) argue that ‘applicants themselves will be forced to employ voice so as to handle their opportunities, to defend themselves, to succeed, to refute stigma, etc., at all points of the access experience’. An unanswered research question is implied: do migrants have better or worse physical and political access to social protection than non-migrants? There is, of course, no simple answer to this question, because there are many different contexts in which we should ask it. There are many possible interactions between different types of social protection measures (informal, formal, employment-based, citizenship-based and so on) and different types of migration (international, internal, undocumented, legal and so on), and each interaction has a different set of complexities around legal provisions and actual access. For instance, internal migrants may be eligible for formal social protection schemes but international migrants may not. This chapter analyses the physical and political access of internal migrants to formal social protection by offering a case study of Indian migrants’ access to the government of India’s Public Distribution System (PDS), a programme distributing subsidized commodities to all Indian households. Using fieldwork conducted in Delhi in 2007,2 it goes beyond an analysis of the legal provisions and policy design of the PDS to explore the actual access of migrants and their ability to change the system to improve their access. As this chapter examines interactions between internal migrants and a formal social protection programme, it complements other chapters of this volume that examine international migrants’ access to formal and informal social protection (Avato; Olivier; Bragg and Feldman; Reitzes and Sabates-Wheeler) and internal migrants’ access to informal social protection programmes (Prasad-Aleyamma). Before turning to the case study, three conceptual points introduce the approach of this chapter in relation to the present volume. First is the Schafferian access framework (of the gate, line and counter forming a queue) for examining migrants’ access to social protection, which has been set out elsewhere in this volume (see Chapters 1 and 3) and will not be repeated in depth here, other than to outline some of the basic terms used throughout the chapter. Table 7.1 presents a matrix of the categories of disadvantage and different determinants of vulnerability. Migrant-specific disadvantage applies by virtue of having migrated.

Table 7.1

Categories of migrants’ disadvantage

Determinant of vulnerability

Examples of manifestations

Intensified (e.g. low-income actors)

Bureaucratically imposed

Over-representation

Migrant-specific Spatial/Environmental

Unfamiliarity with surroundings (knowing which queue to join)

Lack of knowledge (of e.g. where the gate is)

Public information in local language (can’t understand access rules)

Health risks associated with informal settlements (difficult to spend time in line)

Socio-political

Lack of representation (illegal) (ineligible to join queue)

Uncertainty interacting with government (difficult to engage in institutional complaints mechanisms at counter)

Discrimination in access to services; ‘citizens without rights’, (ineligible to join queue)

Lack of political access for slum dwellers (inability to express voice for change to queue rules)

Socio-cultural

Xenophobia (discrimination in queue, at counter)

Social discrimination based on ethnicity, language, illegal status (discrimination in queues, at counter)

Additional stigmatizing requirements to access services (required to show additional eligibility documents at gate, counter)

Social perceptions of ‘criminal poor’ (additional scrutiny of access documents at gate, counter)

Source: Adapted from Sabates-Wheeler and Waite (2003, p. 14).

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Migrant-intensified disadvantage occurs when migration exacerbates a disadvantaged caused by, for example, poverty. Bureaucratically imposed disadvantage refers to officials’ attitudes and ideas that exacerbate customary discrimination. Migrants suffer ‘over-representation’ disadvantage when they are over-represented in a disadvantaged group. Second, we are concerned here with individuals and households that move within India (internal migrants) rather than international migrants. Other chapters in this volume emphasize the vulnerabilities that international migrants face as they travel between social protection and welfare regimes with different legal bases and citizenship rights. While internal migrants in theory retain their citizenship rights to national social protection programmes, they often face parallel problems to international migrants in accessing social protection as they move between different administrative structures. Third, while Chapter 2 presented a framework for studying access to market and non-market distribution systems, this chapter studies a social protection measure that transfers goods through public nonmarket distribution systems. All non-market distribution systems share the characteristic that they deliberately impose restrictions on those who can receive the good or service, usually in order to target the distribution. The next section describes the access structures of India’s PDS in Delhi, with particular reference to migrants, and the use of the PDS. The third section presents a deeper analysis of migrants’ political and physical access to the PDS. The chapter closes with some brief policy recommendations.

2. Access structures of the public distribution system The PDS is a public non-market system of procuring, transporting, storing and selling ‘essential’ goods, currently operated by central and state governments and the parastatal Food Corporation of India (FCI). It is the largest formal social protection measure in India, for which India’s 1.1 billion people are eligible as citizens. Over 300 million of these are internal migrants (Census of India, 2001). India contains more income-poor individuals than any other country, and some of the worst nutrition indicators in the world. The PDS is also the most expensive social protection measure in India. The government of India’s expenditure on the PDS in 2003–2004 amounted to over 5 per cent of total central government expenditure and was over seven times greater than all other social security spending in India (Zhou and Wan, 2006).3 The analysis in this

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chapter focuses only on the distribution of food grains (wheat and rice)4 in Delhi, a city containing at least 5.6 million reported migrants (40 per cent of its total population). The ‘targeted’ PDS offers social provisioning by selling 35 kilograms of food grains per month to households presenting a ration card and sufficient cash at the Fair Price Shop (specially licensed PDS outlet) to which their ration card is registered. There are three types of ration card issued to households on the basis of income poverty and social characteristics: Above Poverty Line (APL, or ‘non-poor’), Below Poverty Line (BPL, or ‘poor’) and Antyodaya Anna Yojana (AAY, ‘very poor’).5 Although the grain is the same, the price per kilogram differs by card type, increasing for ‘poor’ and again for ‘non-poor’ households, although all prices are below the market price for similar quality grain. In terms of the access framework in Chapter 2, households must complete two queues: one to obtain their ration card, and the second (at the Fair Price Shop) to obtain their food grains. Central government administrative procedures designed to reduce corruption and increase efficiency reduce the amount available for each card. The central government allocates PDS wheat and rice for only 35 per cent of non-poor cards in Delhi, because many non-poor cardholders do not purchase their allotment, leading to reported diversions of non-poor grains. The central wheat and rice allocation for poor/very poor cardholders is based on the 35 kilogram entitlement multiplied by the number of ration cards issued by the state, or the (controversial) Planning Commission poverty estimates, whichever is lower. Table 7.2 illustrates the discrepancies between the number of nonpoor, poor and very poor households counted by the Planning Table 7.2

PDS households in Delhi 2007, various estimates

Household estimate

Non-poor

Poor

Very poor

Planning Commission Government of Delhi ration card figures Implied by 2007/2008 allocation of food grains to Delhi by the central government

– 2,411,514

252,200 378,507

156,800 62,012

807,929

294,571

46,262

Source: Planning Commission figures obtained from official documents, viewed 16 August 2007. Government figures obtained from the Department of Food and Supplies, government of Delhi, 16 August 2007. Ration card figures given directly. Implied allocation computed from figures for the 2007/2008 allocation of food grains to Delhi by the central government. Implied households = annual grain allocation/(35 kilograms × 12 months).

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Commission estimates, the number of ration cards issued to each group by the government of Delhi, and the proposed 2007/2008 allocations by the central government. The central government’s low non-poor allocation means that the Delhi Food and Supplies Department limits distribution to 14 kilograms per non-poor household, and shops are ordered to sell only 14 kilograms to each non-poor cardholder, though exceptions are made for slum dwellers with non-poor cards who allegedly receive 35 kilograms. The Delhi government allocates 35 kilograms per poor/very poor cardholder. Non-poor cardholders may therefore purchase 14 kilograms of food grains per month and poor/very poor cardholder may purchase 35 kilograms of food grains per month, from the shop to which their ration card is assigned. The counter rules require the presentation of a ration card to prove that the applicant is in one of the three categories of household, as well as the required cash. PDS prices are fixed by the state government for ‘non-poor’ and ‘poor’ households, and by the central government for ‘very poor’ households. Table 7.3 presents the shop prices charged in Delhi. The ration card queue has more complicated rules. It is divided into several sub-queues for each type of ration card, which are summarized in Table 7.4. The general admission rule, according to the PDS (Control) Order, 2001, and the Delhi government, is that an eligible applicant is ‘any individual who is resident of a State’ and is ‘permanently residing or intending so to do in . . . Delhi . . . a person can be deemed to be permanently residing in . . . Delhi for purpose of issue of supplies from public distribution system if he is ordinarily living in . . . Delhi and is not absent there from for a period exceeding one month at a time’(Government of Delhi, 2007). In addition to the permanent residence criterion, Table 7.4 indicates that the ration card queue is not always open. Rather, applications for BPL, AAY and slum cards remain open only for temporary periods or until quotas have been filled. Households arriving in Delhi outside these Table 7.3

Fair Price Shop prices, Delhi, 2007

Wheat (Rs/kg) Rice (Rs/kg)

Non-poor

Poor

Very poor

6.8 9

4.65 6.15

2 3

Source: http://www.delhigovt.nic.in/dept/food/fpds3.asp, accessed August 2007.

Table 7.4

Rules for the ration card queue, Delhi, 20076

Card type

Admission rules

Apply anytime?

Counter rules

APL, ‘Nonpoor’

Permanent residence in Delhi

Yes

Completed application form. Signature must be attested by a ‘gazetted officer, area MP, MLA or municipal councillor.’1 Form available from Circle Offices for Rs. 0.50 or for free from internet.

BPL, ‘Poor’

As APL; and total annual family income less than Rs. 24,200.

No – closed since 2002.

Issue cost 3 attested passport size photos of head of family, attested.

Proof of residence. For owner: registration deed, allotment letter, or house tax receipt. For tenant: No Objection Certificate (NOC) from landlord or 2 witnesses of continuous residence.

Surrender certificate for previous ration card or affidavit stating no previous card, attested by District Magistrate, Oath Commissioner, or Notary Public.

As APL, except: Form costs Rs. 1. Income certificate verified by the District Magistrate and Food Inspector.

Free

Rs. 10

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Table 7.4

(Continued)

Card type

Admission rules

Apply anytime?

Counter rules

Issue cost

AAY, ‘Very poor’

As BPL; and widowed, disabled, elderly, or single earner in large household.

No – open until quota filled.

As BPL, except: Require BPL card. Meet criteria specified by government and verified by Food Inspector.

Variable

Slum ‘Nonpoor’ Ration Card

Permanent residence in slum in Delhi. Present on voter list January 2007.

No – open June–Sept 2007 only.

Completed application form. Form collection and submission at Circle Office 9.30 am to 1.30 pm every working day.

1 Government

2 photos, 1 attested by area MLA/councillor, or gazetted officer.

Affidavit that no other ration card, attested by District Magistrate, Oath Commissioner, or Notary Public.

Photocopy of voter list, January 2007. Residence verified by Food Inspector.

Free

of Delhi, n.d., Guidelines for applying for ration card. MP: Member of Parliament. MLA: Member of Legislative Assembly (State Parliament).

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periods therefore find no queue to join. Counter rules involve a range of documentation verified by many different administrators and politicians, including an application form signed by ‘a gazetted officer, area MP [Member of Parliament], MLA [Member of Legislative Assembly, state parliament] or municipal councillor’ – an exacting requirement – and a proof of residence requiring a certificate from a landlord or two witnesses. Those wishing to apply for BPL or AAY cards must, in addition, present income certificates verified by the District Magistrate and Food Inspector. Aside from the other practical difficulties of obtaining, filling out and submitting forms (discussed more below), the counter rules’ reliance on the signatures and verifications of officials who may be busy or inaccessible presents a formidable barrier to many applicants. As discussed in Chapter 2, those individuals and households most in need of social protection are typically those least likely to have good access to these powerful individuals. The formal requirement to obtain these signatures therefore intensifies inequality of access to social provisioning even before applicants’ ability to obtain goods is considered. How much is the PDS used in Delhi? Analysis of data from the 61st round of the National Sample Survey Organisation (NSSO, 2007)7 in urban Delhi (2004–2005) shows that if households purchased their full 35 kilogram allocation of rice and wheat from the PDS, this would cover between 65 per cent and 100 per cent of most households’ consumption of rice and wheat, and the lower prices would save households between Rs. 250 and Rs. 300 per month – or between 60 per cent and 90 per cent of cereal expenditure. However, data show that very few households purchase from the PDS, or purchase fully from the PDS, and therefore households actually save far less than they could if they purchased their full PDS allocation (even though they do seem to buy PDS rations at approximately the official PDS prices).8 What is the reason for this low take-up? While some households do not purchase grain at all (market or PDS) because of taste or sufficiency of production, and some households’ wealth and taste lead them to choose never to purchase from the PDS, there remain many households who do prefer to purchase PDS grains (Department of Administrative Reforms and Public Grievances, 1993; Parivartan, 2004; interviews). We assume that, other things equal, poor households prefer to purchase from the PDS in order to save money (Kochar, 2005). The next sections look the fact that, in Delhi, most poor households are likely also to be migrants, and explores why poor migrant households are not able to purchase PDS grains (physical access), and why they cannot negotiate better access to them (political access).

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3. Migrants’ access to the Public Distribution System Nearly half of Delhi’s population are migrants, and many of these are poor, but there are no comprehensive studies that detail the migration status of poor households in Delhi. Based on data from studies and interviews analysed in MacAuslan 2007, Figure 7.1 indicates that, within the population of Delhi, a large proportion are migrants, and a sizeable proportion of migrants live in slums, resettlement colonies (areas to which the government relocated slum dwellers when slums were classed as unauthorized and destroyed), construction sites, or are homeless.9 By no means all of these migrant and slum-dwelling households are poor, however, but most poor households are migrants and live in slums (or resettlement colonies, construction sites, or are homeless).10 3.1. Migrant-related disadvantage in the PDS rules As indicated above, the PDS rules do not explicitly exclude migrants. However, analysing the PDS access structure reveals four migrantspecific disadvantages. These constitute bureaucratically imposed forms of disadvantage on poor migrants, reflecting perceptions that poor households should not migrate and put pressure on Delhi’s public services. First, households who migrate to slums are periodically rendered ineligible for a ration card by the admission rules. Until 1990, admission rules made slum residents ineligible for ration cards because they were considered to be ‘trespassers on public land and in violation of the law’ (Department of Administrative Reforms, 1993, p. 301). The Delhi

Migrants

Poor

Delhi Slum/resettlement, construction site, homeless Migrant poor in slums, etc.

Figure 7.1 Venn diagram of relationship between migration, poverty and slumdwelling in Delhi.

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administration reversed this decision in 1990 with a one-time ration card issue to slums, and then fully liberalized applications in February 1992. However, a December 1998 cabinet order decreed that ration cards would be granted only to slum residents whose names were on the October 1998 voters’ list or who applied by 31 March 1999.11 This decision was in turn superseded in May 2007, when the cabinet permitted the one-time issue (between May and September 2007) of non-poor ration cards to slum dwellers registered on the slum’s January 2007 voters’ list.12 Households migrating to slum clusters between 1998 and 2007 were thus formally ineligible for any PDS benefits until May 2007. Households migrating to slums after 1998 are ineligible for queues for ‘poor’ and ‘very poor’ cards, irrespective of income. Recent migrants, despite greater need, face greater disadvantage specifically because they recently migrated. Second, the ‘permanent’ residence criterion creates migrant-specific disadvantages for migrants living temporarily on construction sites, who are formally ineligible for ration cards. Since these workers are not considered permanent residents of any part of Delhi (even if they stay within the Union Territory limits), they cannot apply for ration cards. Organizations working with these construction workers in Delhi confirmed that none have ration cards or use the PDS. Third, poor migrants have migrant-specific disadvantages because the fixed quotas for ‘poor’ and ‘very poor’ cards, and the related noncontinuous application periods, exclude households arriving after the quotas are full. Households migrating to Delhi after the government of Delhi closed applications for ‘poor’ cards in 2002 are excluded from applying for ‘poor’ or ‘very poor’ cards irrespective of their income (since, in Delhi, only households with ‘poor’ cards can apply for ‘very poor’ cards). Households excluded from ‘poor’ or ‘very poor’ cards lose substantial subsidies. Government officials do not consider ‘non-poor’ rations an important part of PDS. In practice, interviewees suggest that given the cost and inconvenience of buying PDS rations (see below), it is barely profitable to make use of the subsidy offered by ‘non-poor’ cards and many do not use them: ‘we have a “non-poor” card but what is the use when non-poor rations are expensive and often unavailable? If we get a “poor” card, then we can use the PDS.’13 Finally, all migrants face intensified disadvantages because the access structures require card holders to reapply for a ration card with every change of residence across Fair Price Shop boundaries. The application process includes direct costs for forms, cards, certificates, photographs and attestations up to Rs. 70, including notary fees. Applicants must

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also travel four times to government offices, incurring substantial travel costs and opportunity costs (i.e. costs of opportunities missed). In addition, applicants lose at least a month’s PDS ration during the process. Structural inequalities (see Chapter 2) in India’s labour markets and urban planning mean not only that poorer households migrate more to informal settlements, but also that urban planning often involves demolishing these settlements and forcibly relocating residents to resettlement colonies. Since March 2007 a formal exception has been made for resettled slum households, but prior to this order households would have to apply for a change of residence in the ordinary way. Atul’s story indicates what this involved, even for a relatively connected and resourceful household:14 Atul works for an organization helping to organize construction workers, and is literate. He has a ‘poor’ card, and is applying for a ‘very poor’ card because he is the only earning member of his family, which contains three children. He is originally from Bihar, and moved to Delhi in 1988, living in a slum. It took three years or so to understand the system of acquiring ration cards, and then he got one when the government allowed their issue around 1990. In 2002 he acquired a ‘poor’ card under the targeted PDS. In 2003 the slum was cleared and the household moved to Bawana, where they were allocated a 12 metre square plot because of their post-1990 ration card. Transferring the card was relatively easy and no extra-legal costs were involved, although of course two months of ration had to be forgone during the process, and there were a significant number of journeys to offices, costing money and preventing work. These migrant-related disadvantages are deeply entrenched in the access structure of the PDS, and in service provision more generally in India (Stephenson and Matthews, 2004; Smita, 2006) and abroad (Schlosberg, 1999; Schwartz, 2001; Holzmann et al., 2005; Sabates-Wheeler, personal communication). These constitute bureaucratically imposed disadvantages. In India, most programmes and rights are conditional on proof of (usually legal) residence, since there is no widely used or available national identity card. However, the PDS is particularly structured against migrants. The residency criterion is required in order to determine the allocation of food grains to states, districts and shops, and to minimize the possibility of households claiming subsidies on multiple ration cards. This is not the case with, for instance, education, where tangible resources are not transferred, although both education and the

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PDS have fixed location distribution outlets (schools or shops). Moreover, the central government allocates grain to states annually every March: if households move between states after March, states have to reallocate their existing ration accordingly. States experiencing net inmigration (such as Delhi) will therefore have to reduce the per card allocation. 3.2. Migrant-related disadvantage in PDS queues Evidence from studies of the PDS suggests that the PDS does not function according to its ideal type (Radhakrishna et al., 1997; Swaminathan, 2000; Kochar, 2005; MacAuslan, 2007). The next three sections explain this underperformance using evidence from fieldwork conducted in 2007 and grounded in access theory, which predicts that administrators and applicants ‘reconcile’ their different positions, resources, understandings and interests by negotiating around access structures (Schaffer and Wen-Hsien, 1975). Fieldwork reveals significant deviations from the ideal type in both the Fair Price Shop and ration card queues. Deviation in Fair Price Shop queues was not found to produce significant migrant-related disadvantage in terms of their physical access, but being a migrant affected applicants’ ability to obtain political access – to negotiate improvements in Fair Price Shop provision. The ration card queue displays migrantrelated disadvantages far more clearly as they have to apply more frequently, lack knowledge of local bureaucracies, and because ration cards also function as identity documents, which migrants are unwilling to risk losing. Migrants are less likely to exercise an effective political voice to change the rules of the PDS because of their uncertainty, and perceived tenuous legal status and biases in rule-makers. 3.2.1. Migrant-related disadvantage in the Fair Price Shop queue Fieldwork indicated significant deviations from the PDS rules in Fair Price Shop queues, but did not reveal much migrant-specific disadvantage in these deviations, although there were various disadvantages faced by poor, illiterate and daily labourer households, among whom migrants are over-represented. However, migrant status did affect the choice of strategy (acceptance (loyalty), exit, or protest (voice)) for political access when faced with these discriminations (see Chapter 2 for more details on these types of strategies). In slums and resettlement colonies fieldwork revealed several instances of shop-level protest. This can take the form of individual protests, attempting to use personal influence or authority to cajole or

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compel the shopkeeper to improve the individual’s allotment (rather than improving the functioning of the system for everyone). This protest requires knowledge and effective social networks, and risks alienating the shopkeeper and encouraging the manipulation of the rules against the protester. More recent migrants, therefore, generally do not engage in this strategy. Protests involving migrants were more usually and more successfully undertaken by groups containing some knowledgeable individuals who function as ‘representatives’ (brokers with a better knowledge of the rules), such as NGOs, ‘people’s movements’ or unions. Union action tends to produce improvements for members only: non-members do not benefit from the protest and, actually, given the shortage of rations, lose out; however, migrants are free to join. Temporary construction worker migrants are recruited to join the Construction Workers’ Welfare Board, but those living on construction sites are more difficult to unionize than slum or resettlement residents by virtue of their impermanent status. People’s movements may secure benefits for those associated with them (and have no formal barriers to entry as unions do), but they work in quite localized ways to secure improvements, for example, to the functioning of a single shop. A common technique is to organize jan sunwais (public hearings) that function to inform applicants about their entitlements and ‘shame’ shopkeepers into providing them, and are open to all.15 There is some evidence that these protests improve the functioning at the level of individual shops (Parivartan, 2004; SNS, 2006; Pande, 2007), at least temporarily. Field interviews provided evidence of local-level protest. The following was reported in a resettlement colony: A group of us construction workers spontaneously organised – without outside help – to exert pressure on the shopkeeper to allocate rations according to the entitlement. We exerted this pressure through both crowd pressure and political intervention. Since we came together as a group, we were able to appeal to political interests to compel politicians to exert pressure on the shopkeeper – this political intervention made the difference. However, this was done within the boundaries of our construction union, which had been set up with help from an NGO. We also don’t know whether the good behaviour will last. We don’t vote on party lines – whoever helps us get services gets our vote. Migrants also benefited from direct complaints (outside the normal channels of administrative complaint) by ‘representatives’ to the Food

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and Supplies bureaucracy that affected the provision of rations. For instance, during field research members of an NGO (a ‘representative’ in a slum in Delhi) complained about the late provision of rations to the shop to the local government official, and then to the Assistant Commissioner. This organization has some notoriety in the Food Department following high-profile meetings and interactions with officials and Supreme Court Commissioners. Building on this, slum dwellers in the organization were able autonomously to complain to Food Department officials, who expedited the provision of rations to the local Fair Price Shops. 3.2.2. Migrant-related disadvantage in the ration card queue Deviations from the ration card queue create migrant-intensified disadvantages because of migrants’ more frequent applications. Additional costs are added to the application process because administrators (office staff) do not function as their ideal type (see also Mooij, 1999 and 2000). Their offices may be closed unpredictably and forms may be unavailable. Some administrators impose additional costs for issuing, attesting and accepting forms, and even for dealing with the application (Gonsalves et al., 2005, p. 131). Counter servers are often unaware of the types of document that count as proofs of residence, or whether these documents are required (Parivartan, 2004). For instance, administrators often require a proof of residence for applications for the slum ration card (as required for normal ration cards) when in fact only a copy of the electoral roll is formally required. This additional requirement imposes disadvantage on (particularly recent) migrants who do not have documentation. Many applicants, but particularly new arrivals (such as Atul, introduced above, when he arrived in 1988), lack basic knowledge of the process of applying for ration cards, the location of the offices, where to obtain the relevant forms and documents (and what these documents are), of how to fill out the forms and so on (see also Schwartz, 2001 and Stephenson and Matthews, 2004 for similar findings). These features suggest that the longer the stay, the more likely migrants are to have access to the PDS. This is confirmed in a survey of 200 slum households that recorded duration of migration and ration card possession (Edelman and Mitra, 2006, p. 32). In slums and resettlement colonies for more permanent residents, however, applicants can induce administrators to manipulate the rules to facilitate their access to ration cards. Interviews with organizations and applicants suggest that this is not the norm, but it certainly occurs. Edelman and Mitra (2006, p. 11) find that some short-term migrants to

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slums have ration cards, which they claim are due to some migrants’ ‘political contacts’. Fieldwork findings indicate three types of deviations that positively help applicants. First, many politicians attest and endorse ineligible applications in order to build constituencies. Second, ‘Janus-faced’ (Long, 1989) administrators and politicians assist ineligible applicants to whom they are socially tied. Third, administrators accept bribes to process ineligible applications. These advantages are not migration-related, except that available evidence suggests that political contact, voter rights and social ties increase with the duration of migration (Stephenson and Matthews, 2004; Jha et al., 2005; Edelman and Mitra, 2006), so newer arrivals may be less advantaged. Interviewees did not report any pattern to these ‘positive deviations’ in terms of households being from particular states, religions and so on. A crucial aspect for migrants regarding the complexity of the ration card queue is that it offers a resource that is used to enter multiple other queues. Despite Supreme Court orders and government directives,16 the ration card has a dual function as PDS access card and general identity document. Ration cards are closely linked to identity, legality and citizenship; so that ownership of a ration card confers legality that makes eviction complicated and requires the provision of services. Government officials recognize that government departments treat ration cards as general identity documents, despite orders to the contrary. For example, only slum households with ration cards are entitled to resettlement plots when slums are destroyed. The government of Delhi therefore faces conflicting incentives over issuing ration cards (see Lipsky, 1980; Schaffer, 1986), especially where there is any confusion over the legitimacy of residence or if services are stretched (as is the case in much of Delhi). In their analysis of the PDS in slums, the Department of Administrative Reforms and Public Grievances (1993) noted that the government had not issued ration cards to slum dwellers because it would legitimize their perceived dubious legal status. While discussing previous and current issuances of slum ration cards, several past and present Food and Supplies officials pejoratively referred to what they see as incentives – such as being given ration cards and subsequently plots and other services – created for households to migrate to Delhi and encroach on land. In order to minimize incentives to migrate to Delhi, the issuance of non-poor cards to slum dwellers closed on 31 August 2007, and is accompanied by specific instructions that these cards are not valid for plot allocation purposes. The dual function of ration cards underlies the reported decision of many temporary migrant households to exit the Delhi ration card

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queue, because queuing involves surrendering their previous ration card. In a city where migrants’ legitimacy and legality are tenuous, many are understandably reluctant to give up the card that confers a sense of legitimate identity (even if not as a resident of Delhi) and enables migrant households to retain links with their home village, to which many hope to – or actually do – return. This partially explains organizations’ reports that no construction site dwellers (temporary migrants) have or seek Delhi ration cards. The bureaucratic impositions on migrant PDS applicants created by the de facto identity of the ration card reflect a broader theme, running through this book, of citizenship rights for migrants (Rogaly et al., 2001; Kabeer, 2002, Uvin, 2004; Smita, 2006). The 42.3 million interstate migrants in India, and 5 million in Delhi, have constitutional rights as Indian citizens that the government must protect, including, according to Supreme Court judgements, the right to food. In 2001, the Right to Food case was brought by human rights groups against the central and state governments of India for not protecting citizens from hunger (see Gonsalves et al., 2005). As a result, the Supreme Court has issued a set of orders on the PDS and the Commissioners have raised the issue of migrant access with the Delhi government (see below).17 The PDS raises legal issues around migrants because, although the PDS is a national entitlement, its access structures stipulate that eligible applicants are residents of Delhi, rather than India. This means that inter-state migrants must be considered ‘permanent residents’ of their new state to qualify for protection, and that temporary migrants do not qualify (Rogaly et al., 2001). Right to Food advocates argue that this access structure is ‘patently illegal’, since transient migrant populations fall into ‘an entitlement black-hole’. This perceived illegality forms the basis for Supreme Court advocacy around migrants and the PDS. The articulation of social protection schemes as citizenship rights could, therefore, contribute to support for bureaucratic reorientations to include migrants.

3.3. Migrant-related voice to change the PDS rules – political access The access approach indicates that applicants will seek interventions at higher levels to the extent that they cannot resolve access problems through voice exercised at a local level. Since, as shown in the sections above, many migrants (especially recent migrants) are disadvantaged by the PDS access structures, what opportunities do migrants have to

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negotiate changes in the rules? We explore four types of voice used in these negotiations: the voice that arises when many people exit from a programme, formal administrative appeal, organized local protest and information gathering, and direct communication to rule-makers. First, the access literature suggests that when many people exit a programme, the effect is a form of voice, as in a boycott (Schaffer and Lamb, 1974). NSSO data and field research indicates that many households exit from both the ration card queue and shop queue, procuring grains from alternative market sources – which are often (ironically) more reliable in terms of grain availability because Fair Price Shops are, in practice, not always well supplied with food grains or sell them informally. The total number of migrant households who exit is therefore probably large, although this has not, in Delhi, aggregated to voice in the sense of a boycott or protest. Exits from shop queues (by migrants or anyone else) rarely translate into voice since shopkeepers have incentives not to report this and the checking system is not very rigorous (so no one notices the exits and no message is conveyed). Similarly, temporary construction workers’ exits from ration card queues do not translate into voice because these populations are normally not registered as living in Delhi (due to their transience), so their exclusion from ration cards is not noted. There are no reliable data to check Food and Supplies officers’ contention that the number of temporary construction workers is small, and therefore that full allocations can be found for them within the existing allocations from the central government. Some government officials argue that the formal exclusion of temporary construction workers is not a problem of sufficient magnitude and therefore not worth addressing. Second, applicants use administratively sanctioned appeal structures. The PDS (Control) Order, 2001, for instance, provides for Vigilance Committees at the shop-level. However, these do not always function particularly effectively (Parivartan, 2004), and migrants with dubious legal status or experience of harassment or discrimination are less likely to resort to administrative sanctions, particularly where they involve contact with the police.18 Much of the problem derives from a complicated relationship between criminal and administrative law in the PDS (see Mooij, 1999). In Delhi, the police argue that they cannot accept a First Information Report (the document required to begin a criminal investigation) about diversion of grains from citizens (Parivartan, 2004). They will only accept a Report from officials in the Food and Civil Supplies Department, who prefer to deal with misdemeanours administratively, often because they may be criminally implicated (Mooij, 1999;

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Parivartan, 2004). This reduces shopkeepers’ incentives to abide by rules, and applicants – particularly migrants with dubious legal status – can do little to enforce complaints. Third, voice for rule-change emerges from local protest and information gathering. In Delhi, however, there is little evidence that shop-level protests aggregate to overall improvements in the governance of shops (MacAuslan, 2007). As with aggregate exit, these protests can reveal to rule-makers and brokers the extent of the malfunctioning of shops. For instance, an NGO assisted individuals to submit, simultaneously, 100 applications for information on ration cards and ration distribution under the recently passed Right to Information [RTI] Act,19 bringing malfunctioning to the attention of Food and Supplies officials. However, this mode of voice does not create any accountability in the government: the RTI Act requires that they provide information, but no more. Similarly, evidence of poor functioning is communicated to rule-makers through the media, journals or invitations to hearings, but includes no compulsion to act. Migrants are included in these protests and representations by virtue of their over-representation in poor or slum groups, but rarely specifically because they are migrants.20 Fourth, there is direct voice for rule-change. The multiplicity and eminence of rule-making organizations in the PDS (state and central governments, including the Planning Commission), and the requirements of knowledge, time and cost, complicate the exercise of direct voice by poor migrants, unless they have ‘fixers’ (brokers who can change the rules). However, although in interviews many potential fixers recognize that poor migrant populations both need social protection from the PDS and are excluded from it, there are three constraints to voice exercised by these fixers for migrants’ access to PDS. First, many potential fixers do not work in the PDS, because they consider its rules too degraded, and prefer to focus on other, newer programmes, such as the National Rural Employment Guarantee Act, where they perceive the potential for positive change to be greater. Second, the variety of access problems in the PDS means that fixers have to be quite organized and methodical in addressing them, lest they alienate rule-makers. This is problematic because, third, fixers disagree about the ideal design of the PDS (whether it should be universal or targeted, for instance). Most organizations working on the PDS are trying to save the system as a whole, rather than improve access for one excluded group. These limitations mean that fixers are not generally advocating specifically for improvements to migrants’ access to the PDS, although general improvements will improve migrants’ access.21

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Only one fixer, the Supreme Court Commissioners, has made specific representations to the central and Delhi governments about migrants’ access to the PDS. The Right to Food case was brought against the central and state governments of India for depriving citizens of their constitutional right to food (see Gonsalves et al., 2005). As a result, the Supreme Court has issued a set of orders on the PDS and the Commissioners have raised the issue of migrant access (Gonsalves et al., 2005; Supreme Court Commissioners, 2006). For instance, the Commissioners recommended that ‘migrant workers shall be entitled to draw grain on their existing [‘poor’] cards notwithstanding the fact they have moved outside the area where they reside’ (Gonsalves et al., 2005, p. 134). The Fourth Report highlighted urban destitution and homelessness, and noted that ‘migrant labourers . . . are cut off from the public distribution system as their ration cards are attached to place of residence . . . they should have “mobile ration cards” that can be used in the destination area’ (Gonsalves et al., 2005, p. 211). Although the government of Delhi acted in 2007 both to open slum card applications and to approach the Supreme Court about surveying homeless people (including construction site dwellers) in Delhi for ration cards, it seems probable that it did so partly for reasons unconnected to the Supreme Court, such as longer term plans or officials’ independent recognition that there was a problem. This interpretation is supported by interviews with government officials, and the surprise with which fixers greeted both decisions. Moreover, it is clear that Supreme Court fixing is not a sufficient condition for rule changes. For instance, although the Supreme Court ordered on 20 April 2004 that the criteria for ‘very poor’ cards should not include possession of a ‘poor’ card, because the ‘poor’ surveys were flawed (Gonsalves et al., 2005, p. 55), the Delhi Food and Supplies Department maintains this requirement. Moreover, the government’s 2007 decision is only a temporary and partial implementation of the Commissioners’ recommendations. And it has not adopted the proposal for mobile ration cards, despite initiatives in other states to allow temporary migrant workers to access PDS rations at their migration destination. Interviewees frequently referred to politicians as key brokers in improved distribution. They intervene in the queues for rations and ration cards or exert pressure for rule manipulation to improve access for their constituents or for applicants with connections, money, or who form groups. This may disadvantage recent migrants whose short stay means they lack connections to politicians and seek help instead from informal ‘big men’ (Harriss, 2005; Jha et al., 2005; Edelman and

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Mitra, 2006; MacAuslan, 2007). This kind of intervention is limited to the individual level and scarcely manifests itself in pressure for improvements to the rules, while the informal channels of communication that arise to lubricate migrants’ access to services (including ration cards) are not accountable, and so are potentially fragile. The overwhelming model of politics around the PDS is of political patronage to the electorate, rather than fighting for the systemic rights of constituents. However, since short-term migrants are less likely to be voters (Deshingkar and Start, 2003), their gains from this patronage are more limited. Interviewees expressed strong dissatisfaction with politicians’ integrity in terms of group improvement and perceived a disjunction between politicians’ expansive pre-election promises and post-election inactivity. As Edelman and Mitra (2006, p. 32) point out, ‘politics in slums is not rocket science. Slum dwellers want ration cards, water, and a guarantee that their shacks won’t be demolished’. Field interviews confirm that slum and resettlement colony dwellers do not vote on any other basis than the provision of amenities. Almost all Members of Parliament in Delhi and Members of the Delhi Legislative Assembly include promises about improving services to slum dwellers in their election literature (Jha et al., 2005). But interviewees were pessimistic about the likelihood of politicians delivering on their promises. Table 7.5 summarizes these findings by presenting migrant-related disadvantages of different types (see Table 7.1) in the shop and ration card queues, and in terms of voice. It also adds some disadvantages Table 7.5

Summary of migrant-related disadvantage in the PDS in Delhi Shop

Specific

Intensified

Recent migrants have fragile networks and less confidence to overcome discrimination against poverty/illiteracy

Ration Card

Voice

Post-1998 slum arrivals; temporary residents; post-2002 arrivals excluded from ‘poor’ queue

Lower likelihood of political contact for recent arrivals

More frequent applications (regular and deviation costs). Demolition of settlements/ informal labour markets

Fear of police limits sanctioned complaints

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Table 7.5

(Continued) Shop

Ration Card

Voice

Bureaucratic

Fixed location of shops; stable population basis of allocation system

Identity function (migrants less willing to apply; officials less willing to grant); within-state rights only

Limited perception or minimization of migrant problem

Overrepresented

Shop deviations in opening time and price (illiterates and daily workers); reduced social protection (poor)

Slum dwellers only receive ‘non-poor’ card

Exercise local voice through slum representatives and Supreme Court

not discussed above (see MacAuslan, 2007, for more details), such as poor networks or lack of confidence that cause problems in the shop queue for low-income households that are intensified by them having migrated (as migrants have even poorer networks).

4. Conclusions and discussion This case study has shown that low-income internal migrants suffer particular disadvantages in accessing social protection in Delhi. Structural inequalities that contribute to the insecurity of their housing (in informal settlements) and jobs (in the informal economy), and push them towards livelihoods and lifestyles that either require migration or make migration a very attractive strategy, also contribute to poor access to social protection. Despite retaining citizenship rights to the PDS, and so being eligible for the PDS according to the Constitution and law, internal migrants do not in practice receive full social protection from the PDS. Focusing on the PDS access structures in detail, rather than only the PDS policy documents, shows clearly how they disadvantage migrants in various ways. In order to secure physical and political access to the PDS, applicants require documentation, time and knowledge that migrants do not have, and contacts that they cannot hope to make. What can be done? ‘Migrant-aware’ research, planning and training is required. Changing the PDS to reduce migrant disadvantage is clearly difficult: its allocation systems cater to stable populations and it does

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not distribute a pure public good, so some eligibility criteria are necessary. Yet current policies are designed to discourage, not facilitate, the migration of low-income households. This reflects negative perceptions of migrants, and their exclusion from rights. Establishing that internal migrants retain rights to social protection would undoubtedly reinforce calls to reduce their formal exclusion, as in the PDS. However, rule-makers must still design access structures to implement mobile rights (to check claimants are eligible). The critical task, therefore, is to train, assist and inform rule-makers to become ‘migrant-aware’, to reduce as much as possible the disadvantages imposed on vulnerable migrants by access structures. Four specific policy changes are also suggested by these findings. First, it appears that ineligibility on the basis of slum dwelling or temporary residence excludes a large number of households most in need of social protection from the PDS. The government should issue ration cards to these households and publicize the fact that ration cards do not constitute identity documents. It would be useful, to facilitate this process, to expedite the distribution of a separate single national identity document, such as a passport.22 Second, ration cards need to be made mobile within and between states, such that they can be used at any Fair Price Shop. Other states, such as Gujarat and Rajasthan, are experimenting with ‘roaming’ ration cards for intra-state mobile populations, and Orissa and Madhya Pradesh had considered an agreement to provide rations for inter-state mobile populations. These initiatives could be reproduced in the National Capital Region of Delhi, comprising three states. Third, in order to ameliorate the problems involved in allocating food grains to mobile populations, various methods could be piloted. Computerization of ration cards and allocations would probably assist the process, and this is underway in Delhi. Alternative methods of provisioning for mobile populations could be experimented with. For instance, mobile populations could be given cash transfers or food stamps that allow holders to purchase market grains rather than attempting to redistribute PDS grains to their new locations. This would retain the expenditure subsidy social protection function, but not the exposure reduction function. This should not be seen, however, as an endorsement of suggestions for a replacement of the PDS with these systems, which clearly have their own problems (see, for example, Swaminathan, 2000). However, for the subset of the population that is regularly mobile and has particularly poor (or no) access to the PDS, they may be very useful.

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Fourth, the current system of ‘poor’ quotas formally excludes households that move after the quotas are met. In this sense, the pre-1997 ‘universal’ system disadvantaged migrants less, and a return to a single ration card system would tend to equalize their access to rations, other things being equal. It is certainly true, moreover, that the ‘poor’ and ‘very poor’ queues involve significant deviations from the rules, such that new programmes, such as the National Rural Employment Guarantee Act, do not use them. If the current ‘targeted’ system were to be retained in PDS, special provisions could be made for states, such as Delhi, with high in-migration, so that their ‘poor’ and ‘very poor’ quotas could expand between the surveys conducted every five years by the Planning Commission, and accommodate new low-income migrants.

Notes 1. Some exceptions: Schlosberg (1999) on migrants’ access to health in the US; Stephenson and Matthews (2004) and Smita (2006) on migrants’ access to health care and education in India; and Sabates-Wheeler and MacAuslan (2007) on migrants’ access to social protection. 2. Interviews with PDS users in two slum areas of Delhi, including government officials, activists, NGO workers and union organizers. Individual interviews are not cited (see MacAuslan (2007) for more details). Although changes have been made to the system of identity cards and to the PDS since fieldwork was conducted, the analysis here remains valid, and many problems identified here remain. 3. Prior to the enactment of the NREGA. 4. It also distributes kerosene and sugar, through slightly different access structures. 5. These epithets should not imply that households holding ‘non-poor’ cards are necessarily not poor. 6. While the rules for admission have evolved slightly since this fieldwork was undertaken, with further AAY applications in 2008, and the government accepting community-based verification of residence under the Delhi government’s Mission Convergence architecture, the basic queue rules remain as presented here. 7. This is an annual and nationally representative socio-economic survey. 8. See MacAuslan (2007) for further details. 9. In this chapter, any actor who moves their usual place of residence across a Fair Price Shop administrative boundary is a migrant, irrespective of registration and intention to return. ‘Usual’ residence refers to the residence most frequently used in the last 30 days. 10. See MacAuslan (2007) for further details. 11. Cabinet Decision No. 396, 28/12/998. 12. Cabinet Decision No. 1203, 08/05/2007. 13. Interview, slum areas, Delhi, August 2007.

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14. Names and places have been changed. 15. See also Parivartan (2004) and Pande (2007). 16. PDS (Control) Order, 2001, Annexure 2(9) states: ‘ration cards shall not be used as documents of identity’. 17. Gonsalves et al. (2005); Supreme Court Commissioners (2006). 18. See also Schwartz (2001). 19. See ‘Slum Dwellers file RTI plea over ration’, The Hindu, 6 August 2007. 20. Exceptions include Rogaly et al. (2001), Deshingkar (2006) and Smita (2006). 21. As of August 2009, this is changing as the Supreme Court Commissioners’ Office is beginning a survey on migrant access to the PDS. 22. As of December 2010, there are debates and the beginnings of policy on the Unique Identity document in India.

References Census of India (2001) ‘Migration data, data highlights I’, Census of India, Delhi. Department of Administrative Reforms and Public Grievances (1993) ‘Public distribution system: access of the poor – a case study of a jhuggi jhompri cluster’, Management in Government, January/March, 295–317. Deshingkar, P. (2006) ‘Internal Migration, Poverty and Development in Asia’, paper prepared for the Asia 2015 Conference, IDS and ODI, London. Deshingkar, P. and Start, D. (2003) ‘Seasonal Migration for Livelihoods in India: Coping, Accumulation and Exclusion’, ODI Working Paper 220 (London: Overseas Development Institute). Edelman, B. and Mitra, A. (2006) ‘Slum dwellers’ access to basic amenities: the role of political contact, its determinants, and adverse effects’, RURDS, 18(1), 25–40. Gonsalves, C., Ramesh Kumar, P. and Srivastava, A. (eds) (2005) Right to Food (Delhi: Human Rights Law Network). Government of Delhi (2007) Department of Food Supplies, Frequently Asked Questions, Ration card, available at: http://www.delhigovt.nic.in/dept/food/faq1.asp (accessed 11 May 2007). Harriss, J. (2005) ‘Political participation, representation, and the urban poor: findings from research in Delhi’, Economic and Political Weekly, 12 March, 1041–1054. Holzmann, R., Koettl, J. and Chernetsky, T. (2005) ‘Portability Regimes of Pension and Health Care Benefits for International Migrants: An Analysis of Issues and Good Practices’, Social Protection Discussion Paper 519 (Washington, D.C.: World Bank). Jha, S., Rao, V. and Woolcock, M. (2005) ‘Governance in the Gullies: Democratic Responsiveness and Leadership in Delhi’s Slums’, Q-Squared Working Paper 5 (Toronto: University of Toronto, Centre for International Studies). Kabeer, N. (2002) ‘Citizenship and the Boundaries of the Acknowledged Community: Identity, Affiliation, and Exclusion’, IDS Working Paper 171 (Brighton: Institute of Development Studies). Keeley, J. and Scoones, I. (2003) Understanding Environmental Policy Processes: Cases from Africa (London: Earthscan).

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Kochar, A. (2005) ‘Can Targeted Food Programs Improve Nutrition? An Empirical Analysis of India’s Public Distribution System’, Economic Development and Cultural Change, 54(1), 203–236. Lipsky, M. (1980) Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation). Long, N. (1989) ‘Introduction: the Raison d’etre for studying rural development interface’, in Long, N. et al. (eds) Encounters at the Interface: A Perspective on Social Discontinuities in Rural Development (Wageningen: Agricultural University of Wageningen). MacAuslan, I. (2007) ‘Migrants’ Access to Social Protection: A Case Study of the Public Distribution System in Delhi’, unpublished MPhil Dissertation, Institute of Development Studies, University of Sussex. Mooij, J. (1999) Food Policy and the Indian State: The Public Distribution System in South India (New Delhi: Oxford University Press). Mooij, J. (2000) ‘Food and Power: The Political Economy of the Public Distribution System in Bihar’, Indo-Dutch Programmes on Alternatives in Development, Occasional Papers and Reprints 2000–1 (New Delhi: IDPAD). NSSO (2007) ‘Public Distribution System and Other Sources of Household Consumption’, Report 510, Government of India National Sample Survey Organisation. Pande, S. (2007) ‘Social Accountability and the PDS Campaign: The Delhi Experience’, March 2007 draft, cited with permission from author. Parivartan (2004) ‘Report of Jan Sunwai on Public Distribution System’, unpublished report. Radhakrishna, R., Subbarao K., Indrakant, S. and Ravi, C. (1997) ‘India’s Public Distribution System: A National and International Perspective’, World Bank Discussion Paper 380 (Washington, D.C.: The World Bank). Rafique, A. and Rogaly, B. (2003) ‘Internal Seasonal Migration, Livelihoods and Vulnerability in India: A Case Study’, paper prepared for the regional conference on Migration, Development and Pro-Poor Policy choices in Asia, June 2003, DFID/RMMRU, Dhaka. Rogaly, B., Biswas, J., Coppard, D., Rafique, A., Rana, K. and Sengupta, A. (2001) ‘Seasonal migration, social change and migrants’ rights, lessons from West Bengal’, Economic and Political Weekly, 8 December 2001. Sabates-Wheeler, R. and MacAuslan, I. (2007) ‘Migration and social protection: exposing issues of access’, Development, 50(4): 26–32. Sabates-Wheeler, R. and Waite, M. (2003) ‘Migration and Social Protection: A concept paper’, DRC Migration, Globalisation, and Poverty Working Paper T2 (Brighton: University of Sussex). Schaffer, B. (1973) ‘Improving Access to Public Services’, IDS Discussion Paper 23 (Brighton: University of Sussex). Schaffer, B. (1986) ‘Access: A Theory of Corruption and Bureaucracy,’ Public Administration and Development, 6(4), 357–376. Schaffer, B. and Lamb, G. (1974) ‘Exit, Voice and Access’, Social Science Information, 13(6), 73–90. Schaffer, B. and Wen-Hsien, H. (1975) ‘Distribution and the Theory of Access’, Development and Change, 6(2), 13–36.

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Schlosberg, C. (1999) ‘Immigrant Access to Health Benefits: A Resource Manual’, prepared for The Access Project, Boston, MA and Washington, D.C., The Access Project and the National Health Law Program. Schwartz, S. (2001) ‘Immigrant Access to Food Stamps: Overcoming Barriers to Participation’, Journal of Poverty, Policy, and Law, September–October, 260–275. Sen, A. (2000) ‘Social Exclusion: Concept, Application, and Scrutiny’, Social Development Papers No. 1, Office of Environment and Social Development, Asian Development Bank. Smita (2006) Locked Homes, Empty Schools: The Impact of Distress Seasonal Migration on the Rural Poor (Delhi: America India Foundation). SNS (2006) Satark Nagrik Sangathan (Delhi: SNS). Stark, O. (1991) The Migration of Labour (Oxford: Blackwell). Stephenson, R. and Matthews, Z. (2004) ‘Maternal health-care service use among rural-urban migrants in Mumbai, India’, Asia-Pacific Population Journal, 19(1), 39–60. Supreme Court Commissioners (2006) Sixth Report of the Commissioners, available at: www.righttofoodindia.org. Swaminathan, M. (2000) Weakening Welfare: The Public Distribution of Food in India (New Delhi: Left Word). Uvin, P. (2004) Human Rights and Development (Bloomfield: Kumarian). Zhou, Z. Y. and Wan, G. (2006) ‘The Public Distribution Systems of Food grains and Implications for Food Security: A Comparison of the Experiences of India and China’, UNU-WIDER Research Paper 2006/98, UNU-WIDER.

8 Social Protection as a Multi-Actor Process in Ecuadorian Migration: Towards a Transnationalism of Social Rights? Paolo Boccagni

Every person is equal and shall possess the same rights, duties and opportunities. Nobody shall be discriminated against on grounds of [ . . . ] migratory condition . . . [The state of Ecuador] fights for the principle of universal citizenship, for the free mobility of every inhabitant of the planet earth, for the gradual demise of the condition of alien as a transforming element of the unequal relationships between countries, with especial respect to the North-South divide. It demands respect of human rights, with especial regard to migrating persons . . . —Constitution of the Republic of Ecuador (2008, Articles 11.2 and 416.6–7 [my translation])

1. Introduction This chapter provides a comparative analysis of the sources of social protection within a long-distance migration flow, connecting Ecuador to Europe, with a particular focus on the role of the motherland. It approaches first the discourse and policies emerging in Ecuador, with respect to the transnational protection of the citizens – one and a half million at least – who have left the country in the last decades (Gratton, 2007; FLACSO, 2008). It then explores the relative weight of 210

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migrants’ own practices and resources of social protection, drawing from my empirical study of Ecuadorian migration to Italy.1 Finally it takes stock of the current and potential interactions between these two axes of migrant social protection, asking to what extent, and in which respects, can an integration between institutional and migrant-led initiatives result in a ‘transnationalism of social rights’? While migrant access to social protection and welfare benefits in host societies has been extensively studied (for example by Bommes and Geddes, 2000; Sainsbury, 2006), the same does not apply to the influence exerted by the countries of origin. The latter may affect their expatriates’ life conditions in many regards, through an increasingly wide range of policy provisions appealing to their ‘external citizenship’ – to their claimed patriotic attachment, and to their persistent set of rights (and even of duties) vis-à-vis the motherland (Barry, 2006). In the case of Ecuador, emigration, though decades old, has become a significant public policy issue – rather than an object of displacement from the public discourse – in the last few years only. Apart from the introduction of expatriates’ voting rights, an emigrant-addressed ministry has been established, with a view to lobbying for expatriates’ rights, protecting their family members left behind and enhancing their homeward attachment. Facilitations to emigrants’ investments back home are also being developed. Even their voluntary participation in the national social security scheme is to be guaranteed soon. The tiny Andean country hence provides a promising terrain for exploring the connections between migration and social protection: whether sending states’ increasing attention to their citizens abroad (Gamlen, 2008) may result, among other things, in greater investments in their social protection; or if, instead, a more traditional vision of emigration as a safety valve only, or anyway as a lever for remittances, is more suitable to describe sending states’ agendas, whatever their public rhetoric. Or indeed, to what extent do the two approaches intermingle with one another, and what is the aggregate role of emigrants’ social protection practices in accounting for this? The chapter will complement a review of Ecuadorian policies with an analysis of migrants’ social protection resources and practices. This applies both to remittances and to the other channels of risk protection made available by migration, approached with special attention to their impact on the home communities. Emigrants’ attitudes and attachments towards the motherland will be dealt with at last, as they also affect the scope for social protection ‘from above’ in Ecuador.

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2. ‘Protecting our brothers overseas’? On the new turn of emigrant policies in Ecuador The role of migration in social protection terms, whether resulting in an increase or depletion of welfare resources (or in both, from different angles), should ideally be approached in a threefold perspective: as a ‘triangle relationship’ involving the interactions between sending and receiving countries, along with migrants’ informal initiatives. As much literature has shown (for example Givens, 2007; Penninx et al., 2007), migrants’ social protection is also contingent on the structure of opportunities they encounter overseas, which may be highly variable on a national, and even on a local basis (Alexander, 2007). Having said this, the chapter will rather explore the other, relatively neglected side of the coin: the potential for social protection inherent in the ‘bonding mechanisms’ (Chander, 2006) enacted by an emigration state towards its citizens abroad, in relation to the latter’s own social protection strategies and practices. My effort aims at shedding light on the ways and the degree to which a transnational welfare framework is being created in progress, from above and below, within Ecuadorian migration. This will allow us to assess the potential for integration between state-led and migrant-led social protection. I will finally argue for a framing of social protection (also) in relational terms, with regards to the range of transnational attachments that may survive – in an affective, an emotional and an identity sphere – between host and home societies. 2.1. The novel extent of external citizenship: new prospects for social protection? A helpful framework for exploring emigrants’ social protection at a distance is provided by transnationalism, as it emphasizes not only the ongoing connections between migrants and their homelands (Portes et al., 1999; Levitt and Glick-Schiller, 2004), but also the influence exerted by the latter on their expatriates (Bauböck, 2003). Two typical indicators of these new ‘diaspora-reaching’ strategies are the concession of external voting rights and the acknowledgement of dual citizenship.2 A country of origin, in principle, may have many instrumental reasons for enhancing ties with its expatriates, or in making their ‘external citizenship’ effective (Fitzgerald, 2006). Among them are: human capital upgrading (the expectation to ‘re-import’ the professional skills,

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expertise and savings migrants may accumulate overseas); incentivizing remittances; political lobbying, that is approaching expatriates as a lobby, supposedly pursuing the motherland’s interests; even cultivating consensus in domestic politics, with a view to reasserting citizens’ national identity or pride and to attract emigrants’ votes (even though electoral expectations, in themselves, are seldom a sufficient reason). Still, for a state strategy of loyalty-maintenance to have some impact, the prospect of some distinctive opportunity for expatriates should be necessary, well beyond appeals to their patriotism and nostalgia. Access to social security programmes, facilitation of savings and investments, new opportunities for self- or qualified employment, and dedicated social support to those left behind may all be viable options. Whatever the interests driving states’ efforts, however, the repercussions for migrant social protection are far from clear – hence the relevance of exploring them in a country which, though secondary as a political actor in the Southern American scenario, has recently been characterized by a massive emigration flow and by a significant ‘diaspora-reaching’ endeavour. This will also help to assess whether a typical corollary of transnational arguments holds true with respect to social protection: that ‘increasing opportunities’ for migrants to combine ‘external and internal status and affiliations’ (Bauböck, 2003) result in social rights and resources deriving from both the country of origin and that of settlement. 2.2. Emigrant policy-building in Ecuador: potentials and limitations While international emigration from Ecuador is at least four decades old (Jokisch and Kyle, 2008), its latest boost has taken place since the country’s financial collapse in the late 1990s (Jokisch & Pribilsky, 2002; Herrera et al., 2005). An active engagement of national institutions, in terms of dedicated policy-making, is however relatively recent. Only after the 2006 presidential elections – the first ever with absentee ballots – has the role of emigrants gained some salience in Ecuadorian political life, well beyond their already crucial economic weight.3 In the wake of a public discourse developed in many Latin American regimes in the last decades (Berg and Tamagno, 2006), the freshly elected president began to approach expatriates as a common, collective subject in its own right, hence the discourse on Quinta Región as a metaphor for all Ecuadorian emigrants.4 Their persistent attachment to the country,

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so the argument goes, justifies their definition as a single political actor, irrespective of territorial proximity. The new Constitution of the country (Constitution of the Republic of Ecuador, 2008, Article 40 [my translation]), which dedicates a whole section to ‘human mobility’, has accordingly ushered in an unprecedented ‘right to migrate’: Every person is acknowledged the right to migrate. No human being shall be identified, nor regarded as illegal, as a result of their migratory conditions. The State, through its dedicated institutions, shall develop the following actions – among others – for Ecuadorian persons’ rights to be exercised overseas, whatever their migratory conditions: 1. Shall provide assistance to them and their families, whether residing overseas or in the country. 2. Shall provide attention, counseling services and thorough protection, for them to be able to exercise freely their rights. 3. Shall protect their rights if, for whatever reason, they are deprived of their freedom overseas. 4. Shall promote their ties with Ecuador, facilitate family reunion and stimulate return on a voluntary basis. 5. Shall safeguard the privacy of their personal information within the archives of Ecuador institutions overseas. 6. Shall protect transnational families and their members’ rights. The statements in this excerpt suggest a fundamental transformation in the conventional wisdom on migration, which is framed in terms of a personal right. The Ecuadorian state binds itself to facilitating both its expatriates’ integration abroad and their transnational ties with the motherland. Underlying the new Constitution’s approach to expatriates, and indeed to every citizen, is a ‘transformative’ expectation (Sabates-Wheeler and Waite, 2003), linking their social protection to the pursuit of anti-discrimination and social equity principles. In a truly transnational perspective, all Ecuadorian citizens should be entitled to the ‘good life’ (buen vivir), in so far as the scope for their participation and protection, whether migrants or not, should be granted by the state. In strictly social policy terms, however, the only major innovation lies in the possibility for emigrants to enrol in the national social insurance fund – although the Ecuadorian welfare arrangements are incomparably

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poor and residual compared with those of most destination countries. As Herrera (2008) reminds us, the public insurance fund ‘currently covers only 20 per cent of the population and is in constant financial crisis’; more broadly, ‘Ecuador’s rate of social spending is one of the lowest in Latin America’, despite the increasing public investments in the last few years, applying, for instance, to basic cash transfers (Weisbrot and Sandoval, 2009). Migrants’ access to the national security system may still mark some progress in the field of portability, responding to the claims of some expatriate civic associations overseas. It is, however, too early to assess the potential of this new provision in terms of welfare resources. A far less symbolic turning point has been marked, in the terrain of policy-making, by the setting-up of a dedicated Migrant Ministry: Secretaría Nacional del Migrante (SENAMI). The new institution has the mission of defining, managing and implementing migration policies, inside and outside the Country, aiming at the human development of all the actors involved, allowing for migrants’ care, protection and development, in accord with the goals of the State of Ecuador.5 Judging from its official agenda, SENAMI is concerned with a range of novel initiatives, including: a dedicated saving fund, expected to advise compatriots when investing at home (and even to turn into a special ‘migrant bank’); a programme for the grassroots enhancement of migrant associations; and a residual line of action to highly vulnerable emigrants, in order to facilitate their repatriation. Among the initiatives already implemented, however, three programmes are especially relevant to the migration-social protection nexus: 1) Vinculos (Ties), which aims to strengthen the opportunities and mechanisms of emigrants’ involvement and communication with the motherland, by investing in migrant associations, as well as in their family members’ collective initiatives in Ecuador; 2) Cucayo, a public fund aiming to stimulate and orientate returnees’ productive investments via technical and legal assistance, as well as through micro-funds for the start-up of new entrepreneurial initiatives; 3) Volver a casa (Returning home), which aims to support emigrants’ physical return by facilitating, via tax exemption, the transport of their personal belongings and professional equipment.

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The ‘Returning home’ initiative has encountered especially mixed reactions, both in the motherland and overseas (Boccagni, 2011a). This reveals limitations to the legitimacy, let alone the viability, of more proactive state action towards expatriates. While returning to Ecuador is often perceived, from emigrants’ viewpoints, as a key future aim, it is generally unlikely to take place in the short run, and is even less likely for those relatively ‘well integrated’ overseas, after a family reunification. These emigrants may even be looking at Ecuador, by now, with a ‘myth of return’ perspective (Anwar, 1979). Although promoted with no apparent intention to counter emigration, this return plan may be regarded as of little use to those striving to move ahead overseas. At the same time, from a public policy viewpoint, it may be prone to criticisms on equity grounds, were it to be implemented in a more than symbolic way.6 As migrants are not a disadvantaged group as such – the contrary may even be the case – the risk exists for a dedicated return plan to be perceived as unduly privileging them over non-migrant citizens. The same applies, indeed, to any ‘targeting’ of public provision which is addressed to migrants only. Altogether the mission and the remit of the new ministry seem to be still in question, both from an institutional point of view (as it disrupts the traditional division of labour between government departments) and in the face of the pressures from civil society. Ecuadorian NGOs, which made a major contribution to its start-up, are typically oriented to claims-making and advocacy more than to migrant-related service provision or policy-making. Within these constraints, and leaving the public rhetoric aside, what is the actual potential of state-led initiatives? 2.3. How could a country of origin protect emigrants? Here, there, in-between What are the predictable impingements of the new emigrant policies on the life conditions of expatriates, and of their kin left behind? Judging from the initiatives announced (and, to a degree, developed) in Ecuador so far, emigrant social protection ‘from above’ could be effective on three scales of reference: within the motherland, in the intermediate space (physical, symbolic and relational) of migrants’ homewards connectedness, and concerning the countries of destination, with a view to affecting migrants’ integration there (see Table 8.1). Each of these realms deserves further discussion.

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Table 8.1 Emigrant policies as a source of social protection from above: a typology of the realms of action and of the key strategies Focus of relevance

Major examples

Here: in the motherland’s domestic sphere

• • •

In-between: in the transnational relationships with expatriates

•

There: in the countries of settlement

•

• • •

•

De-stigmatization of the public discourse on emigration and on children left behind Psycho-social and legal support to migrant family members Incentives to return and to social-economic reintegration back home Transnational channels of interaction and communication with emigrants Exercise of external voting and dual citizenship Incentives to investments and collective remittances ‘Virtual return’ (e.g. skill-transferring, training at a distance) Pro-migrant advocacy and lobbying towards host society governments Legal and social support to migrants in their context of settlement

2.3.1. Here: in the motherland’s domestic sphere A more positive and humanistic construction of migration may help, first of all, to de-stigmatize the public discourse on the matter. A commonsense representation seems to exist, all across Ecuadorian society, portraying family disruption and the abandonment of children as a necessary consequence of parental emigration (especially by the mother). The voice of the people in Ecuador, when it comes to approaching emigration, goes somewhat along the lines described by Soruco and colleagues (2008, pp. 4–5): a) Emigration is a problem; b) Emigration is bad for the region . . . , for the emigrants themselves, and especially for the families of emigrants; c) Emigrants are irrational, failing to use their remittances in productive and sustainable activities and therefore failing to contribute to the national economy; d) Emigrants are irresponsible because they abandon their families and thus deserve moral condemnation; e) Emigrants’ children do worse in school than nonemigrant children, they are not integrated into society . . . and they will probably try to leave the country as their parents did.

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Much of this argument is unwarranted, and in the face of the significant but far more ambivalent effects of emigration on those left behind (Herrera et al., 2005; Camacho and Hernández, 2008), a more nuanced and less reproving approach is helpful. On the one hand, more systematic programmes supporting emigrants’ children (and those taking care of them) would be necessary. This may apply to their full inclusion in schools and in peer groups, and perhaps even to the delicate issue of remittance management. At the same time, the risk of accentuating their ‘diversity’, hence their segregation, should be avoided. As Herrera (2008) puts it, Educational services should adopt a view of migration that is less victimizing and more normalizing. That is, migration should be treated as a part of daily life for many children and adolescents, thus familiarizing children with the phenomenon while avoiding stigmatization. 2.3.2. In-between: cultivating emigrant connectedness The space of ‘in-betweenness’ potentially bridging migrants with their motherland, mainly through ICTs, provides emigrant policies with new opportunities and challenges. With a view to facilitating transnational communication with the motherland, a range of instruments has been developed by the Ecuadorian government; among them, a web platform supporting virtual social networks and online TV channels. Fuelling emigrants’ nostalgia, facilitating their interactions with those left behind, providing new scope for celebrating their patriotism – even through external voting (Boccagni and Ramírez, 2009) – are all parts of the same strategy: cultivating emigrants’ connectedness with the motherland, no matter the distance from it in space, and even in time. Yet, while the aim of enhancing ties between Ecuador and its expatriates is likely to be shared by the latter, the ways being developed to pursue it, or any potentially alternative way, are more dubious. As my fieldwork, and even SENAMI figures suggest, policies investing in the ‘in-between’ space involve just a narrow, self-selected minority of Ecuadorian migrants.7 Have such ‘diaspora-reaching’ strategies, even so, had a distinctive impact on their life conditions and opportunities? In other words, can they be regarded as a strand of social protection, albeit for a minority of emigrants? I will return to this point, after comparing institutional initiatives with migrants’ own strategies and practices. Whatever the case, stimulating emigrants’ remittances and investments is obviously an equally relevant goal. Ecuadorian policies

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declaredly aim to create viable opportunities for new micro-enterprises to start up, and this resonates with migrants’ initial expectations (Boccagni, 2009). It should even pave the way for sustainable and safer life conditions in the country. However, the conversion from familyaddressed to productive remittances is a complex and highly selective process (Hall, 2007). So far, altogether, remittances in Ecuador have only enabled the maintenance of consumption standards, rather than a significant improvement in life conditions (Olivié and Ponce, 2008). 2.3.3. There: struggling for migrant integration To some extent, the action of a migrant-sending country such as Ecuador can affect, on a discursive level at least, migrants’ chances of integration overseas. This can be regarded, in fact, as a critical precondition for migrants to be able to return some of their skills and resources to the motherland (Fitzgerald, 2006). Diplomatic pressures towards the countries of settlement typically involve demands for labour-related amnesties, or the denunciation of any blatant discrimination (and even racist assaults) migrants may be subject to. Informal pressure strategies can also build on transnational opinion campaigns, potentially combining Ecuadorian institutions and civil society. Less conspicuous strategies include systematic overestimates – in the public stances of national authorities – of the figures of Ecuadorians abroad. This especially applies to the undocumented, whose lack of entitlements overseas does not justify any differential treatment as far as the country of origin is concerned. Among its declared aims, SENAMI is to provide social and legal help within migrant-receiving countries. This should result in an enhancement of the mandate of Ecuadorian consulates (which is often contested by immigrant associations), and even in establishing Casas ecuatorianas (Houses of Ecuador) in overseas cities with large Ecuadorian populations. The latter are in charge both of facilitating migrants’ sociability and common initiatives, and of giving them legal counsel. While potentially effective, this overseas protection strategy may prove highly expensive. Its substantial implementation would entail a significant public investment in capacity building. It would also require thorough negotiations with local Ecuadorian associations, whose standards and credentials, in terms of representation, democracy and accountability, may prove difficult to assess. Whether any of these initiatives is actively supported by the majority of emigrants is, again, far from obvious. Patriotism and homesickness may not be enough to counter a deep-seated scepticism towards

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Ecuadorian political institutions, which have long been peculiarly weak and unstable, even by Latin American standards (World Bank, 2004; Burbano, 2008). La política is typically framed in expatriates’ accounts as the fundamental culprit for the collapse which accelerated emigration from the country in the late 1990s (Hall, 2005; Boccagni, 2011b).

3. Transnational migration as a mixed source of social protection Whatever the initiatives of a migrant-sending state, the transnational resources mobilized through migrants’ personal networks – as social protection – deserve to be studied in their own right. Financial as well as relational and emotional resources are at stake here. Leaving Ecuador, judging from the migrants’ accounts I collected, may well provide greater social protection, at least concerning the daily social reproduction of those left behind and, sometimes to a lesser extent, of migrants themselves. Transnational helping practices, while producing mixed (and often unintended) effects, are, however, quite disconnected from the new emigrant policies in Ecuador (or, for that matter, from any public policy). As my field research suggests,8 emigrants’ ‘need to construct diversified, globalized livelihoods’ (Hall, 2005) comes with significant costs, along with benefits, for those who stay and for those who leave. A twofold perspective should thus be maintained, in order to understand the transnational interdependence of the life conditions of migrants and non-migrant kin: the crucial ‘migration-left behind nexus’, as Toyota and colleagues (2007) put it. How is it that Ecuadorian emigrants contribute to the social welfare of themselves, of their family members left behind, and even, to a degree, of their home communities overall? An understanding of two major issues is needed in order to assess the strengths and the limitations of migrant protection ‘from below’, within transnational family networks. The generation of income overseas, and its transfer back home, is but one side of the coin. Transnational care giving – in terms of communication, affection relationships and of any practices attempting to recover a sense of proximity at a distance – is the other, less obvious side.9 3.1. Family remittances: underlying expectations and (un)intended effects Family-addressed remittances are by far the most visible effects of Ecuadorian migration in the motherland. The acceleration of

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overseas-bound mobility has resulted in expatriates’ transfers constituting a significant weight in the overall national economy (Acosta et al., 2005; Calero et al., 2009). Although remittances have been decreasing in the last two years or so, related to the global crisis impact (Weisbrot and Sandoval, 2009), their economic and social significance is indisputable in many respects (de Haas, 2007; Carling, 2008): as a source of direct external financing, in reducing the vulnerability of a dollarized economy; in providing emigrants’ households with resources for daily consumption and social welfare expenses; in fuelling internal consumption; and in revitalizing some economic sectors, along with their multiplier effects. Less positive repercussions of remittances, however, should also be taken into account, well beyond the fact, applying all across Latin America, that only a tiny percentage of remittances are used in strictly ‘productive’ terms (World Bank, 2007). Even from a social protection viewpoint remittances may have a mixed impact. Their social distribution within Ecuadorian society is uneven, and their actual contribution to local development in the medium term is contentious (Olivé and Ponce, 2008). In a nutshell, ‘just as emigrants are often not the poorest citizens, so remittances do not necessarily flow to the poorest households’ (Hall, 2007). While remittances remain the major source of social protection channelled by migration, their actual transformative potential is typically limited. This said, my fieldwork suggests a few key points on the social structure of expectations and obligations underlying the transnational circulation of remittances at both ends of a migration flow. To begin with, sending money back home is generally perceived by immigrants as a moral duty in itself, regardless of whether one fulfils it or not. When it comes to transnational families, it often represents the very fundamental reason for migration. Remittances demonstrate the commitment of those who leave to those still in Ecuador. They may even act as a sort of justification, in the face of both the difficult life conditions of immigrants, and of the distress created by the detachment from their dear ones at home. In immigrants’ expectations, remittances are a lever for coping, first of all with basic consumption and ordinary expenses, then for achieving social opportunities – for instance in health and in better education, or even in further migration – earlier unattainable. Ultimately immigrants expect remittances to pave the way towards better future life conditions back home, although the expectation to turn them into productive investments – and the very option of returning – may prove misleading.

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As a two-way process across a long distance, however, remittances and their management are open to different expectations and interests between senders and receivers, even within the same household or kin group. The issue does not lie only in the structural gap between the potential demand of those left behind and the help migrants may be able to give; nor, for that matter, does it lie in the asymmetries between the perceptions of ‘migrant life’ being nourished in Ecuador and the actual plight of immigrants. Although most Ecuadorians I met in Italy complained about the distorted views of their relatives in the motherland (as if those overseas were ‘making big money’), while in Ecuador I frequently encountered greater awareness of the real situation and less room for migration myths than I would have expected.10 A less obvious, but not less significant, asymmetry also applies: emigrants are often unable, whatever their wishes, to exert any substantial control on the ways remittances are spent. The issue is particularly awkward when it comes to dependent children and those taking care of them (and living off the remittances as well). While migrants may criticize the recipients’ supposed expediencies, they often have their own interests, even apart from affections and moral obligations, to maintain good relationships with the communities they left behind. Keeping in touch with non-migrants may compensate them for the loss of social status they typically suffer, as immigrants, abroad. It is also a necessary condition in paving the way for their return, if – and when – this should occur. Remittance circulation is certainly the primary means of fuelling a ‘transnational protection field’ (paraphrasing Levitt and Glick-Schiller, 2004), at least with respect to family members. Still, the extent and the very contents of the social protection a migrant should assure – provided they are willing and able to – are by no means obvious and self-evident. They are rather the outcome of an ongoing, reciprocal negotiation. The requirements of a migrant – seemingly in a relatively stronger position – are set against those of their dear ones at home, which may prove no less influential. While most migrants share the commitment to send remittances, fewer would completely agree with those left behind as to the priority options for spending their money back home.

3.2. Transnational caregiving: the ‘affective glue’ of family life at a distance Migrants, as Cohen (2005, p. 104) puts it, ‘remit more than money. They bring goods, services, knowledge, and possibilities that nonmigrants

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sometimes cannot imagine.’ In much the same way, migrants’ contribution to social protection – whether of themselves or of those left behind – cannot be reduced to the money they gain and send back. Indeed, ‘ties with family and friends in migration source areas are an important means for the social protection of migrants whilst in destination areas’ (Sabates-Wheeler and Waite, 2003, p. 40). Of especial import are the relationships of nurturing at a distance, which develop between family members set apart by migration. Increasing attention in recent years has been devoted to the practices of transnational parenthood (for example Hondagneu-Sotelo and Ávila, 1997; Parreñas, 2005; Schmalzbauer, 2005); even more so in female migration flows such as the Ecuadorian one, at the beginning at least.11 These practices are the attempts of migrant parents to maintain, while overseas, a fundamental role in their children’s upbringing – in terms of livelihood, affections, and even of everyday care. The tools they use for this purpose include frequent communication (increasingly involving new communication technologies), journeys back home, and systematic circulation of gifts, pictures and information in a wider sense, via transnational compatriot networks. The twofold, ambiguous impact of migration – as a source of family vulnerability, and as a lever to alleviate that very vulnerability – is especially manifest here, as the emerging debate on a care drain in home societies, specifically related to female emigration, shows (Isaksen et al., 2008; Kofman and Raghuram, 2009).12 In a long-distance migration flow, such as the Ecuador-Europe one, transnational caregiving is mostly an informal and spontaneous social process, poorly supported by statutory welfare agencies or NGOs. Moreover, it stands in the very centre of a vicious circle. Mothers attempt to provide their families with social protection by leaving to work abroad and sending home remittances, which satisfies some needs, in terms of basic consumption, access to services and even investment in human capital, which is hardly accessible without remittances. This means, however, sacrificing other elements of their role as caregivers, namely their everyday involvement in the education and care of their children and families. As my fieldwork research on Ecuadorian migrants suggests, transnational parents tend to make significant attempts to remain involved in their children’s everyday life, to convey a feeling of emotional proximity – even to retain the ‘last word’ on any decision involving them (which may prove increasingly difficult, the closer the children get to adolescence and an autonomous life). However, this can

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hardly offset – as their personal accounts suggest – their loss of the potential for personal communication, care and even control, inherent in an ordinary proximity parental relationship (Urry, 2002). Quite widespread in transnational mothers’ narratives is the perception of missing ‘something important’ in their children’s development, along with concerns for the expedient use of their remittances, and sometimes for the inadequacies of those in charge of caring for their children. For, however valuable their efforts to recreate proximity at a distance, a transnational stratification of opportunities for child rearing is clearly at work here (Hochschild, 2000). Co-presence, while being perceived as ‘natural’ for most families in receiving countries, is in fact a selective asset on which migrants cannot necessarily rely. In the Ecuadorian communities of origin, the condition of children left behind is generally marked by a deep-rooted stigma and often, though not necessarily, results in higher distress and social vulnerability. While ‘transnational children’ do convey a greater need for psychosocial support, their state should not be framed as one of inherent disadvantage; rather it is contingent on the role played by those taking care of them and on their parents’ ability to bridge, inasmuch as possible, physical distance (Boccagni, 2009). Moreover, the frailty of household structures by far pre-exists parents’ emigration, which may even result in a potential channel for children’s social mobility – at least in the terrain of better health and education. To be sure, the access to better (private) health services and schools is one of the more tangible advantages family members enjoy as a result of emigrant remittances (Hall, 2005; Herrera, 2008). From both sides, transnational family life is generally regarded as a state relatively more tolerable and less likely to strain family ties the shorter it persists. In the perceptions of those involved, practising close family relationships at a great distance makes personal sense only as a transient, short-term condition – which, despite emigrants’ wishes, is in fact not necessarily the case. Judging from the accounts of the Ecuadorian migrants (and family members at home) I met, transnational caregiving is laden with ambivalences. On the one hand, a migrant’s decision is grounded in the perception of having no real alternatives, and in the expectation of building a better future for their children through their own commitment and self-sacrifices overseas. On the other hand, the outcome of this particular form of social protection is critically contingent on the role of children’s caregivers and of broader support networks, no less than on migrants’ efforts. As one delves into emigrant parents’ narratives, a

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painful awareness emerges of the ultimate insufficiency of their efforts, in relation to their children’s emotional and educational development, unless a family reunion is made. This, ironically, may even reduce the economic opportunities that stemmed from earlier emigration. After a family reunification overseas, while intergenerational relationships need an unprecedented renegotiation, the social and economic status of migrants’ children is likely to be, at the beginning at least, far less advantaged than it was in Ecuador.

4. Social protection from above and below: an integrated framework? As my research shows, the nexus between social protection from above and below remains weak. Poor (if any) connections exist between Ecuadorian policies, which build on a groundbreaking public discourse but result in declarations of intents more than in targeted and effective provisions, and migrants’ informal initiatives, which lack communal vision and strategy beyond a family level, but often allow a significant degree of social protection. From both viewpoints, however, there is clearly a need to address migration-related vulnerability in a multidimensional perspective – that is, in terms wider than simply economic ones. What is also at stake, in the face of the isolation and the severances migration may induce, is a need for psycho-social and relational support, both for migrants and non-migrants (Falicov, 2007). This calls for capacity-building initiatives with a more ambitious aim: to enhance their social capital and ability to elaborate a communal vision for the future, despite the distance, provided their basic needs have been satisfied. The point is that migrants’ informal networks alone, however valuable, can hardly provide such sophisticated support. At the same time, despite the new emphasis of emigrant policies on ‘fuelling connectedness’, the actual scope for transnational communication between Ecuador and its migrants seems relatively small. Altogether, distance from the motherland does matter. So do the precarious life conditions of many Ecuadorians overseas – hence some scepticism arises as to how involved they can be, via ICTs, in the evolving social and political life back home. If external voting is a good test for working out their orientations to participate in Ecuador, then the prospects for their effective connectedness are poor. In the 2006 presidential elections and in subsequent ones, migrant participation – though a symbolic turning point – has been irrelevant in terms of numbers (Ramírez

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and Boccagni, 2010). Overall, it seemed to be dictated by contingent reasons, such as the fear of being forced to pay a fee when back at home, or patriotic/homesick motivations (Boccagni, 2011b). In terms of a proper interest in supporting distinct political projects and candidates, emigrants’ involvement resulted instead, in line with key literature findings (Guarnizo et al., 2003), in a self-selective and numerically marginal phenomenon. Whatever the main reason for this, there are good grounds for concluding that, in practical terms, disconnectedness – rather than inclusion at a distance – better describes emigrants’ structural position towards their motherland.

5. Conclusion Warranting emigrants’ social protection, as far as Ecuador is concerned, is obviously a goal worth striving towards. It is questionable, however, in its real impact and viability, unless it is understood also as a rhetorical strategy (as a matter of domestic consensus building), however risky, as it may fuel far greater expectations than it can live up to. The notion of a transnationalism of social rights – which evokes the creation of ‘overlapping memberships, rights and practices’ (Bauböck, 2003) thanks to migrants’ ‘double embeddedness’ in two nation states (Glick-Schiller and Levitt, 2006) – by and large overestimates the stateled social protection accessible to Ecuadorian migrants (and, indeed, to most migrants). A greater transnational reach applies to the mutual, horizontal helping practices that migrants tend to develop with those left behind. This is mostly, however, a form of social protection critically contingent on living overseas, hence quite difficult to ‘import back’ to the country of origin. The idea of a selective transnationalism of social opportunities is therefore a more suitable description of the unequal and fragmented set of social protection resources generated by migration. The action of a country of origin such as Ecuador, vis-à-vis a ‘diaspora’ settled in relatively few countries (the US, Spain and Italy – FLACSO, 2008), can have a relevant impact in the terrain of public recognition. An emigration state can legitimately vindicate, as Ecuador increasingly does, the rights expatriates should be entitled to in host societies, by appealing to the latter’s liberal-democratic regimes (applying at least to native citizens). This may even contribute to framing the international discourse on migration in a vision other than a narrowly ‘securitarian’ one. That said, the levers of migrants’ social protection ultimately still

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lie in their own personal stories – whether successful or not – on the one hand, and in receiving states’ autonomous policy options, on the other. One may still wonder if an emigration state’s attempts at strengthening symbolic ties with expatriates – via ICTs, and investing in their communal identification overseas (for example via communal gatherings and celebrations) – could represent a source of social protection in its own right. In practical terms, this is unlikely to have much effect on migrants’ life chances. If, however, such efforts are driven by a broadly patriotic register (rather than a strictly political one), and as long as migrants have some significant family member left behind, they may help build that subtle sense of commonality, or of proximity-at-adistance, which is vital to the perceived well-being of both. Indeed, it is in this terrain of ‘soft’ social protection – involving the cultivation of patriotic and emotional attachments, and above all the facilitation of co-national sociability, whether in situ or at a distance – that social protection from above is more likely to succeed in Ecuador. When it comes to ‘hard’ social protection measures (and to the resources allowing for it), the key variable at stake is migrants’ spontaneous action, though structurally vulnerable and productive of significant downsides in the very social protection terrain. It is ultimately on migration itself – as an inherent multiplier of opportunities and, even earlier, of vulnerabilities ‘here’ and ‘there’ – that the social protection of an increasing number of people, whether migrants or not, has to rely. Looking at social protection both from a hard and a soft side is helpful, however, to shed better light on the new potential of emigrant policies, whether in Ecuador or elsewhere.

Notes 1. The empirical bases of this chapter are provided by two streams of research on Ecuadorian migration. First, my PhD multi-sited fieldwork (2005–2007) on the transnational ties within a migration flow spanning Ecuador and Italy, approached via ethnography and in-depth interviews (Boccagni, 2009, 2010a). Second, a study on the social impact of emigration in Ecuador, and then on new emigrant policies and the prospects for enhancing the migration-development nexus, realized on behalf of the Italian think tank CeSPI (2008–2009). The latter step resulted in documentary analysis and interviews to some 40 key informants (including academics, civil servants, policy-makers and ONG leaders) in Ecuador. 2. Such a trend has applied almost everywhere across Latin American countries over the latest two decades (Escobar, 2007). In the case of Ecuador, external voting was acknowledged in the Constitution of 1998, though it was

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4. 5. 6.

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Case Studies only implemented eight years later. The legitimacy of dual citizenship was acknowledged in 1994 (Ramírez and Boccagni, 2008). Remittances from overseas are estimated to account for 6–7 per cent of GNP, being the second source of external funding in the country after oil revenues (and by far exceeding development assistance): see, among others, Acosta et al. (2005), FLACSO (2008) and Calero et al. (2009). See also further remarks in Section 3.1. The construction of emigrants as a ‘Fifth Region’ builds on a geographic metaphor, comparing them to the four geographical regions of the country. Mission statement, available at www.senami.gov.ec – my translation. Two years after the Plan’s start, at the end of November 2009, Ecuadorians voluntarily returned from overseas thanks to the programme amounted to no more than 4500, despite the severe effects of the current recession in their main receiving countries (Spain, the US and Italy). Further information on the ‘Welcome Home’ Return programme is available on the website www.senami.gov.ec. Systematic users of the ‘Migrante Ecuatoriano’ platform (those registered to it) were, at the end of 2009, some 5300 overall. While the number of occasional users may be far higher, the fact remains that this state-led ‘virtual involvement’ of emigrants is for now a limited, if promising phenomenon. Migrants’ poor access to ICTs, as well as their deep-rooted distrust for Ecuadorian political rhetoric, may account for this. While the previous section involved a nation-level focus on emerging processes of institution- and policy-building, here I will draw on my study of migrants’ interpersonal relationships with those left behind. This resulted in an ethnography within a trans-local migration flow between a southern Ecuador locality (Pasaje, El Oro province) and a local area in northern Italy (Trento province) (Boccagni, 2010a, 2010b). Another facet of the migration-left behind nexus, potentially relevant to social protection but still underdeveloped in the Ecuadorian case, involves migrant ‘collective remittances’ (Goldring, 2004; Boccagni, 2010b). See, for a similar point in a different context, Mazzucato (2009). In fact, a certain gender realignment has taken place in recent Ecuadorian immigration to Europe, with especial respect to Spain (Gratton, 2007). The practice of transnational parenthood has, however, been studied, to a lesser degree, even in cases involving wives (for example Pribilsky, 2004) or elderly parents (for example Baldassar et al., 2007) left behind. The emphasis in this perspective, well epitomized by Hochschild’s (2000) ‘global care chains’ notion, is on the severe loss of human resources involved in care labour – in physical and, even more, in emotional terms (Yeates, 2004) – in the countries of origin, as a result of widespread emigration.

References Acosta, A., López, S. and Villamar, D. (2005) ‘Las remesas y su aporte para la economía ecuatoriana’, in G. Herrera, M. C. Carrillo, and A. Torres (eds) La migración ecuatoriana: transnacionalismo, redes e identidades (Quito: FLACSO – PCMD).

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Alexander, M. (2007) Cities and Labour Immigration (Aldershot: Ashgate). Anwar, M. (1979) The Myth of Return: Pakistanis in Britain (London: Heinemann). Baldassar, L., Baldock, C. and Wilding, R. (2007) Families Caring Across Borders (London: Palgrave Macmillan). Barry, K. (2006) ‘Home and away: the construction of citizenship in an emigration context’, New York University Law Review, 81(11), 11–59. Bauböck, R. (2003) ‘Towards a political theory of migrant transnationalism’, International Migration Review, 37(3), 700–723. Berg, U. and Tamagno, C. (2006) ‘El quinto suyo from above and from below’, Latino Studies, 4(3), 258–281. Boccagni, P. (2009) Tracce transnazionali. Vite in Italia e proiezioni verso casa tra i migranti ecuadoriani (Milano: Angeli). Boccagni, P. (2010a) ‘Private, public or both? on the scope and impact of transnationalism in immigrants’ everyday lives’, in R. Bauböck and T. Faist (eds) Diaspora and transnationalism (Amsterdam: AUP). Boccagni, P. (2010b) ‘Whom should we help first? transnational helping practices in Ecuadorian migration’, International Migration, forthcoming. Boccagni, P. (2011a) ‘Returning home: a project, a myth or a political device? the framing of return from above and below in Ecuadorian migration’, Global Networks, 11(4), forthcoming. Boccagni, P. (2011b) ‘Reminiscences, patriotism, participation. Approaching external voting in Ecuadorian immigration to Italy’, International Migration, forthcoming. Boccagni, P. and Ramírez, J. (2009) ‘Building Democracy or Reproducing “Ecuadorianness”? A Transnational Exploration of Ecuadorian Emigrants’ External Voting’, paper given at the IMISCOE Annual Conference, Stockholm, September 2009. Bommes, M. and Geddes, A. (eds.) (2000) Immigration and Welfare (London: Routledge). Burbano, F. (2008) ‘Deinstitutionalized democracy’, in C. De la Torre and S. Striffler (eds) The Ecuador Reader (Durham: Duke University Press). Calero, C., Bedi, A. S. and Sparrow, R. (2009) ‘Remittances, liquidity constraints and human capital investments in Ecuador’, World Development, 37(6), 1143– 1154. Camacho, G. Z. and Hernández, K. (2008) Niñez y migración en Ecuador (Quito: Unicef-INNFA). Carling, J. (2008) ‘Interrogating remittances’, in S. Castles and R. Delgado Wise (eds) Migration and Development (Geneva: IOM). Chander, A. (2006) ‘Homeward bound’, New York University Law Review, 81, 60–89. Cohen, J. H. (2005) ‘Remittance outcomes and migration’, Studies in Comparative International Development, 40(1), 88–112. Constitution of the Republic of Ecuador (2008), available at: www. migranteecuatoriano.gov.ec (accessed 4 November 2010). de Haas, H. (2007) ‘Remittances, Migration and Social Development’, UNRISD, Social Policy and Development Working Paper no. 34. Escobar, C. (2007) ‘Extraterritorial political rights and dual citizenship in Latin America’, Latin American Research Review, 42, 3. Falicov, C. (2007) ‘Working with transnational immigrants: Expanding meanings of family, community, and culture’, Family Process, 46(2), 157–171.

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Fitzgerald, D. (2006) ‘Rethinking emigrant citizenship’, New York University Law Review, 1(1), 90–116. FLACSO (2008) Ecuador: las cifras de las migraciones internacionales (Quito: UNFPA – FLACSO Ecuador). Gamlen, A. (2008) ‘The emigration state and the modern geopolitical imagination’, Political Geography, 27(8), 840–856. Givens, T. E. (2007) ‘Immigrant integration in Europe: empirical research’, Annual Review of Political Science, 10, 67–83. Glick-Schiller, N. and Levitt, P. (2006) ‘Haven’t We Heard This Somewhere Before? A Substantive View of Transnational Migration Studies’, CMD Working Paper no. 06-01. Goldring, L. (2004) ‘Family and collective remittances to Mexico’, Development and Change, 35(4), 799–840. Gratton, B. (2007) ‘Ecuadorians in the United States and Spain: history, gender and niche formation’, Journal of Ethnic and Migration Studies, 33(4), 581–599. Guarnizo, L. E., Portes, A. and Haller, W. (2003) ‘Assimilation and transnationalism: Determinants of transnational political action among contemporary migrants’, American Journal of Sociology, 108(6), 1211–1248. Hall, A. (2005) ‘Globalized Livelihoods: International Migration and the Challenges for Social Policy: The Case of Ecuador’, paper given at the World Bank conference New Frontiers of Social Policy, Arusha, December 2005. Hall, A. (2007) ‘Moving away from poverty: Migrant remittances, livelihoods and development’ in D. Narayan and P. Petesch (eds) Moving Out of Poverty: CrossDisciplinary Perspectives (Washington, D.C.: The World Bank). Herrera, G. (2008) ‘Migration and Trends in the Field of Social Policy in Ecuador, 1990–2005’, paper available at: www.cespi.it. Herrera, G., Carrillo, M. C. and Torres, A. (eds) (2005) La migración ecuatoriana: transnacionalismo, redes e identidades (Quito: FLACSO – PCMD). Hochschild, A. (2000) ‘Global care chains and emotional surplus value’, in W. Hutton and A. Giddens (eds) On the Edge: Living with Global Capitalism (London: Jonathan Cape). Hondagneu-Sotelo, P. and Avila, E. (1997) ‘I’m here, but I’m there: The meanings of Latina transnational motherhood’, Gender and Society, 11(5), 548–565. Isaksen, L., Devi, U. and Hochschild, A. (2008) ‘Global care crisis: a problem of capital, care chain, or commons?’, American Behavioral Scientist, 52(3), 405–425. Jokisch, B. and Pribilsky J. (2002) ‘The panic to leave: Economic crisis and the “new emigration” from Ecuador’, International Migration, 40(4), 75–101. Jokisch, B. and Kyle, D. (2008) ‘Ecuadorian international migration’, in C. De la Torre and S. Striffler (eds) The Ecuador Reader (Durham: Duke University Press). Kofman, E. and Raghuram, P. (2009) ‘The Implications of Migration for Gender and Care Regimes in the South’, UNRISD paper no. 41/09. Levitt, P. and Glick-Schiller, N. (2004) ‘Conceptualizing simultaneity: a transnational social field perspective on society’, International Migration Review, 37(3), 1002–1039. Mazzucato, V. (2009) ‘Bridging boundaries with a transnational research approach’, in A. M. Falzon (ed.) Multi-Sited Ethnography (Aldershot: Ashgate). Olivié, I. and Ponce, J. (2008) Remittances and Development: Are we Missing Something? (Quito: FLACSO, Documento de trabajo 06/305). Parreñas, R. (2005) ‘Long distance intimacy’, Global Networks, 5(4), 317–336.

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Penninx, R., Gerger, M. and Kraal, K. (eds) (2007) The Dynamics of International Migration and Settlement in Europe: A State of the Art (Amsterdam: Amsterdam University Press). Portes, A., Guarnizo, L. E. and Landolt, P. (1999), ‘The study of transnationalism: Pitfalls and promises of an emergent research field’, Ethnic and Racial Studies, 22(2), 217–237. Pribilsky, J. (2004) ‘ “Aprendemos a convivir”: Conjugal relations, co-parenting and family life among Ecuadorian transnational migrants in New York City and the Ecuadorian Andes’, Global Networks, 4(3), 313–334. Ramírez, J. and Boccagni, P. (2010), ‘Construyendo la Quinta Región: Voto a distancia y analisis de la participación política de los ecuatorianos al exterior’, in C. Amescua and J. Luque (eds) Política en movimiento: estado, ciudadanía, exilio y migración en América, (Ciudad del Mexico, CRIM-UNAM), 14, 347–73, (forthcoming, 2010). Sabates-Wheeler, R. and Waite, M. (2003) ‘Migration and Social Protection’, Working Paper T2, Migration DRC. Sainsbury, D. (2006) ‘Immigrants’ social rights in comparative perspective’, Journal of European Social Policy, 16(3), 229–244. Schmalzbauer, L. (2005) Striving and Surviving. A Daily Life Analysis of Honduran Transnational Families (New York: Routledge). Soruco, X., Piani, G. and Rossi, M. (2008) ‘What emigration leaves behind: The situation of emigrants and their families in Ecuador’, Inter-American Development Bank WP # R-542. Toyota, M., Yeoh, B. and Nguyen, L. (2007) ‘Bringing the “left behind” back into view in Asia’, Population, Space and Place, 13, 157–161. Urry, J. (2002) ‘Mobility and proximity’, Sociology, 36(2), 255–274. Yeates, N. (2004) ‘Global care chains’, International Feminist Journal of Politics, 6(3), 369–391. Weisbrot, M. and Sandoval, L. (2009) ‘Update on the Ecuadorian economy’, policy brief, Washington, Center for Economic and Policy Research. World Bank (2004) Ecuador: Development Policy Review (Washington, D.C.: The World Bank, Report no. 27443). World Bank (2007) Close to Home: The Impact of Remittances in Latin America (Washington, D.C.: The World Bank).

9 Coping and Investment Strategies of Migrants in the South: Malawian Migrants in South Africa Rachel Sabates-Wheeler

1. South–South migration and social protection In the last two decades, migration literature has burgeoned, but it has been mainly focused on South–North and North–North migration flows. The extent and issues surrounding migration between developing countries remain poorly understood, largely because data on migration is sparse and unreliable. ‘South-South migration is not new. It is just ignored by economists’ and many others (Hatton and Williamson, 2002).1 Ratha and Shaw (2007) use recent data to estimate bilateral migration stocks and provide some hypotheses of the determinants and socio-economic implications of South–South migration. By a rough estimate, in 2005 two out of every five migrants on the globe – some 78 million out of 191 million migrants – were residing in a developing country.2 Most of these migrants are likely to have come from other developing countries. Ratha and Shaw estimate that South–South migration is nearly as large as South–North migration. World Bank research (2005) reports that income, proximity and networks are the major drivers of migration from developing to industrial countries.3 As South–South income differentials are relatively modest, proximity and networks are likely to have a proportionally greater impact on migration flows. Unlike in the context of South–North migration, available data indicate that differences in country income play a limited role in South–South migration. About 38 per cent of identified South–South migrants come from countries with higher incomes than their host country (Ratha and Shaw, 2007). And of the migrants from lower income countries, most go to countries with incomes only slightly above that of their home country. Only about 20 per cent of identified 232

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South–South migration from lower to higher income countries is to countries with very large differences in income. Several factors are likely to explain the muted impact of countryincome differences on South–South migration. Income differences among developing countries are, of course, much smaller than between developing and industrial countries. Lack of resources, limited access to travel documents and the location of networks may limit migrants’ ability to travel far beyond neighbouring countries where income differences are often low. Ratha and Shaw (2007) further find that migrants who travel to other developing countries experience much lower increases in income, are more likely to have irregular status, are subject to greater risks of exploitation, and are more likely to be expelled than those who migrate from developing countries to industrial countries. 1.1. Characteristics and strategies for risk reduction It can, then, be hypothesized that South–South migration differs from South–North migration in several important aspects. Four particularly important ones that have been noted are: proximity of sending and receiving countries, the importance of networks, high prevalence of irregular migration, and duration and frequency of visits. 1.1.1. Proximity of sending and receiving countries Proximity and ease of crossing borders explain the large volume of South–South migration despite relatively small wage gains from migration. Ratha and Shaw (2007) hypothesize that South–South migration is usually less expensive than South–North migration, because distances are shorter (as a large majority of South–South migration is to nearby countries) and air travel is often unnecessary. Because many South– South migrants lack adequate travel documents, they are restricted to overland migration. Moreover, ethnic, family and religious ties link communities across borders, particularly in Africa, where colonial boundaries straddle tribal groups, but also in other parts of the world. 1.1.2. Networks The importance of networks within the study of migration is firmly established (Boyd, 1989; Fafchamps, 1996; La Ferrara, 2003; Cassini, 2005; Mazzucato et al., 2006). It is not our purpose to review this literature here, but rather to draw attention to the likely importance of networks for South–South migrants in terms of the characteristics of their migration. Ethnic, community and family ties reduce the costs and uncertainties involved in migration. In Africa, migrant networks play a

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critical role in encouraging outflows once migration is underway (Lucas, 2005). For instance, in some areas migrant diasporas are long-standing: the arrival of significant numbers of Swazis, Tswanas and Basothos in South Africa (as opposed to Swaziland, Botswana and Lesotho) stems from movements of tribal groups in the nineteenth century (Solomon, 1996). 1.1.3. High prevalence of irregular migration For a variety of reasons, irregular migration is even more common in South–South than in South–North migration. The demand for such workers is higher because law enforcement is weaker in developing countries and so employers are more prone to hire migrants without proper documents so that they can pay lower wages. Moreover, informal economies are larger in developing countries, and consequently these countries can accommodate higher shares of illegal workers in their informal sectors. The supply of irregular migrants (the likelihood of migrants entering into the receiving country illegally, or overstaying their visas) is also higher in developing countries. First, due to the porous borders, entering developing countries illegally is easier than entering developed countries. Second, the restrictive, bureaucratic and costly migration regimes of developing countries push immigrants to circumvent them by entering or staying in host countries illegally, and by working without work permits (and without a work contract as well). And third, very poor migrants face difficulties in obtaining travel documents in their countries, and find it easier to migrate to other developing countries without proper documents. 1.1.4. Duration and frequency of visits Much of the economic literature considers migration as permanent. But temporary migrations are frequent in South–South flows, and often the rule rather than the exception. Arguments as to why migrants return home, even in the context of persistently higher wages in the host country are: theories of relative deprivation and arguments of risk spreading (Stark, 1992), location-specific preference (Hill, 1987; Raffelhüschen, 1992), credit market rationing (Mesnard, 2000), high purchasing power of the host country currency in the migrant’s home economy, and higher returns to human capital and self employment activities (Dustmann, 1995, 2003). Research suggests that South–South migration patterns have a higher prevalence of shorter, seasonal migration flows, as well as higher return migration and re-migration, as a direct consequence of the proximity

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of sending and receiving countries characterizing South–South migration, and the relative ease of crossing borders (Beals and Menezes, 1970; World Bank, 1993; Peberdy, 1998; Nangulah and Nickanor, 2005; Lassailly-Jacob et al., 2006). Lucas (2005) reports that the durations of stay depend in part upon the fixed costs of re-entry and the odds of being able to return abroad again. For instance, intensive repeat migration is prevalent in the border areas of Mexico and among seasonal workers in the EU; whereas migrants from Asia to the Gulf stay on average for around four to five years.

1.2. Migration as social protection While the economic benefits for migrants from South–South migration appear to be limited in absolute terms (as discussed by Ratha and Shaw, 2007), it is critical to note that, given that the majority of South–South labour migrants move due to poverty at home, even small increases in income can have very substantial welfare implications for people in such circumstances. In this sense the action of migration itself is an informal social protection mechanism for migrants and their families who remain behind. Within this understanding, migration as social protection overlaps substantially with the literature on coping strategies, such that migration becomes a coping strategy within a portfolio of livelihood choices (see Sabates-Wheeler and Waite, 2003, for a fuller exposition if this relationship). Holzmann and Jørgensen (2000, p. 141) point out that migration as an informal coping strategy may be conceptualized as a means of reducing the probability of shocks before they happen, or an informal means of coping with shocks once they have occurred. Given the generation of income through migration and the transfer of income through remittances associated with migration, migration can be argued to act as a private or informal coping mechanism or even as a social protection strategy (in the sense that it may be a form of risk management), usually at the individual or household level, that primarily provides income transfers to disadvantaged households. We can think of migration as social protection as fulfilling different functions. Some individuals may migrate in order to improve their life chances or incomes. Others use migration as an insurance or risk diversification strategy. That is, a family strategy may be to send one or more of its members to a city or abroad, but the whole family will only move once the migrants have secure livelihoods. By diversifying their activities the family reduces vulnerability through both

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income diversification (agricultural and non-agricultural, for instance) and informal insurance (retaining a livelihood at origin represents a fall-back position for the migrants in case they are unsuccessful at the destination location). Migration can also be used as a protective strategy, essentially a safety net for very vulnerable/poor households.

1.3. The social protection needs of South–South migrants The substantial South–South migration flows, documented by Ratha and Shaw and highlighted in Chapter 3 by Sabates-Wheeler and colleagues, raise concerns about social security for these migrants. As in any migration flow, migrants move between countries and hence between distinctive labour markets and social security systems, which creates specific vulnerabilities. Given that many of the developing countries’ social security systems are underdeveloped and underfunded, South–South migrants are particularly vulnerable in host labour markets. Furthermore, migrants – in particular low-skilled, irregular migrants – face challenging labour market conditions leading to exclusions from national security systems in host countries related to cross-border recruitment, information asymmetries between employers and migrants, and visa requirements tied to employment. Moreover, access to formal social services in the new host country is often restricted for many reasons, such as informal labour market involvement, employer monopsony and delayed access until some months or years after arrival. In the absence of security, protection and rights for the majority of migrants, how do migrants seek, obtain and negotiate relationships and systems in order to secure themselves against health and income shocks at destination, as well as providing services for dependents, such as childcare, schooling and health care? At times these strategies require the use of parallel systems that function to serve those who are not serviced through the formal sphere (see Chapter 2 for a discussion of a parallel system operating within the Ghanaian migrant community in the UK). At other times, migrants may access security through illegitimate means, either by being employed illegally, or by engaging in practices that enable them to circumvent and use the formal systems to their advantage (for instance, the widespread ‘borrowing’ of ID cards and national insurance cards). Later in the chapter we look into these strategies. Based on the review above I am interested here to explore some of the hypotheses and assertions related to the characteristics of South–South migration using new survey data collected from Malawian migrants in

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and returned from South Africa. I am particularly interested in exploring the poverty status of migrants and how this might drive them to migrate. The chapter details how migrants use migration as a social protection strategy in terms of consumption security for families back home, and income creation, as well as future investment strategies. The last section of the chapter describes how Malawians in South Africa are able to access formal and informal social protection mechanisms, through legitimate and illegitimate routes. I look at the role of networks and the use of networks to achieve a positive change in income. The conclusion reports that social networks and past experience in the country (which I hypothesize are developed through repeat migration) are vital for obtaining positive outcomes from migration. I suggest that efforts must be made to facilitate repeat migration as well as to foster migrant networks if the migration experience is to be positive for the poorest migrants.

2. Methodology and datasets The data used to inform the findings reported here come primarily from two new specialized migrant surveys, one quantitative, the other qualitative.4 These surveys were designed to explore the different characteristics and experiences of migrants who had spent at least one migration episode in South Africa. The quantitative survey was conducted with 150 Malawian return migrants from South Africa. The survey was conducted by the Centre for Social Research, Zomba, Malawi, between January 2007 and August 2007. The South African returnee survey was complemented with a qualitative survey of 21 undocumented Malawian migrants and illegal Malawian workers living in the township of Katlehong and in Hillbrow, which is located in inner-city Johannesburg, where migrants live in slum-like conditions. The qualitative interviews were conducted in order to better understand some of the motivations for return, the details and stories of how migrants manage risk and access social provisioning, and other issues around employment and legality. A further quantitative survey was performed that collected information from 201 returnee Malawians to Malawi from the UK. I use this data insofar as it helps to illustrate the characteristics of South–South migrants. 2.1. Malawi and South Africa: migration and migrants With the exception of studies examining the migration of Malawian men to South African mines in the nineteenth and twentieth centuries,

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only limited information is available on Malawi labour migration.5 In October 2005 the Malawi National Statistical Office carried out an Integrated Household Survey. The findings from the survey to a large extent confirm previous statements regarding the one-way migration stream out of the country. Asked whether household members had always lived in their current location or if they had moved from elsewhere within the last five years, less than 5 per cent reported having moved from outside Malawi to rural or urban areas (MNSO, 2006). Malawi has historically been a prominent labour source country to the South African mines. Since the centrally organized migration to South Africa (for mining) ended in the 1980s, the regional labour migration from Malawi continued to be predominantly circular in nature and dominated by men migrating towards ‘centres of production’. Those migrating clandestinely have been grouped into two categories: those who go to work in tertiary and service sectors, and those engaging in cross-border trade, capitalizing on past migration experience and knowledge of local languages. Due to the history of widespread intra-regional migration, reinforced by shared languages and cultures, and also reinforced by colonialism, there is widespread undocumented cross-border movement of frontier workers that daily commute to and from work across national boundaries. Such informal cross-border movements have contributed to the fragmentary and incomplete nature of data collection on cross-border movements in Africa. The fragmentary accounts of Malawian irregular labour migration that exist suggest that some Malawians cross the border into South Africa irregularly, look for work or work irregularly without work permits, get picked up by the police and deported, and turn round and go back again to South Africa. Some migrants are motivated to return due to the fact that when they are picked up they are never allowed time to wind up their personal business and carry home with them any acquired asset. These deportees typically enter South Africa irregularly or overstay their visitor’s permit. They frequently access a destination country utilizing century-old migration culture, colonial ties, connections and basic knowledge. Itaye (2007) reports that Malawian irregular migrants in South Africa are mostly unskilled or semi-skilled. The study notes that the jobs of these irregular migrants consist largely of the temporary, hard and unpleasant tasks that few people want to do. In the host countries they are rated as poorly paid jobs. In English these jobs are often referred to as the ‘three Ds’ – dirty, dangerous and difficult.6 In this job category, the study notes that Malawian migrants are characterized by evidence

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of non-possession of work permits and are often overstayers on their residence permits. When required to travel back to Malawi, they visit the Consul Office to obtain an ‘Emergency Travel Document’, giving various reasons for not having a Malawi Immigration Passport. This group of Malawi migrants are mostly working adults, between the ages of 18 and 30. Migration for these Malawians is an investment and insurance strategy to secure assets for their future, which include physical capital and education. Some acquire assets for their marriage as social investment strategy and for future livelihood. Informal social security mechanisms (social networks, informal credit and information exchange) provide many Malawian migrants with social protection in both the destination country and Malawi. The government of Malawi does not have any formal policy guidelines to enhance migrants’ capacities and capabilities. Accumulation of assets constitutes the predominant social security. These assets, if not ‘criminalized’ and the migrants sent home involuntarily, are transferred home to Malawi where they are either liquidated and the cash used for investments, or the asset is utilized on a day-to-day basis providing a livelihood for the immediate and extended family (Tsoka and Mvula, 2006).

3. Findings I: who migrates? In this section I present the findings from the surveys to illustrate the characteristics of Malawian migrants to South Africa. In keeping with the literature reviewed above we would expect the characteristics of Malawian migrants to the South to be different from those of Malawian migrants to the North. This is mainly due to the differential costs of migration (costs of flight, visa and information), distance of migration, and destination immigration and labour market policies (for instance, the ability to enter South Africa with a 30-day visitor permit). We would expect that the distance travelled to destination would affect the opportunity cost of return. For instance, if deported or returned from South Africa, it is relatively easy and cheap for a migrant to return to South Africa, compared to the long-distance, northern locations. Thus, the length of stay is unlikely to be as important for Malawians in South Africa due to the ability to easily and quickly return. Our discussions with Malawians in Malawi and in Johannesburg reveal that migrants can be deported one day and be back in their jobs in South Africa very soon afterwards. A respondent in Malawi reported that he had been deported from South Africa on a plane. It was the first time he had been on a plane and it was full of other Malawian migrants. He revealed

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that the whole experience had been quite pleasant, in fact very entertaining, as he was able to experience a flight, visit his family for free and then save to return again to South Africa a couple of months later. Other interviewees in our Johannesburg sample reported incidences of deportations and return within just a few months. Furthermore, we would expect to see largely unskilled/semi-skilled entrants with lower levels of education going to South Africa, as compared to, say, the UK. Migrants to South Africa would also come from poorer families and communities. Descriptive statistics from the datasets, presented below, confirm the suggested differences in migrant characteristics. In Table 9.1 we see that Malawian migrants returning from South Africa come from larger households with significantly more children (on average) and are more likely to be male and single. Migrants who have returned from the UK are more likely to come from smaller families, have less children and stay longer (due to the high cost of migration and the high opportunity cost of return). Table 9.2 below illustrates the educational differences between Malawian migrants according to destination. We see, as expected, that migrants to South Africa had less education on average than those to the UK, with only 24 per cent having tertiary or technical qualifications and none having graduate and professional training. At the other end of the educational distribution we see that a massive 78.7 per cent of Malawian migrants to South Africa have primary or no education as their highest level of educational attainment, whereas only 3 per cent of Malawians

Table 9.1

Demographic indicators by country of destination, means

Demographics Age at point of migration (yrs) Female migrant (per cent) Married (per cent) Household Members No. of people residing with No. of workers here No. of Children in household Length of stay at destination (yrs) Years since return

Malawians to SA

Malawians to UK

26.80 11.30 72.00 8.79 5.99 4.56 4.64 2.83 1.33

25.02 30.80 98.00 6.32 5.01 3.59 0.58 3.17 1.08

Significant?

No Yes Yes Yes No Yes Yes No No

Note: Number of observations = 150 for Malawians in South Africa, and 201 for Malawians in the UK.

Rachel Sabates-Wheeler Table 9.2

Level of education by country of destination

Level of education None/primary Secondary Tertiary/technical Graduate/professional Total

241

UK

SA

Total

6 3% 81 40.5% 82 41% 31 15.5%

118 78.7% 30 20% 2 1.33% 0 0

124 35.4% 111 31.7% 84 24% 31 8.9%

200 100%

150 100%

350 100%

to the UK have a similar educational profile. As discussed by Itaye (2007) and others, this is what we would expect from anecdotal and qualitative evidence. That the less-educated Malawians (who are likely to be poorer) are less likely to see the North as a destination for migration probably reflects the different labour market policies of the receiving countries. The relationship between educational attainment and country of destination is likely to reflect underlying differences in poverty profiles of migrants rather than differences in the respective migration policies of different receiving countries. South Africa represents a huge market for unskilled and semi-skilled labour from neighbouring countries. Qualitative work tells of how Malawians are widely perceived to be reliable, honest and hardworking, to the extent that white South Africans advertise for domestic and gardening help in Malawian newspapers. They also advertise specifically for Malawians in South African suburban and national newspapers. Many of the ‘wanted’ adverts for home help specify that the help should be ‘Malawian’. White South Africans interviewed in Johannesburg report that Malawians are a reliable and cheap source of domestic help and service sector labour. The Malawian respondents also appeared to distinguish themselves, in terms of their work ethics, from black South Africans: We are friendly with whites, but our brothers kill us. They are making apartheid among themselves; there is no unity; the Zulu and Sotho are fighting; this doesn’t solve any problems. They should remember who helped South Africans when they were in exile. Malawians haven’t got a problem with white people. White people defend

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foreigners; we haven’t got a problem with white patrols of ‘Banda people’ (Zulus), but they warn us about black people. South Africans hate foreigners because they say we take their jobs. South Africans are lazy and want more money. It is now their turn to develop their country, otherwise the country will go down. South Africans are failing even to make a garden to grow and sell vegetables. And the women are just bathing and looking for men. Whereas we work to build our lives. (Interview with Smart Banda) A focus group respondent revealed that: I got a job working with my cousin in a gardening business. The owner didn’t care that I didn’t have a permit. He preferred to hire Malawians instead of South Africans. He said we are hard workers while South Africans don’t like to work hard. I have been working there for 5 years with no problems. But I was arrested once and spent 3 days in jail. My cousin told the owner and he gave him R700.00 which my cousin used to pay a guard for my release. 3.1. Legal status We would expect all Malawian migrants entering South Africa to enter legally given the ability to enter on a 30-day visitor permit. The majority of Malawian labour migrants to South Africa are unskilled and have relatively low levels of education, as illustrated above. These migrants choose to extend or overstay their visitor’s permits as they engage in the South African labour market. Thus, over time we would expect to see a large number of migrants becoming completely undocumented. The data collected indicates the change in legal status of the survey respondents at arrival in the country of destination and upon departure. All migrants entered South Africa legally as expected. Over time, 51 per cent of migrants became completely undocumented. The category of ‘legal’ or ‘documented’ is not a particularly useful one when interrogating migrant labour patterns and employment rights. Disaggregating ‘legal’ into its constituent parts shows that no migrants entered South Africa with the right to work full-time. From the 100 per cent who entered on a 30-day visitor permit, 98.7 per cent were working illegally. At point of departure, 13.5 per cent had obtained the right to work full-time, 21.4 per cent were residing legally but working without the correct documents, 13.5 per cent were residing legally and not working. So, over time we witness a huge increase in the number of workers who are residing

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and working completely undocumented, as well as a large increase in the number of migrants who have been able to obtain the right to work legally and full-time. Perhaps the primary way in which the problems of differences in legal status manifest themselves is through the labour market and migrants’ economic opportunities. Workers’ rights generally cannot be enforced for the undocumented, they cannot be accurately counted or assessed, and thus are correspondingly more vulnerable to employer abuses that lead to reduced earnings and the ability to remit. Many of these effects are likely to be indirect. Migrant workers who are brought by recruiters to work in developed countries may be either legal or undocumented, but their rights are likely to be constrained by a lack of networks and lack of knowledge of the receiving country. This occurs wherever recruited migrant labour exists in significant numbers. For the legal but bonded migrant (in the sense that they are tied to a particular employer), dependence on a single employer/recruiter (which may be exacerbated for those present on temporary worker visas which tie them to a single employer) leads to financial abuses such as fines for not fulfilling quotas, forced withdrawal of wages for payment of ‘debt’ for equipment or travel, excessive interest repayment on debt and non-payment or extremely low payment of wages. Box 9.1 illustrates this for the case of Malawians in Johannesburg. Anderson and Rogaly (2005) term this ‘super-exploitation’. They note that this problem is far worse for undocumented migrants since they are often smuggled into the country and therefore have to pay off fees when they work.

Box 9.1. Bribery and extortion Irregular migrants, especially South–South migrants, are frequently required to pay substantial bribes to officials to allow them to remain in the destination country. The story recounted by Frans, a Malawian irregular migrant in Johannesburg, illustrates the institutionalized nature of this type of exploitation of migrants: I used the bus to travel to South Africa from Malawi. I did have a passport and a visitor’s visa for one month. I knew I would never get legal permission to work here. Like everybody else, I simply stayed on after my visa expired. I was arrested 3 times – the first time was in 1993 – for having an expired visa and no work permit. They sent me to Morningside Jail where I remained for 5 days. My brother-in-law

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Box 9.1. (Continued) bribed one of the guards with R700.00 to let me go. The other two times I was arrested, my brother-in-law did the same thing, although the price went up each time: the last time was in 1994 when he had to pay R850.00 to get me released. It is common for Malawians (and all other foreigners in South Africa) to bribe officials for various things – it all depends on how much money you have. If, like me, you are not rich, you’ll only afford to pay small money to be released if you are caught. If you have enough money, you can pay an official to get you a South African ID (identity) book. I used to visit Malawi during those years using my passport and expired visa. I simply paid the border official R50.00 to allow me to cross. I did that each time I travelled to Malawi. Many others were doing the same thing. Although R50.00 isn’t a lot, when you add all the fifties from all the people crossing with expired documents, those guards made a lot of money each day. We are not happy bribing officials, but if it is the only way of staying on and working, then we will have to do it. We all have to support our families, so we are prepared to do anything to remain here. On coping with illegal status, many of the Malawian respondents in Johannesburg reported that when stopped by police, they bribe them and are allowed to go, as long as they are carrying their passports. The amount of the bribe is random. The police do not take it directly, but ask them to put the money on the dashboard of the car, or somewhere similar, so they do not handle the cash directly. The police also sometimes tear up documents in front of migrants.

The right to change employers is important in mitigating wage disparities between legal and undocumented workers. Even legal migrants in many countries do not have the right to change jobs (Anderson et al., 2006). This type of restriction is generally focused on low-skilled workers, as in Asia, where Taiwan, Thailand, Malaysia, Singapore, Japan and Korea have all passed laws designed to restrict workers’ mobility and access to jobs. This leads to multiple inefficiencies: workers cannot access jobs, are punished where they work without authorization,

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and are deported or imprisoned. Some states, such as Malaysia, allow freelance companies acting as vigilantes to deport the undocumented (Xiang, 2008), while others, such as Korea, impose fines on apprehended irregular migrants before deporting them, and subsequently make them pay the costs of deportation. In these restrictive labour markets there are also hidden penalties for remaining undocumented. Domestic workers’ lack of legal status, for instance, gives their employers power to withhold earnings and pay below minimum wage, and also means they cannot open a bank account to save their money (Punpuing et al., 2005). 3.2. Poverty and employment Figure 9.1, below, displays pre-migration and post-migration subjective evaluations of poverty. Respondents were asked to classify themselves according to the following four categories: (1) poor, unable to manage; (2) average, just able to manage; (3) above average; (4) well-off. We see that for pre-migration poverty profiles, Malawians choosing the UK as a destination were much more likely to classify themselves as above average than Malawians going to South Africa. Approximately 60 per cent of Malawians returning from South Africa classified themselves as poor before departure, whereas only 7 per cent of Malawians returning 80 70 60 50 40 30 20 10 0 premigration

postmigration UK

poor

premigration

postmigration SA

average

above average

well-off

Figure 9.1 Pre-migration and post-migration poverty status, by country of destination, in percentages.

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Figure 9.2

oy ed

er

pl m

U ne

Pr

UK

O th

n od

uc

rv

ic

tio

e

s le Se

Sa

r ic

C le

Pr

al

50 45 40 35 30 25 20 15 10 5 0 of

per cent

Prior Occupation in origin, by country of destination

SA

Prior occupation in origin, by country of destination.

from the UK felt they were poor before departure. No respondent that returned from South Africa claimed to be well-off prior to migration, whereas nearly 10 per cent of migrants to the UK said they were welloff. As we hypothesized above, poverty status/income is likely to be a significant determinant of choice of destination. A similar pattern can be seen when we look at prior occupations (Figure 9.2). Migrants to the UK are more likely to have been in professional, clerical and sales occupations, whereas migrants to South Africa are much more likely to have been in the production sector, holding jobs as labourers, drivers and so on. A large percentage of migrants from both countries were unemployed prior to migrating: approximately 47 per cent for those going to the UK and 27 per cent for those to South Africa. The category ‘other’ does not reflect a low-status occupation. In fact the majority of ‘other’ for UK migrants are the self-employed, businessmen and students, whereas the majority of ‘other’ for South Africa migrants are fishermen and subsistence farmers.

4. Findings II: migration as social protection Given that most respondents migrated to improve their incomes, migration itself can be seen as a social protection strategy, in that the purpose is to reduce vulnerability with regard to income (and obviously consumption) for the migrant and their family back home. In the last two years, at destination 89 per cent of Malawians in South Africa still

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provided support to relatives and family in Malawi and 45 per cent provided regular financial support. Over the same period, 23 per cent of migrants in South Africa received regular financial support from Malawi. 4.1. Uses of financial support from the destination to the home country Regular financial support from South Africa to Malawi was used in many ways. The vast majority of migrants said that it was used for ‘basic needs’. Just 20 per cent of remittances were used for schooling. A significant amount of remittances from South Africa were used for farming purposes, 35.3 per cent. This likely reflects the migrants’ rural livelihoods back home. Health expenditure also represented a significant use of remittances. Poorer Malawian migrants prioritize family welfare, as indicated from qualitative work with 17 irregular migrants living in two townships of Johannesburg.7 All respondents cited poverty as a reason for coming to South Africa; they were often encouraged to go by either family members or friends at home or in South Africa. The majority of respondents did not want to stay in South Africa. Thus, for them, migration is, in and of itself, a means of social protection for themselves and their families, both in South Africa and in Malawi. All but one of the migrants interviewed had a clear objective to their migration. Many times the objective was to fund a very specific investment, such as ‘to build a roof on my house back in the village’, or ‘to cover the costs of secondary school for one of my daughters’, or ‘to purchase a fishing net’ or ‘to buy a popcorn machine’. These plans were time bound and most of the migrants had performed calculations about the exact time it would take (given their current salary) to fund the investment and return home. Frans, a Malawian migrant in Johannesburg, tells of the poverty that caused him to migrate: I am 40 years old and first came to South Africa in 1991. My cousin was working and living in Johannesburg. I was doing small-scale farming in Malawi and not making much of a living for the family. The soil was poor and fertiliser expensive, so I was only growing enough for the family to eat – sometimes, we ran out before the next harvest. There was no opportunity to find any work in Malawi. My cousin in Johannesburg said I should come to Johannesburg and look for a job. He helped me find my first contract job here. But it wasn’t enough. So, I looked for work by standing on the street corners and waiting for employers to stop and offer work. I was picked up by

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a White man with a grass cutting business who needed additional labour. 4.2. Impact of migration on physical assets Only around 7 per cent of migrants accumulated physical assets in the place of destination as a result of migration. In contrast, approximately 45 per cent of migrants returning from South Africa accumulated physical assets in their home country as a result of migration. However, the nature of investments differs quite highly between migrants. Figure 9.3, below, shows that significantly more UK migrants invested in land back home (27 per cent as compared to 8 per cent of South African migrants), whereas South Africa migrants invested significantly more in housing and small livestock. This difference probably reflects the poverty and livelihood profiles of the different groups of migrants, with migrants to South Africa being poorer and accumulating less in absolute terms as indicated through the investment choices. 4.3. Future provisions Regular migrants from the South often contribute to social security programmes while working abroad, but many have little to show for these contributions when they move on or return home. This is particularly relevant in the case of public pensions or health insurance, to which 40 35 30 25 20 15 10 5

ck al ll ive st o

ve s Li e rg La

UK

Sm

to

ck

ac h Ag r.M

in g ild Bu

es s Bu

si n

g si n ou H

La

nd

0

SA

Figure 9.3 The impact of migration on physical assets in home country (percentage saying yes).

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some migrants contribute significant sums of money while abroad. Limits to the ‘portability’ (or transferability) of pensions gives some short-term migrants less incentive to work in jobs in the formal sector, if this means contributing to social security schemes from which they will not benefit. Moreover, a lack of portability may undermine return or circular migration, as migrants who have spent a considerable amount of time in their host countries are likely to factor in the loss of benefits if they return to their countries of origin. More drastically, many short-term migrants will prefer to opt out of the formal, legal system altogether as they wish to avoid tax and social security payments. Furthermore, it is possible that the vulnerabilities that may attract insurance in the global North, such as pensions and life insurance, may not be priorities for poorer migrants from some countries in the South, where health insurance may be a priority. Priorities for the future expressed by Malawian migrants are shown in Table 9.3, below. The most significant investments for the future were savings, housing and land, and small businesses. Very few migrants were contributing to private pensions or health in home country or at destination. This is likely to reflect the preferences of migrants in general, their relative lack of attachment to a host labour market and also their relative poverty status. The table illustrates that, overall, migrants with a full-time right to work make more investments for the future, due in large part to their higher levels of initial and current wealth. However, the social protection priorities are similar across all categories of migrants: savings, investment in property and small businesses.

Table 9.3 Investments for the future of South–South labour migrants in home locations, per cent indicating ‘yes’ Legal Status of Malawian returnees from SA at point of return Full-time right to work

Savings Pensions and health Housing and land Small business Farming Source: Sabates-Wheeler (2008).

53 0 59 47 41

Residency rights but no employment rights 23 0 34 30 9

No residency or employment rights 22 1 29 45 6

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5. Findings III: social protection for migrants at destination 5.1. Employment-based social protection Migrants often have a plethora of alternative strategies to access international labour markets and to achieve positive outcomes from their overseas migration. Many legal migrants saw little point in contributing to formal social security benefits, and this made working in the informal sector an attractive option for some migrants. Table 9.4, below, shows the percentage of migrants that were entitled to a standard package of employment-based social protection in both their first and last jobs at destination.8 It also shows the per cent of migrants that were entitled to a similar package in their jobs prior to migration (the number of observations reduces to 162 as many of the migrants were unemployed). We see that the majority of Malawians who travelled to South Africa and who had jobs prior to migration were not entitled to standard benefits in Malawi (only 13 per cent). This reflects the occupations that South Africa migrants had prior to migration (as discussed above). During the migration period only 28 per cent had social protection across their first and last jobs, probably reflecting the sectors that the migrants are working within at destination. In terms of labour contracts, the data shows that upon arrival only 5 per cent of workers to South Africa claim to have formal written legal contracts. Surprisingly, we find that many irregular workers claim to have access to formal social protection. For workers entering South Africa – all irregular – 33 per cent claim to have entitlements through their employment. This entitlement-belief might appear surprising given that the majority of workers are working without the correct documentation. Two conclusions can be drawn: (1) migrants are ignorant of their inability to access benefits, or/and (2) migrants are entitled to other employment-related benefits that are not statefunded. The later conclusion is likely to be true. While this may appear unusual, the supporting qualitative work from South Africa provides Table 9.4 Percentage of migrants having access to standard employment-based SP at origin and at destination

Yes No

Entitled at origin (%)

Entitled at destination (%)

13 87

28 72

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rich stories about many employers of illegal workers providing health support, housing and other allowances for sickness. 5.2. Informal social protection Many migrants were already part of pre-existing social networks before they arrived in South Africa, which afforded them accommodation, food and, at times, job recommendations. Family networks are of vital importance as people can make different types of claims on particular family members. Of family support, Frans reported: When I arrived, I stayed with my cousin for eight months. I didn’t pay any rent; I only contributed to the food. He was very good to me. We believe that we must help one another because tomorrow I could also need help from someone. Also, because you have been helped by someone, when you can, you help the next person because you know how important this kind of help is and you know you yourself benefited and God will punish you if you don’t help someone else in turn. I have managed to bring two of my brothers to South Africa because they weren’t doing anything useful in Malawi. One returned to Malawi, but the other one is still working here as a gardener, without the legal papers for the last four years. I found him his first job in the neighbourhoods where I work. We have had to bribe officials each time that he has been caught – I think he has been caught three times already. From the quantitative work, we find that most migrants (96 per cent) received support with accommodation and employment in their first few months at destination. A majority of migrants received financial support. Only 4 per cent received support with the immigration process. Some migrants received information on state benefits (approximately 15 per cent). Very few (less than 5 per cent in both destinations) received support with childcare. During their migration period 73 per cent both gave and received social support at destination. In other words, reciprocal social support was the norm. Migrants were asked if they were members of one or more of five groups: (1) a workers’ (trade) union, (2) a migrants’ association, (3) a religious institution, (4) a ‘home’ (Malawian) association, and (5) a burial/funeral society. Close to 37 per cent of South Africa-based Malawians were members of at least one of these groups. Approximately 20 per cent of South Africa migrants

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claimed to be members of a religious institution and 5 per cent were members of a home association. The majority in the qualitative study said that they were members of church groups, some of which are all-inclusive, and some of which are exclusively for Malawians. In many instances, respondents had received help from the church in the form of food, clothing and monetary donations. Some respondents contribute to this form of social protection by themselves donating money to the church. Church membership also provides a sense of community and belonging, and one respondent said that he is able to share his problems with church members, including South Africans. Burial societies are also an important form of identity and affiliation. A focus group held with men in Johannesburg revealed that it is important for every Malawian to die at home in Malawi or at least to be buried in Malawi. We believe that our ancestors will be able to find you easily if you are buried there. If you are buried elsewhere, how will they locate you? So, even if we earn little, we think it is important to belong to the burial society so we know that whatever happens, we will be buried at home in Malawi. Another respondent said: Many of us are also members of a burial society. We donate money every month for the purpose of sending bodies home for burial in Malawi. Otherwise, if we see that someone is busy dying here, we can also use the money to send them home to die in Malawi. It is always better to die at home. That is what we all wish for: nobody wants to die far from home. We pay R50.00 per month. The society has three elected members who take care of the banking and the finances: whenever any money is to be withdrawn, all three signatures are needed, so no person can cheat. If someone is not in the burial society, but needs to be returned to Malawi for burial, we all donate whatever we can afford to make it possible. We also make such donations when a fellow Malawian is in need because of some crisis – maybe illness or death in Malawi. We don’t usually give individuals assistance or money here in Johannesburg while they are looking for work. In that situation, it is up to that individual’s own relatives and friends to assist them. Other forms of informal protection take place through accessing parallel or illegitimate systems of provision (Box 9.2).

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Box 9.2. ‘Parallel’ systems of social protection Men’s group Man 2: Some Malawians get South African IDs illegally. I know of Malawians who ‘bought’ or got a forged South African birth certificate and then used it to get an ID. It is easier to get a false birth certificate than a false ID. Some forgeries are good, but you can never be sure about how good the forgery is until you try and use it to get an ID. Man 4: I know of two Malawian men who have married South African women in order to get Permanent Residence. [Laughs] I can’t say for sure that they didn’t love these women, but I know that they said privately that they were marrying them in order to get the permits. I have also heard other men, not only Malawians, say that they are planning to marry South African women in order to get Residence Permits. Women’s group Woman 1: It is nearly impossible for Malawian women to find work here if they don’t have the right papers. I came to South Africa because my husband was here and I was pregnant with our second child. We didn’t know that you needed a South African ID number to go to hospital. Luckily, when the time came to have the child, I used the ID of a Malawian woman who has managed to get an ID. We look nearly the same, so I was able to deliver the baby in hospital. Woman 4: I managed to get a job as a domestic worker with the help of a South African lady who is my friend. She is also a domestic worker and heard of a job in the house next to the one where she was working. She told the Madam that I didn’t have papers but that I was a good worker: I worked in a hotel in Malawi before, so had experience of housekeeping before. I get paid less than the South Africans (less than

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Box 9.2. (Continued) the minimum wage) but that’s because I’m an illegal. I understand that and accept it. My husband is working as a mechanic’s assistant in a garage. He also gets paid less than he should because of being an illegal immigrant. We are supporting many, many people back home. He is supporting about eight people every couple of months. I am supporting my mother who is taking care of the four orphans left behind by my brother. His wife returned to her family. He died of AIDS. Woman 5: Without an ID, you are lost in South Africa. When you try to go to a hospital, they ask you for your ID number. The form that you fill in needs your ID number.

In summary we see that a substantial number of migrants rely on reciprocal support between home and destination. Furthermore, they acquire few ‘immovable’ assets as a result of migration and accumulate modest savings. Across all descriptive results we see that Malawians travelling to South Africa are relatively poor, not well educated and from lower-skilled professions. Despite this, the majority of migrants in our sample reported an improvement in their financial situation as a result of migration.

6. Improved incomes, social networks and time From the descriptive results above we see that migration works as a form of social protection for the majority of migrants. That is, remittances and asset accumulation enable a migrant and his family to insure against current and future shocks as well as future expenses. Migration also enables migrants to maintain and build assets at home. In terms of social protection for migrants (as opposed to migration as social protection) the findings above show that informal social networks are important for Malawian migrants abroad, whereas the results on formal social protection are less clear. One of the main hypotheses here is that social protection (formal and informal), by defining a migrant’s fall-back position or insurance, enables migrants to benefit (or not) from a migration spell, and is thus related to positive migration outcomes. I argue that social networks necessarily require time and experience at destination to build up and that, therefore, the length of stay at destination or

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the familiarity with destination will also be important for determining outcomes. It is difficult to fully understand the effects of networks and experience at destination on migration outcomes, due mainly to the possible endogeneity between these two factors. Social networks are likely to be built through experience, while at the same time experience (duration or repeat migration) acts as proxies for the quality of the network, as over time networks become thicker as migrants invest more time in them. While it is not possible to fully grasp the extent of this endogenous relationship given the data available, I attempt to understand better the relationships between networks and experiences at different destinations. In particular, I explore the factors that influence positive outcomes from migration experiences for returnees’ using multivariate regression analysis. Table 9.5 provides a description of the variables included in the analysis, as well as their means. The dependent variable being used is an indicator of the perception of income change due to the migration

Table 9.5 theses)

Variable description and mean values (standard deviations in paren-

Variable

Variable description

Mean

Change income

1 if income has improved due to migration; 0 otherwise

0.49

Age

1 if age between 30–40; 0 if age 20–29

0.58

Education None/primary Secondary

1 if none or primary; 0 otherwise 1 if secondary; 0 otherwise

0.78 0.22

initial_occup Unemployed Other

1 if unemployed; 0 otherwise 1 if ‘other’; 0 otherwise

0.29 0.28

Service/labour

1 if service sector or labourer; 0 if unemployed

0.43

members

number of household members

8.79 (3.51)

jobnum

number of jobs held during migration (0–14)

1.91 (0.99)

Gender

1 if female; 0 if male

0.11

num_visits

Number of previous migration episodes 1 if visits >1; 0<= 1

0.33

length

number of years at destination (0–14)

2.84 (2.42)

SPindex1

informal SP index (0.5–5.5)

2.36 (1.05)

entitled_SP

1 if entitled to employment based SP; 0 otherwise

0.28

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episode. This variable is not constructed from income, but from asking the respondent to evaluate their change in income due to the migration experience. We would expect social networks to be of prime importance in achieving a return to migration for migrants to South Africa, as the majority are unskilled, of low education, and many will go only for acquiring jobs and income. The frequency of visits will also be important as this is an indicator of the duration of migration and familiarity/connectedness with the destination labour market. In order to test the relevance of networks to migration outcomes I constructed an index by combining two types of informal social protection into an index of informal social protection. More specifically, the index was constructed from the following two items: 1. (a) Number of types of social support given in South Africa9 (b) Number of types of social support received in South Africa 2. Number of groups in South Africa For items (1a) and (1b), migrants in the bottom quartile are scored zero, those in the second bottom quartile are scored one, those in the second top quartile are scored two, and those in the top quartile are scored three. Migrants are scored their mean score on the two sub-items. For item two, migrants in the bottom tercile are scored 0.5, those in the middle tercile are scored 1.5 and those in the top tercile are scored 2.5. The index is the sum of the scores on the two items.10 The average (mean) value of the informal SP index is 2.63 with a standard deviation of 1.15. For UK migrants the SPI is 2.84, while for the South Africa migrants the value is 2.36. The difference in mean in statistically insignificant (t = 3. 17). From a total sample of 150 I ran a limited dependent variable analysis. The marginal effects from the models are used to measure the impact of different factors on two different outcomes. The outcome is whether the migrant experienced an improvement in their income due to the migration experience. This is a subjective indicator but specifically requires the migrant to reflect on whether the migration spell enabled them to increase their financial income.11 6.1. Findings of the model Table 9.6, below, provides the results of a probit regression estimation. The dependent variable takes the value of one for a positive change in income due to the migration experience, and zero otherwise. In keeping

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Table 9.6 Probit regression estimates for determinants of a positive change in income due to migration Change in income

South Africa returnees Model 1

Model 2

Demographics

Duration and SP

dF/dx

S. Err.

dF/dx

S. Err.

Demographic characteristics Age (base: 20–29) 30–39 Education obtained base: none/primary secondary ≥secondary Initial occupation base: unemployed Other Service Professional Gender Members_HH Num of jobs Num of visits Duration Informal SP index Formal SP obs. Pseudo R2 ∗ Indicates

0.045

0.092

0.010

0.102

0.080

0.112

0.099

0.125

−0.047 −0.021∗

0.118 0.105

−0.123 −0.275∗

0.123 0.114

−0.312∗ 0.003 0.117∗

0.114 0.013 0.044

−0.263∗ 0.092 −0.007

0.129 0.015 0.056

143 0.084

Duration and social protection 0.285∗ −0.006 0.109∗ 0.082 141 0.164

0.111 0.026 0.048 0.105

significance of the parameter at the 5 per cent level.

with the broader literature I include a number of variables to measure demographic and respondent characteristics, such as age, education, prior income and prior occupation. Model 1 presents the results of this estimation for South Africa migrants. Prior occupation and gender are significant. Due to the different characteristics of the group none of these migrants held professional, clerical or sales positions prior to migration. We see that migrants who were labourers and service sector workers in previous occupations are less likely to achieve a positive change in income compared to those who are unemployed. This is probably due to the fact that any job, after being unemployed, will provide a positive change in income. We also see that female migrants are

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less likely to achieve a positive outcome compared to males. Also, the number of jobs that a migrant holds during the migration episode is related to positive outcomes. Model 2 shows point estimates of an expanded regression that includes the informal social protection index and length of stay as separate variables. As expected, we see that informal social protection turns out to be highly significant while length of stay is not significant. The number of prior visits (repeat migration) is also of critical importance. For each extra visit, migrants are 28 per cent more likely to achieve an improvement in income. Again, this fits well with what we expect from the literature and our qualitative work.

7. Conclusions As described by Sabates-Wheeler and colleagues in Chapter 3, there is no strong model of how to move forward on social security provisioning for South–South migrants. This is not to say, though, that formal social protection for South–South migrants is irrelevant. Yet, the priorities are different to those in the case of South–North or North–North migration and one has to differentiate when looking into policy implications. Given the limited provisions and low overall coverage by social security of the labour force in low-income regions, it seems that concerns about the lack of portability of benefits are premature. Instead, a more effective policy direction to improve the social protection position of international migrants from and within poorer regions would be to (i) create a proper policy framework to manage migration in the region, in particular undocumented migration; (ii) focus on social protection for the most vulnerable groups – women, children, refugees and undocumented migrants – by improving their legal status in the host country and ensuring that their most basic rights are respected; and (iii) develop standards on how to coordinate social systems in the future, to ensure portability of acquired social security rights. In other words, the critical issue is to find ways to bring the ‘uncovered’ under a formal social security umbrella within the countries that they reside. In this chapter I have used new datasets to explore the characteristics and social protection profiles of South–South migrants – in particular, Malawians moving between Malawi and South Africa. In keeping with recent suggestions about the differences between South–South and South–North migration, I confirm that the two groups are different across a range of characteristics. In particular I show that migrants to the South are a poorer group of people and come from ‘poorer’ families than

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migrants to the North. This is not unsurprising given the literature that posits a relationship between costs of migration and relative wealth of migrants. In other words, there is a clear selection effect on destination and for this reason alone it is important not to pool data on migrants across a range of destinations if we are interested in understanding migration and migrant characteristics. I was also interested to understand how migrants use migration as a form as social protection, as well as how they access social protection at destination in order to obtain security and higher income for themselves and their families. Migration represents a very important safety net as well as an asset-building strategy for most migrants. Social networks and repeat migration, in particular, appear to be critical to achieving higher income and secure livelihoods.

Notes 1. Important recent exceptions are papers by Gindling (2009), estimating the impact of migrants from Nicaragua on labour market outcomes in neighbouring Costa Rica, and by Ratha and Shaw (2007), estimating the size of South–South migration and remittances, and discussing key issues related to South–South migration. 2. Avato et al. (2010) provide similar estimates. 3. Motivations for South–South migration also include seasonal patterns and flight from ecological disasters or civil conflict. Other motivations, not recorded in the migration stock data given above, include transit to the North and petty trade. 4. The research was funded through the Development Research Centre on Migration, Globalisation and Poverty, University of Sussex, Brighton. This is a DFID-funded research consortium. 5. While scholars affiliated to the Southern African Migration Project (SAMP) have over the last 14 years worked extensively on labour migration in southern Africa, this work has largely focused on migration between Botswana, Lesotho, Namibia, South Africa and Swaziland. This observation was confirmed when scholars and employees at large bilateral organizations working on Malawi were approached to inform this study. All agreed that there was no or only limited literature on labour migration from Malawi. 6. Translated into the Malawian Chinyanja vernacular language as ‘three Zs’– zonyansa, zoopysa ndiponso, zobvuta. 7. A qualitative, micro-study was undertaken of a group of 17 Malawians living in Johannesburg, South Africa, in 2008, the majority of whom were ‘undocumented’, ‘irregular’ or, in terms of official interpretations of the Immigration Act, ‘illegal’. Four of the respondents were women, and 13 men. 8. The question was a general question that asked: ‘Were you entitled to standard social benefits such as paid sick leave, paid holiday leave; maternity leave, pay for overtime and redundancy?’.

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9. This is created based on the five types of networks identified in the ‘informal social protection’ section. 10. Its range is 0.5–5.5. Its mean is 3.0 and its standard deviation is 1.3. 11. The second dependent variable is a measure of actual current income. As some migrants in the sample returned home up to 20 years ago, I restricted the sample to those migrants who have returned within the last five years. I used this to check whether the significance of explanatory variables (that include length of migration spell and social networks at migrant destination) are robust across different measurements of income.

References Anderson, B. and Rogaly, B. (2005) ‘Forced labour and migration to the UK’, COMPAS. Anderson, B., Ruhs, M., Rogaly, B. and Spencer, S. (2006) ‘Fair enough? Central and East European migrants in low-wage employment in the UK’, Joseph Rowntree Foundation. Avato, J., J. Koettl and R. Sabates-Wheeler (2010) ‘Social Security Regimes, Global Estimates and Good Practices: The Status of Social Protection for International Migrants’, World Development, 38(4.) Beals, Ralph E. and Menezes, Carmen F. (1970) ‘Migrant labour and agricultural output in Ghana’, Oxford Economic Papers, 22(1), 109–127. Boyd, M. (1989) ‘Family and personal networks in international migration: recent developments and new agendas’, International Migration Review, 23(3), 638–670. Cassini, S. (2005) ‘Negotiating Personal Success and Social Responsibility: Assessing the Developmental Impact of Ghanaian Migrants’, Business Enterprises in Ghana’, Master’s thesis, International School for Humanities and Social Sciences, University of Amsterdam. Dustmann, C. (1995) ‘Savings behavior of migrant workers: a life-cycle analysis’, Zeitschrift für Wirtschafts- und Sozialwissenschaften, 115, 511–533. Dustmann, C. (2003) ‘Return migration, wage differentials, and the optimal migration duration’, European Economic Review, 47(2), 353–369. Fafchamps, M. (1996) ‘The enforcement of commercial contracts in Ghana’, World Development, 24, 427–448. Gindling, T. H. (2009) ‘South-south migration: the impact of Nicaraguan immigrants on earnings, inequality and poverty in Costa Rica’, World Development, 37(1), 116–126. Hatton, T. and Williamson, J. (2002) ‘What Fundamentals Drive World Migration?’, NBER Working Paper 9159 (Cambridge, MA: National Bureau of Economic Research). Hill, J. K. (1987) ‘Immigrant decisions concerning duration of stay and migration frequency’, Journal of Development Economics, 25, 221–234. Holzmann, R. and Jørgensen, S. (2000) Social Protection Sector Strategy Paper: From Safety Net to Trampoline (Washington, D.C.: World Bank). Itaye, B. (2007) ‘Social Protection and Migration: Draft Report of a Preliminary Desk-Based Study of Malawian Migrants in South Africa and the United Kingdom’, Background paper prepared for this research, available from Author.

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La Ferrara, E. (2003) ‘Kin groups and reciprocity: a model of credit transactions in Ghana’, American Economic Review, 93, 1730–1751. Lassailly-Jacob, V., Boyer, F. and Brachet, J. (2006) South-South Migration: Example of Sub-Saharan Africa (Strasbourg: European Parliament). Lucas, R. E. B. (2005) International Migration and Economic Development: Lessons from Low-Income Countries (Cheltenham: Edward Elgar). Mazzucato, V., Kabki, M. and Smith, L. (2006) ‘Transnational migration and the economy of funerals: changing practices in Ghana’, Development and Change, 37, 1047–1072. Mesnard, A. (2000) ‘Temporary Migration and Capital Market Imperfections’, mimeo, University of Toulouse. MNSO (Malawi National Statistical Office)2006. ‘Migration Baseline Survey’, Draft Report. National Statistical Office, Zomba. Malawi. Nangulah, Selma M. W. and Nickanor, Ndeyapo M. (2005) ‘Northern Gateway: Cross-Border Migration between Namibia and Angola’, SAMP Migration Policy Series 38, available at: http://www.queensu.ca/samp/forms/form.html. (Kingston, Ontario: Southern Africa Migration Project, Queens University). Peberdy, S. (1998) ‘Trading places: cross-border traders and the South African informal sector’, SAMP Migration Policy Series 6, available at: http://www. queensu.ca/samp/forms/form.html. (Kingston, Ontario: Southern African Migration Project, Queens University). Punpuing, S., Caouette, T., Panam, A. and Zaw, K. M. K. (2005) Migrant Domestic Workers: From Burma to Thailand, available at: http://iussp2005.princeton.edu/ download.aspx?submissionId=52058. Raffelhüschen, B. (1992) ‘Labor migration in Europe: experiences from Germany after unification’, European Economic Review, 36, 1453–1473. Ratha, D. and Shaw, W. (2007) ‘South-South Migration and Remittances’, World Bank Working Paper No. 102 (Washington, D.C.: World Bank). Sabates-Wheeler (2008) ‘Migration Outcomes, Legal status and Social Protection: a quantitative study of Malawian returnees from South Africa and the UK’, report prepared for DFID, available from Author. Sabates-Wheeler, R. and M. Waite (2003) ‘Migration and Social Protection: A Concept Paper’, DRC Migration Working Paper T2 (Brighton: University of Sussex). Solomon, H. (1996) ‘Strategic perspectives on illegal immigration into South Africa’, African Security Review, 5(4), 12–14. Stark, O. (1992) The Migration of Labour (Oxford: Blackwell). Tsoka, M. and Mvula, P. (2006) ‘Migration and Poverty Study’, Draft Report, Centre for Social Research (Zomba: University of Malawi). World Bank (1993) Mali: Assessment of Living Conditions (Washington, D.C.: World Bank). World Bank (2005) Global Economic Prospects 2006: Economic Implications of Remittances and Migration (Washington, D.C.: World Bank). Xiang, B. (2008) ‘Return Migration in Asia’, Presentation at Metropolis Conference on Migration and Development, Bonn, 28–31 October 2008.

10 Bangladeshi Labour Migrants in the Gulf: Coping with a Large Unmet Need for Social Protection Chowdhury R. Abrar1

1. Introduction Over the last few decades international migration has become more complex and diverse with temporary migration becoming increasingly popular. Migrant workers (those who migrate for employment) and their families account for about 90 per cent of the estimated total of 214 million international migrants in 2010. After the oil price hike in the first half of the 1970s, the Gulf states required various kinds of workers as they embarked on large-scale development projects. This created conditions for the migration of workers for temporary employment from different parts of Asia, including South Asia. The Gulf countries continue to remain major destinations for migrants from South Asia, who are mostly employed in the construction, domestic work and service industries. While labour migration has significantly contributed to alleviating poverty and stabilizing some of the less-developed economies of the region, it has posed enormous challenges for the migrants and members of their families, having significant implications on their welfare and protection. Many are well treated and succeed in attaining their goal of earning a better livelihood. A section, however, is subjected to ‘low wages, unsafe working environments, non-payment of wages, a virtual absence of social protection, denial of freedom of association and workers’ rights, discrimination and xenophobia’(International Labour Organization, 2010). In recent years the plight and the problems of migrant workers in the Gulf states have received a fair degree of attention from human rights groups. In the following paragraphs, summary reports of the New 262

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York – based Human Rights Watch (HRW) on the treatment of migrant workers in some of the Gulf states are presented: Based on extensive interviews with workers, government officials and business representatives, the HRW report titled Building Workers and Cheating Workers documents serious abuses of construction workers by employers in the UAE. These abuses include unpaid or extremely low wages, several years of indebtedness to recruitment agencies for fees that UAE law says only employers should pay, the withholding of employees’ passports, and hazardous working conditions that result in apparently high rates of death and injury. (HRW Report on UAE, 11 November 2006) In early 2008, 55 Pakistani, Indian, Sri Lankan and Bangladeshi workers, including medical professionals and cleaners, complained to the Saudi Ministry of Labour that Nukhba House of Medical Services required them to work an extra year after their contracts expired, failed to pay their return tickets home, retained up to eight months’ wages and withheld approval for exit visas required under Saudi law. On receipt of the complaint the Ministry contacted the company and advised the aggrieved migrants to wait for two weeks for the company to respond. When the company failed to respond, the matter was referred to the Labour Court, a tribunal administered by the Ministry of Labour. The Court agreed to hear the case only after four months, leaving the workers without legal status and pay. (HRW Report on Saudi Arabia, 8 May 2008) In Saudi Arabia HIV testing is mandatory. A positive test result may lead to detention for up to a year without access to medication and subsequent deportation. In 2008 the UAE deported 1518 noncitizen residents infected with HIV, hepatitis types B and C and tuberculosis. Migrants living with HIV are often explicitly excluded from treatment. If they are detained, they are often denied access to antiretroviral drugs, and then if deported they cannot get the necessary care. (HRW Report on HIV Positive Migrants, 23 September 2009) Withholding the wages and confiscating passports appears to be rampant, but the authorities do nothing to stop it. There is no system to make sure these vulnerable migrant workers can actually recover both their passports and wages, let alone to punish the abusive employers. Instead of enforcing the law, as it is authorized to, the

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government steers workers into an arbitration system that favours the employers. (HRW Report on Bahrain, 4 November 2009) Labour courts in some of these countries are notoriously slow, often taking years to hear and decide a case, which can then be appealed, further delaying a final decision. Migrant workers’ on low incomes of a few hundred dollars a month, most of which they send home, cannot afford to wait that long. (HRW Report on Saudi Arabia, 28 May 2010) This chapter focuses on the vulnerability of Bangladeshi short-term migrant workers working in the Gulf states within the broad framework of social protection. In the introductory chapter of this volume SabatesWheeler and Feldman identify four components of social protection that have important implications for the migrants. These are: (i) access to formal social protection – that is, social security and social services – in host and origin countries; (ii) portability of vested social security rights between host and origin countries; (iii) labour market conditions for migrants in host countries and the recruitment process for migrants in the origin country; and (iv) access to informal networks to support migrants and their family members. They argue that access to formal social protection mechanisms reduces the vulnerability of the migrants.2 It may be pertinent to mention here that neither the Bangladesh state nor any of the host states of Bangladeshi labour in the Gulf have any formal social protection mechanism in place for the migrant workers. In such situations where the social security provisions are virtually non-existent, the issue of portability of rights necessarily becomes redundant. The third and the fourth components of social protection (labour market conditions and informal support networks) identified by Sabates-Wheeler and Feldman are very relevant for the group of migrants with which this chapter is concerned. As will be seen from the field findings, labour migrants are often disadvantaged in foreign labour markets ‘due to information asymmetries and monopsony power of employers’. In some instances the policies enacted and implemented at the national level by the host countries are inherently skewed against the foreign workers, while in other instances weak enforcement of the laws create conditions in which recruiters,

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employers and the intermediaries exercise arbitrary leverage over the recruitment and treatment of workers. Limited capacity and inadequate training, coupled with the lack of motivation of the labour attachés of Bangladesh in the host countries, contribute little to migrants’ efforts to seek redress through official channels. Under such circumstances labour migrants rely on ‘a range of kinship or patronage institutions and local or community based networks that can act as social safety nets’. The informal networks and groups provide crucial support to migrants, particularly those in irregular status, in the absence of formal social protection mechanisms.

2. Methodology This chapter is based on primary information. Qualitative data was generated through focus group discussions (FGD) and in-depth interviews. Ten FGDs with 15–20 returnee migrants were held in six villages and two municipal towns of the two study districts. In-depth interviews of 57 migrants were conducted over a period of two months. Both categories of migrants, regular and irregular, were covered under the study. Migrants who had served at least 12 months in the countries of destination constituted the bulk of the interviewees. Some were deported by the authorities for their irregular status, while a few others were on vacation when they were interviewed. 2.1. Study sites The study sites were located in the migration intensity districts of Comilla and Tangail. The study team noted that some specific characteristics of each of the study sites had some bearing on the migration patterns and practices of the area. The people of Dhakargaon village, located in the Comilla district, have a long and diversified migration experience. One of them, a long-term migrant in Saudi Arabia, plays a critical role in facilitating migration from the locality. The connectivity of the other two study sites, Baher Chor and Hasnabad, with the urban centres is very poor. Adverse work conditions in the villages push people to opt for migration both to urban areas within the country and abroad. The study sites in Tangail were located in Kaloha village and Korotia Bazar. Kaloha village was noted for its handloom industry. Increased competition from synthetic fibres and decreases in state subsidy substantially weakened the industry. This led many in the trade to opt for overseas migration. A special feature of the other study site, Korotia

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Bazar, is that it hosts as many as 58 offices of informal facilitators of international migration. This overt presence of informal facilitators in the bazar is distinctively different from other regions, where informal facilitators prefer to work in secrecy and have little institutional face.

3. Deciding migrants For deciding migrants, accessing information may become a major problem. Securing basic information about the countries where jobs are available, the opportunities that exist in different sectors in respective countries and the skills that are in demand sometimes proves to be a very difficult task. Although government rules oblige the recruiting agencies to advertise availability of overseas jobs in the national dailies, this does not make much of an impact due to the prevalence of low literacy. Field findings from the study show that none of the participants of the ten FGDs or the 57 interviewees secured information through the formal channels. In other words, at the initial stages of migration none of them had any contact with formal recruiting agencies or had any knowledge of the work opportunities abroad that were posted in newspapers. When asked why they were not in contact with government offices such as District Employment and Manpower Offices for information, all expressed ignorance about the existence of such a source. It is in this context that one can explain the near universal dependence of deciding migrants on informal sources of migration information. The informal sources include dalals (informal facilitators), relatives and friends. The informal facilitators were returnee migrants, migrants who come periodically on holidays, subagents of recruiting agencies or former employees of recruiting agencies. In many instances these informal facilitators are relatives of or known persons to aspirant migrants or their immediate family members. In both the study sites it was found that local Union Council members themselves were involved in facilitating migration. One interviewee (54) candidly stated, ‘I had no option but to take the assistance of a dalal.’ His is a typical case where aspirant migrants are unable to secure information about migration at the grassroots level. I have lived abroad for more than ten years and have known many migrant workers of Bangladesh. Their work permits were either secured from relatives or friends working overseas or through dalals.

Chowdhury R. Abrar 267

Not a single person could migrate directly through recruiting agencies. One of my friends went to an office of a recruiting agency in Dhaka. Before he could enter the office he was asked to name his dalal. When he replied he did not have any, he was advised to contact the agency through a dalal. (Shukur Ali, 41, Dhakargaon, Comilla) When interviewees were asked what made them trust the informal intermediaries, many said that their success in facilitating the migration of others from the locality was the most important factor in trusting them. A few others in Korotia Bazar of Tangail thought that the fact that the dalal was working for a reputed agency was a good enough reason to trust him. Although aspirant migrants lay their trust on informal sources, they have very little opportunity to cross-check information provided by them. When this issue was raised, Selina Akter (41) of Daudkandi, Comilla, a female migrant, replied that she knew she was taking a major risk and was prepared for the consequences. She stated that she did not have any option to validate the information provided by her facilitator. However, some of the deciding migrants were cautious in trusting dalals. Through their social network they tried to verify if the information provided by the dalals was genuine. To make sure that the dalals were providing correct information they contacted the families of persons whose migrations were facilitated by the dalals. A major source of vulnerability for migrants has been the near absence of any written contract with the employer/recruiter. Except for six cases there was no such contractual arrangement. The terms and conditions of employment (wage, overtime, health care, holiday, accommodation, food and other entitlements) were verbally communicated.3 After waiting for about a year I was told by the dalal that he secured an office assistant’s job for me with the Dubai municipal authorities on a good salary. In order to be sure of the arrangement I asked him to give me a copy of the contract. He agreed to give me the same, but came up with various pretexts and got away by not giving me a copy. When I insisted he gave me the choice that either I believe what he was saying and go to Dubai or forget about going. I went to Dubai and landed with the job of a cleaner of a hospital. My salary was 30 per cent less than what was promised by the dalal. (Abu Bakr, 41, Tangail town)

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In a few instances where contracts were signed they were done at the last moment, just before the migrants boarded their flights. Most of these migrants reported that they could not look into the details of contract due to shortage of time, nor could they get the contracts verified by persons whom they could trust and who had some understanding about these issues. The respondents noted that they were deeply concerned about the high cost of migration. Cases were also found where migrant households had to sell assets (livestock, jewellery and land) to finance migration. Some households became further steeped in poverty when their migration experiences turned out to be unsuccessful. I suppose that the dalal understood that I was desperate to go abroad. He demanded money in excess of the amount agreed and I continued to meet his demand by selling whatever things I had. The day he was due to provide me with work visa he disappeared. I could never trace him again. I also heard that at least three others were cheated by him. (Monu Sheikh, 37, Pakulla) In the FGDs many participants noted that in their locality there were scores of examples where aspirant migrants fell victim to unscrupulous agents. In such cases those victims did not have any recourse to the formal protection of the state and as such their failure to migrate had severe implications for downward spirals into poverty. In several instances dalals/recruiters demanded in excess of the agreed amount. The interviewees stated that they did not have any choice but to agree to high migration costs. Otherwise, they would have to forego their migration dream. When migrants were asked why they did not seek redress when excess amounts were demanded by the dalals or recruiters most said that such action was unlikely to yield any desired result. Conversely, it was likely to result in the loss of amount they had already invested. Migrants resisted increased demand by agents in only a few instances, by mustering the support of influential relatives. It is noteworthy that there was not a single instance where a receipt was issued by the recruiters or dalals for money transactions. Most of the migrants interviewed stated that they did not ask for such receipt as the dalal or recruiter was known to them. In other instances, when migrants demanded a receipt the dalal or recruiter declined to issue one. Mofiz Mia of Pakulla, Tangail, said that his dalal asked to be relieved of the responsibility to secure a work permit for him, and to find a replacement who would agree to issue a receipt.

Chowdhury R. Abrar 269

Failure to secure a receipt against the transacted money by deciding migrants has severe implications for their protection. If the dalal or the agent does not succeed in sending the migrant abroad, in the absence of any documentary evidence he or she cannot be held legally responsible. 3.1. Migrants’ initiative for their own protection In the above section negative experiences of interviewee migrants were noted. This section presents how some migrants worked out their own ways to meet the challenges posed in the pre-migration phase. With regard to the absence of a written contract the only protection that some migrants secured was having one or two relatives, friends or neighbours as witnesses. Idris Khan (36) and Naren Sarker (41), both of Dhakargaon of Comilla, viewed such protection to be more effective if the local Union Council chairperson or members consented to be the witnesses. Three interviewees reported that public representatives of their respective areas agreed to be witnesses to the verbal agreement with the dalals. There is a virtual absence of any formal source to finance migration costs. It is in this context that a variety of informal support sources were reported by the aspirant migrants. In several instances siblings, fathers and in-laws of aspirant migrants working overseas bore most of the costs. In other instances, migrants raised a good section of the cost from local sources, and family members living overseas took care of partial costs. In at least nine instances friends and relatives arranged the visa and paid for it with the understanding that the migrants would pay back the amount from their wages after they took up employment. In these cases migrants arranged the cost of the airfare and facilitation expenses. In situations where dalals demanded more than the agreed amount, some migrants could secure the good offices of the village elders or the local public representatives to offset the pressure of dalals. In most such cases, however, the aggrieved party was encouraged by the mediators to pay at least a part of the additional amount as a compromise arrangement.

4. Arrived migrants In many instances newly arrived migrants did not face any problems at the airport. After clearing immigration either their relatives or friends or the representatives of the sponsoring company or kafeel met them at the airport. However, in several instances migrants faced major hardships soon after their arrival in the country of destination. There have

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been a number of instances in which they had to wait for long hours for employers to meet them at the airport. In the case of Manu Munshi (33) of Baher Chor, Comilla, it took three days. Lack of support at the airport in contacting the employers was identified to be a major problem. The absence of any interpreter’s service caused the migrants difficulty in communicating with the immigration officials. Some reported that the lack of this service contributed to them facing unnecessary harassment when they arrived in the destination country. An overwhelming majority of the interviewees reported that their passports were taken away by their employers soon after their arrival in the destination country, in most instances at the airport. None of them had any photocopy of the relevant pages of their passports, and they were thus were not left with any document to prove that their stay in the country was bona fide. Migrants who worked for established companies stated that they were issued with photo identity cards instead. Many reported that, as well as having their passport taken away, they were not allowed to keep the copy of their iqama (work permit). Some were explicitly warned that without those documents they might be arrested by members of law enforcement agencies and thus should restrict themselves to the company premises. When asked what they thought of the practice, many noted that initially they did not find anything wrong in it, but subsequently realized it was a method to keep them tied to the employer. They thought the documents were seized so that the employers can have a free hand in treating them the way they wished without having to worry about migrants reporting abusive practices to law enforcement agencies. A few stated that they disliked the practice from the beginning but did not want to raise the issue with the employers for fear of upsetting them. Asgar Ali (22) of Hasnabad, Comilla, was refused a copy of the iqama even though he asked for it. Seizure of passports and work-related documents by the employers severely compromises migrants’ protection. Despite having the necessary papers, their inability to produce documentary evidence when demanded to do so by law enforcement agencies subject them to prosecution and even deportation. The inability to retain control over their papers makes even the regular and the bona fide migrants insecure. It also restricts their freedom to move to alternative work or seek redress against errant employers and recruiters. In only a few instances did the interviewee migrants report that they received pay and other entitlements according to their contract. Three of the six migrants who had signed contracts before their departure said that they were provided with fresh contracts with lower pay and longer

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working hours than stipulated in their original contracts. Bakul Begum (33) of Dhakargaon of Daudkandi stated that under the revised contract almost half of her salary was deducted for accommodation and food. She insisted that, in the original contract, the company was to pay for those expenses. She claimed that she tried to convince others in the company to report this violation of contract to higher authorities, but others advised her to accept the new terms, which she did reluctantly. The original contract of Saiful Islam (45) of Hasnabad, Comilla, stipulated that he would get 1400 dirhams per month. In the fresh contract his salary was fixed at only 520 dirhams. He signed the new contract but within months quit his job and became an irregular worker. In five instances migrants all signed the substitute contract against their wishes as they did not have any choice. The lone migrant who refused to sign the revised contract was threatened with an exit visa. Subsequently, he complied. This was another major problem that the interviewee migrants reported. In all instances, the jobs they were placed in were physically more demanding and financially less well paid than the jobs they were promised in the first place. Afaz Miah (29) of Korotia Bazar, Tangail, was promised a government job but was made to work as an ‘iron boy’ in a laundry. Rafiq Sheikh (34) of the same locality was promised a cleaning position at the airport, but was placed in the agricultural field. Altu Karim (34) of Kaloha village, Comilla, said that he was promised the job of a loader, with a salary 600 riyals per month, but ended up as kitchen helper in a restaurant on a salary of half of the agreed amount. Shona Mia (44) of Dhakargaon, Comilla, was promised a regular job as a construction worker. On arrival he was made to work for an outsourcing company without any regular wage. He said that he barely had anything to eat for the first 19 days before being sent to work at a construction site. Only in one instance did an interviewee, Hossain Ali (24), end up with a better job. He was recruited as paint worker but, as he had a driving license, within a year he was able to get a job driving a constructionrelated vehicle. The new job secured him a much higher salary. Not receiving due wages was a major problem for many migrants. Although quite a few interviewees secured their iqama within days of their arrival, for many the delay in issuance of iqama made them sit idle for weeks and months. During this period they were denied any wages. In most instances the kafeel bore only their food expenses. Amir Mian (29) of Korotia, Tangail, stated that he worked for three months for the kafeel who sponsored him, but did not get any payment for his labour. Shapon Rashid (34) of Hasnabad, Comilla, stated that his

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kafeel virtually treated him as a bonded labourer. He claimed to have received only a month’s salary after six months of work and thus had to flee his job. At least 17 others reported that they experienced nonpayment of wages at some stage of their employment overseas. Experiences of non-payment for overtime work were more rampant. Fourteen of the 57 migrants claimed that instead of eight hours a day they had to routinely work for 10–12 hours without being paid any additional amount. One migrant reported that the company did not pay the food allowance that was promised to him. Retention of wages was common. One interviewee stated that every six months his company deducted 200 riyals from his salary for uniform and accessories. Many migrant workers reported that they did not get their wages at the due time. Mohammad Nazrul (40) of Pakulla, Tangail, stated that instead of paying him every month, the kafeel paid him every two months, retaining a month’s wage. In the cases of three other interviewees as much as three months’ wages were retained. Sharif Sarkar (29) of Dhakargaon, Comilla, claimed that the factory foreman demanded part of his wages every month. He further claimed that he was threatened with an exit visa when he refused make such payments to the foreman. Mohammad Shahjahan (28) of Pakulla, Tangail, was paid 600 riyals as salary, although he was made to sign receipts to say his salary was 1000 riyals. Restriction of movement was a major problem for many migrants. Most of the interviewees reported that delay in securing iqama severely curtailed their freedom of movement within the country. Lack of access to their own passports and work documents made them vulnerable to arrest. If an alien fails to produce proper documents to members of law enforcement agencies they are deemed to be irregular migrants and thus are subjected to arrest and prosecution. Shafiq Rahman (33) of Baher Chor, Comilla, stated that he was a cleaner at a restaurant. He was strictly advised by his employer not to venture out of his workplace and living quarters. He felt that he was living the life of a prisoner. As many as 17 interviewees reported that their kafeels did not have work at their disposal and thus they were sent to other employers on a temporary basis. Before migration they were all promised secure jobs and only found out about the temporary nature of their employment after arrival. A good number of the interviewees stated that they had to work for long hours. The ‘iron boy’ of the laundry, Afaz Miah (29) of Korotia Bazar, Tangail, stated that he suffered from severe backache as he had to keep standing for 8–10 hours at a stretch. Lorry driver Nazrul Islam

Chowdhury R. Abrar 273

(41) of Tangail town said that he had to work from dawn to midnight without a break, even on weekly holidays. The migrant who worked as a loader claimed that he was contracted to handle light packages but in reality he had to physically lift items weighing 40–50 kilograms quite a number of times each day. The lack of adequate air conditioning in work premises was also reported by a few migrants. They stated that they had to work for long hours in the heat as the cooling system of their factories often malfunctioned. Verbal abuse by employers or supervisors was reported by a number of migrants and two claimed to have been physically abused. It is interesting to note that two of the interviewees (Monir (33) of Goshaibari, Korotia, and Parvez Ali (28) of Kaluha, Tangail) were particularly critical of their Bangladeshi supervisors. They felt the supervisors concerned did so to prove that they were ‘not biased’ to their fellow Bangladeshis. I put up with the maltreatment and the long hours only because I knew I could not earn the quarter of the amount at home. That kept me going. (Nazrul Islam, 42, lorry driver in Saudi Arabia) Living conditions of the migrants varied significantly. Workers who were employed by established companies generally expressed satisfaction with their living arrangements. In these cases the number of residents per room was low, there were air conditioners and the resident-toilet ratio was good. In a few instances they expressed their dissatisfaction over the quality of food supplied. However, many others expressed their grievances about living arrangements. Abdul Baten (23) of Dhakargaon, Comilla, stated that 700 workers were staying in company-provided accommodation which had only six baths and six toilets. He further stated that there was no air-conditioning system and that the number of fans provided in the rooms was quite inadequate. Likewise, Samad Mia (35) of Pakulla, Tangail, resented that he had to share a small room with 17 others. A similar experience was noted by Habibullah (37) of Korotia, Tangail. He informed that his 21 square metre room had to accommodate 12 people. ‘There was no privacy’, he noted. Living conditions were particularly harsh for the migrants who worked as agricultural labourers or who tended livestock, observed Shapan Khan (34) of Dhakargaon, Comilla, and also a few other interviewees. They said they had to live in tents which were not good enough quality to protect them from the heat during the day or the cold at night. The sedan

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driver migrant reported that he was asked to sleep in the car when his employer took him to outstations for work. Sometimes migrants collaborated with each other to mitigate their living problems. Parvez Ali (43) of Kaluha stated that when they asked for a refrigerator his company arranged for one. In another instance the residents of a dwelling contributed to a fund to buy a refrigerator when the company turned down their request. The level of access to health care also varied among the interviewee migrants. Migrants working for big companies, particularly the ones run on a corporate ethos, received a good degree of health coverage that included free hospital coverage and medicines. Workers were also entitled to sick leave. The health care facilities of other employers were generally poor. Suruj Kabir (41) of Baher Chor, Comilla, who worked at a packing plant, stated that when he cut his hand his company refused to take him to the hospital as he was not covered by a health insurance plan. Another worker, Mohammad Shakeel (34) of Daudkandi, Comilla, sustained injury to his head while working at a construction site. Though he had to bear the cost of the treatment, he felt that the company was generous in granting him 15 days leave for recuperation. Aminul Islam (32) of Kaluha, Kalihati, claimed that his employer deducted three days of leave when he failed to report for duty for one day due to illness. He added that it was the supervisors who were mostly responsible for such harsh treatment of the workers. Those in the good books of the supervisors got paid sick leave, he stated. Enjoyment of the weekly holiday was a rarity for many interviewee migrants. In most cases, migrants who worked for individual kafeels as a driver, gardener, agricultural worker or sheep rearer, hardly enjoyed any weekly holidays. Others working in the formal sector (in restaurants, clinics or hospitals) as a waiter, helper or cleaner, were also deprived of such holidays. They said that it was only during the Eid holidays that their employers granted them reprieve from work for a day or two. In several instances workers were not granted the annual leave that was due to them. Aminur Khan (24) of Selimpur, Tangail, informed that he was upset when his employer denied his application for two months’ leave. Later, he gained courage and threatened to resign if he was not granted the leave that fell due. As he was a good worker, his kafeel could not risk losing him and eventually granted him six weeks’ holiday. Habibullah (44) of Korotia, Tangail, quit his job after three and a half years when he was refused his entitled long leave. The employer of Mohammad Nazrul (34) of Tangail town retained part of his outstanding salary and half the cost of the airfare to make

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sure that he returned. As his father did not allow him to go back to his country of employment he lost the amount retained by his former employer. In most of the Gulf states the work visas issued to migrants are tied to a specific kafeel. The migrant needs clearance from his or her sponsoring kafeel if he or she wishes to move on to another kafeel. However, this clearance may not be readily available. Even in cases where sponsoring kafeels are unable to provide the worker with a job, they would only consent to such requests against the payment of a transfer fee. Faruk Hossain (41) of Chor Kagmara, Tangail, changed his work permit from vegetable packer to salesman in a departmental store by paying a sum of 1000 riyals to his sponsor. In another instance Idris Khan (23) of Dhakagaon, Comilla, paid as much as 5000 riyals to change his sponsor. Sharif Sarkar (35) of the same locality claimed that he had to pay as much as five months’ wages to change his kafeel. In another case the sponsor demanded a fee of 4000 riyals to grant his worker permission to change employer. The worker refused to pay that amount, quit his employer and became an irregular migrant, as he did not have an iqama and passport. A major barrier to the redress of labour abuses is the sponsorship (kafala) system by which a migrant worker’s legal residency is tied to his or her employer, who serves as a ‘sponsor’. Migrant workers can only transfer employment with their sponsor’s consent. . . . Sponsorship traps workers to abusive situations, including in situations of forced labour and blocks their access to means of redress. If an employer withdraws sponsorship, workers who flee abusive workplaces can be arrested and deported for being out of status in the country. (HRW World Report 2010) Most of the interviewee migrants stated that there was no grievance redress mechanism available to them. The kafeels’ tendency to rely on the manager or the supervisor thwarted any move for in-house settlement of disputes. Not having access to iqama and other work-related documents to support claims is the single most important obstacle in the way of meeting grievances at the official level. Shahjahan (26) of Pakulla, Tangail, stated that that he would have preferred to approach the labour court to make a claim against his employer for non-payment of his due wages. But he could not do so as he did not have his iqama with him to produce before the court. Only in one instance when an

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interviewee complained to the police that his employer had failed to provide him with a job, did the police intervene. Though the employer subsequently agreed to fully refund his migration cost in a few instalments, in reality he paid back about 60 per cent of the amount. It was a widely held view by the migrants that the law enforcement authorities in many of these destination countries are corrupt. The practice of apprehending irregular migrants and releasing them on payment of cash was another commonly shared perception. Amir Shikder (33) of Korotia, Tangail, stated he was caught by the police four times and paid on average 100 riyals to secure his release. It is interesting to note that in a couple of instances irregular migrant interviewees claimed that when they decided to return to their home country, they bribed the police to ensure that they were caught.4 The arrested irregular migrants are returned to their home countries by the Saudi authorities at the latter’s expense.

4.1. Networking of migrants A number of interviewees stated that in the absence of formal support services they relied on each other. Many stated that without the support of fellow Bangladeshi migrants it would be almost impossible to adjust in the alien environment of the destination countries when they first arrived. Such support was particularly crucial for those migrants who had to wait for their iqama to be processed and did not have any resource to maintain subsistence. Fellow migrants extended their support through providing shelter to those whose kafeels failed to provide the same. Many interviewee migrants worked out alternative strategies to supplement their income. Alam (31) of Tangail town stated that he knew sewing, bought a sewing machine with his savings and worked as a tailor in his free time. He made shirts and trousers. His fellow migrants were his clients. Another interviewee, Monir (34) of Goshaibari, Korotia, originally an unskilled migrant, picked up electrician’s skills. He bought a bicycle to move around the neighbourhood and provided services as a handyman, earning an extra amount averaging 1000 riyals per month. He said that fellow Bangladeshi workers introduced him to many of his clients. Abdul Hakim (42) of the same locality stated that after he finished his regular work for his kafeel, he worked as a shop assistant in a local market. In all these cases, their respective kafeels gave their consent. Otherwise, they ran the risk of being reported to the police by the kafeels, which could lead to prosecution, loss of iqama and eventual

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deportation. In the case of Monir Hossain of Kaluha, Kalihati, the kafeel encouraged him to learn driving and helped him secure his licence. This led to a major increase in his salary. A large number of interviewees acknowledged receiving care from fellow migrants when they were ill. Many reported that in adverse situations (such as a dispute at the workplace or maltreatment by kafeels or supervisors) the counselling of other migrants restrained them from taking any drastic action. Financial support by fellow migrants was crucial for many. In situations where migrants were unemployed or were not paid their due wages others provided them with loans to send home. In all instances those were interest-free loans. Aminul Islam (30) of Kaluha, Tangail, said that a fellow migrant stood as a guarantor for the kafeel of another migrant when the latter asked for leave to visit his family. Another interviewee stated that four of them pooled resources to buy a mobile phone so that they could get in touch with their families. Most interviewees responded negatively when asked if they had any contact with the highly skilled migrant Bangladeshis. They felt that the latter group preferred to maintain a distance from migrant workers. A few migrants stated that they were active supporters of certain political parties at home. When their party organized an event, generally linked to a visit of senior members of the party from Bangladesh, they attended those events. Others, however, felt strongly against such partisan activity in a foreign land. They felt that it divides the Bangladeshi community and does not achieve anything fruitful for the migrant community. A few of the interviewee migrants stated that they belonged to community associations. One claimed that he belonged to a group of 24 Bangladeshi workers who paid 20 riyals per month to a common fund. Any member could take a loan from the common fund with the consent of other members. Borrowers did not have to pay interest if the loan amount was under a stipulated sum and paid back within certain duration. He stated that quite a few members have secured loans from the fund and repaid the amount, mostly within the due time. A few of the other migrants said that they are involved in informal associations. One reported that members of his informal association contributed 5 riyals per month to a common fund. That fund is used to celebrate religious festivals or national events (Victory Day, Independence Day and Mother Language Day). Not all migrants have had good experiences of such collective initiatives. Mohammad Kamal (34) of Hasnabad, Comilla, stated that he, along with a few friends, tried create a common fund to meet emergency expenses and began depositing

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5 dinars a month. However, that initiative failed as those in charge of maintaining the account embezzled the entire amount. Having been involved in several such associations for a long time, Alam Shaikh (45) of Pakulla, Tangail, observed that these organizations are set up with a lot of enthusiasm and good faith, but in most cases things go wrong and the organizations wither away. 4.2. Migrants in irregular status It took Shakeel (33) of Dhakargaon, Comilla, as many as three years’ earnings to repay the cost of migration. After his contract expired he decided to stay, albeit with irregular status, to save enough so that he could come back home and do something meaningful. Shakeel worked for three more years and was cautious in his movements so that he did not get arrested. When he felt he had enough savings he reported himself to the authorities and was returned home. There have been instances where the desire to take on fresh challenges induced migrants to have irregular status. Idris Khan of Hasnabad, Comilla, was doing well and had a good kafeel. After listening to others he became excited with the idea of going to Europe. While attempting to cross the Turkish border with Syria, Idris was arrested by the Turkish authorities. He was subsequently sent back to Saudi Arabia, served his sentence for nine months and was deported to Bangladesh. The migrants with irregular status were likely to be subjected to various kinds of ill treatment. They were particularly hard hit in getting their due wages. One irregular migrant noted that he was not paid a single dime, even though he worked for nine months, and another was denied wages of five months. Both noted that there was very little they could do as they did not have proper iqama. The kafeels ‘took full advantage of the fact that we did not have valid documents’, they noted. Another interviewee, Ahsan Madbor (35) of Hasnabad, Comilla, worked in a company for six months and was only paid for two months. If such pattern of payment continued, Ahsan said he would explore the option of leaving the company. For irregular migrants, accessing health care services become particularly difficult. Even if they can pay for the treatment their inability to produce the iqama during registration at hospitals or private practitioners deter them from being able to avail themselves of such services. 4.3. Role of Bangladesh missions There was a general impression among the interviewee migrants that the Bangladeshi missions in the destination countries were not providing

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desirable services to the migrant workers. A good number of migrants claimed that under the local laws of destination countries, foreign workers could only lodge complaints against their employers through their respective embassies. They felt that Bangladesh missions were not as proactive as their Filipino or Sri Lankan counterparts. One migrant worker stated that there was a general reluctance among embassy staff to take labour matters up with the officials and this discouraged workers from reporting cases of irregularities. Others believed that if the embassy officials were sincere in pursuing cases against errant workers they could secure redress for the workers. Sometimes that interest is generated through financial inducements. Mustafa Kamal (33) of Kaluha, Tangail, claimed that he paid a lower functionary of the embassy 200 dirhams and secured a compensation of 1100 dirhams from his employer. Aminul Islam of the same locality stated that he, along with 15 other Bangladeshi workers, registered a complaint with the embassy but that the embassy did not take any action against the errant employers. Some migrants reported that the embassy took more time than other missions in providing routine consular services such as renewal of passports. Interviewees observed that many migrant workers were forced to choose the expensive one-day service, although they could not afford it. They felt that regular service was even more expensive as it entailed at least a second visit, costing time and money. A few others stated that informal facilitators linked to the embassy sometimes took advantage of the migrants’ lack of time. They provided a one-day service against the payment of fee that was added to the regular charges. Three migrants noted that although they had put in specific complaints about embassy services in the complaint boxes that are kept at the entry of Bangladesh missions, these were not acted upon.

5. Return migrants A good number of interviewees stated that the absence of investment opportunities had led to the loss of savings that they once had. In many instances they had to pay to meet the various demands of family members, relatives, friends and neighbours. These ranged from requests for financial support for distress situations, such as medical treatment and funeral expenses, to payment of annual fees for children’s education, dowry and marriages. Migrants also felt the pressure to provide loans or invest in others’ enterprises against their wishes. Appeal for contributions for the building and renovation of schools, mosques, roads or culverts were also common experiences of many interviewee migrants.

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Yousuf Molla (34) a migrant from Daudkandi, Comilla, stated that he faced tremendous pressure from his brother-in-law to invest in the latter’s rice trade. Rahim Shaikh (45) of Korotia Bazar, Tangail, said that his family was very upset with him as he did not spend enough money during the Eid celebrations that took place soon after his arrival back home. I sent all my earnings to my brother believing that he was making prudent use of my hard earned money. On return home after five years I found most of the amount was wasted and the small plot of land that he purchased in the local bazar was recorded in his name. I have nothing left for my family. Although before coming home I was planning to retire and spend time with my family, now I have no option but to look for another job overseas. (Tota Mia, 45, Tangail Sadar) In a socio-economic milieu where social and political contacts play a major role in enterprise development, lack of knowledge of local power dynamics and lack of contact with the locally influential economic and political elite turn out to be major hindrances for migrants’ integration. Lack of knowledge about opportunities for investment is another major problem that migrants face. A recent survey5 of enterprise initiatives of returnee migrants found that some of the returnee migrants have formed agricultural and fish farming cooperatives, others have set up market places. They reported that the banks have not yet developed financial instruments and programmes to cater for their investment needs, nor were there any private initiatives to finance such schemes. In many instances migrant workers learn important skills when working overseas and wish to utilize those skills upon return home. But many times these workers find it difficult to get suitable jobs. This problem can be mitigated by creating a database of the returnee migrants with information about their skills. That would help prospective employers recruit the workers by accessing the database. Three interviewees stated that they learnt new skills when they were abroad and wanted to work in the related field. But they had no idea where they could find such jobs.

6. Conclusion This chapter noted that the Bangladeshi workers who migrate to the Gulf states encounter a plethora of problems at every step of their

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migration process. Lack of credible sources of information on work opportunities abroad make the migrants dependent on informal intermediaries. The role of these intermediaries is further augmented by the migrants’ lack of access to formal recruiting agencies. The simplification in procedures for issuance of passports has reduced migrants’ reliance on intermediaries, although this remains quite high for securing work permits, leading to increases in the cost of migration. The absence of formal sources of loans to finance migration, the refusal of agents to provide copies of written contracts in advance and delay and uncertainty in flight schedules are some of the other problems that Bangladeshi migrants face once they decide to migrate. The vulnerability of migrants was found to be quite acute in the countries of deployment. Migrants experienced the seizure of personal documents by the employers or recruiters, non-placement against jobs promised, non-payment and irregular payment of wages, poor working and living conditions, lack of access to adequate health care facilities and prohibition on changing employer. The absence of effective redress mechanisms in the form of accessing courts, and the poor services provided by the Bangladeshi missions further weaken migrants’ position in alien lands. The chapter also documented that despite all odds a number of self and collective protection mechanisms have been developed by the migrants. In the final section, the problems of returnee migrants were documented, including loss of savings, lack of investment opportunities and lack of information for utilization of skills. The study also notes that there is no worthwhile government programme or non-governmental initiative for returnee migrants in Bangladesh. Most of the government activities are geared towards the pre-migration stage. However, of late, in policy-making circles there has been some recognition of the importance of reintegration issues. In this chapter the problems and vulnerabilities of Bangladeshi migrant workers serving in the Gulf states were examined. It was noted that, while social protection as an agenda is being increasingly espoused for reducing the vulnerability of weaker sections of the communities, and has become an important part of the development discourse, the migrant workers of Bangladesh, particularly those working in the Gulf states, continue to be deprived of any such protection. Although management of risk and improvement of livelihood options are often the principal guiding factors that shape their migration decisions, these workers are in dire need of both formal and informal forms of social protection.

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Notes 1. The author acknowledges the support of Wahidur Rahman, Makfie Farah, Motasim Billah, Niaz Ahmed and Rigan Chakma, members of the Young Researchers’ Forum of Refugee and Migratory Movements Research Unit of Dhaka University, in conducting the fieldwork of the study. 2. The formal protection mechanisms include access to health care benefits, long-term social security benefits like old-age and disability benefits, and short-term benefits like social assistance, maternity and unemployment benefits, family and housing allowances, as well as public housing and education. 3. In many instances the terms of the verbal contract were completely ignored when the migrants arrived in the destination countries. This issue will be discussed in the next section. 4. One claimed to have paid 300 riyals, another 700. 5. The survey was conducted by the Refugee and Migratory Movements Research Unit on Migrants’ Enterprise Development Initiatives in the four districts of Bangladesh (2009–2010).

Reference International Labour Organization (2010) International Labour Migration: A RightsBased Approach (Geneva: International Labour Organization).

Index

access constraints, 28, 67, 72–4, 83 structures, 23–4, 29, 67–8, 81, 83–4, 186–95, 199, 204–6 data rules, 23, 83 eligibility rules/criteria, 67, 72, 79 equality of, 191 legal, 23 physical, 24, 84, 183–207 policies for inclusion, 27 political, 24, see also access ‘queue’ rules (‘counter’, ‘gate’ and ‘line’), 79 regulating, 24 rules for exclusion, 54, 79–83 rules for inclusion, 79–83 to services, 38, 49, 99, 143, 149–50, 185, 203, 223 discrimination/discretion, 73 exclusion, 10, 25 financial, 113 information, 22, 65, 266 language, 80, 153 legal, 23 network-based, 64 relational, 79–81 resource availability, 10, 29, 61, 65, 68 accommodation, 7, 77, 155, 173, 178, 180, 251, 267, 271, 273 actuarial fairness, 21, 94 administration procedures, 23, 287 public service, 160 Africa African union, 47 burial society, 23, 252 hometown association, 23, 70–1 SADC (Southern African Development Community), 30, 107–8, 118–31, 133–4

Sub-Saharan Africa, 78, 100, 102, 105–6 see also South Africa agreements and arrangements bilateral, 23, 102, 104–5, 108–10, 129–30, 134 cross-border, 128–9 multilateral, 101–2, 107, 123, 125, 128–9, 134 Arab states Arab society, 41 Islamic law, 41 Kurdish minority, 47 The League of Arab States, 47 see also Gulf states Asia, 19, 99–100, 102, 105–6, 114, 143, 235, 244, 262 ASEAN (Association of Southeast Asian Nations), 100 asset accumulation, 15, 254 asylum claims, 27, 149 refused asylum seekers, 28, 45, 145–6, 152–8 seekers, 6, 27–8, 30, 41, 45, 50, 117, 120, 122, 124, 126, 132, 144–7, 149, 152–60 see also refugees Bangladesh, 8, 105, 264–6, 278–82 Bangladeshi migrants to the Gulf states, 31 bank account, 74, 245 benefits and allowances disability, 21, 94, 99, 101, 282 family, 94 health care, 21, 94, 99, 101, 110, 149, 282 housing, 21, 282 maternity, 101 occupational, 111 283

284

Index

benefits and allowances – continued old age pensions, 14, 21, 64, 94–5, 99, 101–3, 108, 111, 248–9 social assistance, 21, 94, 101, 107, 282 unemployment, 21, 94, 99, 282 bilateral migration stocks, 9, 232 Bommes, M., 16–17, 27, 211 borders control, 25, 38, 47 as regulatory sphere, 38 territorial, 24, 86, 96, 175 Caribbean, 100–1, 106 CARICOM (Caribbean Community), 101–2, 107 Castles, S., 3, 15, 18, 44, 173 children childcare, 18, 65, 71, 77, 236, 251 ‘transnational caregiving’, 222–5 Chile, 38, 114 citizenship in the ancient world, 41 citizens, 14, 16–17 contemporary, 29, 43–9 denial of, 44, 47 equality of, 43 exclusions, 36–57 expatriate citizens, 38 full, 36, 43 historical discussions of, 42 for migrants, 5, 25, 36, 199 national, 26, 47 non-citizens, 4, 7, 16–17, 24–6, 28–9, 36–7, 40–3, 49–57, 68, 74–5, 96, 98, 120–1, 123–5, 127–8, 131–3 as a political tool, 40 in the pre-modern world, 40–3 presence, residence and, 37–43 ‘probationary citizens’, 48 rights, 26–8, 36–57, 175, 186, 199, 204, see also rights civil liberties, 25 civil society activism, 70 activists, 32, 174 civil society organizations (CSOs), 25, 68–9

class, 8, 16, 18, 29, 43–4, 57, 66–7, 70, 80, 144, 173–6 class solidarities, 16 clientalism, 18 clientelistic relationships, 20, 75 collective struggle, 17 collective voice, 68–9 community, 3, 26, 30, 49, 65, 69, 77–8, 85, 91, 101, 107, 117, 120, 149–50, 156, 165, 172, 175, 206, 233, 236, 252, 265, 277, 822 co-nationals, see nationality conflict, 6, 9, 19, 25–6, 32, 80–1, 120–1, 153, 175, 179, 198, 259 violent, 6 credit, 65, 79, 113, 170, 234, 239 criminal activity, 8, 150, 158 cross-border movements, 119, 238 recruitment, 236 traders, 114 see also agreements and arrangements, cross-border; migrant(s) data on migration, 232 decommodification, 16–17 de Haan, A., 80, 85, 172 demographic shifts, 9 development discourse, 20, 281 development effects, 93 Development Research Centre (DRC) on Migration, Globalisation and Poverty, 32, 103, 259 disadvantage chronic, 19 disadvantaged/subordinated groups, 17 ethnic minorities, 4, 16–17 foreign workers, 17, 111, 122, 126, 264, 279 women, 16 economic, 4, 19–20 migrant-intensified, 10–11, 186, 197 political, 4 structural, 19 see also vulnerability/vulnerabilities (of migrants)

Index discrimination racism, 26, 44, 51, 56, 125, 159 stigma, 81–2, 184, 224 xenophobia, 51, 54, 112, 120, 159, 185, 262 distribution systems market-based, 72–6 network-based, 70, 72 non market-based, 63–5, 67–8, 72, 76, 80, 186 duties of allegiance, 44 economic deregulation, 45 disadvantage, see disadvantage, economic global economy, see globalisation growth, 14, 18–19 liberalism, 25, 143, 169–70, 193 management, 121 recession, 14, 169 Ecuador Constitution, 210, 214 diaspora, 218 SENAMI, 215, 218–19, 228 education qualifications, 240 systems, 97 elderly, the, 13, 81, 190, 228 Elson, A., 66, 84 employers decent, 112 exploitation by, 119 monopsony power of, 22, 95, 264 obligations (legal and moral), 24, 36, 50, 52, 125, 129–30, 156, 158, 221–2 policing, 25 employment casual sector, 170, 180–1 informal sector, 10, 75, 110 opportunities, 77, 170, 179 registered, 176–8 self-, 234 see also labour; work empowerment, 23, 78

285

entitlement confusion, 4 formal, 7, 61–2 see also benefits and allowances environmental hazards, 12–13 equality of treatment, 98, 108, 125–6, 129 see also access, structures, equality of Esping-Andersen, G., 15–18, 32 ethnic ‘incorporation’, 8 minorities, 4, 16–17 persecution, 6 ethnicity, 8, 13, 44, 66–7, 71, 80, 170, 175–6, 185 European Union (Europe/EU) EU nationals, 98–9 European enlargement, 126 Lisbon Treaty, 47 Maastricht Treaty, 47 exclusionary processes, see discrimination exclusion, see access; social exclusion exploitation, 10, 12–13, 55, 57, 95, 112–13, 119, 175, 233, 243 see also employers, exploitation by faith-based organisations (FBOs), 68–9 faith communities, 278 family, the role of the, 16 Feldman, R., 3–32, 36–57, 143–60, 180, 184, 264 feminist economics, 66 food aid, 63–4, 68 Geddes, A., 16–17, 27, 211 gender relations, 16 dimension of migration, 4 Geneva Convention, 27, 50, 53 GFMD (Global Forum on Migration and Development), 101, 109–10 ghettos/ghettoisation, 10, 45 ‘global’ cities, 4 globalisation, 32, 103, 259 governance, 19, 201 guestworker model of labour migration, 25

286

Index

Gulf states, 31, 262–4, 275, 280–1 GCC (Gulf Cooperation Council), 99, 103, 114 see also Arab states health care, 7, 21, 37, 44, 47, 51, 64, 74–5, 77, 80, 96, 99, 101, 103, 110, 112, 124, 143–60 doctors, 75, 97, 159 general practice doctors, 75 insurance, 18, 21, 51, 65, 71, 74–5, 94, 100, 132, 248–9, 274 midwife, 78, 153 public, 51, 75, 96, 99, 158–60 services, 51, 99 services, 7, 30, 51, 75, 99, 147–8, 152, 159, 224 system, 21, 95, 153 hierarchies, 8 Holzmann, R., 91, 94, 102, 183, 194, 235 hometown association, 23, 70–1 host countries, 21, 24, 91–2, 94, 99–100, 102, 114, 234, 236, 238, 249, 264–5 see also migrant(s), receiving countries housing, 7, 12, 21, 28, 44, 53, 71, 74–5, 85, 94, 99, 156, 204, 248–9, 251, 282 public, 21, 94, 282 see also accomodation HRW (Human Rights Watch), 263–4, 275 Human Development Report (HDR), 8, 91, 180 human trafficking, 119 hunger, 6, 98, 199 identities, 6, 17, 170, 176 ‘illegal’ migration, see migration, ‘illegal’ ILO (International Labour Organization), 54–6, 92–3, 98, 101, 108, 114, 124, 126–7, 135 IMF (International Monetary Fund), ix

immigrants, 25, 27–8, 39, 44, 74–7, 83, 94, 99–100, 107, 110, 128, 146, 221–2, 234 naturalization of, 28 immigration context, 117–19 control agencies, 266–7 control, 4–5, 25, 143–4, 160, see also borders, control laws, 48, 72–3, 97, 122 rules, 144, 150 status, 7, 74, 121, 124, 145, 151–2, 155 inclusion, 11, 17, 26–7, 69, 79–83, 176, 218, 226 see also social inclusion inclusive development, 23 incomes growth, 14, 19 loss, 93 transfers, 19, 235 India caste, 170, 176 Government of Delhi, 24, 84, 187–8, 190, 193, 198, 202 Kerala, 164 Public Distribution System (PDS), 30, 76–7, 83, 183–207 ration cards, 24, 84, 187–8, 192–5, 197–203, 205–6 informal labour market, see labour, market informal networks, see networks information asymmetries, 22, 92, 95, 236, 264 blockages, 4 resources, 265–7 infrastructure development, 173 institutions international, 43 structures, 16, 171 transnational, 43 insurance health, 18, 21, 51, 65, 71, 74–5, 94, 100, 132, 248–9, 274 unemployment, 121, 130, 132 see also national insurance

Index intermediaries ‘agents’, 70 ‘fixers’, 70, 201 ‘representatives’, 69, 196 international courts, 38 international laws, see law investment, 31, 48, 82, 113, 211, 213, 215, 217–19, 221, 223, 232–60, 279–81 IOM (International Organization for Migration), 134–6 irregular migrants/migration, see migrant(s), irregular Israel Palestinian Israeli citizens, 17 Zionist exclusionary policies, 17 kinship, 8, 22, 85, 170, 172, 175, 179, 265 see also networks, kinship labour contracts, 22–3, 250 non-permanent, 23 permanent, 22–3 market, 14, 17–18, 21–3, 25, 32, 44–5, 65–6, 71, 74, 91–5, 98, 103, 112–13, 118–20, 123, 128, 194, 203, 236, 239, 241–3, 245, 249–50, 256, 259, 264 informal labour market, 22, 91, 95, 98, 203, 236 national labour market, 22, 72, 250 policies, 22, 95, 239, 241 temporary, 25 language deficits, see access, language Latin America, 19, 100–1, 106, 213, 215, 220–1, 227 law international, 8 state, 8 legal rights, see rights, legal legal systems, 8, 123, 130, 133 livelihood/s strategy, 111, 120, 180 local authorities, 69, 144, 156

287

low-income regions, 93, 100, 109, 114, 258 Lucas, R., 9, 234–5 Malawi, 20, 123, 130, 237–9, 243–4, 247, 250–3, 258–9 Malawian migrants in and returned from South Africa, 31 Marginality, 13, 18, 40, 44, 45, 172 markets capital, 167 deregulation of, 45 ‘free’, 66 forces, 84, 100 ‘neutral’ markets, critique of, 66 regulation of, 45, 123, 130, 176 see also distribution systems, market-based and non-market-based Marshall, T. H., 26, 43–4 material exchange, 7 media, 24, 144–6, 148, 201 Mexico, 105, 114–15, 235 PROGRESA, 80 middle-income regions, 100 migrant(s) children, 217, see also children circular, 114, 118 classification (classifying migrants), 5–8 communities, 8, 12 entitlements, 30, 117, 132, 152 experience, 7, 256 female migrant workers, 77, 97, 240, 257, 267 groups, 113 ‘illegalization’ of, 39 ‘illegal’, 25 informal, 98, 112 insecurities, 5, 10–14 international, 8, 12, 32, 37, 54, 91, 93, 98–100, 103, 109, 114, 184, 186, 258, 262 irregular, 7, 10, 23, 39, 45, 49, 54, 56, 64, 78, 96, 110, 119, 132, 236, 238, 243, 245, 247, 272, 276, 278 legality of categories of, 7

288

Index

migrant(s) – continued legal statuses of, 15 lives, 8, 98 networks, see networks, migrant newly arrived, 91, 269 population, 4, 8, 31, 146, 176, 178, 199, 201 receiving countries, 3, 23–5, 27, 56, 91–2, 96, 103, 109–10, 119, 212, 219, 224, 228, 233, 235, 241 returned/returning, 11, 130 seasonal, 23, 83 sending countries, 105, 110 statuses, 15–18 undocumented, 22, 30, 44–5, 56–7, 92–3, 95, 98, 107, 109, 111, 113, 117, 128, 143–60, 243, 258 workers, 6, 26, 29–30, 37, 45, 50–1, 54–7, 69, 75, 92, 95–8, 100–1, 110–12, 114, 117, 120, 125–9, 130, 150, 160, 164–9, 171, 173–6, 178–80, 202, 243, 262–4, 266, 272, 275, 277, 279–81 young migrant workers, 173 see also vulnerability/vulnerabilities (of migrants); disadvantage, migrant-intensified Migrants’ Rights Network, 7, 25, 57 migration controlling, 4, 27 cross-border, 119 decisions, 20, 93, 281 forms and processes of, 5 gender dimension of, see gender relations, dimension of migration ‘illegal’, 25, 45 internal, 4, 23 international labour, 92, 118 ‘irregular’, 7, 39 labour, 6, 25, 77–8, 92, 101, 118, 129, 134, 173, 238, 259, 262 migratory flows, 3, 5–10 North-North, 9, 105, 109, 232, 258 South-North, 9, 232–4, 258

South-South, 9–10, 31–2, 111, 232–7, 259 migratory journeys, 7, 31, 110 policy/policies, 4–5, 8, 22–8, 95, 113–15, 215, 241 regulating, 4, 24–6 repeat, 10, 235, 237, 255, 258–9 return, 93, 234 studies of, 3, 7 voluntary, 5–6 minimum social floor, 112 minority groups, 6, 26, 46, 57 multilateral arrangements, see agreements and arrangements mutual aid and support, 71 ‘myth of return’, the, 6, 216 national courts, 38 national insurance, 7, 44, 64, 75, 236 nationality co-nationals, 227 dual, 43, 48 see also transnational nation state, see state(s) networks access to, 71, 92, 94, 96, 113 community-based, 22 family, 220, 251 formal, 21, 94, 113, 170, 225, 264–5 informal, 21, 94, 113, 170, 225, 264–5 kinship, 85 local, 113 migrant, 8, 13, 71, 112–13, 233, 237 patronage, 265 social, 3, 10, 16, 31, 70–1, 77, 91, 96, 112, 196, 218, 237, 239, 251, 254–60 transnational, 8 voluntary, 158 non-citizens, see citizenship, non-citizens non-governmental organisations (NGOs), 14, 54, 68–9, 112, 196, 216, 223

Index OECD (Organisation for Economic Co-operation and Development), 104–5 Olivier, M., 29, 117–34, 184 origin countries, 21, 91, 93–5, 108, 264 see also migrant(s), sending countries passports, 143, 244, 263, 270, 272, 281 patronage, 8, 22, 203, 265 pensions, see benefits and allowances, old age pensions PICUM (Platform for International Cooperation on Undocumented Migrants), 145 police, 39, 168–70, 173, 175, 179, 181, 200, 203, 238, 244, 276 policies and instruments bilateral, 109 international, 120, 122–3, 126, 128 multilateral, 129 national, 28–9, 52, 120, 125–6 supranational, 28, 126 political constituencies, 24, 84 disadvantage, see disadvantage, political elites, 280 the politics of migration policies, 5, 22–8 portability definition of, 21–4 see also social protection and provision poverty, 4, 6, 10–13, 23, 26, 32, 54, 65, 69, 80, 82–3, 85, 103, 110, 127, 153, 155, 186–7, 192, 203, 235, 237, 241, 245–9, 259, 262, 268 poverty reduction, 4, 11, 23, 110 pre-saving element, 21, 94 public goods, 14, 205 public sector, 78 public service, 24, 44, 49, 81, 84, 96, 144, 149–50, 160, 192 racism, see discrimination Ratha, D., 9–10, 32, 232–3, 235–6, 259

289

ration cards, 24, 84, 187–8, 192–5, 197–203, 205–6 see also India, Public Distribution System (PDS) Rawls, J., 62 recession, see economic, recession refugees international conventions on, 37 status, 27–8, 37, 50–1, 53, 121, 123, 132, 152 regional coordination, 29 integration, 127–8 remittances, 12, 32, 48, 110, 113, 119, 134, 211, 213, 217–24, 228 representation, 12, 43, 77, 185–6, 201–2, 217, 219 representative advocates, 70, 153 residence legal meanings of, 7 permanent residency status, 74 status, 14, 38, 50–1, 120 temporary residence, 6, 121, 205 see also citizenship, presence, residence and residents associations, 23, 70–1, 252 see also tenants associations retirement, 21, 94, 99, 111, 132 rights -based approaches, 30, 117 based on presence, residence or citizenship, 39, see also citizenship, rights civil, 43 economic, 15, 51, 53, 124 human rights law, 38, 57, 112 international human rights law, 38, 57 of labour migrants, 37 legal, 39, 63 migrants’, 5, 7, 11, 25, 36, 56–7, 107 political, 15, 36, 38, 43–4, 49, 53, 125 ‘primary’, 43 the right to social security, 124, 126 ‘second generation’, 43 social, 4, 26, 28–9, 31–2, 43–6, 49, 54, 92–3, 111–12, 124, 127, 210–28

290

Index

rights – continued violations of, 38, 51 voting, 37–8, 50, 211–12 welfare, 6, 18, 27, 37 workers’, 51, 54, 93, 101, 243, 262 risk insurance, 4, 71 reduction, 6, 19, 233–5 Roma (minority group), 6, 36, 41–3, 154 rules and regulations, enforcement of, 108, 264 rural areas, 7, 78, 172, 238 Sabates-Wheeler, R., 3–32, 47, 50, 61–85, 91–115, 180, 183–5, 194, 206, 214, 223, 232–60, 264 safety nets (social), 7, 15, 22, 91, 94, 265 savings, 65, 70–1, 125, 213, 249, 254, 276, 278–9, 281 clubs, 70 Scandinavia, 38 Schaffer, B., 67–8, 70, 79–82, 183–4, 195, 198, 200 school (enrolment in), 7, 13, 47, 63, 80, 96–7, 113, 154, 195, 217–18, 224, 236, 247, 279 security, 4, 21, 91–2, 94, 99–100, 102–3, 105, 107, 109–10, 120, 123, 127, 236, 258, 264 see also social security Sen, A., 62–3, 80–1, 183 service industry, 92 settled populations, 3 sickness, 14, 18, 99, 219, 251 social benefits, 4, 24, 75, 84, 93, 95–6, 98 social contract, 19, 69 social exclusion, 13, 25, 26–8, 44, 54 see also discrimination social inclusion, 17, 26 social inequality, 3, 26 social institutions, 4, 66, 171 social justice, 20 social networks, see networks, social social policy, 17, 19, 214 social practices, 6–7, 211–12

social protection and provision access to formal social protection, see access charity-based, 20, 29 cross-border, 20, 236, 238 definition of, 10 formal, 13, 21–2, 30–1, 93, 103, 108–12, 183–4, 186, 235, 237, 250–4, 256, 258, 260, 264–5 four functions of, 20 frameworks, 20 for migrants, 5, 14–23, 25, 28–9, 61–85, 62, 103, 111, 114, 250–4 policies and instruments, 11, 15, 19, 23, 173, 176, 180 rights, 112, 131 sources (market, non-market, charity, etc), 61 state, 63–4 systems, 10, see also welfare, systems transformative, 20 transnational, 210–28, see also transnational social rights, see rights, social social security mainstream, 4 rights, 21, 94, 103, 109, 120, 127, 258, 264 systems, 91–2, 94, 99–100, 102, 105, 107, 110, 123, 236 social spending, 24, 84, 96, 215 social support, alternative strategies for home-based affiliations, 18 religious affiliations, 18 social welfare, see welfare solidarity, 18, 70, 168–9 see also class solidarities South Africa Apartheid, 36 mines, 119, 237–8 South-south migration, see migration, migratory flows state(s) agencies and institutions, 7 ‘kleptocratic’, 18 laws, 61, 98, 111, 120 nation, 14–15, 26–7, 43, 46, 52–4, 63, 226

Index services, 7 sovereignty, 24, 84, 96 -specific policies and practices, 5 see also welfare, state stigma, see discrimination, stigma stresses and shocks, 15 structural adjustment policies, 14, 18 students, 7, 246 supranational organizations, 24 surveillance, 25, 149, 169, 171, 179 targeting, 65, 67, 69, 216 see also access, structures, eligibility rules/criteria tax contributions, 93 payers, 19 system, 7 Taylor-Gooby, P., 15 telecommunications, 6 temporary visitors, 39 tenants associations, 189 see also residents associations tourists, 7, 25, 39, 148–9 trade unions, 66, 77, 164, 167–8, 170–1, 174–6, 179–80 trafficking, 25, 49, 56, 119 see also human trafficking transformative measures, see social protection and provision, transformative transnational communities, 8, 211, 220 institutions, 43 networks, see networks, transnational transport, 6, 25, 155, 170, 186, 215 travel agencies, 3 UK English Poor Laws, 26 ‘health tourism’, 147, 160 Migrants’ Rights Network (MRN), 7, 25, 57 National Health Service (NHS), 143, 147 unemployment, see employment UN International Convention on the Protection of the Rights of All

291

Migrant Workers and Members of their Families 1990, 55, 95 Universal Declaration of Human Rights, 39, 52, 125 see also rights, human rights law universalism, 30, 143 unregistered labour recruitment, 3 urban areas, 238, 265 urban informal settlements, 10, 12 USA California, 57, 75 Children’s Medicaid, 74 CHIP, 74, 167 visa requirements, 92, 236 voluntary networks, see networks, migrant vulnerability/vulnerabilities (of migrants), 10–14 wage earners, 12, 54 wages (low), 7, 54, 162–3, 164 Washington Consensus, 213, 226 Weber, M., 80 welfare arrangements, 214 as a means of controlling migration, 4 for migrants, four components of, 21, 93 provision, 4–5, 10, 15–18, 21, 27, 31, 61, 64–5, 78 as a tool for exclusion, 17 as a tool for inclusion, 17 regimes, 16, 19, 26–7 services, 10, 38, 40, 96 as a site of political contestation, 17 systems, 7, 15–18, 20, 27, 38, 96, 108, 110, 176 Wood, G., 16, 67, 78, 81–2, 159 work Decent Work agenda, 112 domestic, 92, 245, 253, 262 environment, 12 opportunities, 24, 266, 281 permits, 45, 75, 95, 113, 132, 234, 238–9, 266, 281 seasonal jobs, 114 work-for-pay, 15

292

Index

workers foreign, 17, 111, 122, 126, 264, 279 ‘guest’, 25, 44 low-skilled, 93, 146, 244 semi-skilled, 119, 238, 241

working class struggle, 18 world population, 9 World War Two, 47, 52, 127 post-World War Two, 52, 127 WTO (World Trade Organization), 47