Migrant Workers, Differentiated Rights, and Relational Equality in Host States

A look at The New Yorker website under the entry of “ICE” and “migrants” yields a hithereto unknown number of entries. The articles listed range from discussions about the workings of the US department of Immigration and Custom Enforcement, changed realities for different groups of migrants and their supporters, activists' mobilization against ICE interventions in parts of US cities, changes in migration law, and indeed articles about the changed reality of many judges adjudicating cases of migration law. A common tenor in many of these articles is the precarity of migrants' status in the US under the current administration, including for those who are legally in the country and have employment in one of the many industries that rely on their labor (Costa 2020). 1 Having a precarious status is nothing new to migrant workers. Take another example from recent history. In an article published in early 2022, The Guardian reported the plight of Live-In-Domestic workers in Hong Kong during the wave of Omicron infections (The Guardian 2022). As the pandemic hit, many migrant care workers found themselves chucked out of the homes in which they had been working, for fear of infection by their employers. If migrant workers were themselves infected, the quarantine restrictions imposed in many countries required them to self-isolate—yet without a room to self-isolate in, they couldn't obey the pandemic rules. Faced with public health regulations to quarantine, migrant workers found themselves in the peculiar constraint of not being able to work, not being able to return home, but also not being able to satisfy health regulations for lack of a place where they could actually quarantine. At the same time, many were also unable to pay their health care bills, for lack of insurance. Instead of realizing their migration project, to work and earn as much as possible while in Hong Kong, many of the predominantly Filipina workers were left stranded and homeless. To be sure, Hong Kong is not known to be a haven for liberal democratic rights and one might be tempted to dismiss the case of Hong Kong as true to (illiberal) form. A different story played out in Canada. Canada, known to rely heavily on migrant workers, was eager to protect and promote the protection of temporary foreign workers (TFW) also in times of the pandemic. Yet while the Canadian government recognized temporary foreign workers, for example, in the agricultural sector as essential workers, and thus allowed them to enter the country, they, like all other Canadians and permanent residents, were required to quarantine for 14 days upon arrival (Government of Canada 2020). Needless to say, the quarantine locations had to be provided by employers, who resorted to some of the worst accommodation on hand. At the same time, return to their country of origin was not always an option, for different reasons—including travel restrictions in the country of work and in the country of origin. The spectrum of covid measures as they were meted out to temporary foreign workers across the world ranges from the most draconian to more liberal ones, with many countries in-between. 2 Yet I believe it fair to say that the Covid pandemic and a populist turn in many countries previously known to welcome migrant labor have highlighted the precarious status of migrant workers. Many philosophers in the field of migration justice argue that temporary foreign worker programs should allow individual migrants to access the path of citizenship over time (cf Lenard and Straehle 2011). Their temporariness, in other words, should be only that, a temporary step on the path to permanence in the country of labor, while the rights protection provided by access to citizenship, and indeed already the path to it, would ward off precarity. In contrast to this universal rights approach, though, some theorists of migration justice have proposed differentiated rights regimes for temporary workers. These authors have argued that liberal democratic states would not only be justified in instituting differentiated rights regimes for temporary foreign workers; some even claim that differentiated rights regimes are demanded by justice for temporary foreign workers. Both Sarah Song and Valeria Ottonelli and Tiziana Torresi ground their respective proposals for differentiated rights on the underlying liberal virtue of promoting the background conditions of individual autonomy: to what extent a state policy can be justified is then assessed against the background of how individuals can actually make autonomous choices and implement them within society. I want to assess and examine migrants' precariousness in light of these recent proposals in the migration justice debate. The argument for differentiated rights for temporary migrant workers is the first strand of the literature I want to discuss. The second strand I want to examine are recent contributions to the migration justice debate from the perspective of relational egalitarianism. In particular, I want to use the principles of relational equality to analyze proposals for differentiated rights for migrant workers. I will argue that temporary foreign workers' needs can't be protected sufficiently with the catalogue of differentiated rights that Song and Ottonelli and Torresi suggest. I will argue that differentiated rights don't help protect TFW against arbitrary power from host states, that is, power exercised without consideration of the interests of TFW. Only citizens can ward off unilateral power since they have participatory rights as part of the bundle of citizenship rights. Citizens can demand that their interests be considered equally with others' interests—yet the same protection of equal status can't be provided through differentiated rights since these rights leave TFW outside of the circle of citizenry. Put differently, protection against marginalization and coercion—the driving forces behind Song and Ottonelli and Torresi's accounts—depends on being a political and social equal. And such equality, I submit, depends on social practices of equality that depend on full membership rights, as the pandemic response has illustrated, and as current anti-migrant policies highlight. This is not only important for individual migrants, but for all citizens of the state. 3 To begin, I want to discuss Sarah Song's proposal. Song has suggested that the best strategy to address the needs of temporary foreign workers might be to devise a set of differentiated rights that distinguishes between those who are neither residents nor citizens, but instead “sojorners” (Song 2016). The idea behind the concept for such differentiated rights is that territorial presence warrants acknowledgement that takes into account what it means to treat individuals as while between those who are residents on the over an of time, but who have citizenship in another Song thus the democratic proposed by who argued that other those in the with access to with citizenship and the principles of political justice that liberal democratic states In other words, not with access to the full set of rights would a of from in a in which to equality is not where some are more of their status as full of the and where are of their status as and Straehle to should instead rights from the status of citizenship and them to in virtue of their territorial (Song In such an and can be justified the on which rights are of rights can be justified by different The first of be to temporary foreign workers, since the between country of and the of and other is in the case of migrants, including temporary workers who leave behind in to work and (Song The second to ground of rights, that of that those to a of are to the and the of the (Song Song that all residents including temporary foreign workers in the (Song And the claim has been that temporary foreign workers are to work, they should be to 2011). in account of the rights that should be to migrant workers upon arrival to the protection of their Song on the of idea is that state on all those to state are to some of (Song The of liberal democratic states have is that those to should be able to what of This is a and in much on justice in migration Straehle Song that the of on not an individual the of the state the foreign workers and work in the host state and the more their to the host the their claim to (Song about the of that temporary foreign workers are to would allow to devise the rights to to be to rights and and public (Song The rights and on to of and the equal protection of the rights in and the protection of and law, while the Song's of the liberal of equality, and of rights to account for the in needs within and migrants' with the host society. The of equality is in the state policy to and allow individuals to autonomous in words, of they to individuals as such states the idea that individuals have an in autonomous since such a is to individual democratic states that the idea of individual as part of individual thus that they have of all individuals on a at the of the state. If that an to be as Song then should also that all those to should be with the protection against that access to the rights To individuals their to on individual needs against to the rights 2016). Song's account of differentiated rights that migrants have a set of needs in to be able to autonomous outside of their country of citizenship, and most the status that many migrant workers into liberal democratic Put all to be protected against the of state while Song to protect temporary foreign workers against precarity of for the that is, access to In this is to the of not want to for citizenship in the host this make differentiated rights the best And should host states the idea of differentiated rights for temporary I will argue that states access to citizenship in their to equality would be justified to the for differentiated rights. to and Torresi also from the background that liberal states have of those in their And they set out to that temporary workers, in their to don't from host Ottonelli and Torresi that host countries a of rights that protect the interests of temporary foreign workers in host that is, rights that that temporary work as temporary work, as a second best to the of all labor in the country of The rights protection they is on workers and their and not on the needs and of temporary foreign workers who between host state and state of origin. a of to all workers, host should thus instead differentiated rights regimes to the needs and of temporary foreign workers. for differentiated rights have the argument on over and as in Song's work, path to membership and Straehle the of the host state Ottonelli and Torresi rely on the of the temporary for the individual of temporary migrants to differentiated rights. what is in Ottonelli and Torresi's is the argument for the of differentiated rights. the temporary of work as part of individual also at one to the rights that temporary workers should rights should that workers want to work and return This that for other workers' not be what temporary workers to protect their rights are to temporary migrants they to social within the but to a and that citizenship rights, as they are on the needs and interests of permanent will to as to the of the and Torresi The first of the claim for differentiated rights is thus that temporary foreign workers in an with the host which their for access to the labor of and which the of these for the labor that temporary foreign workers the authors to is that to the enter into it a of of with being able to some of their The second for the claim for differentiated rights is that without such rights, the is while temporary foreign workers their part of the their labor, work, and states the needs of temporary foreign workers, them instead to a rights that protect their The is thus temporary foreign workers are not able to their migration project, which is to say that they are not able to what they have The of the claim for differentiated rights is the argument from and the Ottonelli and Torresi in the is not that temporary foreign workers their migration project, but more that they are to and in the labor states that implement temporary labor regimes are thus upon to that the migration don't them in a of and precarity. Ottonelli and Torresi argue that the in the debate is the on the idea that temporary foreign workers are protected in their citizenship rights through their country of origin is not the is about and marginalization in the host state. and precarity in the host these is the for the host the on citizenship is not the they argue that many temporary migrants don't want to access citizenship in the host the of many migrants' migration is the temporary in a different country that of their that they would be protected against and precarity they for citizenship thus individual needs and individual migration should have access to labor rights, and rights, for contributions to social the of which they have to they return to their country of is to that the differentiated rights proposed in the of labor, and address the and precarity of TFW. And to be sure, many of these rights, such as and health care rights, have been in temporary foreign worker programs in liberal states, even while access to all rights is the other though, and in with the for the of differentiated rights as from citizenship rights, Ottonelli and Torresi to that citizenship of TFW as citizens in the of them as citizens of their country of In I would argue that can only make of some of Ottonelli and Torresi's proposals in light of the second perspective on their to the needs of to be able to care for left temporary work programs have such Canadian for that were allowed to their with even actually this and Straehle And the authors that to care of in the country of employment the migration the is to a of time in the host country, the to as much as possible and then to care and the of say, be Ottonelli and Torresi that possible measures to the care of should the country of citizenship and the country of they want to the of states and states of origin to and the to the of to how the citizens, that is, the temporary workers, their between the To this some authors have suggested the it is fair to say that access to citizenship an important for differentiated rights. The idea for differentiated rights on of and to individuals to as in society. To states a of equal participatory rights in all of society. The of for differentiated rights was to argue that some in differentiated rights for the of equality to should have differentiated rights to be able to as in the social of groups should have differentiated rights in to be able to protect their to the most rights were to protect the interests of this Song as as and Torresi are on the the interests to be protected were that of equal and in society. To be sure, Song and Ottonelli and Torresi could argue that their to protect the equality interests of to be Yet the is to what extent the host state could not to other to protect the interests of other instituting a of differentiated rights for TFW. one important is to what extent the on states of employment to differentiated rights for TFW would be the same across can make between states, in which access to permanent and citizenship is and states that access to permanent and citizenship for over a of it is to say that the for differentiated rights for is in access to citizenship is all states such as Canada could to possible and access to permanent and citizenship as a against differentiated rights. in this would be protected TFW for is that states that are to migrants as permanent residents, are also those states that are to for differentiated rights on the one is the migration of individual migrants who to from the on the other is the of the host state to turn migrants into The proposals for differentiated rights is to what extent the have a to help the in light of for equal Ottonelli and Torresi make their case not on time of but their for differentiated rights for with the argument that without such rights, and can that states that access to citizenship could to the full set of citizenship rights to differentiated rights that the over and would be through access of Put states can the of equality through the rights that with to about the between and social equality and rights has been the of recent literature of The of should equality in of of that all should in equal in of the of social has been at the of the literature in recent have justice in more recent has the of relational equality and and Straehle and their on different political including of migration and the of The for relational is of power and of which of and social that the proposals for differentiated rights under as their In relational a of a of that is a in as and on what as The literature on social equality as relational equality has been is that proposals for differentiated rights To in of what takes to many liberal for the that what to for is the of some of to be and the how the out by a would be by a from the the that the only could that is to the and is that the of their and their as much as that theorists with realizing the of equality should the of justice is the that over In to the of that is those with individual equally to for democratic in which individual is considered to be an without to have to in with Ottonelli and but also Song's social analyze to and of and In contrast to proposals for differentiated rights, the important of relational is that individuals to as social for and to be This is what of citizenship was access to the rights of citizenship is the of a for Put one to as much as possible of social equality is to all of with equal rights protection in the of the same rights to all in an and this social the of social equality in light of the proposals for differentiated rights under from the in which how justice nothing to those and those and those for the social that they in society. As the from the to the and might the be but can in with these with the rights that of the host have are for on the of that in as a temporary could make a with full access to the full catalogue of rights but are not on that and that the bundle of rights with is This is to say that the of rights Song to to protect individual migrants protect them against the most of state it in them with equal status in society. rights against don't protect against and marginalization they don't to the of which is that TFW without political participatory rights are to the unilateral of the state. how it would to protect migrants against precarity in the US for while Song that to equality, it that catalogue of rights for individual temporary migrant workers to the of equality, which is social with Ottonelli and Torresi's proposal. Their as I is to protect individual workers against and the authors argue that on access to citizenship is since it protect migrants' interests while also not against these social host should devise and implement a rights that and the of a society. the other though, Ottonelli and Torresi argue that the same state should that temporary labor migrants to in to the of their migration and Torresi for them to within the host actually for the argument against of their migration as In this one of the of Ottonelli and Torresi's argument is that temporary migrant workers should be protected within the of work and like for the social and political of their in the country of origin. access to social and political rights is not of to temporary migrant workers they in the of the of their temporary If the claim by social then it is to at of and without realizing equal social I want to are only possible within a of access to the full set of citizenship rights. of differentiated rights, the for Ottonelli and Torresi's argument is not and of TFW but protection of their status as Yet it is not how even thus TFW The one differentiated rights don't protect against is from have the of rights that interests of time with to the have out of full social and political rights protection since those and not to are in a of and the of that from presence is to those to be part of equality and have out of leave The is that neither Song's nor Ottonelli and Torresi's proposals protect individual temporary migrants from such a of the proposals individual temporary foreign workers as social in the host in the of their which them against the host power over them on the they under a differentiated rights temporary foreign workers would lack the and the to protect their individual interests and migration from the of unilateral of the I submit, is the of marginalization and be from the circle of treat other as is not can be against for access to citizenship rights the rights in should be on the that individuals themselves could argue that different the of of equality, this into the of relational could say that different demand different of would be to the same as demand for between citizens 2016). Put differently, it would be to of the of equality as the same in all since individual of in different of which are the of different the of equality could be with different could say that different individual demand different of for example, could the of a to the of a the to have a of equality that is different from the equality within Yet this is should states not be to the different to TFW to to citizens through different rights that the of equality that I with is that of social equality, that is, equality within the social in which to social and in which the state and treat individuals within the state. The the is thus to what extent the temporary foreign workers have with the on the one and with the host on the would differentiated rights. The to the on different of the that differentiated rights The can be with a on the of justice is the to allow for the of the needs and of on their needs and is the to a of If the is the then I that TFW should have access to for permanent some that should not be but on democratic and a second could then be that the interests of individual workers are not that Song and Ottonelli and Torresi their respective of differentiated rights with the to protect the interests of TFW. not a between these interests and claim that state policy should to a of including temporary foreign the of citizenship rights not the possible of TFW not to have to into the social of the host This is to the against of labor that is in that against individual To many liberal democratic states have labor that Yet these can be not only with the argument that states have an in individuals against possible even some might be to work for to a also as a to what have an The same is true for equal citizenship I citizenship is the of of as social as in of rights thus are to ward off unilateral of the host state to with temporary foreign workers. should about the by Ottonelli and that temporary workers a for differentiated rights since such a would the interests of temporary migrant workers much a universal rights that argued that an and the to which this is to be on of If it is indeed the of temporary foreign workers to have rights to the of their temporary in the host country, should liberal democratic states not to this it is a to that the only of should be since the of their citizens as a of to the choices of temporary workers, by them rights, is a to the principles to which are to all those who within and Straehle the conditions of are in by it is to the current of as the they would make other and Straehle A to argument for access to full citizenship rights over time for TFW could be that citizenship and that these to be against the of differentiated rights the of citizenship are such that individual workers don't want to them and instead want to for the differentiated rights host states be justified in differentiated rights regimes This is an but one that is on the of A first might be a return to to the about individual autonomy: states in many to protect interests social As I liberal states choices against the of can't use to autonomous a more to that the in the that social equality and individual are against other in the case of equality is to individual not to I believe that the about differentiated rights one important of is the to a of how can be equal in society. it from those who in many work for and in is it that even the of the state could make them it If some against citizenship, then this be a for it not to make the the In a had suggested that one of the of is not that these have of but instead that the of equality that all were considered of one And the of that all were to is a The this of equality is in takes different but an important is that of have rights protection to their equal these rights on the of social that to be as an equal for countries like the and Canada have a universal health care as an of equal consideration of health care while also to the of equality, don't universal health the of equal rights. The important though, is that the rights have within are equal This is the of social that to be the of and equality This is also the of that relational an equal rights individuals can to the of the state and to other as If are with realizing the of equality, and in light of new relational to differentiated rights for temporary migrants is since it the liberal have in realizing that access to citizenship should be possible for those in to the social This work was by the and by

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