Labour Migration Program Declared a "Modern Form of Slavery" under Constitutional Review : Employer-Tying Measure's Impact vs Mythical "Harm Reduction" Policies

An international judicial controversy began in 2011 when a slight majority of the Constitutional Court of the Republic of Korea reached a conclusion contradicting a 2006 unanimous decision of the Supreme Court of Israel. In the 2006 ruling, Israeli justices held that employer-tied work permit systems, even if incorporating a “change of employers” procedure, create a “modern form of slavery” and, more specifically, constitute unjustifiable state violations of migrant workers’ fundamental rights to liberty and dignity. Thus, key judicial issues remain unsettled: could policies other than employer-tied work permit systems similarly impact (im)migrant workers’ fundamental rights? Does empirical evidence confirm that “harm reduction” measures, including ‘change of employers’ procedures, may significantly reduce an employer-tying policy’s impact on individuals’ right to liberty (and/or to security of the person and access to justice)? If not, which labour (im)migration policies would be compatible with the respect of workers’ fundamental rights?  Canada’s immigration law incorporates all types of employer-tying measures: (A) ‘worker sponsorship/blacklisting’ privileges, (B) ‘worker binding’ privileges, (C) ‘worker transfer’ privileges, and (D) ‘worker repatriation’ privileges. By reproducing legal mechanisms characteristic of past state practices which tied indentured workers, slaves and/or former slaves to employers, contemporary immigration frameworks, including various Canada programs such as the Seasonal Agricultural Worker Program, rely on employer-tying policies compelling (im)migrant workers in the country to, at all times, “obey and comply with all rules set down by the employer.” The Canadian SAWP also specifically incorporates the three “harm reduction” measures discussed by Israeli and South Korean highest court justices. When analyzed using the Supreme Court of Canada’s “liberty/security/access to justice harms” framework, empirical evidence shows however that, despite the enforcement of such “harm reduction” directives, employer-tied (im)migrant workers face (1) state restrictions to their physical liberty, (2) state-induced increased risks of harm, (3) restriction of their freedom from state interference with psychological integrity, (4) state restriction of their right not to be held under servitude, and more precisely of their freedom to make the fundamental choices to quit one’s employer, to quit one’s occupation, and to quit one’s place of residence or work, (5) state obstacles to access justice in the country, and (6) state denial of procedural fairness. In this context, to allow (im)migrant workers’ exercise of their fundamental rights, open work authorizations must replace (directly or indirectly) employer-tied ones, and co-governmental management and pre-financing of (im)migrant workers’ international recruitment, sponsoring, placement, integration, and deportation processes respecting procedural fairness, must replace the current recognition of employers/agents’ ‘worker acquisition’ and ‘worker removal’ privileges. Since empirical evidence also confirms that state-induced family separation restricts individuals’ right to psychological integrity, and that exclusions to permanent status procedures restrict individuals’ right to access to justice in the country, further analysis are necessary to better understand the link between the respect of fundamental rights and the recognition of family reunification and permanent legal status procedures upon arrival.

Keyphrases: labour migration, circular migration, temporary migration, fundamental rights, migrant workers, guest workers, foreign workers, migrant trainees, migrant domestic workers