Low skill temporary migration in New Zealand: Labour market and human rights law as a framework for managing future migration

Abstract

International labour mobility has been on the rise in recent decades. In many countries including New Zealand, there has been a significant shift from permanent migration to temporary migration in order to meet labour demands in critical sectors. While many of those on the move are highly skilled, globally there is demand for particular types of low skill workers. However, almost all low skill workers who are legal migrants are temporary migrants and the main avenue for regulating the movement of low skill workers internationally has been guest worker schemes or temporary migrant worker programmes (TMWP). There are divergent opinions amongst policy makers and researchers on the merits of circular migration. Some see only negatives impacts for migrant workers: including dependency and exploitation, social exclusion, and irreversible social impacts on their families left behind. Others believe that the current iteration of guest worker schemes can complement both labour demand and development (through remittances, skill transfer and experience). This paper focuses on the host country, that is New Zealand’s perspective, and specifically on the human rights and labour law issues that will be relevant for any future expansion of low skill migration to New Zealand. In particular the focus is on low skill caring and related work rather than work in areas such as construction, manufacturing or primary sector industries. New Zealand’s Recognised Seasonal Employer Scheme for seasonal horticultural work, was successfully trialled as a new model of temporary migration. However extending work schemes to activities primarily servicing the needs of people and for work that is generally not seasonal, requires close examination. Temporary migrant workers are particularly vulnerable to abuse and exploitation and their isolation in rural areas or private homes, leaves them detached from the normal checks and balances covering the permanent workforce. Policy design in this area is a balancing exercise and will necessitate some trade off of rights such as family reunification and freedom of movement. However this paper uncovers a gap, notwithstanding the existence of a comprehensive international legal framework on migrant rights, between rhetoric and enforcement of rights in the comparative countries selected for their relevance to New Zealand. Unfortunately a middle ground appears difficult to identify with the reality being that the tap will be turned off when this option becomes too expensive. Ignoring or tolerating irregular migration is not the answer either. New Zealand can learn from the experiences of other countries but none of the models canvassed in this paper are ultimately preferred. Instead it becomes apparent that the success of Recognised Seasonal Employer Scheme has no further congruence with TMWP for the domestic and care sector. Work involving people, as opposed to products, is not only most problematic from a human rights and labour law perspective, but is also unlikely to fulfil the ‘triple win’ rationale for the resurrection of the current host of TMWP. Care work for example, necessitates the building of longer term relationships (and understanding of cultural norms of care) and therefore a policy that limits the amount of time a worker is allowed to remain in the country is unlikely to achieve the necessary results. Even if New Zealand favoured migrants from sending states who were actively involved in the training, welfare and protection of their temporary migrating citizens - training, oversight and enforcement in the host country are not straightforward. This paper concludes that the difficult and often more controversial decision to accept that some permanent low skill migration (and the accompanying protections afforded to those migrants) is appropriate and will have to be made. Policy needs to be developed not just from a migrants rights standpoint, but to address demand (which will of course not disappear), continuity of care for the elderly, and similar rights and protections of the clients.