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The New Precariousness: Temporary Migrants and the Law in Canada

  • Sarah Marsden (a1)

In this article, I argue that precarious migration status can be used as an organizing concept for an analysis of (im)migration law in Canada. After situating the regulation of precarious migrants in the historical context of the liberal/neo-liberal shift of the 1970s, I argue that the increase in migrant precariousness over the past few years is likely to increase as a result of recent legislative changes in both refugee and migrant-worker law. Finally, I offer a critique of the traditional liberal argument for migrant rights, inviting an alternative approach to establish migrant rights on the basis of economic participation.

Dans cet article, je soutiens que le statut précaire d'immigrant peut être utilisé en tant que concept organisateur dans l'analyse des lois sur la migration et l'immigration au Canada. Après avoir situé la réglementation des migrants précaires dans le contexte historique des années 1970, période marquée par le passage du libéralisme au néolibéralisme, je soutiens que l'accroissement de la précarité des migrants au cours des dernières années pourrait augmenter à la suite des changements législatifs récents apportés aux lois sur les réfugiés et les travailleurs étrangers. Finalement, je porte un regard critique sur l'argumentation traditionnelle libérale liée à la défense des droits des migrants, et propose une approche alternative afin d'établir les droits des migrants sur la base de leur participation économique.

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1 Citizenship and Immigration Canada, “True or False?” (Ottawa: Citizenship and Immigration Canada Media Centre, 2008),

2 For the purposes of this article, several separate but related terms are used to describe the status of non-permanent migrants: the terms “undocumented migrants” and “undocumented workers” refer to people in Canada without current migration status, and the term “irregular migrants” refers to people in Canada who are not in compliance with the law or with any term of their authorization (including undocumented migrants as well as those with documentation who are not in compliance with any aspect of their permit). The term “illegal migrants” is used not to describe migrants per se but, rather, to explore the use of this concept within government policy and its broader discursive function.

3 Vosko, L.F., Precarious Employment: Understanding Labour Market Insecurity in Canada (Montreal: McGill-Queen's University Press, 2006), 3.

5 Immigration and Refugee Protection Regulations, SOR/2002-227, s 185(b)(ii).

6 See, e.g., Health Insurance Act, RSO 1990, c H6. Status-based distinctions may also be due to conditions of the work permit—in the case of access to Employment Insurance, for example, foreign workers may have more difficulty proving “availability for work” if their work permit is bonded to one employer. Employment Insurance Act, SC 1996, c 23, s 18; Service Canada, “Digest of Benefit Entitlement Principles” (Ottawa: Service Canada, 2012),

7 See, e.g., Sargeant, M. and Tucker, E., “Layers of Vulnerability in Occupational Safety and Health for Migrant Workers: Case Studies from Canada and the UK,” Policy and Practice in Health and Safety 2 (2009), 51; Preibisch, K., “Pick-Your-Own-Labor: Migrant Workers and Flexibility in Canadian Agriculture,” International Migration Review 44, 2 (2010), 404; Human Resources and Skills Development Canada, “Seasonal Agricultural Worker Program” (Ottawa: HRSDC, 2009),; Binford, L., “From Fields of Power to Fields of Sweat: The Dual Process of Constructing Temporary Migrant Labour in Mexico and Canada,” Third World Quarterly 30, 3 (2009), 503; Live-In Caregiver Program” (Ottawa: HRSDC, 2012),; Hsiung, P. and Nichol, K., “Policies on and Experiences of Foreign Domestic Workers in Canada”, Sociology Compass 4, 9 (2010), 766.

8 Fudge, J., “The Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers” (Metropolis British Columbia Working Paper Series No. 11–15, 2011), 6.

9 Conceptualizing migration status in terms of illegality as a causative factor resulting in lack of access to rights and entitlements fails to consider the production of different types of legality by the state's constitution of migrant status and the effect on the conditions of labour and labour market position: see Anderson, B., “Migration, Immigration Controls and the Fashioning of Precarious Workers,” Work, Employment and Society 24, 2 (2010), 306.

10 For example, the legal distinction between the “legitimate refugee” and the “economic migrant / bogus refugee” is often employed to justify restrictions within the inland refugee process and on potential temporary entrants from abroad. In the context of refugee law and government rhetoric, the “legitimate refugee” is constructed as a person fleeing persecution and violence, with no economic motivation to enter Canada, while the “economic migrant/bogus refugee” is constructed, in opposition, as a person whose primary basis for entering Canada is to improve his or her material conditions (a highly desirable characteristic in permanent and temporary migrants who are not refugees). In reality, the two may be entwined in ways not easily susceptible to this simple distinction. It is likely that many migrants entering Canada through the inland refugee process experience some combination of persecution and economic desperation, and, similarly, foreign workers may be motivated by risk-based factors not limited to the economy of the sending country.

11 Precarious migration status may also function similarly to racialization in terms of the longevity of its effects; there is evidence even after obtaining permanent residence, many migrants who experienced precarious status continue to experience its detrimental effects. Landolt, P. and Goldring, L., “The Long Term Impacts of Non-Citizenship on Work: Precarious Legal Status and the Institutional Production of a Migrant Working Poor” (Paper presented at York University, September 16, 2010),

12 For a detailed treatment of the history of Canadian migration policy see Kelley, N. and Trebilcock, M.J., The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 2010).

13 McLaren, A.T. and Black, T.L., “Family Class and Immigration in Canada: Implications for Sponsored Elderly Women” (Research on Immigration and Integration in the Metropolis Working Paper Series No. 05-26, 2005).

14 Sharma, N., “On Being Not Canadian: The Social Organization of ‘Migrant Workers’ in Canada,” Canadian Review of Sociology 38, 4 (2001), 425.

15 Stasiulis, D.K. and Bakan, A.B., Negotiating Citizenship: Migrant Women in Canada and the Global System (Toronto: University of Toronto Press, 2005); Sharma, N., Home Economics: Nationalism and the Making of “Migrant Workers” in Canada (Toronto: University of Toronto Press, 2006); Satzewich, V., Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada since 1945 (London: Routledge, 1991).

16 Cohen, R., Migration and Its Enemies: Global Capital, Migrant Labour and the nation-State (Aldershot, UK: Ashgate Publishing, 2006).

17 Munck, R., Schierup, C.U., and Wise, R.D., “Migration, Work, and Citizenship in the New World Order,” Globalizations 8, 3 (2011), 249.

18 North, D.S., Amnesty, Conferring Legal Status on Illegal Immigrants: The Canadian Experience, the Western European Experience, and Some Comments on Its Possible Consequences in the US (Washington, DC: Center for Labor and Migration Studies, New TransCentury Foundation, 1982), A28.

19 Buchignani, N. “Vanishing Acts: Illegal Immigration in Canada as a Sometime Social Issue,” in Illegal Immigration in America: A Reference Handbook, ed. Haines, David and Rosenblum, Karen (Westport, CT: Greenwood Press, 1999).

20 Ibid., 434.

22 Singh v Minister of Employment and Immigration, [1985] 1 SCR 177.

23 Robinson, W.G., Illegal Migrants in Canada: A Report to the Honourable Lloyd Axworthy (Hull: Minister of Supply and Services Canada, 1983), xi [emphasis added].

24 Bou-Zeid, Z., “Unwelcome but Tolerated: Irregular Migrants in Canada” (Diss. Osgoode Hall Law School, York University, Toronto, 2007).

25 Galloway, D., “Noncitizens and Discrimination: Redefining Rights in the Face of Complexity,” in Of States, Rights, and Social Closure: Governing Migration and Citizenship, ed. Schmidke, O. and Ozcurumez, S. (New York: Palgrave Macmiilan, 2008).

26 Arendt, Hannah, The Origins of Totalitarianism (San Diego, CA: Harcourt, Brace, 1967), 296.

27 Stasiulis, D., “International Migration, Rights, and the Decline of ‘Actually Existing Liberal Democracy,’Journal of Ethnic and Migration Studies 23, 2 (1997), 197.

28 Cohen, Migration and Its Enemies.

29 Sassen, S., Guests and Aliens (New York: New Press, 1999), 136.

31 Ibid., 134.

32 Although a perfect data comparison is not available because of the lack of data on the number of undocumented migrants in Canada, and also because of the likelihood that people are working without SINs, the CRA data give a rough low estimate of the number of precarious migrants with status of some kind, of which the number of refugee claimants and the number of temporary foreign workers would cumulatively form a majority. Undocumented migrants are included not only because of the number of migrants with this status but because of the particular risks associated with absolute lack of migration status.

33 Temporary work permits are issued pursuant to labour-specific programs, such as the Seasonal Agricultural Worker Program and the Live-in Caregiver Program, as well on the basis of individual employment relationships in both high- and low-skilled categories of labour. Temporary work permits may also be issued to people who are awaiting the finalization of their permanent residence under humanitarian, refugee, or spousal sponsorship; to students; and to spouses of authorized workers and students.

34 Citizenship and Immigration Canada, Facts and Figures—Preliminary Tables: Permanent and Temporary Residents, 2010 (Ottawa: Citizenship and Immigration Canada, Research and Statistics, 2011),

35 Immigration and Refugee Protection Regulations, SOR/2002-227, ss 183(1)(b), 185(b)(ii).

36 Although the vast majority of low-skilled workers do not qualify for permanent residence under federal economic classes, there are provincial initiatives underway to provide permanent residence to a number of low-skilled workers: see, e.g., British Columbia's Entry-Level and Semi-Skilled pilot program ( and Manitoba's Provincial Nomination Program (

37 Elgersma, S., Temporary Foreign Workers (Ottawa: Political and Social Affairs Division, Library of Parliament, 2007), 4.

38 Ontario (AG) v Fraser, 2011 SCC 20.

39 This is underscored by the fact that each person claiming refugee status in Canada is issued a deportation order when a claim is made, which disappears only if the claim is successful: Immigration and Refugee Protection Regulations, SOR/2002-227, ss 228(3), 206(a).

40 See, e.g., Chan, S. et al. , The Profile of Absolute and Relative Homelessness Among Immigrants, Refugees, and Refugee Claimants in the GVRD: Final Report (Vancouver: MOSAIC, 2005).

41 Azaad, S.N., “Resolving the Backlog: An Analysis of Canada's Refugee Backlog Clearance Program” (Toronto: York University Department of Political Science, RSC/SC-44.2, 1991).

42 Citizenship and Immigration Canada, Digital Library: Facts and Figures, Immigration Overview Permanent and Temporary Residents (Ottawa: Citizenship and Immigration Canada, 2009), Table 400.

43 Immigration and Refugee Protection Regulations, SOR/2002-227, s 183(1)(b); Immigration and Refugee Protection Act, SC 2001, c 27, ss 124(a), 124(c).

44 Tilson, D., Temporary Foreign Workers and Nonstatus Workers (Report of the Standing Committee on Citizenship and Immigration) (Ottawa: Library of Parliament, 2009), 65.

45 Magalhaes, L. et al. , “Undocumente d Migrant s in Canada: A Scope Literature Review on Health, Access to Services, and Working Conditions,” Journal of Immigrant and Minority Health 12, 1 (2010), 132.

46 Anderson, “Migration, Immigration Controls and the Fashioning of Precarious Workers.”

47 Sassen, , Guests and Aliens, 134.

48 Although refugee claimants do not have status in Canadian migration law for the purposes of, for example, accruing work experience toward permanent residence, they do possess an identification document as refugee claimants, and are entitled to various social benefits on this basis; for the purposes of this analysis, to distinguish them from migrants entirely without status, refugee claimants are thus considered to have a form of migration status.

49 Pursuant to s 24(4) of the Immigration and Refugee Protection Act (already in effect), a person “may not request a temporary resident permit if less than 12 months have passed since their claim was last rejected or determined to be withdrawn or abandoned”; pursuant to the new s 112(3) of the amended Immigration and Refugee Protection Act (in effect as of June 2012), pre-removal risk assessment will not be available for 12 months after a claim for refugee protection has been withdrawn, refused, or abandoned. An Act to amend the Immigration and Refugee Protection Act, s 15(3),

50 Sean Rehaag, “2008 Refugee Claim Data and IRB Member Grant Rates” (Canadian Council for Refugees, 2009),

51 Bill C-4, An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act, 1st Sess, 41st Parl, 2011,

52 Ibid., s 5.

53 Ibid., s 18(1).

54 Immigration and Refugee Protection Act, SC 2001, c 27, s 133.

55 An Act to amend the Immigration and Refugee Protection Act,, ss 5–7.

56 Ibid., ss 10(2), 17.

57 Immigration and Refugee Protection Regulations, SOR/2002-227, ss 200(1)(c), 200(2)(g), 200(2)(h).

58 Another recent policy change has seen “high-skilled” migrants in Canada as PhD students at Canadian universities obtain more direct access to permanent residence as Federal Skilled Workers, a category to which migrants whose labour is classified as “low-skilled” are categorically denied access: Citizenship and Immigration Canada, “Fourth Set of Ministerial Instructions: New PhD Eligibility Stream under the Federal Skilled Worker Program” (Operational Bulletin 351, November 4, 2011),

59 But see provincial nomination programs discussed in note 37.

60 Marsden, S., “Assessing the Regulation of Temporary Foreign Workers in Canada,” Osgoode Hall Law Journal 49, 1 (2011).

61 Fudge, J. and MacPhail, F., “The Temporary Foreign Worker Program in Canada: Low-Skilled Workers as an Extreme Form of Flexible Labour,” Comparative Labour Law and Policy Journal 31 (2009), 5.

62 For example, the following passage appears in an intelligence manual aimed at educating Canada Border Services Agency officers in carrying out their duties: “In a prolonged recession and difficult labour market, Canada, which has been identified as being better positioned to weather the recession, and with its comprehensive social safety nets, will continue to be an attractive destination for displaced migrant workers and irregular migrants leaving behind social and political conflicts.” Canada Border Services Agency, The Impact of the Global Recession on Migration (Ottawa: Canada Border Services Agency, Intelligence Risk Assessment and Analysis Divison, Intelligence Directorate, 2009), 1. This document was released as part of Access to Information Request A-2009-08262.

63 See, e.g., Carens, J., Immigrants and the Right to Stay (Cambridge, MA: MIT Press, 2010); Legomsky, S., “Portraits of the Undocumented Immigrant: A Dialogue,” Georgia Law Review 44 (2009), 65.

64 Sharma, , “On Being Not Canadian,” 425.

65 Cohen, Migration and Its Enemies.

66 Carens, J., “Aliens and Citizens: The Case for Open Borders,” Review of Politics 49 (1987), 268.

67 In brief, permanent residents have the right to enter and remain in Canada, to circulate freely in the labour market, and to access the same social and economic benefits as citizens. Unlike citizens, however, they are subject to residency requirements in order to maintain their status and sponsor relatives, may be deported or detained for serious crimes or security issues, and cannot vote in most elections.

68 Tilson, , Temporary Foreign Workers and Nonstatus Workers, 5.

69 Bosniak, L., “Citizenship Denationalized,” Indiana Journal of Global Legal Studies 7 (1999), 453.

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