The Legal Construction of Hyper-Dependence and Hyper-Precarity in Migrant Work Relations

Abstract

The two key concepts developed in this article, 'hyper-dependence' and 'hyper-precarity', are aimed at drawing attention to the constitutive role of immigration law in shaping certain vulnerabilities in migrants' work relations. Immigration law is not merely concerned with controlling the entry and exit of migrants, but also creates personal legal statuses - some highly precarious - that shape their employment and residence in the host state. The two 'hyper' concepts seek to elucidate the most problematic features of Temporary Migrant Worker Programmes (TMWPs) currently found in a number of advanced industrialized, liberal democratic countries. Hyper-dependence refers to a particular tie of migrant workers to their employers as a requirement of their legal status. Hyper-precarity refers to the tenuous nature, in law and practice, of these workers' entitlements to employment protection, social rights, and transition to more secure residence status. In some circumstances both hyper-dependence and hyper-precarity can combine to give rise to extremely exploitative situations for migrants at work. This article explores possible normative constraints on states' design and implementation of TMWPs. It identifies two genres of normative interventions that may respond to the legal construction of hyper-precarity and hyper-dependence: first, the international human rights framework, and second, the discourse against forms of exploitation that could be regarded as 'unfree labour'. However, it is argued that neither of the discourses poses a fundamental challenge to host states' powers to create the precarious statuses of non-citizens admitted into their territory, nor do they tackle the complex realities of migrants' work relations on a continuum of exploitation.