Your income is too high, your income is too low: discretion in labour migration law and policy in the Netherlands and Macau

Abstract

ABSTRACTLabour migration policies create social tensions over the functioning of national labour markets, the interests of the local workforce, employers’ needs and migrant workers’ rights. This makes legislating on labour migration a balancing act, which often leads to legislation which grants wide discretion to bureaucrats in assessing labour market needs or other public interest indicators. We question whether, and if so how, the use of discretion in labour migration law transforms our concepts of migration and – possibly – membership. Central to our analysis is the fundamental question of how discretion may be properly limited. The existence of acceptable levels of transparency, accountability and representativeness in policy- and law-making processes is the first line of defence against arbitrary exclusion of ‘the other’ from membership. We show how discretion in labour migration policy is not determined so much by regional context (e.g. the EU). We do this by presenting two case studies on jurisdictions from very different regional contexts: the Netherlands and Macau SAR. These jurisdictions are representative of the persistent pressure exerted by governments to overcome obstacles encountered in the rigid statutory wording and mould the daily application of migration law to their perception of public interest. We use the globally relevant concept of income, understood sometimes as a barrier to migration and sometimes as a means to protect the migrant, and inquire on the recurrent use of discretion in setting the level of income required for migration. We show how discretion is used to label income as either too high or too low. In this respect, the use of discretionary power calls into question the principles of participation, transparency, affectedness, and accountability. Income requirements and their enforcement present themselves not as a means to protect migrant workers but more like another instrument of exclusion from – potential – full membership.