Constructing and Imagining Labour Migration

Perspectives of Control from Five Continents

Sandra Mantu, Elspeth Guild

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409409632
• eBook ISBN: 9781317161554
• Topic: Economics
• Subtopic: Labour Economics
• Index: Economics

Labour migration has been on the agenda of many countries around the globe at the same time as governments of both sending and receiving countries have been trying to develop regulatory mechanisms. This book opens the debate on the global politics of labour migration by proposing a re-assessment of the interaction between states regarding labour migration. Presenting case-specific scholarship from leading experts from five different continents, each contribution engages with the changing landscape of migration control and teases out emerging control patterns, dynamics and correlations that can be made between them and existing control paradigms. The multidisciplinary and global focus in 'Constructing and Imagining Labour Migration' sheds much needed light on the mechanisms deployed by states in their attempts to control labour migration and on the manner in which these mechanisms impact upon migrants themselves, leaving some caught up in the politics of labour market control

SECTION I
Uncertain Borders, Empty Control Claims: Labour Migration Regimes with Weak Control Claims

Elspeth Guild and Sandra Mantu

This first section brings together the experiences of countries, who in spite of their diverse geographical location on the African, Asian and South American continents, share similar issues around discrimination and its vital function in structuring identity. All chapters capture the deployment of irregularity as a mechanism of labour migration control and as the principle structuring experiences of exploitation and exclusion from social security. Irregularity arises again and again as a source of fascination – it seems to fulfil all sorts of different functions – from being an inherent part of labour migration (Griffin), a by-product (Aguiar), a disciplining move by the state (Mascareñas) or a by product of the state’s attempt to establish a monopoly over residence on the territory (Lu). The main mechanism through which the state disciplines migrants and makes them available for economic exploitation is related to its monopoly over the attribution of legal status and its capacity to blur the line between legal/irregular, wanted/unwanted migrants. In spite of migration taking place under various headings, the underlying issue is labour migration which is tied with the state’s willingness to admit the necessity of this type of movement. Lu and Mascareñas’ chapters highlight the disjunction between the labour market and the state, and although the other chapters are less clear about this, the privatization of labour control is an underlying issue in all of them. The state’s presumed absence from the regulation and control of labour migration is tied in with its capacity to obscure its presence. Strict regulations and even, over-regulation are characteristic of these countries’ formal labour migration policies and yet, irregularity, be it in a formal, legal sense or as a subjective mode of identification, informs the every day experiences of many migrants. National security plays a part in some areas (Asia) while in Africa the chapter by Nyndoro illustrates the ambivalence of state politics and migration and the constitution of migration as a subject of international relations. Finally, the spatial and temporal experience of migration seems fluid as the state’s capacity to construct and negotiate identify within these fields varies. The chapter by Aguiar illustrates how proximity or distance to the border can be deployed as a safety net against exploitation or as a mechanism favouring it. The chapters by Griffin, Lu and Mascareñas focus on the state’s desire to control the temporality of migration by instituting categories of migrants based on the length of their residence.

Chapter 1
When Borders Fail: ‘Illegal’, Invisible Labour Migration and Basotho Domestic Workers in South Africa

Laura Griffin

Summary

This chapter examines the ‘failure’ of laws and state controls to regulate labour migration, by focusing on a specific case study: domestic workers in South Africa who are Basotho (i.e. who have migrated from Lesotho). It examines state power and legal instruments as elements within a larger, more complex regulatory apparatus: the border. The chapter applies a novel conception of the border by focusing on the experiences and strategies of migrant workers themselves. This exposes the blurred lines between state and non-state, legal and illegal, in the regulation of migrants’ movements and their employment. Ultimately the ‘failure’ of state measures effectively to control Basotho women’s labour migration is seen to produce a number of specific effects. In particular, the border apparatus, resting on a complex system of documentation and operating through a range of agents, constitutes migrant workers as ‘illegal’. This ‘illegality’ undermines the efficacy of labour protections, distinguishing Basotho women as a supply of exploitable, expendable and invisible labour for South African homes.

The chapter begins by outlining a conceptual framework for the study of labour migration based on a conception of migration control regimes, or ‘borders’, which extends beyond state or legal controls. The perspective of the labour migrant herself is considered particularly crucial in this framework. The remainder of the chapter comprises such an analysis of Basotho domestic workers in South Africa, including: a brief introduction to the case study group; an outline of South African labour migration law and policy (contrasted with the realities of women’s labour migration); migrants’ experiences of ‘illegality’ as produced by the border’s surveillance and disciplining processes; and most crucially, the effects of this ‘illegal’ subjectivity in terms of the domestic service labour market and the concealment of this particular migration flow.

‘Our problem is that we are not here legally; almost nobody has the right papers.’ – Mosotho migrant domestic worker

Introduction

African states face a complex and difficult task in attempting to control or ‘manage’ cross-border labour migration. Indeed, state power and legal instruments represent only part of the migration control ‘picture’. The state and the non-state, the legal and the illegal, compete and intersect in constituting the ‘labour migrant’ as a unique subject. This chapter outlines and analyses state regulation and experiences of Basotho1 migrant domestic workers in South Africa. It examines their production as ‘illegal’ migrants and the implications of this status for workers’ lives and employment. Particular attention is paid to the role of the host state South Africa, and its legal instruments. As this chapter explains, the South African state ultimately fails in its attempts effectively to regulate women’s labour migration from Lesotho. However, the ‘failure’ of border controls to achieve their ostensible purpose – the exclusion of migrants from territory or the labour market – itself produces a number of specific and systematic effects. In particular, the constitution of Basotho women as ‘illegal’ migrants leads to their exploitation and invisibility within the host country.2

This chapter begins by outlining a conceptual approach to the study of labour migration control, examining the nature of migration control regimes, or borders. This section attempts to locate in general terms the role of states in the control of labour migration more generally. This leads to a consideration of the perspective of the labour migrant herself, discussing how her viewpoint and experiences may advance our understanding of labour migration control. Following this more general background section, the remainder of the chapter comprises the analysis of Basotho domestic workers in South Africa, building upon extensive qualitative data gathered in Lesotho and South Africa in 2008–2009. Building on a brief introduction to the case study group, the chapter outlines South African labour migration law and policy, contrasting these with the realities of women’s movements and employment: hence the ‘failure’ of the border as constructed by the state. Migrants’ experiences of ‘illegality’ are also considered, and how these are produced by the surveillance and disciplining apparatus of migration control. The chapter then outlines the implications of this ‘illegal’ subjectivity in terms of the domestic service labour market, and migrants’ employment experiences. The invisibility of migrant workers (and their employment) is also discussed as an effect of the border. The chapter ends with a brief conclusion, and a note as to the case study’s relevance to the study of other labour migration flows and their regulation.

Conceptualizing Migration Control: The Border

A comprehensive review of the various conceptualizations of migration control is obviously beyond the scope of this chapter. However, it is fruitful to consider briefly the ways that scholars understand the role of the state, and its laws, in regulating or ‘controlling’ labour migration. Most analysis of migration regulation rests upon several problematic assumptions. First, ‘the state’ is taken as a discrete institution which acts and interacts in certain ways (including through immigration policy) to further its interests and to respond to identifiable political or economic pressures (see for instance Massey 1999). It is therefore usually portrayed as a single entity with a unified goal and strategy. In contrast, recent anthropological studies of states have demonstrated that ‘the state’ itself is a multilayered and contradictory ensemble of institutions and practices (see Sharma and Gupta 2006).

Second, migration law/policy is assumed to represent a state’s dispassionate and unified strategy – ignoring the legacy of history3 or domestic politics, and the reality of conflicting laws on different levels or within different state branches. A third common assumption, to which legal scholars are particularly prone, is that of legal efficacy: that social realities and processes, including labour migration, can in fact be effectively and coherently influenced and ‘controlled’ through the use of legal instruments. Proceeding as it does from these assumptions, much migration literature reproduces this dominant discourse, re-creating a mythical image of the state and law; reaffirming the capacity and legitimacy of states in seeking to control migration, and law as the mechanism by which to do so. This is reflected in the common disappointment or frustration (even alarm) at the failure of states and their laws to command migration flows.

In contrast, this chapter argues that control mechanisms enacted or wielded by the state must be viewed within a broader context/system of labour migration governance. Any conception of ‘migration’ or ‘migrant’ rests on the idea of an international territorial border.4 A border is a line that is drawn on the ground (and/or upon a map) and actualized through continual processes of identification and designation; practices of distinguishing and separating citizen from foreigner, local from ‘other’. I therefore refer to the ‘border’ as the larger socio-legal apparatus by which this is achieved, comprising a complex assemblage of various ‘bordering’ mechanisms which make the borderline a social – rather than merely legal – reality. This border apparatus comprises mechanisms or practices that:

• involve both state and non-state actors (such as private companies, employers, migrants, transport operators, and community groups);5

• may be legal or illegal, or a combination of both (such as payment of bribes, forgery or fabrication of documentation);

• may conflict and contradict each other (such that the system is neither coherent nor stable);

• occur at a range of sites throughout the host country territory and sometimes beyond;6

• both include and exclude migrants, often simultaneously;7

• produce different types of ‘subject’ (such as ‘tourist’, ‘migrant worker’ or ‘citizen’) in particular ways and at different times;8 and

• discipline these subjects, operating as technologies of surveillance and control.9

This border apparatus relies primarily upon a system of documentation and data management, which enables surveillance throughout the constellation of sites involved. State power is therefore merely one form of power that is exercised, and legal or law enforcement processes never account for the working of the entire system – these are therefore more fruitfully considered as parts of a greater, more complex whole. This helps to expose, for instance, how stricter entry controls may redirect migrants to informal/illegal channels such as people-smuggling, or how specific documentation systems are manipulated by forgers. To dismiss such practices as beyond (or against) the scope of migration control precludes a more realistic, nuanced understanding of how migration processes are patterned or regulated. It also takes the state as the only agent – and state power as the only form of power – involved in the construction of borders, the control of migration, and the production of migrants as subjects. In contrast, I argue that employers, people-smugglers and forgers do not simply avoid or ignore the state’s legal migration regime. Rather, by strategically engaging with it, their own policies and practices form a part of the larger set of social practices that is the border.

This approach also sheds greater light on the nature and persistence of borders’ perceived failure: not merely in terms of the reasons why states’ construction of borders continue to fail (such as state incapacity, corruption, etc.), but in understanding why states attempt to construct or enforce such controls in the face of continued failure. More broadly, we could ask: why do borders, as more complex socio-legal institutions, persist if they consistently fail to achieve their ostensible functions? I argue that in order to understand a border’s persistence and indeed its nature, it is necessary to examine the border’s successes: the actual lived effects that the border does achieve, continually and systematically. This methodology builds upon Merton’s (1957) distinction between manifest and latent functions, and follows such institutional studies as Foucault’s (1977) examination of the prison, or Ferguson’s (1990) ethnography of a rural development project. Inevitably, a border’s effects – and its very mechanisms or practices – vary across countries and across migrant groups.10 As border practices are invariably gendered,11 raced and classed, they constitute different migrants differently, producing different effects on those migrants’ lives.

The Role and Experiences of Labour Migrants

As migrants engage with and experience a border in very different ways, the migrant herself provides the key to understanding the mechanisms and complexity of this migration regulation system. As the preceding section illustrates, it is not merely monolithic ‘states’ with which individual migrants must negotiate and engage, in navigating the labour migration system. Indeed, adopting a ground-level view of migrants’ strategies, encounters and experiences, unearths the more dynamic and complex border apparatus. For instance, migrants’ everyday experiences of ‘illegality’ and deportability12 demonstrate how bordering and disciplining processes occur not only at territorial frontiers but in sites such as workplaces, government offices, medical clinics, and even on street sidewalks. Such a view may also trace where the interests and projects of state entities and labour migrants diverge or conflict; expose the inefficiencies or failures of state policies and tactics; and interpret the impacts of official policy or law on the lives and strategies of migrants and their families (or conversely, the impact of migrants’ and others’ practices upon the law and its enforcement).

The migrant’s perspective also highlights the material practices of borders and migration control, and the effects produced thereby. This emphasizes the everyday technologies of surveillance, which are often otherwise invisible to migration scholars – owing either to their ubiquity in everyday life or to their distance from the ‘law on the books’. For instance, labour migrants are acutely aware that legal migration regimes inevitably depend upon mani...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Tables
• Notes on Contributors
• Acknowledgments
• Introduction
• Section I Uncertain Borders, Empty Control Claims: Labour Migration Regimes with Weak Control Claims
• Section II The Appearance of Control: Examining Labour Migration Regimes with High Control Claims
• Section III Equivocal Claims: Examining Labour Migration Regimes with Ambivalent Control Claims
• Index