ENSURING TEMPORARINESS: Lessons from Existing Practices

1. ENSURING TEMPORARINESS:Lessons from Existing Practices Michele Klein Solomon Director Migration Policy, Research and Communications International Organization for Migration September 2008 WTO Mode 4 Symposium

2. WHY FOCUS ON TEMPORARINESS? • At issue is whether the temporary movement of service providers will remain temporary, or whether opening market access through Mode 4 effectively will result in unplanned for permanent migration. • Before examining various types of mechanisms put in place to prevent overstay on a temporary visa and to promote return, a few words about the nature of the concern. • Who is concerned? • What are they concerned about? • Is the concern warranted?

3. WHO IS CONCERNED? • Host Countries: • If persons entering their territories and markets on a temporary visa overstay the terms of the visa, this erodes the rule of law (domestic immigration law), public confidence in the functioning of the immigration system and future support for a generous immigration policy. • It also raises concerns about the potential displacement of native workers, potential costs in terms of public services such as health, welfare and education, as well as capacity to integrate them. • Overstaying can also result in security-related concerns, if it appears that it is the individual rather than the government determining who can enter and stay on the host country territory and under what conditions, a fundamental principle of migration law and policy. This concern can be exacerbated if there is a suspected link to criminal migrant smuggling and trafficking networks.

4. WHO IS CONCERNED? • Home Countries • Particularly in the case of the highly-skilled, temporary movement to another country that becomes permanent can result in the loss of talent, the best and the brightest, and create brain drain. • Where origin countries are developing countries, and particularly the least developed, this concern is particularly exacerbated, as the potential negative implications for sustained economic growth and development can be substantial. • Concern can also focus on loss of connection to the country of origin, including loss of family links.

5. MODE 4 PARADOX • Host countries: • As is clear from the Mode 4 commitments made to date, host countries are more willing to provide market access to the highly-skilled – intra-company transferees, executives and managers. • They have been more reticent to provide access for the lower-skilled. • Home countries: • Generally have the greatest concerns about ensuring the return of their most highly-skilled, to prevent loss of talent and brain drain. • Less concern about return of lower skilled workers with respect to whom permanent movement/migration can be seen as relieving unemployment and other domestic pressures, who are also the greatest source of remittances. • The interests of the two sets of countries with respect to ensuring temporariness may diverge.

6. Setting the Trade and Migration Contexts • Mode 4 is not a migration agreement; Mode 4 movement is a subset within a subset within a subset of migratory movements • 200 million migrants worldwide • Nearly half are engaged in remunerative employment overseas • ? Migrate temporarily • ? Migrate as temporary service providers • Today, more and more migration is temporary, multidirectional and circular; the one time, one direction permanent migration that characterized previous eras has been fundamentally changed by transportation and communications revolutions that have made it possible to live in and belong to two or more worlds simultaneously or sequentially. • See forthcoming IOM World Migration 2008: Managing Labour Mobility in the Evolving Global Economy. • While Mode 4 is not a migration agreement, the relevant regulatory framework for Mode 4 is national migration regulations; therefore, the concerns of migration regulators -- or managers as we call them -- matter.

7. Regulatory Framework • Concerns of immigration authorities in host countries are exacerbated by the fact that Mode 4 -- and the GATS system as a whole -- represents a permanent, multilateral/MFN-based, legally binding commitment to market access. • Immigration policies, in contrast, are intended to be flexible, and responsive to changing labour market needs, and economic, security and social conditions. • Moreover, there is a perceivedlack ofbalance between obligations and responsibilities for countries of origin (home) and destination (host) under Mode 4.

8. OVERSTAY CONCERN • Is this concern warranted? • In fact, it is the rare immigration or other public official in host countries that is genuinely concerned about overstaying by highly-skilled individuals, even if they do not stay in the jobs which brought them in the first place (and as long as they do not commit crimes). Generally, speaking they are better prepared to integrate effectively into the community and culture. • While there may be concerns about displacement of local workers, in today’s competitive global market place, countries are competing for the talents of the best and brightest and cultural diversity can provide a global mosaic of people well-suited to the marketplace. • Moreover, if executives are displaced, there is unlikely to be a sympathetic public outcry that an unprotected class is being exploited. • The concern is wholly different with respect to lower-skilled workers.

9. INTEREST IN MANAGEMENT • With demographic deficits and education levels rising in most developed countries, there is a real need for middle and lower-skilled service suppliers, whether in construction, health and home care, the hospitality sector, or others. • Nationals in destination countries often are not willing to perform these jobs, at least at the wages that are currently offered. • Notwithstanding the growing demographic divide between the developing and developed worlds, only some 3 percent of the world’s population today is living outside the country of birth. • Nonetheless, there will always be more people in developing countries wishing to seek a better life in the developed world than the need for their skills and services in the developed world, or the ability of host countries to absorb/integrate them (including in terms of social services, stability and identity questions).

10. INTEREST IN MANAGEMENT • Consequently, host governments will continue to restrict the number of legal entry and immigration possibilities that will be available and therefore means need to be found to more effectively match the demand for and supply of labour globally, and in a way that is safe, fair and efficient. • There is no doubt that adequate means have not yet been put in place, as is evidenced in part by the informal workings of the market with relatively high levels of irregular, unauthorized migration and persons in irregular migration status filling jobs, often in the unprotected informal sector. • Today, therefore, host and home countries alike are placing a renewed focus on managing the movement of people, particularly for remunerative activity, through planned, safe and lawful channels.

11. MEASURES TO ENSURE TEMPORARINESS • Measures can take place at: • Unilateral, • Bilateral, and • Regional (formal and informal) levels • By different stakeholders/actors: • Governments of host country • Governments of home country • Employers • Recruitment agencies • Can involve either carrots, sticks or a mixture of both: • incentives and/or sanctions • Link to flanking policies: • Policies outside market access/labour mobility can help enhance confidence, i.e. readmission agreements

12. INCENTIVES FOR RETURN • A strong economy, stable society and something to go home to – cannot be stressed enough • Most return migration occurs spontaneously,when people feel there is something for them to go home to Programmatic interventions to: 1) facilitate workers’ ability to reach their earning/saving targets; 2) enhance the advantages of using legal means to migrate and maintaining legal migration status, and 3) create livelihood prospects upon return. • MANAGE EXPECTATIONS: • Pre-departure orientation, advise on rights and responsibilities in the host country, including the obligation to comply with host country immigration laws, and the consequences of not doing so • Raising awareness regarding the risks of irregular migration, i.e. information campaign on the risks of irregular migration • Migrant Resource or Information Centers • Consular networks

13. INCENTIVES FOR RETURN • Reducing the costs of temporary emigration (and minimising eventual debt reimbursements) • Travel costs • Lowering the cost of placement services • Keep costs of administrative procedures related to emigration to a minimum • Costs related to the production of passports and supportive administrative documents (certificates of birth, criminal records, etc.), exit/travel taxes, and affidavits. • The lengthiness and cumbersome nature of the procedures (paperwork and documentation, delays in processing for passport, emigration clearance, etc.) may also impact on the decision to emigrate using irregular means or overstay.

14. INCENTIVES FOR RETURN • Facilitate access to financial systems and enhance financial transfers: facilitate savings, social security and remittances to improve conditions for return more quickly • Channel remittances for purchase of a home, educations, or SME investment • Mexicans in the U.S. can open bank accounts and remit funds with an ID issued by their consulate • Reduce remittance transfer fees, i.e. Caixa Espanol (Spanish bank) and 53 Ecuadoran financial institutions formed an integrated agreement to reduce transfer fees • My Family, My Country, My Return – Ecuadoran bank together with several Spanish banks developed a special savings account allowing migrants to fully control their finances while abroad and accumulate savings to invest after their return home • Mexican remittance matching scheme – 4 for 1 in Zacatecas • “Compulsory Savings Scheme” -- Canada/Guatemala employment agreement for Caribbean workers stipulates a 25 % mandatory remittance from the worker’s wages. This deduction is remitted to the country of origin liaison officer and is given back to the worker only upon return home.

15. INCENTIVES FOR RETURN • Favourable tax and investment treatment (see example of preferential measures for non-resident Indians) • Return and reintegration support: • Philippines reintegration/investment programme • Livelihood programs and projects in coordination with the private sector; • Coordinate with private & government agencies in the promotion, development, and full utilization of potential of returning migrant workers • A computer-based information system on skilled Filipino migrant workers shall be accessible to all local recruitment agencies and employers, private and public; • The Philippine banks and financial institutions offer some investment and saving instruments. • Spain/Colombia bilateral agreement includes a chapter on return providing steps to be taken to promote re-entry of workers in Colombia, focusing on the value-added of the overseas experience as a factor for economic, social and technological development; • Spain also provides leadership training to be used upon return and is accompanied by SME development • Support for the return of qualified professionals (Afghanistan, Bosnia-Herzegovina, Iraq, Uganda). • Provide professional training/retraining and/or financial support, i.e. France/Mauritius « migration and development» or « young professional » visa

16. INCENTIVES FOR RETURN • Twinning possibilities: • Creation of bi-national small and medium sized enterprises, development of human capital and technology transfer (see the IOM Migration for Development in Africa and similar programmes) e.g. in the Great Lakes region, Ghana, Morocco, Senegal, etc. • Overall objective of MIDA is to strengthen the institutional capacities of African governments to manage and realize their development goals through the permanent, temporary or virtual transfer of relevant skills, financial and other resources available in African diaspora communities for use in development programmes in Africa.

17. INCENTIVES FOR RETURN • Provide portability of pensions, and certain social security and health benefits: • Bilateral social security agreements, i.e. between the Philippines and several European governments, India/Belgium, Greece/Egypt • Cumulative calculation of benefits for periods contributed to each system • Provide possibilities for repeat entry: • Spanish labour migration agreements require workers to report to Spanish consular authorities upon return home; if/when they do so, they are then eligible to re-enter the Spanish labour market more easily the following year/season (see Spain/Colombia bilateral)

18. SANCTIONS -- Examples • Employer loss of right to continue to recruit abroad • Sanctions concerning false and forged documents • Sanctions concerning irregular emigration/immigration/exit control • Sanctions applicable to those who facilitate irregular emigration • Sanctions and enforcement measures against illegal employment/recruitment • Joint liability of destination country employer and countries of origin agent/recruitment agency

19. SANCTIONS Two Examples: • (1) The Philippines: • Recruitment agency recruiting/deploying foreign workers must first secure accreditation/registration of the foreign principal or employer from the Philippines Overseas Employment Administration. • To be registered, employers must submit documentation for verification by the Philippines Overseas Labour Offices (POLO) (operating in main destination countries). • Accreditation applies where the documents pertaining to the principal or employer are not verified in the host country by POLO, but are submitted to POEA for hiring approval. In this case, the agency must provide POEA with a proof of the valid existence of the business or project and documents showing of the availability of visas for the workers to be deployed. • For both accreditation and registration, POEA requires the employer to submit a document granting power of attorney for an agency appointed as its representative in the Philippines. • The recruitment agency and the employer are jointly liable for monetary obligations towards workers. Foreign employers may be suspended/banned from hiring Filipino workers for default on contractual obligations to the migrant worker, violations of laws on overseas employment, etc.

20. SANCTIONS (2) Australia: Overseas Business Sponsor • Allows overseas businesses or businesses which have no formal representation in Australia to bring a specified number of temporary employees to Australia to establish a branch, subsidiary or joint venture or to fulfil the employer’s contractual obligations or conduct other business activities in Australia. • Approval as an Overseas Business Sponsor is valid for up to 24 months or until the specified number of positions have been filled. • Employers must comply with sponsorship requirements, which apply to Australian employers and require the sponsor to comply with the legal and tax obligations applicable to employment of overseas employees in Australia • Should the business fail to comply with its obligations, provide false information to the Department or otherwise fail to continue to satisfy the requirements of the sponsorship, the department may take action to: • cancel the business's approval as a sponsor; • bar the business, for a specified period, from making further applications for approval as a sponsor; • bar the business, for a specified period, from sponsoring or nominating more people under the terms of existing sponsorship approvals; • cancel the visas of any temporary business entrants, and their accompanying family members, sponsored by the business; and/or • Take any failure to comply with these undertakings into account in assessing any future sponsorship applications made by the business or by any other business operated by the same principals.

21. SANCTIONS/FLANKING POLICIES • Complement with readmission agreements and other measures to combat irregular migration • These agreements specify the obligation of the country of origin to accept the return of their nationals and establish effective procedures for the implementation of their return • Posting of liaison attaché for migrants in destinationcountry

22. Lessons Learned • Key lessons for Mode 4: (1) First and foremost is the need to create confidence that the system can work, and this is a concern that should be as much on the minds of origin country governments as on those of destination country governments. They share an interest in the integrity and proper functioning of systems set up to facilitate and manage the flow of people.

23. Lessons Learned • (2) Create capacity to manage movement of people • Mostgovernments – and notjust those of developing countries – lack the legislation, administrative mechanisms, and trained personnel to effectively manage the movement of persons. • To facilitate flows for legitimate purposes; combat/prevent irregular flows. • While it is important to have framework legislation in place in countries of origin, implementation and enforcement can be impeded by a lack of underpinning secondary legislation, insufficient human and financial resources, or inadequate expertise and training of staff. • Limited access to technology and equipment can also be a problem.

24. LESSONS LEARNED (3) Role for inter-state and inter-institutional cooperation • Share experiences, information and lessons learned • Provide technical cooperation and support • Include a reporting system for monitoring and evaluation of progress made

25. Lessons Learned • (4) Specific lessons can be learned from bilateral and other agreements where two-way commitments are involved For example: • Pre-screening for skills/qualifications and security checks • Linking access levels to indicators such as unemployment rates • Guarantees/incentives for return

26. Lessons Learned • Develop templatesdrawing on lessons learned in managing temporary labour migration. Templates could cover: • Facilitating regular dialogue and information exchange among governments, including the regulators; • Tools for ensuring transparency of entry requirements; • More flexible access commitments based on objective criteria (i.e. shortages lists by sector, adjustable quotas);  • A model schedule/GATS visa; • Enforcement and return guarantees; • Opportunities for training and transfer of know-how;  • Policy coordination between trade and migration officials. • Consider granting market access to all states capable of meeting conditions articulated in the templates.1 1 Templates were proposed by Julia Nielson, formerly of the Trade Directorate, OECD.

27. Follow up • Future activities could include: • Development of templates addressing regulatory policies and flanking measures that make temporary labour mobility successful and that could be adapted to -- or serve as a complement to -- Mode 4.

28. MODE 4 Thank you Background materials can be accessed on the IOM website at www.iom.int