Voices from the Margins: Interest Groups and the State in Canadian and British Immigration Policy-Making Between 2000 and 2010

Voices from the margins: Interest groups and the state in Canadian and British immigration policy-making between 2000 and 2010

Simona Ruxandra Chiose

A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy

Political Science

University of Toronto

Abstract: Voices from the margins: Interest groups and the state in Canadian and British immigration policy-making between 2000 and 2010

Simona Ruxandra Chiose

Doctor of Philosophy

Political Science, University of Toronto

2017

Over the decade of the 2000s, governments in Canada and Britain converged in their immigration policies, increasing the ability of short-term and temporary foreign workers to enter their labour markets and restricting refugee entries. This work seeks to find an explanation for the source of these changes and tests an interest-based approach in particular. Did interest groups successfully lobby policy-makers or did politicians act autonomously in each area to implement legislation?

By comparing labour and refugee policies within and across countries, it contributes to a growing stream in the political study of immigration which explicitly considers each field in relation to the other in an attempt to specify the sources of policy change. Six cases, two in labour migration and one in refugee legislation in each country, are considered.

The research reveals that political actors in Westminster systems are able to set, direct and accomplish their agendas with little input from organized interests in most cases. They are further able to design policy instruments that insulate their decision-making from interest groups. The study, therefore, confirms theoretical expectations. Governments were able to respond to perceived electoral risks – including media pressure and global economic shocks – and reverse policies that interest groups had advanced. The work opens new and emergent questions about the conditions under which organized interests may participate in the making of immigration policy. It further suggests that the ability of strong states to act autonomously can create a democratic deficit that may lead to state power being unshackled from accountability, and undesirable and unexpected policy outcomes. As a result, robust mechanisms are required to allow interest groups a voice in policy processes.

Acknowledgments

At the finish line of a project, the journey is almost forgotten. In this case, the course took many forks, each making the research less statistically likely to reach its conclusion. My sincere appreciation goes to my dissertation committee who for many years supported this work with advice, edits and insight.

Randall Hansen is a rigorous, principled researcher and he asked the toughest questions, both of the argument and its evidence. His work allowed me to reach the best answers possible. I’m a stronger, more confident thinker and writer because of his approach, a reward that will last beyond this project.

Jeffrey Kopstein guided this research with enormous patience, saw connections where they had eluded me and encouraged bridge-building between fields and cases. He also read too many drafts, provided encouragement and doses of reality.

Joseph Wong’s intellectual and personal counsel was always concise, always right and always essential. He generously treats all his students as academic equals and we do our best to live up to his optimism.

Phil Triadafilopoulos was the best reader one could hope for, asking many seemingly small questions that led to massive improvements in matters of factual depth and theory. I thank him for the expertise, care and time he expended. Erin Hannah’s work is a model of how to think about the democratic potential of interest groups. Her close examination and perceptive, thorough comments revealed areas I had neglected, potential in corners I had tried to escape and opened new avenues that I will pursue.

The political science department at The University of Toronto and my colleagues in the program taught me much of what I know about politics and political inquiry and some of what I know about life. Without financial support from the department and the university this project would not have been feasible. A special thanks is owed to Neil Nevitte and Richard Day, two professors with very different approaches to research, but both inspirations for their ability to combine discipline and imagination. Steven Bernstein steeled my confidence when it wavered. Carolynn Branton fixed all problems with a smile and I brought a few her way. The Ontario Graduate

iii

Scholarship provided additional funding during my PhD. The Metropolis Project and the Canadian Political Science Association offered stimulating venues to test out ideas and money to get there.

For many of the later years of research and writing, I worked at The Globe and Mail newspaper, with editors who followed the lead of Elizabeth Renzetti and accommodated a schedule full with family and academic commitments. Thanks go also to John Stackhouse for his belief that education can lead the way out of many jams.

Deep thanks and love is due to my family. My partner Paul has always seen the future as full of possibility and that belief sustained the late nights. My parents made this achievable in ways big and small, especially by being superlative grandparents. To my son Spencer, who says he wants to earn his own PhD one day, this work is dedicated to you. May you make different and better mistakes than can be found in this work.

Table of Contents

Voices from the margins: Interest groups and the state in Canadian and British immigration policy-making between 2000 and 2010 ...... i

Abstract: Voices from the margins: Interest groups and the state in Canadian and British immigration policy-making between 2000 and 2010 ...... ii

Acknowledgments...... iii

Table of Contents ...... v

List of Figures ...... viii

List of Abbreviations ...... ix

Introduction ...... 1

1.1 Research method and design ...... 6

1.2 Immigration policy-making frameworks ...... 9

1.3 The end of politics by consensus? ...... 22

2. Canadian immigration policy ...... 29

2.1 A brief history of Canadian Immigration ...... 31

2.2 Current approaches to Canadian immigration...... 42

2.3 Interest groups in Canadian immigration ...... 48

2.4 Canadian immigration cases ...... 51

2.5 From farm labour to temporary foreign workers ...... 52

2.6 Business and labour groups in the TFW program ...... 58

2.6a Labour-business conflict over labour supply ...... 61

2.6b Conflict over working conditions for foreign workers ...... 64

2.7 Government response to business lobbying ...... 65

2.8 Government autonomy ...... 67

2.9 Bill C-50 ...... 70

2.10 Interest group access at the provincial level ...... 77

2.11 Policy-making in C-11 ...... 80

2.12 The history of Bill C-11 ...... 81

2.13 Bill C-11 ...... 83

2.13a Reducing pull factors ...... 86

2.13b Safeguarding the process ...... 89

2.14 From a minority government, a compromise ...... 90

2.15 The afterlife of C-11...... 93

2.16 Executive control ...... 96

2.17 Limited space for interest groups ...... 99

3 Labour and refugee policy in the United Kingdom 2002 – 2009 ...... 103

3.1 A brief history of immigration to the U.K...... 109

3.2 Interest groups in labour migration policy ...... 111

3.3 Employment policy ...... 113

3.4 Business groups in labour policy-making ...... 114

3.4a Confederation of British Industry (CBI) ...... 116

3.4b The Association of Labour Providers (ALP) ...... 117

3.5 Labour unions in the making of policy on labour migration ...... 119

3.6 Labour Migration Policy ...... 124

3.7 Managed migration ...... 132

3.8 U.K. refugee policy: a response to public opinion? ...... 137

3.9 Refugee interest groups in immigration policy-making...... 141

3.10 The 2002 Nationality, Immigration and Asylum Act ...... 142

3.11 Response to the bill ...... 146

3.12 The post-2002 years ...... 149 vi

3.13 Concluding remarks: A powerful state ...... 152

4. Conclusion ...... 154

4.1 Differential access by interest groups ...... 158

4.2 The source and uses of government autonomy ...... 165

4.3 Future areas of study ...... 168

4.4 Post-research events ...... 171

Bibliography ...... 175

Government and Interest Group reports ...... 193

Media reports ...... 197

Appendix C: National Insurance Number registrations for A8/A2 workers – U.K...... 202

Appendix D: Worker migration in Canada ...... 203

Appendix E: LMIA Requests v. approvals ...... 203

Appendix F: Federal skilled worker applications and PNPs ...... 204

Appendix G: Informant interviews and key questions ...... 205

vii

List of Figures

Figure 1: Immigration policy cases...... 9

Figure 2: Independent and Dependent Variables ...... 18

Figure 3. Annual labour entries to Canada by immigration category, 2005 – 2013 ...... 34

Figure 4. LMIA Approvals versus Requests...... 35

Figure 5: A timeline of Canada's temporary foreign worker program ...... 38

Figure 6. International Mobility Workers versus Low-skilled Pilot Entries ...... 53

Figure 7. Regional distribution of temporary foreign workers ...... 55

Figure 8. Entries of Software workers under the Pilot Project 2000 - 2012 ...... 57

Figure 9: Provincial nominees, 2005 – 2014 ...... 78

Figure 10: U.K. National Insurance Number registrations, A10 ...... 126

viii

List of Abbreviations

AFL Alberta Federation of Labour

ALP Association of Labour Providers

ATCS Anti-Terrorism, Crime and Security bill

CARL Canadian Association of Refugee Lawyers

CBI Confederation of British Industry

CCR Canadian Council for Refugees

CIA Commonwealth Immigrants Act

CIC Citizenship and Immigration Canada

CIMM Standing Committee on Citizenship and Immigration

CIRP Centre for Immigration Policy Reform

DCO Designated Countries of Origin

EC European Community

EI Employment Insurance

ESDC Employment and Social Development Canada

EU European Union

FSW Federal skilled worker

FTSE Financial Times Stock Exchange

GMB (General Municipal Boilermakers union)-known as GMB

HRDSC Human Resources and Skills Development Canada

HSMP Highly Skilled Migrants Program

IMP International Mobility Program

IND Immigration and Nationality Directorate

IOM International Organization for Migration

IPPR Institute for Public Policy Research

IRB Immigration and Refugee Board of Canada

IRPA Immigration and Refugee Protection Act

IT Information Technology

ITAC Information Technology Association of Canada

LMIA Labour market impact assessment

LMO Labour market opinion

LSE London School of Economics

MAC Migration Advisory Committee

MIP Migration Impacts Forum

NASS National Asylum Support Service

NDP New Democratic Party of Canada

NGO Non-governmental organization

NIEAP Non-immigration Employment Authorization Program

NOC National Occupation Classification

OPZZ Poland Alliance of Trade Unions

PBO Parliamentary Budget Officer

PBS Point-based system

PMO Prime Minister’s Office

PNP Provincial Nominee Program

RAD Refugee Appeal Division

SAWP Seasonal Agricultural Worker Program

TFW Temporary foreign worker

TFWP Temporary foreign worker program

TUC Trades Union Congress

UFCW United Food and Commercial Workers

UK United Kingdom

UNCHR United Nations High Commissioner for Refugees

VOC Varieties of capitalism

WRS Worker Registration Scheme

SAWS Seasonal Agricultural Worker Program

xi Introduction

Canada and Britain have long been regarded as similar political systems. With Canadian institutions developed on the Westminster system, political structures in the two countries have been defined by a strong executive where parties enjoying electoral majorities effectively dominate policy-making. Characterized by Norris as “strong but responsive government … in which power is shackled with accountability” (Norris 2006), the categorization has been found to be resilient in the face of recent questioning (Studlar and Christensen 2006).

When looking at immigration policy, however, institutions are not the only relevant variables. History also matters. Canada, (along with Australia and the United States), is recognized as a traditional country of immigration (Freeman 1995; Reitz 1988). Britain is a former colonial power that only saw immigration from its former colonies in the last five decades and during the period of this study was attempting to find a balance between embracing multiculturalism and encouraging shared values (Home Office: 2002). In practice, the differences have had profound policy consequences. The latter part of the 20th-century in

Canadian immigration policy was characterized by a regime that no longer prioritized

Commonwealth immigrants. Instead, entry was based on human-capital demographic characteristics judged to contribute to the country’s economy and society (Li 2003). As a result, regardless of which political party was in power, immigration was seen as a positive element of national development and the number of permanent economic immigrants was maintained even during recessions, such as the late 1990s (Veugelers 2000). During the same period, British immigration policy became defined by increasingly restrictive entry regulations (Hansen 2000;

Sommerville 2007; Sales 2007). Smith usefully summarizes these differences as defined by

regulation and selectivity in the Canadian case, versus control and exclusionism in the British one (Smith 1993).

Since the turn of the 21st century, however, policies between the two states have converged. Between the early 2000s and 2013, Canadian immigration gradually transitioned to prioritizing the entry of workers with skills in immediate demand. This can be seen first in the growth of the temporary foreign worker program; second, in changes to permanent immigration that have prioritized occupations in demand in the Canadian labour market; and third, in the growth of entries under international agreements which allow firms to import foreign workers temporarily without regard to their impact on the domestic market. British policy also moved to satisfying employer needs. The country introduced a new, point-style immigration system that included categories for highly-skilled migrants as well as those working in occupations in demand in Britain. Most importantly, Britain opened the doors to Eastern European workers in

2004, two years before it would have had to consider doing so and five years before it would have been forced to do so by the EU under the terms of the accession treaty for former Eastern

European states (EC 2004). While it is true that Eastern European workers would have eventually faced no restrictions on their ability to seek work in the country, allowing these workers access to the labour market on accession as long as they complied with a registration scheme, made Britain one of only three European countries to do so. It would prove to be a decision that would bring immigration to the forefront of political debate in Britain and contribute to anti-immigration and anti-EU sentiment that culminated in the fateful ‘Brexit’ vote of June 24, 2016.

Policies have converged not only in the worker stream of immigration but in the refugee stream as well. From their 1997 electoral victory to their 2010 election loss, Labour rhetoric and

2 policy emphasized the risk refugees could pose to security, the cost of social benefits and the need for swift removal of unsubstantiated claims. Framing the refugee situation in this way was a continuation of policies adopted in immigration legislation passed by the Conservative party, such as the 1996 Asylum and Immigration Act, but also a contrast to the critical voice Labour raised before winning the election (Stevens 1998).

In Canada, government documents, speeches and policies, emphasized the possible risks to security and social benefits posed by refugee claimants. Indeed, as will be examined in the case studies, some of the policies proposed in Canada (eg. a list of safe countries) were the result of policy borrowing, even if the shifts may not constitute policy transfer in the way the term is conceptualized in the literature (Macklin 2013; Sommerville and Goodman 2010 cf. Dolowitz and Marsh 1996; Stone 1999).1

In short, in both Canada and the United Kingdom, the entry of workers and refugees has developed on parallel but opposing tracks since the late 1990s, the former encouraged and facilitated, the latter circumscribed in word and deed by governments. This dissertation refers to the contrasting direction in these two policy areas as a ‘dual movement.’ To some extent, the contrast between streams is not a new development – multiple immigration tracks have been a part of the analysis of immigration regimes in previous eras: Indeed, Piore argued that European labour markets of the 1960s were defined as those inhabited by refugees who intended to become permanent settlers and those filled with temporary workers (Piore 1979). What is remarkable about the current historical period, however, is first, the expansion of labour migration programs

1 Stone defines policy transfer as both voluntaristic and coerced, as would happen through IMF loan conditions, for example. The term encompasses “ideas of diffusion and coercion as well as the voluntaristic activity of lesson-drawing.” (Stone 1999: 52). Whether such borrowing has an impact on policy-making is an open question, but not one that will be addressed here.

3 for workers at all skill levels as long as their skills are in demand in the labour market; and second, the connection politicians have made in public statements and policy documents between the two, with secure borders presented as the necessary factor minimizing opposition to labour migration.2 Presented with this landscape, this thesis focuses on answering one major research question: Why is the refugee stream defined increasingly by closure, while the worker stream has been expanded? We may observe politicians publicly encouraging one type of migration and attempting to restrict another, but we do not know the forces and sequence of events which led to that outcome.

I argue that the variance between streams is due to politicians attempting to craft a response that is attentive to the restrictive public and to organized interests. The balance between these groups shifts with the economic cycle. When electoral risk is low – for example, during economic booms – politicians can meet interest group pressures for faster access to migrant workers without fearing public pressure. During recessions – when public attention is more likely to be drawn to the negative effects of a rising population of foreign workers and the electoral risks of an expansionist policy grow – politicians may close the door to foreign labour.

(These periods coincide, of course, with lessened demand for such workers.)

Refugee policy was on a consistently restrictionist trajectory during the duration of this research. In this area, interest groups failed to sway politicians and were only able to arrest

2 One such contrast was visible in August of 2010, when almost 500 migrants aboard the MV Sun Sea sought refuge in Canada. Then federal Public Safety Minister Vic Towes argued that the Sun Sea was only the first of several ships testing how the country would respond to refugee claims advanced through mass irregular arrivals and vowed that the government would take steps to stop asylum seekers before they set sail. The very same month, an increase to the number of immigrants arriving through the Provincial Nominee Program (PNP) was announced. Designed to allow entry for immigrants with a permanent job offer and covering approximately 20,000 workers across the provinces at the time, the PNP was lauded by Alberta’s Immigration Minister for ensuring that arrivals would not tap into social programs (Fekete 2010).

4 policy developments under very limited circumstances. Indeed, a secondary argument drawn from the research here is that the variance between worker and refugee migration is partly due to differences in the influence and access that interest groups had to policy-makers. It is important to stress that the research finds that interest groups do have access and at times, influence, even in Westminster systems. This research confirms the utility of using an interest-group framework to analyze policy-making in parliamentary systems, an approach suggested by Gary Freeman’s ground-breaking work and more recently employed by Georg Menz’s cross-national comparative research. Together, they argue that interest groups can be successful in accessing political actors and in persuading them to take actions that may draw media scrutiny and opposition from restrictionist voters. However, as will also be shown, politicians may fail to respond to interest groups if electoral risks are very high. As a result, such groups have a small “window of opportunity” and institutional structures in Westminster systems allow politicians to quickly slam it shut should the winds of electoral misfortune approach.

For example, at key junctures, political actors reversed measures that had been advocated for by business groups. The 2008 - 09 recession led the Conservative government in Canada to quickly scale back its temporary foreign worker program, and to curtail it acutely in 2013 after media coverage brought attention to its renewed growth. In the U.K, the Labour government delayed access to the labour market for workers from Romania and Bulgaria on those countries’ accession to the EU in 2007 – but refused to promise a cap on migration through the point system as the Conservative party did. Executive agency can be illustrated even through recent events. Once it had won power, the Liberal government in Canada moved quickly to accept

25,000 Syrian refugees, in a reversal of the slow process for the resettlement of Syrian refugees practiced by the Conservatives. Whether other Conservative government refugee policies will be reversed remains to be seen.

This conclusion confirms research showing that politicians in parliamentary systems have expansive freedoms in setting policy (Statham and Geddes 2006; Sommerville and Goodman

2010; Jerome and Hicks 2008). Triadafilopoulos, for example, argues that Canadian political leaders easily adopted international norms in crafting immigration policy when they believed it suited the country’s advancement.3 This dissertation agrees that the executive remains the final arbiter of immigration policy. Indeed, in addition to acting against interest groups, politicians in

Westminster systems are able to craft and utilize regulatory mechanisms which may protect policies from scrutiny by opposition parties. Yet the research here also questions prior findings which rejected the premise that interest groups have any impact on policy decisions. It is true that pro-refugee interest groups have limited say, but business groups enjoyed a consistent, though certainly not untrammeled, hearing. As such, while political actors remain the unchallenged policy-makers, models of state-interest group interaction need to be flexible enough to account for periods of access.

1.1 Research method and design

The question this project set out to answer is that of explaining variance in policy outcomes, defined as openness and closure in each case over the policy period studied. In terms of governmental structures, Canada and the U.K. are similar in institutional structure, both parliamentary democracies where the party winning a plurality of seats sees that victory translate into political power. Two differences are important to note, however. The first is that Canadian federalism has meant that immigration is governed jointly by the federal government and the

3 Canadian elites rejected ethnic and national origin as a basis for immigrant selection and adopted economic criteria in accordance with emergent international norms as a means to bolster Canada’s global position. Institutional structures allowed policy-making in isolation from societal pressures against this transformation (Triadafilopoulos 2010.)

6 provinces, with Quebec having unique scope to select immigrants to the province (Vineberg

1987). With the exception of Quebec, the federal government can limit the power of other provinces to choose immigrants or reshape national policy to suit regional needs, a point that will be amplified in the discussion of the Canadian cases. The second is the lack of a Charter of

Rights in the U.K. and the country’s reliance on a common law tradition, which exempt the government from being bound by court decisions on refugee rights and protections (Hansen

2000). Including a discussion of the impact of courts would not illuminate the central analysis of the relation between actors and societal groups. Where such groups pursued legal avenues as one method of lobbying or pressuring political actors, that strategy is included as part of the analysis.

The approach undertaken responds to too seldom heeded call to engage in the analysis of comparative immigration policy, not only across states but across policy domains. It further follows the advice given by Cerna to integrate the politics of migration policy into the broader literature of political economy and public policy (Cerna 2014: 71). All the major literature discussed here engages these concerns, but such approaches are growing alongside a prior generation of literature that restricts its inquiry to one domain.4 A summary of the specific cases to be discussed is provided below.

4 See for example: Wright, Cristopher. 2010. Policy legacies and the politics of labour immigration selection and control, (Dissertation, University of Cambridge) and Dauvergne, Catherine. 2008. Making people illegal: What Globalization means for migration and law (Cambridge: Cambridge University Press), each of which engages in a comparative study of state institutional, supranational and individual level variables of immigration policy but focuses primarily on a discrete aspect of migration – labour in the first case and irregular and refugee movements in the second. Dauvergne does compare European’ states movement toward free movement for EU citizens to its treatment of non-EU nationals, but her argument focuses on refugee claimants in Europe and illegal migrants in the United States.

Canada

C-11, 2010 Preceded by C-280 and C-281 which would have instituted an appeal division, C-11 marks the introduction of the concept of ‘designated countries of origin’ into Canadian immigration policy, a measure that distinguishes between refugee claims based on claimants’ source countries. The subject of intense negotiation between the three parties, it was followed by C-49, introduced only three months after the passage of C-11.

Bill C-50, 2008 Budget The bill set priority occupations to be determined by the minister of Citizenship and Immigration for which applications would be implementation bill prioritized and capped.

Temporary foreign The expansion of the temporary foreign worker program which worker program, gradually expedited work permit application processes and increased the number of TFWs in spite of opposition from labour groups. 2006 - 2013

Britain

Managed migration and The PBS reversed decades of restrictive policy on the entry of labour the points-based labour migrants, creating tiers of workers based on their skill levels. immigration system Initially, it also did not impose limits on the number of skilled workers granted entry.

A10 accession process The development of the U.K. accession process from one of the most open regimes in Europe, to one which imposed restrictions on later accession countries. The A10 is made up of the original A8 Eastern European countries, plus later entrants Bulgaria and Romania. Malta and Cyprus were in the original 2004 group but their migrants faced no work restrictions.

2002 Nationality, The bill introduced a list of safe countries, increased spots in Immigration and deportation centres and limited welfare benefits if claimants did not Asylum Act apply for asylum soon after reaching the U.K.

Figure 1: Immigration policy cases

1.2 Immigration policy-making frameworks

The question of the source and degree of constraint faced by political leaders is at the heart of the most influential approaches to the analysis of immigration policy. Two theories are relevant here.5 Gary Freeman focuses on how interest groups structure the incentives and disincentives faced by politicians, constructing a model of political outcomes based on the distribution of costs and benefits experienced by the broad public and interest groups. Freeman, broadly, posits a weak and porous state that is open to pressure from interest groups – particularly in the case of the United States, the case against which he tests his model over a number of works. In contrast, Georg Menz insists that the state is still key and is not simply a receptor and transmitter of interests. However, the way in which the state exercises its power is nationally modulated through the interaction between the international economic system and national firms, an approach that maps migration onto the Varieties of Capitalism (VOC) literature. The dialogue and contrast between the two streams will now be discussed in detail.

Freeman’s analysis of the relationship between politicians and interest groups implicitly builds on the work of James Hollifield (Hollifield 1992; Hollifield 2004; Hollifield et al. 2014).

Hollifield’s “trading state” is a state which derives its legitimacy from its success in ensuring

5 A separate, legal institutionalist stream is presented in Joppke (1998, 2001), who identifies international human rights norms and their diffusion to national legal institutions as a constraint on the unchecked power of political elites.

9 economic trade and exchange. As economic survival and competitiveness come to increasingly define the state’s purpose, politicians become more receptive to demands from business to augment the domestic labour supply by increasing the entry of foreign workers. When joined to liberal democracies’ tendency to expand individual rights – what Hollifield terms “embedded liberalism” - economic liberalism leads to an expansionary immigration policy, driven by the twin engines of the economy and human rights.

This, Hollifield argues, creates the “gap” between the restrictive rhetoric practiced by politicians eager to be seen as protecting borders and the domestic labour force, and the reality of increasing migrant numbers driven by the state’s economic necessities. Economic imperatives increase political risk, defined as restrictionist publics who may – through media attention – threaten to vote for parties that promise to cap foreign entrants. Unlike non-democratic governments which can turn off the worker tap without regard to the migrants’ human rights,

Western governments that have opened borders in response to economic demands are limited in the measures they can take when they face opposition forces calling for border closures. Instead, politicians may “[use] symbolic politics and policies to maintain the illusion of border control,” and thus “fend off the forces of closure, at least in the short run,” Hollifield writes in relation to

European governments (Hollifield 2004: 903). Hollifield’s seminal analysis identified the motivation for the state to open its borders to workers, and began to investigate the mechanisms that lead to the extension of the trading state to migration regimes.

This is the focus found throughout Gary Freeman’s work. Freeman accepts that Western governments operate in a rights-based framework as identified by Hollifield, but argues that the structure of decision-making and the extent to which social groups are able to receive a hearing from politicians will differ across liberal Western democracies. (Freeman 2004: 8). Using the

10 example of the United States, he finds that immigration has concentrated benefits for immigrants, pro-immigration advocacy groups and employers, and diffuse costs for society, segments of which may be affected by lower wages and working conditions and the welfare, schooling, and infrastructure costs associated with migration.6 While immigrants, pro- immigration advocacy groups and employers, therefore, have incentives to lobby for an open immigration regime, the ill-organized public has no countervailing incentive to lobby against such a policy (Freeman 1995). Terming this pattern of politics clientele politics, Freeman argues that it will be defined by low levels of conflict.7 This pattern, it should be noted, is not static.

Entrepreneurial politicians, Freeman argues, can pit interest groups against each other and create, at least temporarily, interest-group politics that are characterized by high levels of political conflict.

Several avenues of inquiry arise out of Freeman’s framework. The first and perhaps key question is the extent to which an interest-group model can be applied to the Westminster system. Can the relationships Freeman analyzes in the U.S. context, where interest groups develop clientelist relationships over time with politicians and civil servants in specific departments be seen in the case studies examined here? Further, if such a pattern is found, what accounts for policies where the voice of interest groups is ignored? A second question is that of

6 An extensive literature looks at the impact of foreign workers on the domestic labour force, much of it in debt to the classic European literature on the segmented labour market. Lower-skilled workers are more likely to become the focus of discontent both for reasons of visibility – their limited resources mean they may live in ethnic enclaves and make use of public life at greater rates than high-skilled migrants – and economics. Lower-skilled labourers are most affected by the entry of low-skilled foreign workers for which they substitute rather than complement (Dustmann et al. 2008; Rowthorn 2008). On the other hand, Blouin finds that sectors with high international labour mobility see a decrease in prices, while Hiebert argues that the ability of the Canadian middle class to purchase what used to be upper-class services is due to the growth of a low-paid, largely foreign-born workforce (Blouin 2005; Hiebert 2006). 7 The concentrated benefits/diffuse costs model was developed by James Q. Wilson to explain the United States.

11 the sources of change. The model is not stable, instead shifting in response to external and internal movement. The Canadian situation furnishes a quick example of the former: The impact of an increase in the price of oil was felt in a change in the distribution of costs and benefits to labour and business in Alberta. Benefits became diffuse as labour shortages were presented as possibly arresting economic growth for the entire province, and costs concentrated and borne primarily by existing pools of low-wage domestic labour who saw potential wage gains moderate. In keeping with Freeman’s prediction that diffuse benefits and concentrated costs are likely to lead to a high level of conflict, Alberta saw an escalation of conflict between business and labour shortly after sharp increases in the pools of foreign labour.

Another, more subtle source of change may arise from politicians attempting to change the perception of costs and benefits by interest groups or the public. Freeman himself, and others who have tested his model, have returned to this idea, which is a consideration the work here keeps in mind. Freeman notes Lowi’s insight that the interest-group model is not stable but may be subject to recalibration and reframing by policy entrepreneurs (Freeman 2006: 235)8. Statham and Geddes strongly reinforce this point, basing much of their critique of Freeman’s insistence on client politics on questioning the basis of the model as an objective allocation of costs and benefits, although they do not present evidence as to how politicians manipulate these.9 More recently, Cerna identifies changing preferences among some interest groups and new coalitions

8 He further states: “That particular types of migration stimulate different styles of politics at different times constitutes, at first glance, a fundamental weakness of my framework. A key criterion by which one evaluates a typology is its ability to accommodate each case in one and only one cell. By that standard my typology is deficient. I try to turn this into a modest virtue by arguing that in the course of policy development, different aspects of migration become relevant, sometimes as a result of intentional manipulation of the terms of discourse.” (Freeman 2006: 241 – 2). 9 Another way to reconstruct benefits and costs is by shifting the duration of calculations (Pierson 2004: 37) from short-term labour pains to wider gains to be distributed through the economy over time.

12 resulting from those shifts as the source of changes in migration policy in Germany (Cerna

2014).

Several key studies have tested the main claims made in Freeman’s model. Facchini and

Mayda measured the gap between the electorate’s political opinions and immigration levels and found that the number of immigrants is lower than popular sentiment would predict (Facchini and Mayda 2008). Others have specifically analyzed interest-group explanations in political systems defined by powerful central states and have found cross-national differences that the model cannot accommodate. Carvalho, for example, compared British and French approaches to high-skilled migration and revealed vast differences in policy output in spite of similar economic structures. He locates the sources of variance with politicians, specifically a pro-business orientation in Tony Blair’s government and a changing calculation of the political rewards and risks of adopting an open entry model for Nicolas Sarkozy (Carvalho 2013). Others have found only partial confirmation. Sommerville and Goodman, for example, find variance in the influence exercised by business and refugee groups with the former less dependent on state funding and therefore more likely to make demands (Sommerville and Goodman 2010.)

Consterdine argues that U.K. politicians implemented open labour migration policies because they expanded their notion of the trading state to encompass an open migration regime driven by business needs (Consterdine 2015).

These analyses suggest that a fruitful testing of Freeman’s model would seek to establish how it can account for political agency. Clearly, as Boswell argues, the state is not simply a transmitter of interest group preferences. The parsimony of Freeman’s political economy approach sacrifices explanatory power, she writes, leaving a barren landscape where capital and transnational interests have a lock on a state that exercises its autonomy primarily through the

13 administrative finessing of policies which are tailor made by interests outside its remit (Boswell

2007). Yet the parsimony of an idealized interest-group model is its strength. Freeman’s later work in fact recognizes that one of the primary testing grounds is the autonomy of government actors, as demonstrated in the research above. He describes the U.K. as a deviant case (Freeman

1994), and points to Canadian politicians continuing to maintain immigration targets during a recession (Freeman 2006). Elsewhere, he specifically suggests that policy-makers may act against organized interests and the restrictionist public:

“However the costs and benefits of immigration are distributed, whatever mix of interest groups lobbies for policy change, no matter the cultural values that impinge on attitudes toward migration, policy is made by authoritative decision makers. The information, pressures, and opinions they bring to the table are in the end decisive.” (Freeman 2006: 19).

Yet, as we have seen, interest groups, even in Westminster systems, can affect policy.

Questions as to when and why remain. Why can’t an interest-based explanation bridge the gap between public opinion and state policy? The thesis chases the answer by inquiring into the elite policy-making process, seeking to find the sequence of events and policies in which interest groups matter and those in which they do not.10

Georg Menz, building on Freeman, integrates the insights of the varieties of migration literature to explore one approach to that question. He argues that while migration regimes in

Europe demonstrate divergence between refugee and labour streams, both can be understood through a “security” frame, with that concept denoting a different set of concerns in each

10 A secondary question that arises in Freeman’s work as a result of its pluralist pedigree is that of the initial distance between interest groups and political elites. The model does not account for politicians’ own preferences or attempt to assess the distance between their preferences and those of the groups who are lobbying. However, as we shall see, there was substantial agreement between governments and business groups on the need to supplement the domestic labour supply with foreign labour during periods of economic growth.

14 context. In refugee policy, Menz agrees with the definition of securitization as a set of policies that have turned the social question of migration into a security question (Huysmans 2000), or as

Menz puts it that “conflate immigration with crime, drugs, terrorism, or similar real or constructed threats to national security” (Menz 2008: 265). Meanwhile, the state’s ability to facilitate the entry of foreign labour is also defined as a security issue, but one where the relatively unimpeded movement of workers is part of the identity of the competition state. “The changing nature of the state and the embrace of competition state priorities lead to an economistic approach that divides migrants into desirable and undesirable categories. Therefore, securitization is increasingly defined not only in narrow societal terms but also in terms of economic vitality and competitiveness.” (Menz 2008: 24.)

Menz accepts the central insight found in Freeman, that the state is permeable to organized interests. But he rejects that the state is a mere arbiter between interests; and he also rejects the idea that labour mobility has been transferred from the state to decisions made by private firms enabled by mobility clauses found in global trade agreement, an idea proposed by

Lavanex (2007).11 Instead, who the state lets in and who it encourages to immigrate depends on the relationship between each state’s policy-makers and interest groups, a relationship particular to each country’s economic arrangements:12

11 Lavanex presents the case of workers who enter a new state as inter-company transfers and are allowed to do so without having to meet domestic labour market tests. Instead, their entry is governed by the needs of a multinational company. At the same time, she highlights that this type of migration may require the creation of new categories of workers, as inter-company transferees do not easily fall into either permanent or temporary entrants. In Canada, such workers are growing in number and their entrance is governed through specific rules and categories. 12 Much of the VOC literature and Menz’s work as well is of course indebted to the work of Evans (Evans 1995) whose “embedded state” is able to navigate global institutions and conflicts while remaining accountable to societal interests at home.

“The question is not whether governments still can regulate migration flows, but rather what factors shape regulatory attempts at managing migration. In that sense, the state sovereignty debate … needs to be recast to account for policymaking in liberal pluralist societies that permit access and voice to nonstate actors” (Menz 2008: 3).

The influence of business groups varies across countries, Menz shows, with business groups having dedicated channels of access in countries with neocorporatist legacies such as

Germany. Menz also suggests that in neocorporatist states, trade unions and business have a closer relationship; both are cautious about the skill levels of foreign workers and their integration into domestic labour markets. More recently, Cerna revises this conclusion, showing that shifting alliances between higher- and lower-skilled unions and employers can lead to unexpected openings to some types of migration (Cerna 2016). However, regardless of how unions and employer interact, the role of each and their position in relation to the state will be translated into variance in policy outputs.

The position of pro-refugee interest groups is very different. They are not integrated into corporatist economic arrangements, are rife with internal divisions, and no longer benefit from an alliance with labour (Haus 2002). Furthermore, refugee organizations encounter bureaucracies whose role is increasingly defined as controlling borders, a landscape quite different from that which defines bureaucracies tasked with attending to business interests where clientelist relationships may prevail alongside the maintenence of state security. It is not surprising, therefore, that Menz finds they exercise little influence in policy-making. Instead, refugee groups may find more success by relying on high-profile public campaigns and visible street protests as in the French case (Menz 2009: 151).

In short, Menz agrees with Freeman that interest groups have influence, but he argues that they are nationally grounded, advocating and being heard only within the specific historical

16 context of each state. Because institutions change slowly, his model emphasizes policy stability.

He does not examine sharp policy reversals in which previously open streams close or previously closed ones open. For him, elite actions that run contrary to the predictions of the VOC framework are not easily explained.

Against this theoretical background, I explore several hypotheses which are outlined below and presented as a table.

1. Business groups in both countries have a large degree of influence in determining

immigration policy.

2. Refugee advocacy groups do not enjoy a similar influence and have little impact in

determining immigration and/or refugee policy.

3. In contrast with the U.S., in Westminster systems, the state can ignore even powerful

interest group pressure.

Systemic Independent Policy-specific Independent Dependent Variables variables Variables

Electoral system Labour unions Openness/restrictions

Political parties Business groups to migration of foreign workers,

temporary Public opinion Individual firms

and permanent Supranational level*

*U.K. Refugee advocacy groups Openness/restrictions

Security agencies to asylum claims from

Other interest groups refugee applicants

Figure 2: Explanatory Variables

If the hypotheses are valid, immigration policy over the cases studied should show three characteristics: it should be open to skilled or unskilled immigrants (depending on what types of skill business requires); it should show closure toward refugees; and it should be characterized not by continuity, but by policy change and dramatic policy reversals. The last hypothesis would challenge the literature discussed above. Interest-based and historical institutionalist approaches predict that change, when it occurs, would be gradual, reflecting shifts in the costs and benefits accruing to interest groups and their expression through nationally-bounded institutions, a ledger that is not static nor subject to rapid fluctuations. In short, as already noted, neither approach has a robust place for political agency. To understand how institutions in Westminster systems allow a higher degree of agency than currently conceptualized, the first two hypotheses must first be examined.

The first hypothesis has been tested by a new wave of scholars, particularly in the context of the U.K, as mentioned above. Rigorous testing of the sources of the Conservative government’s move to encourage temporary labour is beginning in Canada as well, where one detailed study of the records of the Office of the Commissioner of Lobbying in Canada revealed that the number of temporary foreign workers up to 2013 grew in quarters which had been preceded by intense lobbying from private firms (Rheault 2013). The latter study, however, does not contrast business lobbying with union lobbying and understanding the impact of each contributes to explaining policy-making in this area. This part of the discussion will also contribute to two

18 related areas of research, the debate on whether globalization is moving states toward convergence and whether such a movement indicates that national firms are no longer oriented toward particular national economic structures and arrangements – the focus of a voluminous

VOC literature.13 While a prior generation of researchers insisted that business preferences were reflective of particular national contexts, new scholarship has increasingly tested that proposition and found it wanting. That is to say that business groups pressuring the state for an increase in foreign workers may make such demands similarly across states. For example, a firm that is no longer dependent on one country’s economic structure or labour force can increase its bargaining leverage with threats of relocation (think of the North American auto industry). Research has shown a multitude of pathways for the increasing orientation of firms away from the state.

Actors interacting with supranational institutions over time have been seen to become socialized into those institutions’ norms and logic of appropriateness, potentially leading to norm internationalization (Menz 2009 cf. Borzel and Risse 2003: 79). In Britain, it has been transnational corporations who have been the heaviest users of work permits, and among the most vocal advocates of liberal entry policies. In fact, the computer technology sector has been singled out for its reliance on such measures in spite of high levels of nationally-trained workers

13 In its simplest formulation, the varieties of migration literature predicts that the type of social welfare state and the degree of co-ordination between the state, society and capital will be matched by variance in the preferences for types of labour migration. Pauly and Reich’s (1997) analysis of continuing differences in global corporate strategies despite pressures for convergence pointed out that national industrial strategies are influenced by a multitude of domestic factors (bank behaviour, state policies, R&D subsidies, etc.) and cannot be disentangled from those roots. An industrial sector dependent on a state strategy of supplying highly-skilled labour may be more interested in maintaining global competitive advantage by continuing to be located in a country with high levels of publicly funded education than in either relocating to a low-wage country, or having a low-paid, flexible work force. Hart’s classic discussion of various strategies adopted by the U.S. steel industry, Japanese auto manufacturing and the German chemical industry, for example, makes this clear, finding that high factor prices were compensated for by high levels of education (Hart 1993. In Watts’s summary: “for employers, distinct national labour regulations influence strategies for increasing labour flexibility and determine demand for immigrant labour” [Watts 2002: 9]).

– a trend also evident in the United States (Home Affairs Committee 2009). Another group of scholars has shown that even in states with a long history of corporatist state-capital arrangements, incentives have grown for industry to break with prior nationally-modulated paths.14

The second hypothesis is supported by evidence of changes in the alliances made by refugee groups. In the past, refugee groups made common cause with employers, and sometimes labour unions and religious groups to advance their positions (Hollifield 1992, Haus 2002,

Joppke 2001). The labour-refugee alliance has now been found to have fragmented in favour of a business-government alliance in the area of liberal labour immigration and a less successful national-international NGO alliance against the restriction of refugee rights. The empirical chapters will show that refugee groups in the two states have been engaged in defensive, rather than assertive, policies to protect existing rights from retrenchment. The suggestion is that refugee groups will be able to roll back or limit states’ preoccupation with security concerns in the refugee stream only when they return to a strategy that sees them work through alliances, particularly with labour groups that have continued to have access to policy makers. This, of course, requires them to find labour unions that have been successful in gaining the support of their membership in reaching out to refugees and new foreign labour.

14 While in previous episodes of crisis, such as the seventies oil shock, firms have been found to be unwilling to trade-off the co-ordination benefits gained through post-war arrangements for an opportunity for corporate gain (Hall 2007), that may not longer be true of firms today, particularly when it comes to access to flexible labour. This has been shown to be the case, for example, in the German construction industry where a large proportion of subcontractors employ labour outside negotiated agreements on the use of migrant workers. (Lillie and Greer 2007). A similar logic is at play in LME regulations policing the use of illegal labour where the state plays the role of co-coordinator and enforcer for all firms so that few can reap the benefits of lower labour factor costs. (Hancke et al. 2007).

The final hypothesis suggests that co-operation between interest groups and the state is temporary and continually threatened by risks. At times, as we will see, the risks may appear to arise out of external economic shocks, such as the global recession of 2008 – 2009, a crisis that led to some restrictions on foreign workers in both Canada and the U.K. Logically, politicians may be likely to respond to electoral risk during recessions and protect the domestic labour market from further increases in labour supply. Yet a policy reversal cannot on its own tell us if the state contradicted an interest group’s desired policies. An economic recession, for example, could lead to less demand for imported labour from business. As such, the continuation of labour immigration schemes during recessions could either disprove the third hypothesis by showing that interest groups have strong influence on state actors at all times, or suggest that the ideational outlook of political actors has become distinct from national economic conditions.

Research has shown that the economic crisis of 2008 - 2009 did not lead to identical measures in

OECD economies, but that the crisis was invoked by politicians to justify policy changes they had already begun or which they felt compelled to make as a result of political pressure from the right , as in the case of Belgium (Cerna and Hamphshire 2014; Roos and Zaun 2016). While the number of explanatory variables grow in step with political risks during a recession, policy shifts during periods of economic prosperity are likely to yield more robust evidence of the relationship between interest groups and politicians. Indeed, the strongest evidence for the autonomy of state decision-making would be the closure of labour immigration channels during periods of economic growth, combined with high demand from interest groups. Acting to restrict immigration under such circumstances would indicate the maximum scope of action available to politicians. Tracing the decision-making process under such conditions would isolate the institutional variables enabling autonomy. And indeed these are the conditions obtaining in 2013, when Canadian politicians imposed a set of unprecedented measures to control the entry of

21 temporary foreign workers. Similarly, the return of economic growth in the U.K. did not lead to a diminution of rhetoric on immigration over the last several years.

The strength of looking at policy over time is that it allows a re-tracing of how legislation was passed and a parsing of these possibilities. Furthermore, should differences between the two jurisdictions be found, one also would have to inquire further into the relative power of labour groups in each state. The thesis concludes that the first two hypotheses stand, while the third requires modification. Policymakers in Canada and Britain have opened labour migration streams in order to ensure both the short-term labour needs of business and the long-term economic viability of these countries. At the same time, both countries have been highly restrictive in refugee policy. The research finds that politicians in Westminster systems have the ability to engage in autonomous action and discount the voice of interest groups and will do so when political risk is high. In Menz’s framework, interest groups have influence in relation to the role they play in the state’s economic arrangements; this research amends that further to find that political structures also limit access in liberal market economies. Still, organized interests are never permanently excluded from policy-making. Instead, the conclusion will explore how they mobilize in new ways and across new alliances, finding openings in the policy-making process that can partially challenge executive supremacy.

1.3 The end of politics by consensus?

What compels government actors to act against organized interests in the area of immigration policy-making? As we have seen, the gap hypothesis posits a liberal consensus among elites which leads to a liberal immigration regime, operating in a fairly isolated fashion from the restrictionist public (Lahav and Guiraudon 2006). At the same time, no politician can operate without any regard for public support – no matter how beneficial an open migration regime may

22 be for at least some industries in the national economy, no country will open its borders to an unlimited number of foreign workers. As Anthony Downs argued in 1957, politicians court the maximum number of voters, which will not be found on either extreme of the political spectrum.

A key debate, particularly in the U.K. literature, has occurred over whether the Labour party created or fomented restrictionist publics or responded to such sentiment issuing from the media and voters. This discussion echoes disagreements over whether an earlier era of restrictions were responding to anti-inmigration sentiment or were based on fear of future tensions (Schain 2006;

Smith 2008). There is no doubt that British politicians felt compelled to reassure voters, who were telling pollsters that race and immigration were among their top 3 concerns (Sommerville

2007). Achieving “greater public confidence in the immigration system remains one of my top priorities,” wrote Charles Clarke, Home Secretary in a governmental report on the points system

(Home Office 2006).

The work here finds ample evidence that politicians were aware of skeptical publics and negative media coverage on immigration. But it also demonstrates that they were careful in how they responded to it, attempting to balance rhetoric on refugee restrictions with emphasis on the benefits of worker migration. Indeed, regardless of the opportunities presented by societal conflict over migration, there is no certainty that parties will enter the fray (Triadafilopoulos and

Zaslove 2006). While mainstream politicians may have been under pressure to more closely reflect voters’ concerns (Bale 2008), to court restrictionist sentiment with xenophobic appeals was a risk none was willing to take. Political parties must be certain of alignment between their appeals and the restrictionist public (Saggar 2003). As Smith points out, even when it became clear that immigration was a top concern among voters, the Tories attempted to walk a tightrope between distinguishing themselves from the cosmopolitan, liberal Labour and the UKIP (and certainly the BNP) voter. “Having a firm immigration policy is a way of contributing to better

23 community cohesion in this country,” said Damian Green, the shadow immigration minister in

2007 (Smith 2008).

In Canada, appeals to xenophobic sentiment would not only repel mainstream voters but would also ensure that the Conservative party’s attempts to make inroads with immigrant voters would fail (Flanagan 2007; 2008). Instead, the party framed its bills restricting refugee entries as a means through which it would ensure that Canadians would continue to support immigration for decades to come. “The position of Canadians and the position of this government is and ought to be that we will be a country of openness, we will be a country that provides protection to those who are in need of it and we will lead the world in the moral obligation of refugee protection, but we will not be treated like a doormat by criminal networks,” said then Minister of Citizenship Jason Kenney during debate on C-49, one of the Conservatives’ refugee bills. Over half of Canadians, he added, supported returning asylum seekers who had disembarked from the Sun Sea even if their claims were legitimate, and it was the government’s job to ensure that percentage did not rise any higher. Public sentiment forced the government to introduce C-49, Mr. Kenney argued. To “do otherwise is to put at risk the broad public consensus, which has historically existed in Canada in favour of immigration and refugee protection, and I will not allow that to happen on my watch as minister of Immigration,” the Minister told the House.

If governments did not act to provoke restrictionist sentiment, what explains the changes in refugee policy? In so far as politicians introduced and publicized border control measures, particularly those aimed at reducing refugee flows, this work suggests they did so in order to highlight the state’s control of borders. As Hansen suggests, securitization processes are the result of states responding to irregular movements of people that challenge the integrity of physical borders (Hansen 2014). In short, politicians do not set out with the goal of closing borders to asylum seekers; rather, they are often reacting to sudden events such as a surge of

24 refugee claims from the Czech Republic or Mexico in Canada, or the flow of people seeking safety from Kosovo in the U.K. The goal of their actions is to highlight that ultimately it is the state – with its ability to close borders for some groups and individuals – that is tasked with – and can perform – that function.

This work further argues that politicians also attempt to highlight the state’s function in labour migration. In Freeman’s framework, labour immigration has concentrated benefits for employers and diffuse costs for the public. As Menz argues, however, imported labour has become a matter of national economic competitiveness. Defining competitiveness as partly driven by a plentiful and flexible labour supply may respond to business needs, but is a difficult argument to make when a country experiences a recession and the unemployment rate of domestic workers rises. Politicians attempt to portray foreign workers as much needed supplementary labour in all levels of the labour market, framing such workers as necessary for the prosperity of domestic voters.

In short, it is being suggested that politicians are motivated to act in both streams in order to demonstrate their competence as state actors. Competence here is defined as the ability to perform the basic state function of defining and protecting borders. Importantly, this encompasses not only the act of closing borders but their opening as well. Framing restrictive refugee policies in this way is an attempt to craft an explanation for such legislation that does not rely on an appeal to politicians courting xenophobic voters, an explanation that would require the analyst to posit an irrational actor as the central explanatory variable. Instead, the explanation highlights that restrictive refugee legislation is positioned as a) necessary to border security b) necessary to maintain state goals of efficient and orderly processing of claims for refugee status

25 from refugees seeking entry through regular channels c) necessary to ensure the support of domestic populations for all forms of migration, including legitimate forms of refugee migration.

However, the work takes seriously Pierson’s warning not to deduce intent from the final shape of policy. Actors may aim to engage in rational, strategic behavior but the reality is that often their strategy may not measure up to the force of path-dependent institutions or control public opinion. As Pierson writes, “we should anticipate that there will often be sizable gaps between the ex ante goals of powerful political actors and the actual functioning of prominent institutions” (Pierson 2004: 15). But neither should we assume that politicians stumble from one decision to another. Mainstream parties face strong electoral incentives to cleave to an elite consensus that sees appeals to anti-immigrant sentiment as a vote risking strategy. They also face incentives to engage in what Boswell calls “deliberate fudging,” presenting the appearance of tighter immigration control in order to neutralize questions from restrictive publics or the media. An interesting question that the thesis does not consider is whether the decision to put anti-immigrant sentiment to the test in the U.K. was a deviation from the consensus, or a gamble that anti-immigration publics, pro-Brexit politicians and media sources could be appeased. In either case, Britain’s vote to leave Europe once again underlines the high cost of responding to calls for closure.

The suggestion that demonstrating competence is one of the explanatory variables that move toward closure in the refugee stream and openness in the worker stream extends Menz’s analysis. While he conceptualizes a relationship between labour and refugee migration, he sees it as one originating in a changing view of refugees among state officials.

“Select “pathways” [for labour] (Menz 2002) are correlated with less liberal administration and regulation with respect to the reception, recognition, and treatment of

asylum seekers and refugees and conditions for family reunion related to these humanitarian channels. Though there is no compelling rationale behind this observed correlation, the reasoning in government circles appears informed by a waning commitment to the Geneva Convention and the often erroneous presumption that asylum seekers cannot be integrated into the labor market and thus constitute a drain from an economistic perspective and a menace to societal and social cohesion in the long term (Menz 2008: 258).

Reframing policies in the refugee and labour arenas as both fundamentally motivated by politicians’ imperative to be seen to control their state’s economic fortunes and its borders seeks to emphasize the rationality of politicians and their attempt to minimize political risk while meeting the state’s goals.

In short, emphasizing the continued need to meet and demonstrate the function of government as an explanation for both openness and closure attempts to explain the puzzle posed at the beginning of this introduction: why politicians have seemingly abandoned the consensual politics on immigration and courted controversy instead. It is the contention of this work that in so far as politicians have emphasized the possible negative effects of refugee entries, they have done so in order to respond to pressures for closure in both the asylum and worker streams.

Borders may open and close, but politicians stress that they are still in control of when the gates swing open or shut. This explanation sees the elite consensus on immigration policy as a continuing facet of policy-making in this area during the period studied. Regardless of populist currents and restrictionist publics, elites in the two states being compared here framed restrictionist policy not as a divergence from pre-existing regulations but as a continuation, with the ultimate goal of demonstrating their ability to protect the state.

In retrospect, the attempt to gain legitimacy for worker migration while closing refugee asylum channels failed. Anti-immigration sentiment from the media was not contained in the

U.K. and a majority Conservative party gradually but resolutely used the points-based system to limit the immigration of workers from outside Europe. The U.K. after Brexit looks set to become a more isolated island, one that may be willing to risk free movement in the European Union for its citizens in exchange for being able to control the flow of at least some European workers into its labour market (Travis and Weale 2016). In Canada, the issues that were invoked to justify the passage of restrictive refugee bills have not been resolved and will likely recur during the Liberal government’s mandate as a result of legal decisions. The Federal Court struck down measures which limited appeals from refugees from designated countries of origin, leading to overwhelming caseloads for immigration lawyers funded through public legal assistance (Keung

2016). That such outcomes are the result of strong governments who successfully adjusted the content of policy and policy-making rules to limit the voice of interest groups, raises questions about the costs and democratic consequences of political dominance. Outside of elections, it is unclear how Westminster systems contain mechanisms of accountability. Further, it underscores the utility of a comparative case-study approach that follows policies over time and seeks to identify robust explanatory variables that can explain multiple policy episodes (Anderson

2010).15 To assess such variables, the research will now turn to the policy cases.

15 Employing a similar case-study approach, Wright argues that the U.K. state was powerful enough to commence the liberalization of immigration but lacked sufficient links to society to maintain openness. The argument, however, rests on an implied appeal to ideational factors independent of the impact of public opinion on politicians (Wright 2012).

2. Canadian immigration policy

In October of 2010, the Conservative government introduced Bill C-49, the Preventing

Human Smugglers from Abusing Canada’s Immigration System Act - two months after approximately 500 Tamil refugees arrived by boat on Canada’s West Coast. The bill contained several measures that would put Canada in contravention of international human rights treaties and was criticized by the Opposition parties as motivated by the government’s desire to frighten the electorate and create two classes of refugees in contravention of the Charter of Rights and

Freedoms16.

During Parliamentary debate on the bill that fall, the government argued that C-49 was necessary to maintain support among the Canadian population for continuing immigration, particularly for the economic stream. In the words of Conservative Member of Parliament (MP),

Mike Wallace Canadians understand “that the need to keep Canada’s doors open to newcomers must be balanced by the need to protect our borders and the integrity of our immigration system. ...Canadians watch in anger and disbelief as irregular mass arrivals land on our shores and threaten the integrity of our immigration and refugee

17 protection system.” He argued that avoiding a backlash to immigration was particularly important for the future: “After all, our economy will need even more immigrants in the years ahead.” The bill was also described as serving as a deterrent to smuggling organizations.

16 Bill C-49: Preventing Human smugglers from abusing Canada’s Immigration System Act, 2nd Reading, Oct. 28, 2010, Justin Trudeau, 40th Parliament, 3rd session, Retrieved from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=3&Do cId=4737722 ; Business of Supply, Opposition motion, Charter of Rights and Freedoms, Dec. 9, 2010, Bob Rae, 40th Parliament, 3rd session, Retrieved from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=3&Do cId=4871439 17 Bill C-49, … 2nd Reading, Nov. 29, 2010, Mike Wallace, 40th Parliament, 3rd session, Retrieved from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=3&Do cId=4826703

Repeatedly, the government depicted its role as one of calming anti-immigrant public passions and cited polls showing that 55 per cent of Canadians would return Sun Sea claimants even if their claims were legitimate; introducing C-49 was an attempt, MPs argued, to contain such sentiments. Jason Kenney, then Minister of Immigration and Citizenship added that to “do otherwise is to put at risk the broad public consensus, which has historically existed in Canada in favour of immigration and refugee protection, and I will not allow that to happen on my watch.”18

Mr. Kenney’s attention to public opinion has the support of scholarship. Canada has long been regarded as an exceptional case in its immigration policy – in spite of high levels of immigration, debate on the issue over the last three decades has generally been constrained by what has been termed an elite consensus – albeit, one in which the Liberal Party traditionally shored up its support among immigrant voters (Freeman 2006). Canadians’ positive attitude toward immigration is seen as supported by the Canadian state’s promotion of multiculturalism, one important element in the nation’s identity (Tanguay 2009; Anderson and Black 2008; Brodie and Jenson 2007; Kelley and Trebilcock 2010: Li 2003). Indeed, Canada is alone in enshring multiculturalism in its Constitution, a distinction that, scholars argue, constrains elite appeals to anti-immigration sentiment (Kymlicka 2010). And compared to other countries, Canadians are more likely to want immigration levels to increase or remain stable (Reitz 2004, Soroka and

Roberton 2010).

18 Bill C-49, … 2nd Reading, Oct. 27, 2010, Jason Kenney, 40th Parliament, 3rd session, Retrieved from: http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=40&Ses=3&Do cId=4826703

Yet as this chapter will show, Bill C-49 was not an isolated flare-up of restrictionist intent but the culmination of a legislative cycle that showed Canadian politicians expanding and exercising their authority in the immigration arena and at times courting anti-immigration votes with measures designed to restrict refugee entries. As will be seen, the only serious impediment to executive policy-making was institutional. During conditions of minority government, the

Conservative party was forced to negotiate on parts of its refugee legislation in Bill C-11.

Refugee advocacy groups lobbied opposition parties, who threatened to force an election if the government did not agree to some of the amendments advocacy groups had requested, demands carried forward by the opposition. Once the Conservative government lost the shackles of minority government, those compromises were reversed.

Before delving deeper into the two streams addressed by the thesis, this chapter will offer a brief history of the politics of Canadian immigration. It will do so with reference to the literature on the relationship between policy-makers and interest groups, and set this theoretical literature against the Canadian evidence.

2.1 A brief history of Canadian Immigration

Immigration to Canada has always been broadly shaped by its function in serving the country’s economy, although international norms played important roles at different historical junctures. Early history was characterized by a pattern of active encouragement of north

European settlers, while others, particularly those of Chinese origin, faced discriminatory measures in spite of the much needed labour they provided.19 In 1962, immigration regulations

19 Li argues for four phases that provide useful markers. A) 1867 – 1895: John A. Macdonald’s national policy includes the setting aside of land for immigrants; Chinese immigrants face a $50 head tax. B) 1896 – 1914: high numbers of immigrants arrive to develop the Prairie provinces, with 3 million immigrants entering by 1903. The head tax increases to $500. C) 1915 – 1945: Immigration drops to what will be the

31 were introduced that prioritized education and skills and removed racial or national origin as a selection criteria. Canada’s international reputation and national human rights norms were primarily responsible for these shifts, but they also signaled that labour market considerations would become key in the years ahead (Triadafilopoulos 2013).

Over the last 50 years and even in the last 20 years, the Canadian government has attempted to find a balance between a market-neutral model, where the human capital of immigrants is prized, and a market-dependent model, where immigrants who demonstrate their immediate employability by securing a job offer are prioritized (Kelly and Trebilcock 2010). A decades-long debate over whether human capital or labour market demands should determine eligibility for entry was evident in the 1967 regulations which awarded points for an immigrant’s personal characteristics as well as for arranged employment and intended destination (Kelly and

Trebilcock 1998: 357 – 372). By 1974, emphasis shifted to the market, with ten points subtracted for immigrants arriving without an offer of employment. Twenty years later, the government had once again changed course, maintaining a target of 250,000 economic migrants even through the deep recession of the 1990s. The state could make decisions in relative isolation as neither business nor labour groups were engaged with the issue of immigration levels, allowing political actors to pursue an expansionist policy motivated by long-term demographic and economic considerations and the potential of short-term inroads with ethnic communities (Hiebert 2006,

Veugelers 2000).

lowest levels of the century between 1930 and 1945, British and Northern Europeans are prioritized and encouraged. D) Post-war. (In fact, Canada accepts only approximately 300,000 immigrants between 1930 and 1945 [CIC 2014]).

By the mid-2000s, the Conservative government signaled that it would attempt to respond to the immediate skills and workers the labour market demanded. In Advantage Canada:

Building a Strong Economy for Canadians, the government committed to the “world’s most flexible workforce,” a priority reiterated in the 2008 Budget where Finance Minister Jim Flaherty promised the establishment of a “just in time competitive immigration system,” that delivered immigrants to jobs where they were needed (Department of Finance Canada 2006; Department of Finance Canada 2008: 117, cf. in Siemiatycki 2010). Meanwhile, Monte Solberg, the

Conservatives’ first Minister of Citizenship, indicated that the department would tie immigration policy more closely to demand in the labour market in an attempt to redress the declining economic outcomes of immigrants.20 The shifts in Canadian immigration policy during the period being studied here can be summarized in the graphic below.21 (Numbers can be found in an appendix at the end of this work.)

20 Canadian Human Resources Reporter. 2006. “Slight shift signaled in immigration policies.” March 13, 2006. Link available for paid subscribers: http://www.hrreporter.com/userlogin?article=4315-slight-shift- signaled-in-immigration-policy

21 What was chosen for comparison are statistics on the number of temporary foreign workers entering annually through the TFW program. Previous scholars have considered entries and re-entries (Fudge and MacPhail 2009; Sweetman and Warren 2010), but starting with its 2009 report, Citizenship and Immigration Canada reorganized its data analysis to provide a breakdown of entrants coming through the International Mobility Stream and those arriving through programs that require an LMO. As such, the data is analyzed using numbers from the 2009 reporting year onward, unless otherwise indicated.

120,000 Economic Immigrants

100,000

Federal Skilled 80,000 Workers, principal applicant Provincial Nominees 60,000

40,000 Workers with LMO

20,000 Low-skilled pilot project

0 200520062007200820092010201120122013

Figure 3. Annual labour entries to Canada by immigration category, 2005 – 2013

(Economic Immigrants: FSW applicants, Canada Experience Class entries and PNPs. LMO workers: low-skilled pilot project, live-in caregivers, SAWP and low-skilled agricultural pilot project. Sources: CIC Facts and Figures 2009, 2014

As can be seen, in 2005, the number of applications in the permanent federal skilled worker (FSW) category submitted by principal applicants was already below the number of workers entering through a work permit obtained after a domestic Labour Market Opinion

(LMO) was applied. Those two categories further diverged over the following decade. Some of the decline in the FSW category was compensated by increases in the provincial nominee program. In many provinces, however, the PNP (which will be discussed further below) draws on temporary foreign workers at all skill levels for applications and as a result, captures the permanent settlement of immigrants with a lower overall skill profile than the FSW program.

As figure 1 indicates, 2008 marked a high point in the number of workers entering through the Temporary Foreign Worker program. Additional numbers reveal that the recession and financial crisis of 2008 – 2009 led to employers submitting far fewer applications for LMOs

(see Appendix E). But as figure 2 below also indicates, the government’s approval rate also declined.

Figure 4. LMIA Approvals versus Requests

Furthermore, following 2009’s parliamentary committee hearings on the TFWP (which will be analyzed in the case study discussion), the government made changes to the program that were aimed at “a more rigorous LMO assessment” in 2011,22 including an assessment of the genuiness of the job offer.23 These measures had been indicated in the government’s 2009 response to the report from the Standing Committee on Citizenship and Immigration on

Temporary Workers and non-Status Workers (CIMM 2009). They were accompanied by

22 Canada Gazette, vol. 147, no. 23, June 8, 2013. http://www.gazette.gc.ca/rp-pr/p1/2013/2013-06- 08/html/reg1-eng.html 23 http://www.cic.gc.ca/english/resources/manuals/bulletins/2011/ob275C.asp#genuine

35 regulatory changes to the 2002 IRPA that set a maximum term of four years of work for new temporary workers, who had to leave the country for another four years before being granted a new permit. (Depending on skill level and province of residence, they could also apply for permanent residence.) Restrictions that greatly impacted employers’ incentives and ability to recruit abroad were further implemented in 2013 in response to media attention to TFWs displacing domestic workers – including in a high-profile case at the Royal Bank (Cousineau

2013) - and rising TFW numbers in areas of high unemployment (Friesen 2013). These last measures had a dramatic effect on the number of new TFW applications being submitted by employers (the number of 2014 – 2015 entries were not available at the time of writing.) A timeline of the program summarizes the landmark developments in the TFWP, as well as highlighting the program’s liberalization between 2006 and 2009 and its subsequent curtailment.

This sequence of events supports this dissertation’s contention that interest groups’ influence on government policy in Canada was limited by government’s ability to act autonomously. As early as 2009, the government signaled that it would respond to concerns over the lack of protections for temporary workers and to the impact of TFWs on the domestic labour market. The recession and a decline in demand for labour market opinions offered an opportunity to take some restrictive measures without countervailing pressure from business groups. The restrictions the government eventually implemented in 2011 fell far short of what labour and business groups had demanded. An increase in the number of temporary workers in 2012 coincided with new media and public questions about negative impacts from the TFWP program on domestic workers. Confronted with intense media pressures, the government unveiled a package of reforms that led to a dramatic drop in employer applications.

A Timeline of Canada’s Temporary Foreign Worker Program

1966: Jamaican farm workers migrate to Canada to be employed as seasonal labour, in the first step of what would become the Seasonal Agricultural Worker Program (SAWP). By 1974, other Caribbean countries and Mexico have signed bilateral agreements.

1973: The Non-immigrant Employment Authorization Program (NIEAP) is established, effectively dividing the immigration of workers to Canada into two streams: permanent immigrants and temporary workers. Under the NIEAP, visitors to Canada can no longer apply for visas to work from outside Canada, but must apply from abroad for time-limited permits tied to one employer (Sharma 2000).

1981: The Foreign Domestic Movement program is established. It would become the Live-in Caregiver Program, allowing temporary domestic workers who will live with a host family to enter the country and apply for permanent residence status within three years of landing in Canada.

1997: Concerns in the computer software industry about labour shortages prompt the Liberal government to introduce a Pilot program for Software Engineers. Seven job descriptions are exempt from an individual assessment on each application’s merit to obtain a temporary work permit.

2002: The Low-Skilled Worker Pilot Project is created. Workers with a high- school diploma or two years experience are able to work in Canada temporarily for up to 12 months.

2006: CIC introduces temporary worker units in Vancouver, Calgary and Montreal Toronto to serve regional employers and speed processing of temporary work permits. The program is expanded to Toronto and Moncton a year later.

February 2007: The duration of work permits for companies employing lower- skilled workers is extended from 12 to 24 months.

September 2007: The Expedited Labour Market Opinion pilot is introduced in Alberta and B.C. allowing companies hiring workers in 12 occupations appearing on the government’s ‘Occupations Under Pressure’ list to have their applications processed in 5 days rather than the average of four to five months. The program is expanded to 33 occupations by the next year – primarily in low-skilled and semi- skilled technical occupations, but also including pharmacists and registered nurses.

2010: The government announces that the Pilot Program for Software programs will end.

April 2011: Employers must comply with new rules aimed at assessing whether a job offer is genuine, including the wages offered and prior employer compliance with labour laws. Introduction of “four in, four out” rule limiting TFWs to working in Canada for four years after which they must apply for permanent status or leave for four years.

April 2012: The accelerated labour market opinion process for high-skilled temporary foreign workers is introduced for employers who had received an LMO in the prior two years.

July 2013: Changes to the LMO process ushered in a suite of regulations that make it more difficult for employers to turn to foreign workers. They included increased advertising requirements for domestic workers, posting of salary ranges, elimination of wages below market rates for high-skilled foreign workers, a documented transition plan to hire Canadians and a fee of $275 for each LMO, rising to $1,000 in 2014.

Figure 5: A timeline of Canada's temporary foreign worker program

Sources: CIC, Annual Report to Parliament, CIC Foreign Worker Manual, Canada Gazette operational bulletins.

In refugee policy, Canada has been described as a state where “unauthorized humanitarian migration [was seen] as a normal, manageable and necessary element of international politics” (Watson 2007: 96). Episodes of contention over the decades of the 1980s to the early 2000s were short-lived and caused by the rare arrival of undocumented refugees by sea, or the revelation of large processing backlogs. A lack of consistent or deep political conflict over refugee policy in the latter half of the 20th-century should not be mistaken for consensus, however. Over the course of the 1960s, Canada gradually abandoned ethnic or national origin criteria in immigration policy24. Yet it was not until 1969 that it became a signatory to the 1951

Geneva Convention on Refugees. The signing incorporated international definitions in refugee adjudication (Anderson 2011) and directly led to the creation of a specific refugee category in the 1976 Immigration Act, but did not change the essential source of the conflicts this area, that of balancing administrative efficiency, individual rights and security concerns.

Two persistent themes illustrate how this conflict played out, themes which resurface in the bills and debates that are the subject of the research here: how refugee claims are adjudicated and the import of claimants’ source country. Until the 1976 Immigration Act, Canada did not separate refugee policy from other classes. To decide the merit of claims, the Act had initially considered implementing an oral hearing. But immigration bureaucrats objected that this could lead to the creation of overwhelming backlogs and delays (Anderson 2010: 947). Oral hearings were only introduced when mandated by the Supreme Court’s 1986 ruling in Singh v. Minister of Employment and Immigration. In the case, the court ruled in favour of seven failed refugee

24 Triadafilopoulos offers a comprehensive history of how Canadian politicians first attempted to “stretch” national policy to meet evolving global norms against racial discrimination before incorporating such standards into national legislation.

39 claimants who argued that procedural fairness required an oral hearing. In response, Bill C-55 created the Immigration and Refugee board (IRB), with the Immigration Appeal Division hearing appeals for sponsorship and the Refugee Determination Division hearing refugee appeals. Bill C-55 also created a class of ineligible claimants – those who had passed through another safe country without launching a claim. The provision did not come into effect until the signing of the Safe Third Country agreement with the United States in 2004 (Antonious et. al

2007). C-55 was the subject of a year-long political battle between the Conservative government and the Liberal Senate, with the latter twice sending the bill back for amendments. The political fight was intensified with the introduction of Bill C-84 - allowing Canadian officials to board refugee-laden ships in international waters and decide on the merit of claims without a hearing on Canadian soil.25 National opposition by refugee advocacy groups, churches and refugee lawyers led to the legislative standoff, but as would be the case 30 years later in C-31, the government’s majority eventually ensured that the bill could be delayed and modified, but not arrested (Cleroux 1987; Bryden 1988). As would also be the case in more recent refugee legislation, public opinion was a site of conflict as the government commissioned polls to support the bills and advocacy groups appealed to humanitarian sentiment.

The issue of how oral hearings and appeals were to be conducted would arise again in the

2001 Immigration and Refugee Protection Act (IRPA), which took effect in 2002. The IRPA introduced two elements that would have important reverberations more than a decade later during the passage of C-31. The first was the failure to implement a refugee appeal division

25 All these measures were promoted as increasing the government’s ability to address refugee claims, but by 1988, the backlog was 85,000 and the government’s expectation of decreased hearing times were proving to be more than double the estimate (Anderson 2006).

(RAD). An initial hearing was to be staffed by a one-member panel with applicants anticipated to have recourse to an appeal. This was subsequently increased to two members to compensate for the failure to implement an appeal board. However, even when the two-member panel was reduced to a one-member panel following research showing that decisions were a) almost always unanimous b) divided decisions would be resolved in favour of the applicant, the appeal board was not activated.26

The second theme has been the differentiation in refugee legislation and policy by source country. At times, this differentiation issued from Canada’s foreign relations, in other instances, from the goal of reducing backlogs and streamlining processes. The latter objective would be invoked in the heated debate on Bill C-11 and C-31. Visas to Chilean refugees from the 1973 coup were more tightly limited than those following the Ugandan crisis of the early 1970s, and concerned with screening for possible security threats (Diab 2015). Similarly, visas were introduced to curb high rates of what were seen as fraudulent applications in the cases of Turkey and Portugal.

Since 2002, Canadian refugee policy has become increasingly restrictive (Dauvergne

2012). By 2014, Canada had dropped 10 spots from four years earlier on UNCHR’s ranking of top refugee-receiving countries to No. 15 (UNCHR 2014). Refugees saw cuts to their health care benefits (Stanbrook 2014), and the government adopted refugee adjudication policies that treat applications from refugees from “safe” countries differently than others. NGOs attacked this last as a violation of provisions against discrimination based on source country contained in the

Geneva Convention, as will be seen in the case study (Amnesty 2012, Canadian Council for

26 Richard Fadden, CIMM, 0930, on Bill C-291, May 7, 2009.

Refugees 2010). (At the time of writing, refugee policy is in flux as the new Liberal government reforms immigration and fast-tracks the entry of Syrian refugees).

2.2 Current approaches to Canadian immigration

Existing work on Canadian immigration policy-making can be thought of as a planetary system orbiting the sun at distances that vary in relationship to the explanatory power that the theorist attributes to the executive’s power to make policy. Or, to put it concisely, the study of immigration in Canada has been focused on analysis of the role of the state, with much less focus on interest groups or immigration lobbies (central to U.S. scholarship) or political parties and the supranational level (central to U.K. research). Important histories of Canadian immigration, for example, discuss the variables that limited state initiatives in recent decades, including courts, advocacy groups, changing ideational norms and global regulations over the second half of the

20th-century and the beginning of the 21st (Hawkins 1988; Kelley and Trebilcock 1998,2010; Li

2003; Anderson 2010, 2013; Triadafilopoulos 2010). These approaches tell us about the long- range variables that prompt politicians to engage in immigration politics, how they do so and the process that leads to some solutions being adopted rather than others (Kingdon 1997; Yee 1996).

Other research focuses on how immigration has played a part in election campaigns (Black and

Hicks 2008; Hicks 2009) and on the dynamics of discrete episodes of contention (Ibrahim 2005;

Barnes 2009). Together, they reveal that immigration in Canada was characterized by long-term elite consensus27 in recent decades, with contentious politics arising during discrete episodes and

27 Recently, Hansen (2014) suggested that Canadians’ commitment to multiculturalism is rather shallow, built on immigrants who integrate and excel, rather than those who may challenge cultural norms. Time will tell if politicians will successfully test this hypothesis by attempting to exploit undercurrents of discomfort with cultural difference in Canada.

42 outside electoral campaigns (Freeman 2006; Black and Hicks 2008). Indeed, elections are a time when parties will often court ethnic groups (Gidengil et al. 2009). Measures to control the entry of refugees were passed in Parliament in the form of Bill C-55 and Bill C-84, but the debate endangered by these bills did not extend beyond Parliament to the 1988 election (Black and

Hicks 2008). In fact, the decade between the Singh decision and the mid-1990s was one in which a “fragile” consensus on the moral legitimacy for a “relatively generous refugee policy” was created. (Kelly and Trebilcock 2010: 416). Even debate around C-49 – a recent policy initiative

- was, with the exception of one television ad screened during the 2011 campaign, limited to the period outside the campaign. Indeed, studies have found that when immigration does appear during elections it is usually within a narrative of inclusion (Black and Hicks 2008: 249).

Several key reasons have been hypothesized for this long-term elite consensus. The first explanation relies on the development of the Canadian party system. Canada’s party system has been seen as sui generis, an outlier from Europe’s class-based divisions and America’s interest- based politics, a country where the colonial legacy is alive as elites agree that democracy is best enjoyed by professional politicians (Brodie and Jenson 2007). Whereas continental political parties built support by enlisting masses of enfranchised workers in a democratic compromise,

Canadian parties, with the exception of the NDP, coalesced around the project of nation-building in the face of regional and linguistic differences and conflicts with Native populations (Brodie and Jenson 2007; Freeman 2006). As such, Canadian parties wager their support not on ideologically coherent appeals but compromise (Leduc 2007; Patten 2007). At the national level, regional, linguistic and class divisions have been suppressed, with parties and their leaders functioning as door-to-door salesmen of ideas, hawking new or slightly refurbished products in a bid for sales while demonstrating little attachment to the products. “Ideological flexibility…is

43 the price that has to be paid to ensure national unity in a country riven by deep-rooted religious, regional, and linguistic divisions” (Tanguay 2009: 182).

In contrast to the textured debate over the role of party politics in immigration legislation in Europe (Perlmutter 1996; Koopmans et al. 2005; Bale 2008; Schain 2008: Akkerman 2012) and the United States, immigration and parties in Canada merit key mentions in three volumes

(Gagnon and Tanguay 2007; White et al. 2008; Marwah et al. 2013). European analyses place the rise of extremist parties of the right at the centre of discussion and seek to define the extent to which such parties have led to culturally-differentiated politics against visible cultural and religious minorities. (Schain 2006; Schain 2006b; Bale 2008). As left parties stepped into the political void left by economic and social dislocations and gathered environmentalists, feminists and city dwellers under a progressive coalition, far-right parties have used the same social breaches to target minorities for political gain. The literature on the rise of such fringe parties, classified under the rubric of “strain theory,” has been employed to explain the rise of smaller parties positioning themselves on either extreme of the ideological spectrum and responding to, or in some cases exploiting, various societal strains to gain support (Bobbio 1996; Noel and

Therien 2008). Rather than a political movement, such parties are classified as anti-politics, presenting themselves as rejecting the issue trading of traditional parties and selling instead a small-government version of the future, whether motivated by distrust of politicians or distrust of government intervention in the market. Recently, scholars have suggested that the liberal- democratic consensus that kept appeals to exclusionist politics the preserve of fringe parties may be fracturing (Triadafilopoulos and Zaslove 2006; Schmidtke 2106). (Certainly, one could argue that the strongest evidence for this contention is the Conservative Party’s willingness to risk

Britain’s membership in the EU in order to signal its opposition to the free movement of

European workers.)

Canada, on the other hand, has never had a far right that targets immigrants. (Appeals by

Quebec parties to a public skeptical about immigration and its impact on the province’s cultural identity have been analyzed as falling within the province’s effort at cultural preservation

[Banting and Kymlicka 2010]). At the same time, changes to Canada’s party system that predate the policy shifts discussed here raise the question of whether the Conservative government may have been more willing than a prior generation of political elites to take political risks by engaging immigration, and specifically refugee policy. Distanced from the elite consensus that has characterized the dialogue around Canadian immigration policy, the Conservative party born from the Reform and Conservative merger was characterized by a party membership open to disparate appeals to their belief systems, and an elite that believed in increased economic immigration but was also concerned with security issues around the entry of refugees. The emergence and rise of the Reform Party following the collapse of the Progressive Social Credit party has been conceptualized as an anti-political movement based on western alienation from the centre and from linguistic conflict in Quebec (Tanguay 2009 cf. Belanger 2004). As such, the party did not develop through the same channels and historical pathways that defined the several stages of the Canadian party system (Carty, Cross and Young 2000). One may hypothesize that as a result of its outsider status, the party and its leaders may have been more willing to take political risks. Indeed, Freeman argues that Reform “shares many characteristics with populist parties of the right that have emerged in almost all western democracies in the eighties and nineties to challenge the mainline parties“ (Freeman 2006).

Other elements in the Conservative party support such a hypothesis. Like all political party elites, Conservative elites have been found to be two to four times more likely to support higher levels of immigration than the general population. However, unlike the elites of the

Liberal and NDP parties, Conservative and Green party candidates exhibit a restrictionist streak

45 toward refugees, though not economic migrants (Black and Hicks 2008). Indeed, a larger proportion of Conservative elites (and the Reform Party before them) support increased economic migration than the elites of other parties (Cochrane 2010).

In spite of a propensity to defect from an elite consensus, other forces propelled the

Conservatives toward policies that appeal to diverse constituencies, including conservative immigrant voters. The strategy, termed the “fourth sister” strategy,28 recognizes that with ethnic voters concentrated in important urban constituencies, no Canadian party can afford to alienate immigrant voters. The Conservatives attempted to appeal to recent immigrants in particular with conservative values on one hand, and security measures on the other (Marwah et al. 2013;

Flanagan 2008). Multiple refugee bills were introduced during their term in office, which were presented as increasing the country’s security and reducing the social burden of undeserving refugees. The development of one such bill is the subject of part of the research here.

The focus on security in refugee policy was evident in the 2006 Conservative platform, which proposed speeding deportations in criminal convictions of refugees.29 Black and Hicks argue that while all the parties’ platforms for the 2006 election took immigration more seriously, in the case of the Liberals, for example, including financial targets for settlement services and reductions in the immigration application fee, it was only the Conservative platform which moved in a restrictionist direction. It should be noted that in the area of overseas refugee

28 Flanagan argues that the Conservative government was systematically courting immigrant voters with symbolic acts like apologies for the Chinese poll tax and the turning away in 1914 of the Komagata Maru, as well as a reduction in the immigrant landing fee (a response to a similar Liberal proposal). (Flanagan 2008) 29 In 2004, the newly formed Conservative party’s platform had backed away from opposition to multiculturalism in an environment where all the parties’ platforms contained little on immigration. Both Reform and Conservative platforms before the merger had advocated prioritizing economically- independent immigrants for entry.

46 resettlement, the government maintained its commitment to settling refugees. Some changes were made limiting some private sponsors to sponsoring only refugees who had been recognized as such by the UNCHR or a State.30 At the same time, some advocacy groups voiced concerns that the Minister of Citizenship and Immigration was becoming involved in prioritizing some refugee groups,31 a concern that would play out in the 2015 election when it was revealed that the Prime Minister’s Office had ordered that all UN-approved refugees be vetted by the PMO

(Friesen 2015). The measure ran counter to Canada’s record of accepting 90 per cent of UN- recognized refugees.32

More possibly problematic for the Conservatives’ attempt to win over ethnic voters were measures increasing the separation between Canadian- and foreign-born citizens, cuts to settlement services in Ontario and the ban on the wearing of the niqab in citizenship ceremonies, an issue that culminated with an attack on a Toronto woman in the last days of the 2015 election

(Fine 2015). In the first category, the party introduced a new citizenship test, and passed Bill C-

24 which allows for the revocation of Canadian citizenship from dual citizens convicted of terrorism or high treason. Although some have argued that the new citizenship test was an administrative instrument (Paquet 2012), when set against other measures that aimed to reconstruct Canadian identity and multiculturalism in a ‘thick,’ integrative direction, it is apparent that this is a multiculturalism within boundaries defined by secular, liberal Canada

(Marwah et al. 2013). Finally, after taking longer to process applications for sponsorship from

30 Canada Gazette, vol. 145, no. 50, Dec. 10, 2011 31 Canadian Council for Refugees, Important Changes in Canada’s Private Sponsorship of Refugees Program: http://ccrweb.ca/en/changes-private-sponsorship-refugees 32 Evaluation of Government Assisted Refugees and Resettlement Assistance Program, accessed at: http://www.cic.gc.ca/english/resources/evaluation/gar-rap/index.asp

47 family-class immigrants (Alarcon and Law 2011), the Conservative government cut the number of new applications it would accept to 5,000 annually (Fitzpatrick 2013).

In the area of economic immigration, the Conservatives prioritized immigrants whose skills were immediately in demand in the labour market in a context of increasing overall immigration numbers, so that while the number of single foreign worker applicants declined, other entry pathways increased (CIC 2014). How economic immigration changed and the increased response to the labour market is the subject of the discussion of the case studies below.

2.3 Interest groups in Canadian immigration

We may recall that the introduction hypothesized that business groups in each country would be successful in influencing the state. The literature on Canadian interest groups suggests that would be true here. Coleman’s influential 1988 study concluded that business interests are the most likely group to be heard in policy-making in Canada. Even as different firms compete more than cooperate with each other, policy networks with government departments, combined with the lack of similar networks for labour unions, give business groups more influence than other interests. In short, the cross-class compromises prevalent in corporatist states are absent in the liberal Canadian case (also Smith 2005; Presthus 1973; Lindblom 1977).33

Unions and business have met in court over temporary foreign worker issues. Coleman is correct that business has more influence than labour – as this chapter will demonstrate – but equally importantly here, the state is autonomous of both. The Canadian government supports business when its interests align with those of the corporate sector, but ignores business when

33 Indeed, in some cases, labour unions and business have met in court: one successful membership drive was foiled by court action from employers (CBC 2011)

48 they do not, or when acceding to business pressure could lead to losing votes. Interviews with labour, industry groups and individual companies reveal access to decision-makers and influence in agenda-setting is higher for business groups than labour organization. Some companies reported contact with HRDSC or CIC of two or three times a day, while key labour interest groups reported that their views were polled every few months. As a comparison, under a Liberal federal government, the director generals of HRDSC and CIC would meet twice a year with the

Temporary Workers Advocacy Group and informal contact between the TFW director and the

Canadian Labour Congress’s key advocate for temporary workers, Karl Flecker, would occur more frequently. By 2010, labour felts that relations between labour groups and the federal government were combative and consultations were termed “a ruse.”34 In consultations leading to Bill C-50, the CLC was invited to discuss the introduction of ministerial instructions the day that the consultations were scheduled. Contact with provincial ministries tasked with immigration regulations occurred on a more consistent basis, although not with the frequency reported by employers.

In interviews, business representatives reported that much of the contact and lobbying between them and the government occurs in bureaucratic settings as well as in informal discussions with policymakers. Business approached government, but business respondents also reported that bureaucrats solicited opinions and input before deciding on a policy direction.

Moreover, bureaucratic forums such as the Deputy Minister’s Advisory Council were cited as specific formal channels through which views could be exchanged. In contrast, parliamentary hearings and submissions, key channels for labour and refugee advocacy groups to make their

31. Interview with Karl Flecker, November 2010.

49 views known, have been found to be an ineffective way to influence policy (Young and Everitt

2004).

Added to such consultative concerns is a long history of failed lobbying and advocacy efforts by labour groups on behalf of farm workers that set part of the background for discussions around temporary workers. The United Food and Commercial Workers (UFCW) had asked to participate in the national conference held by employers, sending countries and federal representatives for the Seasonal Agricultural Worker Program (SAWP), but at the time of the cases discussed here, had not been included. A consistent complaint voiced by labour unions was the perception that government did not levy sufficient sanctions on employers who contravened provincial labour laws. They pointed to successful union certification drives in B.C. that led to foreign farm workers who had signed up for union membership being replaced with workers provided by a recruiter (Langille 2012).

Using a chronological approach, this chapter will analyze the government’s actions and the responses of interest groups and political parties. In addition to policy statements and select interviews, interest groups in Canada were further examined over the three policy episodes through testimony they gave to the Standing Committee on Citizenship and Immigration.

Following the typology of Boatright (2009) groups were initially divided into three types: corporate, labour and advocacy groups. In the first category are individual corporations and business associations, the second grouping is composed of workers unions and associations, while the third presents the most diverse composition, encompassing refugee advocacy organizations, newcomer aid organizations, human rights interest groups whose mandate includes, but is not restricted to refugee issues, and finally, legal associations. A fourth group was added – that of think tanks – to reflect the presence of research bodies and individuals who

50 are present in public debate and consistently attend parliamentary hearings. Identifying advocacy groups through their engagement with the CIMM allowed a comparison between the types and density of groups which were active in each episode, the stability of such involvement and the prevalence of actors who were present across issues.

2.4 Canadian immigration cases

The first case that will be examined in labour immigration will be increased and faster access to temporary foreign workers from the period of 2006 to 2009. The second will be the changes affected through Bill C-50 (introduced in the spring of 2008). C-50 layered a priority occupations lens on the long-standing permanent federal skilled worker program, in which the entry of workers in certain occupations was expedited while older applications would continue to wait in the queue. Passed through a budget omnibus bill, these changes centralized decision- making power with the Minister of Immigration (Office of Auditor-General 2009) and are an instance of the executive increasing its decision-making scope. Both policies were driven by an understanding of immigration, both temporary and permanent, as meeting immediate and current economic needs, with less emphasis placed on the human capital characteristics of foreign workers. The main refugee legislation that will be discussed is Bill C-11, the middle bill in a series which aimed to reduce the refugee backlog, all of which were opposed by advocacy groups. The introduction of measures that constitute significant changes to immigration policy over a limited period of time suggests two hypotheses, which are not mutually exclusive. The government acted in response to demands from interest groups, or it did so because the area was of high interest to political actors. It will be seen that in the case of refugee policy, a government which had a minority of seats in the House had to agree to the compromises induced by interest group lobbying. In the case of labour policy, the government appeared to be attuned and attentive to the needs of business, but ultimately took autonomous action that responded to

51 public criticism, and also worked to limit future debate and media scrutiny of its immigration legislation.

2.5 From farm labour to temporary foreign workers

Workers arriving in Canada for temporary periods of time can be divided into two groups: those for whom employers must obtain a Labour Market Impact Assessment and those who are granted a work permit without requiring a test of their impact on the Canadian labour force. (The Labour Market Impact Assessment is the name of the former Labour Market

Opinion, a change in name made in 2015 that was accompanied by the aforementioned measures to protect the Canadian labour market (ESDC 2015). Those in the second group arrive in Canada primarily through the International Mobility Program, a large category covering a number of sub-categories including bilateral agreements, educational programs or the category of “national interest.” The highest proportion of workers in the IMP program enter through the North-

American Free Trade agreement, as intra-company transfers, or through a variety of student and post-graduate employment programs and fellowships. The number of these permits has increased over the past decade to reach almost 200,000 permits in 2015 and to make up more than 60 per cent of workers who are in Canada temporarily on a work permit. Indeed, this group grew “at a faster pace than workers requiring an LMIA,” with most working as skilled workers (PBO 2015).

The percentage of IMP workers versus those in the low-skilled pilot project, which has been the subject of the most intense media attention are illustrated in Figure 3, which suggests the IMP would be a fruitful area of future research.

40 Percentage of IMP Workers (no LMO) 30 Percentage Low-Skilled Pilot

0 Source: CIC Facts and

Figures 2009, 2014

2013 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2000

Figure 6. International Mobility Workers versus Low-skilled Pilot Entries

The temporary foreign workers program (TFWP) that is the subject of the discussion here

– and specifically, the low-skilled stream within the TFWP – do demand an LMIA. As a result, the development and growth of the program became a subject of political negotiation and controversy. Four main streams make up the Temporary Foreign Workers Program – the

Seasonal Agricultural Workers Program, the Live-in Caregiver Program, the high-skilled temporary foreign worker program, and the Project for Occupations Requiring Lower Levels of

Formal Training, commonly referred to as the Low-Skill Pilot Project. In addition, the TFWP also includes an additional newer agricultural stream that allows farms to hire people for on-farm positions for a maximum of two years in both high and low-skilled positions.

It is beyond the scope of this research to assess the veracity of claims for labour shortages in low-skilled positions or their source.35 Several shifts in the Canadian labour market have been seen to contribute to such shortages. They include the persistent decline in the number of younger workers; increasing education levels that leave native workers unwilling to accept jobs in service industries, and regional labour shortages that made the recruitment of lower-skilled employees difficult. Furthermore, social programs that enable employment on a seasonal basis are also seen to contribute to the limiting of the labour pool. 36

The Seasonal Agricultural Workers Program (SAWP) and the Live-In Caregiver program began decades ago and have given rise to program-specific research literature. However, SAWP has some features in common with the low-skilled TFW stream and as such some comparisons can be made. The SAWP began in 1966 and is the longest-running component of the TFWP. A degree of precariousness and dependency on the employer characterizes both programs

(Goldring et. al 2009). Farm workers are dependent on the employer for work from year to year

- employers can request workers by name each year – and also rely on the employer to provide housing on site. Farm workers arrive alone and cannot bring dependents or partners into the country for the duration of the work term.37

35 Critiques argue that these factors should lead to labour supply measures, including skills-training programs for groups with low employment participation rates (Green 2007; Alboim 2009) rather than the creation of a potential underclass of jobs in the service sector. Furthermore, this line of analysis questions the state’s decision to suppress high wages and potential investments into productivity by importing low- skilled labour. Indeed, researchers have pointed out the limits of an industrial strategy that is reliant on low-wage labour (Walsh 2008; Kofman 2008). 36 Gross and Schmitt argue that absent the increase in low-skilled temporary foreign labour, unemployed Canadians would have relocated to low unemployment provinces in greater numbers (Gross and Schmitt 2012). 37 According to CIC’s Foreign Worker Manual, workers may be accompanied by a spouse and children but they must “demonstrate to the [CIC] officer that they are capable of meeting these expenses.” The expenses may include school fees and support for partners and children. (CIC 2013)

In contrast, highly-skilled permanent workers can be accompanied by their spouses and are eligible to access two-step migration programs which expedite permanent residence status for those with Canadian work or educational experience.38 Skill-dependent rights are also paralleled in the difference between the workers’ countries of origin, with 70 per cent of skilled workers arriving from Europe, the U.K. and Australia, but 85 per cent of applicants in lower-skilled occupations (NOC C + D) originating from the Americas, primarily South and Latin America

(Nakache and Kinoshita 2010). Labour unions have raised similar concerns about the SAWP as would be later invoked about the low-skilled TFW program, arguing that the low costs of farm labour have made it impossible to recruit domestic workers. Furthermore, the program has been blamed for a decline in smaller, family-run farms as low wage costs made possible owning and larger plots of land (UFCW 2008).39

TFWP work permit holders by province of destination, 2005 to 2014 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Quebec 5,488 5,694 6,471 6,928 7,667 7,539 8,042 8,352 8,785 8,870 Ontario 19,202 24,338 30,881 35,251 31,151 28,732 23,498 22,923 22,891 19,574 Alberta 5,966 9,701 20,435 35,635 38,313 30,039 28,092 29,537 40,461 35,486 B.C. 9,143 10,389 15,310 25,533 27,277 19,472 16,007 18,568 22,542 21,755 RoC 3,610 3,887 5,253 7,272 8,155 6,339 5,920 7,312 9,446 8,424 Total 43,409 54,009 78,350 110,619 112,563 92,121 81,559 86,692 104,125 94,109

CIC, Facts and Figures , 2014 Roc: Rest of Canada

Figure 7. Regional distribution of temporary foreign workers

38 For provinces who see immigrants as a source of population growth, opening the ability of spouses of temporary workers to enter the country functions as a recruitment tool. CIMM, April 2, 2008, 1045. Eric Johansen, director, Saskatchewan Provincial Nominee Program

39 Some aspects of the farm worker program have been looked at as an improvement on the situation of TFWs. In Quebec, FERME, an independent organization, began to process employers’ applications and serves as a liaison with the governments of sending countries. For some analysts of the temporary foreign worker program, the involvement of the governments of sending countries presents a model of regulation that is preferable to the direct relationship between employers, employees and the Canadian government that characterizes the TFW (Preibisch 2007), as it provides an advocate.

As seen above, the temporary program has seen an overall increase in numbers, but wide regional variation in workers’ destinations. The success business enjoyed in gaining faster access to increased flows of temporary foreign workers had been prefaced by expedited immigration programs for temporary workers in high-demand industries, specifically computer software and networking in the late 1990s (the Software Development Worker Pilot Project) and low-skilled labour in early 2000s. The first project began as a result of consultations between Citizenship and

Immigration Canada, Human Resources Development Canada, the Software Human Resources

Council and Industry Canada (CIC 1998) and changes to policy were implemented as a joint project aimed at resolving perceived job shortages in the sector. The Software Pilot program allowed for “blanket” national validation of work permits for seven occupations – software designers, developers and animators - recognized to be in very short supply. The project was explained during 1997 Committee hearings on Canada’s temporary foreign workers policy.40

The final report issuing from those hearings argued that educational initiatives should complement the streamlined process that was introduced for workers in six software occupations

(CIMM 1997). The program ended in 2011, but saw thousands of IT workers enter Canada in the intervening years, as can be seen in the graph below (ITAC 2014).

40 CIMM, evidence, March 11, 1997, 1545, testimony by Raphael Girard, Assistant Deputy Minister, Operations, Citizenship and Immigration, explaining the process that led to the Software Pilot Project: “The focus over the last three or four months has been on trying to carve out those areas in the industry where there is significant supply shortage or demand excess in the industry. We've been giving the industry partners the role of basically defining those job descriptions as well as the wages and working conditions in which those individuals would be operating in Canada over the coming years if we were to open our process in terms of validation and the immigration process itself.”

Sources: CIC Facts and Figures, 2009; CIC Facts and Figures, 2012. Figure 8. Entries of Software workers under the Pilot Project 2000 - 2012

By 2002, the Liberal government expanded the ability of employers to look for workers abroad by initiating a Pilot Project for Occupations Requiring Lower Levels of Formal Training

(Parliament of Canada 1997; Pascoe and Davis 1999; Nakache and Kinoshita 2010). The program enabled employers to hire applicants with a high-school diploma or two years of occupation-specific training, as well as foreign workers who would receive on the job training41.

The criteria for the entry of temporary workers had first been identified in 1999 as that of

‘net economic benefit’ which was itself defined as the outcome of the weighing of three factors: the need for an employer to look outside the country; the number and degree of positive benefits to national human capital or infrastructure investment; and the possible downward pressure on wages and working conditions (Pascoe and Davis 1999). Service Canada would issue positive

Labour Market Opinions that allowed business to seek foreign workers if such “employment is

41 Code C usually requires the completion of secondary school or job-specific training, while Code D jobs provide on-the-job training, according to the National Occupational Classification Matrix: http://www5.hrsdc.gc.ca/NOC/English/NOC/2011/html/Matrix.html

57 likely to result in a neutral or positive effect on the labour market in Canada” (IRPA 2001). By

2008, the LMO process required that employers demonstrate “that they are unable to find suitable Canadians or permanent residents to fill the jobs and that the entry of these workers will not have a negative impact on the Canadian labour market,” replacing a demand for positive impact. In practice, employers were required to meet the first condition by advertising on the government’s job bank and/or in other outlets at some point during the entirety of the three months prior to applying for an LMO. Companies seeking lower-skilled workers needed to advertise in both places.

2.6 Business and labour groups in the TFW program

Evidence of the position of business and labour on the expansion of the TFW program in the current period and how each group influenced policy was gathered through an analysis of public commentaries and submissions to the government and interviews with industry and labour group representatives. A key source of evidence for each group’s positions was testimony to the

Standing Committee on Citizenship and Immigration (CIMM), which held multiple hearings on various aspects of the TFW program in 2009. The CIMM report, titled Temporary Foreign

Workers and Non-Status Workers,42 was tabled in May after a whirlwind two months which began on March 5, 2009 and included two weeks of national meetings in 12 cities (as well as 18 meetings in the prior year). The tenor of the hearings was often politically charged.43 Evidence from employers testifying to the shortage of labour was often echoed by Conservative CIMM

42 Its main focus was that of temporary workers but the report also addressed the situation of non-status workers on the grounds that both groups “face barriers to attaining permanent residency.” 43 The hearings also descended into farce at times with the first day of cross-country hearings on March 31, 2008 dominated by a debate over whether the hearings would be televised.

58 members, while activist groups presenting on behalf of farm or undocumented workers were supported by NDP members.44

The evidence gathered here, including the final report, strongly suggests that lobbying from business groups encouraged, but did not determine the government’s moves to liberalize the entry of temporary foreign workers. Indeed, the government was most consistently responsive to administrative rather than substantive demands from industry. In contrast, labour groups were not able to arrest the increase in TFWs and only affected policy on the margins.

When the federal government reversed policy and tightened salary conditions and the length of time that workers could stay in the country temporarily, it did so in response to the recession, not to assuage labour. At the provincial level, labour found more success in isolated cases as will be outlined below, such as Manitoba. The Manitoba case highlights one explanatory variable for the failure of labour groups to gain traction with political actors: the lack of formal and informal channels between unions and political actors which could rival the access pathways open to business.

Most importantly, the absence of labour influence and the reversals of policy favouring business groups shows that the government was responsive to business interests only as long as economic conditions gave rise to measurable and plausible labour shortages. The end of administrative efficiencies for business that followed the boom would herald further restrictive changes to the temporary foreign worker program in the years following what had been an unprecedented shift to temporary workers to meet national economic needs. Once public

44 CIMM, Apr. 2, 2008, 1405. Ed Komarnicki: “I hear it from all of you. We don't have a nice simple stream, so we need to find a way to match newcomers with the demands of the economy. I think a lot of people have not yet caught on to the fact--whether they're in administration, bureaucracy, or wherever-- that the economy is growing exponentially and that there is no internal way to meet those needs.”

59 attention was drawn to what the media depicted as abuses of the TFWP program, restrictions to the program became severe, leading to the aforementioned drop in applications from 2013 onward. Once again, however, it bears noting that work permits for individuals entering through international mobility programs increased as LMOs/LMIAs decreased, raising questions about the ability of employers and the government to transfer applications from one category to another. That is a question the present study cannot answer. What is important to stress at this juncture is the consistent ability of government to respond to stimuli – whether economic or electoral – with little input from organized interests. This will be discussed further in the concluding chapter.

The specific areas of disagreement between business and labour, on which each group lobbied the government are examined in more detail below. Business lobbying was concerned with escaping the bounds of the domestic labour market and gaining what it believed was a more flexible, loyal and reasonably paid work force in a minimum amount of time. Importantly, while business as a whole shared those concerns, each individual corporation faced competition from other firms, leading to advocacy by the sector for measures that would reduce the risk for each of investing in foreign workers.

One issue on which labour and industry agreed during the CIMM hearings was that temporary work should be a pathway to permanent status.45 Throughout their appearances at the

CIMM hearings, labour argued that one way to protect domestic workers from the emergence of more flexible TFW labour would be to restructure temporary programs at all skill levels to serve

45 “We agree that if someone is allowed to work temporarily in our kitchens, they should be allowed to come in permanently.” Justin Taylor, vice-president, labour and supply, Canadian Restaurant and Foodservices Association

60 as the first step46 in a two-step permanent migration process.47 In turn, employers believed that employees in NOC codes C and D, affecting food service workers, such as cooks, should be able to access permanent residence through the TFW.48

2.6a Labour-business conflict over labour supply

As Gross has detailed, low unemployment rates in the mid-2000s, particularly in Alberta and B.C., obscured the uneven nature of labour shortages across industries and skill levels. For lower-skilled workers with only a high-school diploma, unemployment rates never dipped as low as the average rate – 7.3 for high-school diploma holders versus approximately 5 per cent overall, in 2007 (Gross 2014). Still, Alberta and B.C. experienced pockets of acute labour shortages. In Alberta, the construction industry faced a 4.4 per cent unemployment rate in 2006.

In response, the provincial government released a strategic document based on extensive consultations with industry and labour identifying labour shortages as the most severe problem it would face in years to come. Streamlining immigration programs and the entry of temporary foreign workers should be a priority both for the province and the federal government, the report said (Alberta 2006). (The Alberta Federation of Labour, however, objected to recommendations on prioritizing the entry of foreign workers.)

46 For some activists, however, relying on, or creating, further programs that would be founded on a two- step process can transfer the administrative, bureaucratic authority of CIC to issue work permits, to the employer. See for example, testimony by Erika del Carmen Fuchs, Justicia for Migrant Workers B.C, March 31, 2008.

47 A two-step process is one that divides the process of migration and settlement in two stages, with permanent residency being granted after a trial period. It is governed by the belief that workers who have shown their ability to access the country’s labour market, or students with advanced degrees, are more likely to succeed. Skill-based rights are also paralleled in the difference between the workers’ countries of origin, with 70 per cent of skilled workers arriving from Europe, the U.K. and Australia, but 85 per cent of applicants in lower-skilled occupations (NOC C + D) originating from the Americas, primarily South and Latin America (Nakache and Kinoshita 2010). 48 CIMM, May 9, 2008. Joyce Reynolds, executive vice-president, Government Affairs, Canadian restaurant and food services association

As the price of oil increased and investment poured into Alberta, business argued that it did not have enough workers to provide the labour required to build oil facilities (Foster and

Taylor 2013). But employer remarks also suggest that foreign workers were seen to possess attributes the native labour force lacked: punctuality, dedication, low absenteeism and loyalty.49

“Extensive local recruitment efforts [yield] few new hires or reliable, long-term employees,” business witnesses told the CIMM hearings (CIMM 2009). Or as one government official said,

“employers are afraid to hire native workers.” Wages were not the primary concern identified by employers: salaries had to meet the prevailing regional rates in their respective industries.50 It should be noted that the definition of “prevailing wage rate” has been criticized by advocacy groups. The information that government relied on to establish such wage rates was seen as flawed during the peak of the entry of TFWs and in the years following (AFL 2015).

Overall, Canadian labour unions have adopted a restrictionist stance toward temporary foreign workers. TFWs should be used as a “last resort,” said a statement from the Alberta

Federation of Labour issued in 2006, and signed by 31 unions (AFL 2006). In 2007, following the high-profile case of foreign workers brought to Canada with false promises of high wages, the Canadian Labour Congress petitioned the federal government for a moratorium on the TFW program (CLC 2007). Several years later, it would issue a report that claimed the TFWP had

“damaging implications to labour market planning and immigration policy.” (CLC 2011) For labour groups, the turn to foreign workers was premature and the demand for workers could have

49 Interview with Percy Cummins, Executive Director, Immigration Policy and Programs, Alberta Provincial Nominee Program. The conditions attached to the work permit, Mr. Cummins said, enable businesses hiring foreign workers to have better forward planning as workers are more likely to demonstrate desirable attributes and less likely to move employers for $1/hr. 50 House of Commons, Standing Committee on Citizenship and Immigration, April 7, 2008, 1050 (Patrick Dillon, Secretary-Treasurer, Provincial Building and Construction Trades Council of Ontario)

62 been satisfied domestically through investments in developing the national labour force.

Economists testifying for labour unions at the CIMM summarized this position succinctly.

Increasing the number of TFWs, they said, would have a pernicious effect as wages and working conditions would stagnate, and possibly decline, in response. This, in turn, made employment in the affected industries unattractive for almost all native-born workers, with the exception of candidates who do not possess sufficient skills and are therefore unlikely to appeal to employers.51 Instead of chasing foreign workers, employers should invest in training and recruiting domestic workers with lower levels of participation, such as women, youth and native people.52

Unions in provinces that experienced the highest rise in temporary entries were most active in their resistance. The Alberta Federation of Labour, with 125,000 members across the province, for example, which had witnessed the number of TFWs in the province grow exponentially since 2003, released an official statement opposing the strategy in 2007 (AFL

2007). The AFL had questioned the pace of development (de Guerre 2009), and saw foreign workers undermining working conditions for all workers, native and foreign. In 2006, the AFL established a temporary foreign worker advocate who would make contact with TFWs and help mediate conflicts with employers. The advocate’s first report, “Temporary Foreign Workers:

Alberta’s Disposable Workforce,” highlighted lagging wage rates and working conditions and their impact on the domestic labour market and recommended that the program be replaced by a more efficient mode of permanent immigration (AFL 2007).

51 See for example, CIMM, March 31, 2008, 1445, David Fairey, Trade Union Research Bureau, Vancouver. Fairey argued that changes to the B.C. SWAP program which reduced wages and protections have led to an employer-created labour supply problem. 52 CIMM, April 1, 2008, 1525. Al Brown, Assistant Business Manager, International Brotherhood of Electrical Workers, Local 424

The AFL, as well as other provincial unions, opposed the Christian Labour Association, a union-like organization that engaged in co-operative bargaining with employers. While the group represented less than 20,000 workers across Alberta, it supported the TFWP. On occasion – such as its support for a mine construction project that involved TFWs – its efforts were highlighted by the media as examples of conflicts within the labour movement over the program (Klaszus

2014; Steward 2015). Its role was too limited, however, to furnish an explanation for why the

AFL did not succeed in controlling the flow of workers during the economic boom.

2.6b Conflict over working conditions for foreign workers

A key issue for labour groups has been the attachment of an LMO to a specific employer.

The single-employer LMO, rather than issuing an LMO to the worker based on their occupation and province of residence, makes workers dependent on the employer. Employees can change positions, but their new employer must obtain an LMO from another company and the worker a new work permit (CIC 2012: 4). Unions argued that if LMOs were given to workers rather than the employer, individuals would be more likely to refuse work that is unsafe or violates the terms of the contract.

Business conceded that the single-employer LMO ties workers to them. They argued, however, that this mechanism is required to mitigate the company’s investment in recruitment and training. 53 Such investments can be substantial, with major national companies that employ foreign labour such as Tim Horton’s or Maple Leaf Foods having foreign recruitment units, interviewing candidates in their country of origin and drafting contracts of employment through

53 At the height of the economic boom, for example, Maple Leaf Foods was conducting recruitment drives through the auspices of the International Migration Organization which writes up employment contracts and conducts the initial advertising. Maple Leaf then dispatched its interviewers to interview potential employees on location.

64 the International Organization for Migration. In areas of low unemployment, competition for employees, particularly individuals who have been vetted through such an intensive process, was so heated that companies in less attractive industries – for example, meat processing – were concerned that food service companies or resource industries will poach their recruits. Once a worker has independent status in the country, some companies face high turnover as workers seek out better jobs.54

The search for stable workers led some employers to innovative programs for recruitment. Tim Horton’s, for example, considered a program of private refugee sponsorship under which refugees would be offered employment through the IOM as a way of accessing permanent employees.55 While an increase in refugees’ ability to access safe havens would be difficult to criticize, the lack of separation between the sponsoring and employment entity would once again increase employees’ dependence on the employer.

2.7 Government response to business lobbying

Government administrative policies were the target of employers’ pressure. For business, the speed and uncertainty of LMO processing was a consistent source of strain in its relations with the federal government. Two departments were responsible for the processing: Citizenship and Immigration Canada and Human Resources and Social Development Canada. Numerous times in testimony to the CIMM, employers lamented that they lost approximately a third of workers approved through HRDSC to CIC checks. An LMO was issued for multiple positions and for workers who had not been identified. Subsequent to the issuing of an LMO, the employer had to identify specific workers it wished to import who would be granted work permits by

54 CIMM, Apr. 1, 2008, 1150. Sandra Cornford, foreign worker liaison, Westcan bulk transport 55 Interview with Chris Thomas, labour strategies manager, TDL Group

Canadian Citizenship and Immigration.56 Each individual worker had to be approved by CIC based on a set of criteria that assesses the worker’s ability to do the job that was offered, as well as the individual’s likelihood to return to their home country once their visa had expired.

According to CIC, 25 per cent of approved LMOs were not granted clearance by CIC.

Employers estimated that number to be 30 per cent. In the face of unpredictable visa decisions from CIC, employers repeatedly suggested concurrent LMO and CIC processing.57

Initially, the government responded to such concerns. An expedited LMO process was introduced on a trial basis from 2007 to 2009, which included an online application and an online extension of a current permit. A list of occupations eligible for expedited processing for an LMO and shorter advertising periods was introduced in 2009 (Gross 2014). Furthermore, the issue of investment in recruitment and training was recognized by imposing the costs of transportation costs to the workers’ home countries on the last employer to hire the worker and apply for a work permit on their behalf.58

As economic conditions weakened in 2008, however, the government began restricting employers’ ability to bring workers to Canada on a rapid basis. In April 2009, employers became unable to apply for an extension of a current LMO, instead being required to file a new application for existing workers they wished to retain. Two years later, the process of gaining a work permit was made conditional on the employer having complied with the federal or

56 CIMM, Feb. 25, 2008, 1640: Les Linklater, director-general of Immigration Branch, CIC. 57 CIMM, April 1, 2008, 1420. Miles Kliner, general manager Sunterra Meats; CIMM, Apr. 2, 2008, 1350, Kurcan Kocdag, National Board, Canadian manufacturers and exporters; CIMM, Apr. 2, 2008, 0955, Rory McAlpine, vice-president, government and industry relations, Maple Leaf Foods Inc. asks for concurrent processing of LMOs and work permits from CIC 58 Interview with Rory McAlpine, vice-president, government and industry relations, Maple Leaf Foods

66 provincial labour conditions where the worker will be employed, with non-compliant employers not being able to access the TFW program. Workers found to work for non-compliant employers would also lose their work permits. Within one year, however, no employers had been found to be in contravention of such conditions.59 Other proposed federal changes were scaled back.

Initial changes proposed in 2009 which demanded that foreign workers leave the country for six years following a four year work term, were lobbied against by industry groups60, leading to a reduction in the mandatory absence from the country to four years. The policy became effective for those entering after April 2, 2011. The “four in, four out” rule was expected to have several effects. Unions predicted that it would simply lead many temporary workers to vanish into the underground economy.61

2.8 Government autonomy

The report produced by CIMM attempted to pressure the government to change some of the major facets of the low-skilled stream of the TFWP. Temporary workers, it argued, were filling “long-term labour shortages.” As such, the differentiation between high-skilled and low- skilled workers should be erased: The two-step pathways available to highly-skilled workers should be opened to the lower-skilled and the rights differentiation between temporary and permanent workers should be ended. Spouses and children of low-skilled workers, for example, should be able to access employment in Canada and enabled to accompany the primary applicant.

59 All information gathered from www.cic.gc.ca memos and booklets on the temporary foreign worker program. 60 Interview with Justin Taylor, vice-president, labour and supply, Canadian Restaurant and Foodservices Association. 61 Interview with Yessy Byl, Temporary Worker Advocate, Alberta Federation of Labour.

Eight recommendations also addressed the content and administration of the LMO, one of the most significant being the idea of attaching of the LMO to the occupation and region, not the employer. The report also expressed concerns with the administration of the program and advocated the publication of the methods used to arrive at the prevailing wage rate in each occupation. Overall, the report advised converting the temporary worker program into one of more “limited scope” in which low-skilled workers should be offered pathways to permanent residency. “Future temporary foreign worker programs should be focused and subject to sunset clauses precipitating regular reviews of labour market conditions.”

The objections of Conservative members of the CIMM and the government’s response to the report offers insight into the impact of the lobbying efforts of business and labour.

Conservative members of the CIMM dissented from nine of the 36 recommendations in the report, emphasizing two points: the importance of protecting the ability of business to operate and not burdening the government with having to respond to a variety of interest groups. “It is our view that government operates best when it undertakes its specific functions with a high degree of focus; rather than increase the scope of its powers in undefined and limitless ways. We oppose efforts to create an unnecessary advisory board, or to require the government to respond publicly to the comments of every group or individual who chooses to express a view.” (CIMM 2009: 75). The government would continue to resist calls to turn the TFW into a permanent stream over the following years, arguing that employers would have to find ways to increase the participation of domestic workers if they faced labour headwinds as a result of changes implemented to the program (CIC 2011).

Halfway through the CIMM’s travels across the country, the House announced the introduction of Bill C-50, an omnibus budget bill that contained far-reaching changes to how permanent immigration would be structured. The bill gave the government the ability to set target immigration groups and numbers through ministerial regulations.

As it was a budget bill, it was referred to the Finance Committee, with Conservative

CIMM member Ed Komarnicki filing a motion at CIMM that the bill should remain with the

Finance Committee rather than be discussed at CIMM on April 7. The next day, however, the committee debated allowing discussion on Bill C-50 from the witnesses it was interviewing for the temporary program. The Liberal members of the House also asked the committee if they should vote down the bill, thus triggering an election vote, a request that was objected to as grandstanding by other members of CIMM.62

C-50 is a significant example of political actors expanding the scope of the state’s autonomy in making immigration policy. By allowing politicians to quickly respond to fluctuating demand in the labour market, C-50 suggests that political actors had been persuaded by business arguments about the need to match workers to existing skill shortages. At the same time, it also indicated that the government was not going to cede control to industry over immigration control. Instead, it appointed itself the role of matchmaker – acting autonomously but listening closely to what business needed. Finally, the bill would respond to labour market demand as signaled in temporary shortages in certain industrires but do so through the permanent immigration stream. In this way, media and public scrutiny of how immigration policy is made and its effects on domestic workers would be limited. Coming at the same time as the government had been facing intense and public questioning of its policies on temporary foreign workers, the bill would have the effect of curtailing any such debate in the future.

62 CIMM, April 8, 2008, 1440. Thierry St. Cyr, CIMM, co-chair, BQ: “What is the point of discussing that the bill should be debated before it is defeated since Liberals have no intention of amending the bill? So why put on the show?”

2.9 Bill C-50

A new system through which to select immigrants was outlined in part six of Bill C-50. It proposed that the minister of citizenship – through ministerial directions – set occupations in demand. Applications for permanent immigration from persons with those skills would be Prioritized ahead of other federal skilled worker applications.63 Changes to the list of occupations would be swift, the government promised, with expected updates at least every six months or as the market indicated.64 The rationale for including immigration in a budget bill was that $109-million of that year’s budget was targeted to reducing the backlog in the permanent immigration stream and implementing the ministerial instructions.65

Bill C-50 borrowed some of the approaches of the temporary system and applied them to the permanent stream. The Minister of Citizenship was clear about how Bill C-50 shared an economic framework with the TFW program. “We are also doing this as part of a comprehensive immigration vision, where we are deliberately expanding the temporary foreign worker class, because we need to get people here to fill jobs and it takes way too long for them to come in through the regular stream right now.... So we're tearing down the wall between the permanent

63 The initial list of occupations in demand and changes to the list were the result of a complex process. Discussions with HRDSC identified occupational shortages that were believed to be short-term in nature and could be filled through the TFW. Second, the department utilized the Canadian occupations projection system (COPS), and balanced identified areas of need with the applications already present in the backlog for federal skilled workers (engineers from India, for example.) Finally, CIC adopted the “reasonableness” criteria practiced by the U.K.’s Migration Advisory Committee in devising occupations that are in a shortage – those occupations which may be in a shortage area, but require an understanding of the Canadian context (i.e. policy adviser) are excluded from the occupations list. Initially, numerical caps were imposed equally on all occupations, although the department considered differentiating among occupations. Interestingly, CIC officials said the ministerial instructions were another layer of human capital – one that accounts for the fact that the “gold-standard” of future job success is a job offer. Interview with James McNamee, strategic policy and planning, CIC. 64 On the bill’s passage, 38 occupations were deemed in demand, a number that was further reduced to 29 in June 2010, with a cap of 1,000 per occupation. Applications under the general federal worker entry system were processed only after the completion of the occupations in demand category. The 600,000 applicants languishing in the backlog who did not possess appropriate skills would continue to remain on the wait list (OAG 2009).) 65 CIMM Testimony, May 12, 2008, 1815, Ed Kormanicki.

70 and temporary streams in a deliberate effort to get more people here sooner, and get them into the jobs that need to be filled so they can succeed and so that Canada can succeed.”66

The human capital model was no longer leading to optimal outcomes for recent immigrants, the government had argued in the 2006 Advantage Canada document. Prioritizing immigrants with the skills the economy needed at any given moment would immediately match the needs of the labour market. “When the time comes to try to forecast whether there is an immediate need for plumbers in Toronto or whether we need people to work in the oil fields in Alberta, the employer is not prepared to wait for immigration and the points system is not really useful. That is the time when the system that works better is to pick someone to come as a temporary worker and then perhaps let him change his status later to become a permanent resident.”67

The bill demonstrates three aspects of the discussion so far: government autonomy in legislative policy, autonomy in decision-making processes, and the demonstration of competency. As has been seen, moves to ease employers’ access to temporary foreign workers predated the Conservative government and the shortage of labour in the mid-2000s, especially in the Western provinces. The bill further underlines the fact that political actors were acting autonomously in shifting immigration to a market-driven model even as the move was supported by business. By introducing legislation that had been subjected to public debate in the past through a budget bill, the government was limiting the pressure civil society groups would be able to exercise. This would particularly affect labour and advocacy groups who, it will be recalled, were more reliant on formal pathways for access to government. Changes introduced through ministerial instructions, rather than regulatory changes, would exempt such instructions

66 CIMM, May 13, 2008, 1610, 1635, 1640; Diane Finley, Minister of Immigration and Citizenship 67 CIMM, May 13, 2008, 1920, Daniel Jean, Associate Secretary, Senior Associate Secretary’s Office, Treasury Board Secretariat

71 from being published in the Canada Gazette where they would be open for consultation and feedback for 30 days.68 Finally, the immigration provisions of Bill C-50 were aimed at reducing the backlog of applications in the federal worker stream, a goal that was promoted as a demonstration of political actors’ efficacy.

By including immigration in an omnibus bill, the government abbreviated the immigration policy cycle, allowing only a limited number of resource-rich actors to participate in the public debate. The circumscribing of debate occurred even before the bill was passed.

Hearings on the entire bill would be held at the finance committee, rather than the CIMM, proscribing the extent of discussion of the immigration changes specifically.

Opposition parties threatened to defeat the budget bill as a means of forcing the immigration provisions to be debated in separate legislation. Ultimately, however, the

Opposition was not prepared to force an election to ensure that more voices would be heard on the issue. In the few hearings that were held, only one group indicated that they had been consulted on the changes in the bill prior to its introduction: The Canadian Restaurant and

Foodservices Association, whose members had been at the forefront of hiring temporary foreign workers and whose labour shortages were well known to the government. The CIMM scheduled only a handful of meetings on the topic. In addition, the Finance Committee held four meetings devoted to the immigration changes; union groups that had addressed the CIMM on the TFW presented at the Finance Committee. (Consulting with the public was promoted: 3700 questionnaires were completed on a Consulting with Canadians website, as well as 307 completed questionnaires from the 700 sent to stakeholder groups.)

68 CIMM, May 12, 2008, 1045, Stephen Green, treasurer, Canadian Bar Association. An example can be seen at: http://gazette.gc.ca/rp-pr/p1/2014/2014-04-26/html/notice-avis-eng.php

Members of the CIMM were explicit in their opposition to the consolidation of executive power and argued that the bill would allow business groups to exercise undue influence on the list of occupations to be issued.69 Witnesses from industry and business groups, however, were supportive of the bill’s methods and intent. “Bill C-50 ... brings the welcome elevation of economic priorities as a cornerstone of the changes that are proposed. The chamber believes the flexibility as a result of this must be enshrined in the system. The needs of the economy today will not be the needs of the economy tomorrow.” 70 For Conservative members of the CIMM who pointed to the Advantage Canada document from two years prior, Bill C-50 was the type of measure that would lead to the flexible workforce that policy statement envisioned while borrowing from the best practices of Australia, New Zealand and the U.K., all cases which were presented as employing occupational filters to enable the processing of applications within a 12- month period.71 The CIMM released a letter to the Finance Committee on May 15, 2008 in which it set out its objections to the Bill. As had been the case for the Report on Temporary and

Non-status Workers, Conservative members again dissented from the concerns expressed.

As was discussed in the introduction, demonstrating efficiency is sometimes the primary goal of government policy. While it is clear that C-50 was primarily concerned with meeting demand for workers, the backlog of applications in the permanent federal worker stream was a black mark on a government that aimed to show it was able to deliver the workers business

69 CIMM, May 2, 2008, 1635, Warren Creates, lawyer (as an individual)

70 CIMM, Wednesday, May 14, 2008, 1540, Jon Carson, vice-president, policy development branch, British Columbia Chamber of Commerce. 71 Dissenting opinion of Conservative members of CIMM. Accessed at: http://www.parl.gc.ca/Content/HOC/Committee/392/CIMM/WebDoc/WD3507808/392_CIMM_C50/392 _CIMM_C50_Opinion-e.html

demanded. 72 As the pool of working applications would only be drawn from those applicants that met the occupational requirements set out in ministerial instructions, the permanent worker backlog would be whittled away. (The government would eventually move to wipe the backlog and refund the application fees, an action that was subject to a failed class action lawsuit.) The government argued that even the lack of extensive public hearings into the changes would enable it to act quickly to arrest the backlog. New applicants with the appropriate number of points were no longer processed unless they could show experience over the last decade in an occupation deemed in demand.73

In spite of all objections, the Bill passed essentially unmodified, receiving Royal Assent on June 18 and showing mixed results in meeting the aims the government had outlined.74 The

72 The backlog, witnesses argued, however, was not a general stream of applicants, but varied widely based on the applicant’s country or region of origin and was the result of yearly targets set by the minister in each visa office not being supported with resources appropriate to process the targeted number: CIMM, May 2, 2008, 1646: David Cohen, immigration lawyer, “In 2007, the target for economic class visas at the visa office in Buffalo was 24,500 against an inventory of 43,000 applications. The target for similar applications at the visa office in New Delhi was 10,500 visas against an inventory of 135,000 applications.

73 While the 2002 IRPA demands the processing of every application on an individual basis, Bill C-50 allowed the government to cleave to the letter of the law while refusing to accept applications which do not meet a set of specific criteria. Applications that are not processed in a given year could be returned with the fee. Responding to committee members who questioned government officials’ right to initiate such sweeping changes to the IRPA without rewriting that legislation, the government cited the need for speed to prevent a further rise in unprocessed applications. Indeed, the government was considering implementing the New Zealand and Australian models in which potential immigrants enter a pool of “expressions of interest” from which approved employers can search (the system that was eventually implemented on Jan. 1, 2015).

74 Several months after the TFW report was released, in November of 2009, a report from the Office of the Auditor-General of Canada released in November 2009 was highly critical of the government’s administrative capabilities. Several areas were identified as leading to an uncoordinated approach on a national level, including the relationship between the provincial nominee program and federal priorities, the lack of oversight on the part of HDRSC in assessing legitimate job offers, and no monitoring to ensure employer compliance with the conditions of an LMO. In addition, the report pointed out that those applying to enter as federal workers were waiting as long as six years for a decision and would likely linger there longer, even as Bill C-50 expedited the entry of workers with immediate skills.

74 first set of ministerial instructions was released on Nov. 29, 2008 and applied to all applications received after Feb. 28, 2008. No further instructions were released until June 26, 2010 when the

Minister imposed caps of 1,000 on each occupation, occupations which had been reduced from

38 to 29, with a total of 20,000 federal worker applications being accepted under ministerial instructions. A year later, the total number of federal worker applications was once again reduced to 10,000 and a cap of 500 for each occupation was imposed. Over 136,000 individuals applied for entry under the first set of ministerial instructions, immediately creating a backlog secondary to the existing one, with initial applications under the ministerial instructions still being processed two years later. Overall, however, CIC reported that the initial backlog of applications had decreased by half in the two years following the first set of ministerial instructions from over

640,000 to 314,000 by June 2011.

That the government was able to implement these changes – and to limit public discussion – shows the autonomy enjoyed by governing parties in the Westminster system.

Absent channels through which a variety of interest groups could access parliamentarians directly, civil society is reliant on opposition parties to carry forward their views, parties that balance their own electoral priorities with the demands of organized interests. The hearings on the bill made clear that the omnibus bill was not crucial to the government accomplishing the stated economic goals of the policy. One example: whereas government officials pointed to

Australia as an example of a country with rapid processing with which Canada was competing for immigrants, witnesses to the CIMM invoked Australia’s decision to raise the points required to enter the country as an option that would be preferable to making changes to immigration policy through C-50. Only a mechanism like C-50 would enable future debate to be limited as well.

Several witnesses also pointed to the powers the minister of citizenship already possessed through IRPA, including the creation of lists of restricted occupations with permanent stream applicants demonstrating experience in occupations already amply supplied in the Canadian market receiving zero points for work experience. Immigration was not the only remit where the government used an omnibus strategy to control discussion: the mechanism was employed again in the spring of 2012 to limit debate on changes to Old Age Pension, Employment Insurance and environmental regulations. 75

It is stressed here that while Part Six had short-term benefits for the government, its significance was in creating a mechanism through which politicians and bureaucrats could make changes to immigration policy without scrutiny from either interest groups or in parliamentary hearings. Immigration policy-making through ministerial instructions was foreseen in the 2001

IRPA, but became a primary tool of setting levels and types of immigration after the passage of the 2008 Budget (Elgersma 2015.) The mechanism enabled frequent experimentation and adjustments. At first, instructions allowed occupational caps and overall numerical ceilings to be placed on the processing of federal skilled worker applications, a measure that as we have seen was considered permeable to influence from business (Canada Gazette, 2013). However, occupations were not determined by employers but by assessing labour shortages through the government’s labour forecasting system. More significantly, ministerial instructions were the instrument employed to usher in Express Entry in January 2015, a restructuring of Canada’s immigration system that aimed to expedite entry for applicants with skills in immediate demand.

75 While it exceeds the scope of the research to discuss, by 2012, the minister had used the powers endowed in “Part Six” to impose a moratorium on applications for family reunification from grandparents or parents.

To do so, Express Entry halted application processing for specific occupations, instead awarding points to applicants with a job offer and a positive LMIA. Employers, however, found the system administratively burdensome and were reluctant to advance LMIA applications because they required disclosing rates of pay to competitors (Chamber of Commerce 2015).

In short, we may not be surprised that absent an opposition wiling to challenge the government, decision-makers were able to introduce changes to the criteria determining the characteristics of the most desirable immigrants. More far-reaching was the mechanism which allowed changes in 2008 and also instituted a policy instrument that would be consequently utilized to restructure the process of immigration determination. It bears noting that at the time of writing, the same instrument has now been used by the Liberal government to adjust the Express

Entry system further (Canada Gazette 2016).

2.10 Interest group access at the provincial level

Canada’s status as a federation means that the federal government shares jurisdiction over immigration with the provinces. However, Quebec is the only province that can set its own annual numerical goals as well as decides on the proportion of immigrants it will admit in each stream. Under the Provincial Nominee Program (PNP), the other provinces and territories have been able to select immigrants that meet each province’s economic needs since the 1990s. The federal government will prioritize the processing of such PNP nominees, but provinces cannot exceed annual numerical caps set in Ottawa. As Seidle details, numerical caps have been a consistent source of tension (Seidle 2013). As a result, provinces have engaged in negotiations over such caps and have even had to unexpectedly pause programs (Chiose 2016).

Rather than a standardized human-capital model, PNPs foreground the understanding that each provincial government may have specific priorities it wants to emphasize and that the

77 demand for workers will not be consistent across the country. As each province sets regional caps on the number of entrants it seeks in each category, it is difficult to argue that nationally the

PNP program is a program enabling lower-skilled temporary foreign workers to enter. However, the PNP program has enabled provinces which have decided that they face a shortage of low- skilled workers or must combat insufficient population growth, to select low-skilled applicants and expedite their permanent settlement. As the numbers below indicate, the number of workers entering as provincial nominees has grown incrementally but steadily.

Principal Applicants for Permanent Immigration, 2005 - 2014 Year 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Economic Immigrants 61,618 55,722 53,822 61,303 64,004 76,559 64,356 68,257 64,759 78,107 FSW, principal applicants 52,269 44,162 41,251 43,361 40,733 48,820 36,779 38,591 34,156 28,773 Canada Experience Class 0 0 0 0 1,775 2,533 3,972 5,943 4,362 14,200 PNP, principal applicant 2,643 4,672 6,329 8,343 11,800 13,855 15,295 17,201 18,806 21,003 Other* 6,706 6,888 6,242 9,599 9,696 11,351 8,310 6,522 7,435 14,131 *Includes entrepreneurs and live-in caregivers transitioning to permanent residence - 11, 693 former live-in caregivers in 2014.

Figure 9: Provincial nominees, 2005 – 2014

Source: CIC, Facts and Figures 2014.

Devolution of some of the policy-making process to provincial levels reflected the federal government’s view that labour immigration must meet specific economic needs. By rendering national patterns into local problems, provincial-level policies sidestepped the political scrutiny attached to national-level policies while maintaining at least part of the goals of policies in higher jurisdictions. In turn, provincial institutions might prove more permeable to some interest groups whose concerns were excluded from decision-making at higher levels of government. 76

76 Industry interviewees largely agreed with the overall model, however, as some pointed out, micro- economies can exist in some provinces where conditions in some industries are so advantageous that shortages of labour are acute in lower rungs of the economy. (Interview with Chris Thomas, TDL Group and Maple Leaf Foods.)

Bill C-50 was presented as a way to enhance the PNP program. “The categories of priority processing under Bill C-50 will not affect the provincial nominee programs. In many ways, they complement them. Setting national priorities frees up capacity at the provincial level to identify specific needs for them. For example, if lab techs are in demand right across the country, provinces won't have to use their limited resources to each set those as a priority. They'll be able to expand their provincial nominee programs to other areas, other occupations where they do have specific needs that are local.”77

In some instances, labour groups found provincial governments more open to discussion than the federal government. The key example here is Manitoba where low population growth led to acute labour shortages. As a result, every temporary worker entering Manitoba, regardless of skill level, was eligible for employer sponsorship through the PNP program with the provincial government attempting to recruit 2,000 new permanent immigrants each year. As we saw above, using the TFW program as a two-step process toward permanent immigration was the only area where unions and business consistently agreed. In Manitoba, the province’s economic needs further enhanced labour’s bargaining power in setting the terms of a TFW contract. The Maple Leaf Foods plant in Brandon, for example, concluded an agreement with the

UFCW where the needs of foreign workers – time to visit family abroad, translation services and application to the PNP program – were written into the contract. Of the workers at the Maple

Leaf plant, for example, 77.6 per cent applied to the PNP program (UFCW 2009).

In contrast, Alberta limited the availability of the PNP program to the semi-skilled and higher-skilled groups. The relationship between immigration officials in Alberta and the Alberta

77 CIMM, May 28, 2008, 1650, Finley.

Federation of Labour was strained. The AFL demanded regulation over labour conditions from a provincial government that was skeptical of the organization’s advocacy role. Administrative speed and efficiency, Alberta officials believed, were of more importance than legislation in regulating work conditions, which could be achieved through discussion with stakeholders. As officials from the province’s provincial nominee program expressed: “Philosophically, legislation is our last resort.”78

Refugee policy presents a stark contrast to provincial devolution in the entry of foreign workers. Instead, the federal government maintains control with almost no input from other levels of government or organized groups.

2.11 Policy-making in C-11

The debate that would animate C-11, the bill discussed in this section, began in the

1980s. Twenty-five years prior to the arrival of the HMV Sun Sea off the coast of B.C. in August

2012, two boats landed off Canada’s East Coast, within a year of each other. The first landing, of two lifeboats of Tamil asylum seekers, was greeted by the government with humanitarian measures (Mann 2009) and assurances to the public that there were no political links between the refugees and extremist groups. The second landing led to the emergency recall of Parliament, and the introduction of Bill C-55 and Bill C-84. The first bill altered the admissible categories for entry; the second proposed turning back refugee ships destined for Canada while they were still in international waters (Basok 1996; Watson 2007). In both cases, the tension between

78 Interview with Percy Cummins, executive director of Alberta Immigration Policy and Programs, March 14, 2011. Cummins cited the possibility of wage suppression, the creation of an underclass of jobs that no Canadian will take, and the tension that can occur on job sites between permanent and temporary workers. Yet the possibility of those problems had not been realized, he added.

80 humanitarian considerations and concerns over security and irregular arrival avenues were apparent, a contrast that defines the current bill as well.

C-11 was not provoked by an immediate event, although it was introduced after one irregular arrival by sea and before another: the MV Ocean Lady in October 2009 and the MV

Sun Sea in August 2010. As will be seen, C-11 was negotiated during a minority government term and required the government to compromise, illustrating that under exceptional circumstances, refugee advocacy groups may gain access to decision-makers. As will be discussed, once a majority government was again in power, compromise was off the table.

2.12 The history of Bill C-11

C-11 was introduced as a response to a growing backlog of refugee applications and was the result of a political compromise which finally introduced a refugee appeal division (Grant and Rehaag 2015) in exchange for support for restrictive measures aimed at reducing applications. The appeal division would hear appeals from refugees whose claims had been denied in single-member refugee hearings.

Discussions around bills which preceded C-11 shows that there was consistent opposition to the implementation of an appeals division. In 2008, Bill C-280 would have amended the 2002

IRPA to activate sections 110, 111 and 171 implementing the appeals division that had been introduced in the 2001 Bill. C-280 died when the 2009 election was called. That same year, Bill

C-291 was introduced as a private member’s bill by BQ MP and then CIMM co-chair Thierry St-

Cyr, and wound its way through the legislative process including CIMM hearings, before being defeated on third reading with a tie-breaker vote in favour of the minority Conservative government by Speaker Peter Miliken.

In CIMM hearings and parliamentary debate on C-281, CIC officials and Conservative

MPs argued that the appeal division would lead to “unnecessary delays and costs to an overburdened system,” both to the refugee process and in indirect health and welfare costs to the provinces, without substantial grounds for success. New evidence or an oral hearing could not be introduced during an appeal. The proposed appeal would have been paper-based, but Richard

Fadden, who was CIC deputy minister at the time, argued that even this type of process would further strain a system laboring under the burden of a “large and growing number of unfounded claims.”79

The CIMM sessions on C-291 were characterized by partisanship, with Liberal members demanding apologies from witnesses who said refugees may be unfairly claiming social benefits or could be security threats. In a testy, but not atypical, exchange, CIMM member and Liberal

MP Jim Karygiannis asked deputy minister Fadden:

“Mr. Fadden, you stated something that irked me. You said that if these people are given an extra five months, it will add to the cost of the health care system, welfare, and you went on. You made it sound like these people are here as freeloaders.”

Richard Fadden: “A lot of them are.”80

During hearings in October, several of the measures that would eventually be introduced in C-11 were suggested by committee witnesses, among them the deletion of the Pre-removal risk assessment, the allowance for deportations during federal court appeals and the introduction of a list of safe countries.81

79 Richard Fadden, CIMM, 0920, May 7, 2009 80 Richard Fadden, CIMM, 1035, May 7, 2009 81 Lorne Waldman, 0930; Julie Taub, 0920, October 8, 2009

In the background of debate was a backlog of refugee applications that had reached over

50,000 by September 2008. The government was creating a crisis as a way to bring in “draconian measures,” said Olivia Chow, the NDP immigration critic.82 Several months later, the Auditor-

General report would reveal that the crisis was largely of the government’s own making as the vacancies among governor in council appointees at the Immigration and Refugee Board (IRB) were allowed to grow.83 The backlog identified in the A-G report, its causes and the measures that could solve it, would provide the central issue of the debate on C-11. For the bureaucracy, the backlog was evidence that current legislation was inefficient. An appeal division would risk further delays, in spite of the “time guillotines that are intended to be imposed,” one senior civil servant said.84 For interest groups, the issue of the backlog presented a difficult challenge as the government cited the issue to support the many restrictive measures advocates opposed. As it turned out, however, it was also an opportunity.

2.13 Bill C-11

Bill C-11 was introduced on Mar. 30, 2010 and passed its third reading in a Conservative minority House of Commons on June 15, 2010 in a unanimous vote that was called a ‘miracle on Parliament Hill’ by the Toronto Star. The initial legislation had been heavily amended after a month of hearings at the Citizenship and Immigration Committee, in order to gain the agreement

82 Olivia Chow, House debate on Bill C-291, November 19, 2009. 83 Office of the Auditor-General of Canada. 2009. March Status Report. In the second quarter of 2006- 2007, the government had not reappointed a large number of members whose terms had expired. Only 42 per cent of members whose terms had expired and who were recommended for reappointment by the IRB to the Minister saw their term renewed, eventually leaving an organization that had a full complement of 164 members with 106 members by March 31, 2008. The A-G report found that the reduction in members resulted in fewer claims being finalized. In comparison, at its almost full complement in 2004 – 2005, the board was able to finalize more claims than new ones being advanced, thus reducing its inventory of unprocessed claims to less than 20,000, compared to the September 2008 backlog. 84 Raphael Girard, CIMM, 1645, May 27, 2010.

83 of the opposition parties. A comparison of the initial processes proposed and their amendment as detailed in Appendix A and B shows that the final bill extended the possible steps before an application receives a final decision and goes some way toward erasing the differentiation between refugee classes the government had originally introduced. Such differentiation would be retained solely through shorter claim adjudication timelines for refugees from designated safe countries.

The government’s primary reason for introducing C-11 was to fix what it described as a

‘broken’ refugee system. Citizenship and Immigration Minister Jason Kenney repeatedly pointed to the 60,00085 still unprocessed refugee applications (by the time of the bill’s introduction), a 60 per cent increase in applications between 2006 and 2008, as well as a success rate of only 42 per cent.86 Furthermore, the backlog, the government argued, was encouraging fraud as applicants without valid claims could be certain they would remain in the country for increasingly longer periods of time. Fast processing times would also lead to declines in the time to deportation once an application failed; launching an application would no longer guarantee a 10-year stay in the country.

Establishing a category of Designated Countries of Origin (DCO) from which claims for refugee status would be either barred or allowed only in limited circumstances was a response to

85 Proceedings of the Standing Senate Committee on Social Affairs, Science and Technology, issue 11, June 22, 2010. Jason Kenney. “All parties recognize that we also have a broken asylum system that has been characterized by ongoing large backlogs and slow processing times. Our system is at risk because too many, who are not refugees, try to use it as a backdoor into Canada, abusing our generosity and violating our laws. We have some 60,000 people in the asylum queue in Canada — the largest number of asylum claims of any developed country.” 86 The arguments made in favour of the bill were not always consistent. In testimony to the CIMM, the same approval rate was compared to the much lower rates found in European Union countries as evidence of Canada’s relative openness and vulnerability to abuse.

84 a complex set of issues. Creating a list of ‘safe’ countries with claimants from such countries not able to access the appeal process as C-11 proposed, was one of the main tools to address the refugee claim issues the government saw. In turn, that would decrease the long wait times for legitimate claimants and have the effect of providing “faster protection for those who truly need it and faster removals of those who do not” (CIC: Annual Report 2010). The exact criteria for specifying such countries were not present in the original bill, 87 but were to be determined at a later date through ministerial consultations and instructions. (Importantly, establishing a DCO group would also provide a way to stop claims from countries with which Canada had other economic relations that it wanted to protect). The government’s desire to expedite and control how applications from safe countries are processed also occurred against a background where

Canada was engaged in continuing negotiations of a free-trade agreement with the European

Union and had imposed visas on the citizens of the Czech Republic, Romania and Bulgaria.88

The visas were aimed at preventing a recurrence of the rise in claims from Hungary, primarily from Roma alleging persecution (Rehaag et al 2015). A DCO mechanism would replace one type of regulation – the visa – with another, and meet the demands of Romania and Bulgaria for visa- free travel for their citizens to Canada in exchange for their support of CETA.

The government’s entire tranche of measures was motivated by a belief that domestic policy could dissuade refugee claimants from reaching Canada and improve the rate at which those whose applications failed would be deported. As well, some of the bill’s administrative measures were aimed at removing politicians’ ability to personally intervene in cases and

87The initial list of countries would be determined based on a list of those making up at least 1 per cent of total claims in the preceding three-year period and which have acceptance rates of 15 per cent or less. 88 Trew, Stewart. May 22, 2012. “EU Parliament debates visa threat to Canada-EU free trade deal,” Council of Canadians,http://canadians.org/blog/?p=15277; http://news.bbc.co.uk/democracylive/hi/europe/newsid_9721000/9721441.stm

85 safeguard the system operating as it was envisioned, the government said. Negotiations on the bill occurred through the hearing process at CIMM, with interest groups appealing to the opposition parties to use the leverage of a minority government to force changes in the legislation.

Support for the bill, as will be seen below, came from civil servants in the ministries of citizenship and border security who had long advocated for measures that would streamline and shorten the adjudication period and the time to deportation. Advocacy groups were almost uniformly opposed to the legislation, with the exception of the Centre for Immigration for Policy

Reform and the Canadian Taxpayers Federation who supported its security provisions and reduced expenditures. In short, impetus for the bill was found within government rather than from external sources.

2.13a Reducing pull factors

DCO claimants were the prime targets of the bill. Witnesses from the CIC and IRB argued that the practice of streaming refugees according to their origin countries was already practised in France, Germany and the U.K.89 In the bill’s first draft, refugees from DCO states would have seen their cases heard within 60 days by one member of the Immigration Review

Board and would have no recourse to the Appeal division. In first reading, Bill C-11 did not include access to appeals for claimants from DCO countries and allowed much more latitude to the minister for immigration in designating such countries. For claimants not from DCO countries, appeals could be launched on fact, law or a mix of the two, (unlike appeals to federal court which must be argued on law alone), would be paper-based and be decided within 30 days.

89 Peter McDougall, Director General, Refugee branch, CIC, May 27, 2010.

Removal orders would be enforced even if the claimant advanced a legal challenge in Federal

Court.

Support for the bill came from past officials of Citizenship and Immigration Canada and the IRB. Raphael Girard, former refugee director of CIC, who had been in favour of the safe third country provisions contained in the 1986 Bill C-55, argued that Canada could go further and declare a whole group of countries – such as EU member states – as ‘safe’ countries on the grounds that claimants from the EU could appeal their cases to an alternative forum such as the

European Court of Justice.90 The denial of appeal provisions for ‘designated country’ applicants was crucial for ‘keeping the load away from the appeal division.’91 In addition, witnesses advocated for the introduction of a ‘manifestly unfounded’ category – again, based on practices in European Union countries – which would identify clearly “frivolous” claims and expedite the deportation of those applying from these states.92

Government officials emphasized at the time that expedited removal processes accompanied by resources, could lead to a reduction of current and future backlogs. “The cumulative result of [current] processes is a refugee system that allows failed claimants to avoid removal for years.

The situation appears to be a draw factor for individuals not in need of protection, and it is also apparent that the longer an individual stays in Canada, the more difficult it may be to remove him or her, because they become established here,” testified Peter Hill, a director general at the Canada Border Services. Prohibiting failed refugee applicants from accessing pre-removal risk assessments and humanitarian applications for one year would deter applicants without legitimate claims from making initial

90 Raphael Girard testimony, CIMM, 1715, May 27, 2010: 1715. 91 Raphael Girard, 1730, CIMM, May 27. 2010. 92 Howard Anglin testimony, CIMM, 1830, May 31, 2010,

87 applications, McDougall added. Specifically, the increase in returns would be facilitated by the introduction of an Assisted Voluntary Returns programs – once again modeled on the U.K. and

Australia – which would see claimants who co-operate with authorities given additional assistance to resettle in their countries of origin.93

The entire humanitarian and compassionate stream was portrayed as another feature of

Canadian immigration that was drawing unmerited claims. The government initially proposed a

12-month ban on accessing humanitarian and compassionate applications for failed refugee claimants as well as barring H&C applications concurrently with a refugee claim. Half of failed refugee applications end up in the H&C stream, said Peter McDougall, the director general of refugee policy for CIC, and the one-year waiting period (during which refugees could be deported) would discourage such applications.94 By barring H&C applications for a year following a negative decision at the Immigration and Refugee Appeal division, annual removals could be increased to 13,000.95 At the time of the bill’s discussion, the Canadian Border Services

Agency had an inventory of 40,000 cases96 prioritized according to risk.

Aside from the lack of access to the appeal court for DCO claimants, opposition to the

DCO designation centered around the impermeability of the DCO designation process and the latitude given to the minister to determine such states.97 The creation of ‘safe’ designated

93 Peter McDougall testimony, 2020, CIMM, May 31, 2010. 94 Peter McDougall testimony, CIMM, May 27, 2010 95 Ibid. 96 Peter Hill testimony, director general, post-border programs, CIMM, 2015, May 31, 2010.

97See briefs to CIMM hearings on Bill C-11. Accessed at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4564195&Language=E&Mode=1&Pa rl=40&Ses=3

88 countries was presented by critics of the legislation as putting Canada in contravention of Article

3 of the 1951 Geneva Convention which bars signatory states from discriminating against refugees on the basis of race, religion or country of origin, conditions stressed by the UNHCR representative. LGBT rights groups were particularly opposed to the DCO designation as a country could be designated as safe and yet present a danger to members of minority groups.

2.13b Safeguarding the process

With the replacement of the personal information form with an interview with an official from the Refugee Protection Division, officials were no longer appointed by the Governor in

Council on renewable terms. Instead, public servants governed by the Public Service

Employment Act would be hired for these positions. While the government presented this measure as a way to ensure the professionalism and training of board members, critics said civil servants may not be sufficiently removed from governmental influence and not sufficiently knowledgeable.98 C-11 modelled this change in staffing on the U.K. system in which public servants conduct the initial screening interview. The government also aimed to impose professionalism on pre-risk assessment hearings – the last step before a failed refugee claimant was sent home. By moving pre-risk assessments from the CIC to the IRB, politicians would not be able to contact officials hearing the cases. IRB officials are quasi-judicial bodies that parliamentarians are not allowed to contact. The concern over this aspect was high enough that an entire CIMM meeting was devoted to the issue.99

98 Louise Dinnon testimony, 1810, May 31, 2010 99 CIMM, June 10, 2010

2.14 From a minority government, a compromise

The CIMM hearings culminated in heated negotiations between committee members and the committee and the government, and brinkmanship by the Minister. On May 25, the Bloc and

NDP parties said they were opposed to the DCO provisions but expected them to survive as a result of Liberal support. NDP MP Olivia Chow advised witnesses to the committee who were opposed to DCO designation that any objections to such provisions should be addressed by lobbying Liberal MPs. Two days later, a subcommittee of the three parties’ immigration critics,

Olivia Chow (NDP), Thierry St-Cyr (BQ), and Dennis Coderre (Liberals) was to meet with the parliamentary secretary in order to present each other’s amendments to the bill. One of the amendments would eliminate the DCO category. On May 31st, the Minister appeared in front of the CIMM to present the regulations that would affect how the bill would be operationalized.

Amendments to the initial regulations, which the Minister noted were the result of negotiation with the Liberal critic for immigration, increased the time of the first interview from eight to 15 days and the time of the first hearing from 60 to 90 days.

In this appearance, Kenney warned the CIMM members against watering down the DCO measures. If “amendments are made to the bill that for example would significantly slow the process or would undermine our efforts to disincentivise waves of false claims from safe democratic countries, then the government will elect not to proceed with the bill and its associated reforms,” he said. The government was willing to implement the appeal court if the opposition parties retained the majority of the government’s measures and their intent, the minister made clear in testimony about the bill at the CIMM. “If members choose to play politics with this real opportunity for balanced reform, then let's be clear as to what we will all be losing. We will lose a new refugee appeal division for the vast majority of claimants, an appeal division that's better than what was contemplated in IRPA in 2002. That means that if the bill fails as a result of unreasonable amendments, no claimants

from any country of origin will have access to a refugee appeal division. That will be a choice if people make such

100 amendments,” Kenney told the committee.

Initially, the CIMM projected that it would finish its deliberations on June 3 after proceeding with a clause by clause discussion the prior day. However, on June 9, Chair David

Tilson told the members that the motions passed on June 3rd were irrelevant. The minutes of the meeting reveal that between the original date of its final deliberations and June 9, the government compromised on the issue of DCO countries. DCO claimants would now have access to a Federal Court as a way to appeal negative decisions, but their stays of deportations would not be suspended should they choose that course. Significantly, however, the DCO designation remained and still contained faster processing times for claimants – a hearing within

30-days for DCO claimants versus 120 for a non-DCO claimant.

Other compromises were also made. During committee hearings, the NDP had originally planned to move to strike any mention of humanitarian applications from the bill, but agreed to a

Liberal amendment that removed the 12-month ban on humanitarian applications from failed refugee claimants. That particular amendment passed on division in the clause by clause debate, with the Conservative members of the CIMM voting against. Also as a result of negotiations, applicants would be able to change their application to the humanitarian and compassionate stream at any stage of the process, but would not be able to have concurrent humanitarian and compassionate applications with refugee applications. In the bill’s first iteration, the personal information form - filled out by refugees with the aid of a lawyer within 28 days - was replaced by an interview with an immigration official that would occur within eight days of arrival. While

100 Jason Kenney, Minister of Citizenship, CIMM, May 31, 2010

91 the NDP and the BQ wanted that initial period to stretch to 28 days, they agreed to a

Liberal/Tory amendment of 15 days. The bill passed unanimously at third reading, with committee members congratulating each other on their ability to compromise and the government expecting a 12-month implementation timetable.

Faced with hostile Opposition parties and handicapped by its minority status, the

Conservative government was forced to amend the bill in the ways that refugee advocacy groups had wanted, reducing the administrative efficiencies it had chased in creating a group of DCO countries. A game of brinkmanship had ended with the government clearly concluding that the bill would be voted down – possibly triggering a summer election – as a result of heavy lobbying by advocacy groups of the Opposition parties.

When the initial set of regulations were released in March of 2011, however, they contained a different timetable than that indicated by the government during the CIMM hearings.

The most controversial change was the allowance of 15 days for appeal hearings to be

‘perfected,’ or in other words, complete. This, refugee advocates have argued, contradicts assurances given by the Minister that applicants would have 15 days to “indicate their intention to file an appeal”101 and “makes a mockery of appeals of the system.”102 On the other hand, a further regulatory note in the Canada Gazette indicated the government would allow for exemptions to the one-year ban on H&C hearings even for DCO appellants, a move that brought the legislation in line with line 7 of the Charter guarding against the risk of refoulement.

101 Proceedings of the Standing Committee on Social Affairs, Science and Technology, June 22, 2010. Minister Jason Kenney. 102 Testimony of Mitchell Goldberg, Canadian Bar Association, to Senate Committee, June 22, 2010.

As amended and passed, the bill was unlikely to fulfill the goals of efficiency and cost savings that the government had originally set out. Estimates from CIC, released as part of the regulations governing the implementation of the bill, estimated that 10 per cent of applications were expected to originate from DCO countries.103 The initial hearing at the Refugee Protection

Division (RPD), however, was budgeted at four hours, an increase of one hour versus the then- current hearings governed by IRPA. The introduction of an appeal division that was open to all claimants, particularly as a humanitarian application and a federal court application would still be made, represented an additional step, the opposite of what the government had intended.

According to CIC calculations, the net benefit of the reformed system was expected to be $91.4- million due to expedited processing and the deterrence of unfounded claims.104 Furthermore, the

IRB expected that it would begin the new system while still dealing with a backlog and would not have the resources to resolve these cases while implementing a new system. 105

2.15 The afterlife of C-11

The most significant event in the life of Bill C-11 was the unexpected postponement of its implementation due to what observers suggested was a desire to modify the bill closer to what the government had originally introduced.106 “Well, look, the bill that was passed was not the bill that we introduced. And even the bill that we introduced was I think very deliberately

103 CIC. Regulatory Impact Statement, March 19, 2011, vol. 145, no. 12, accessed at: http://canadagazette.gc.ca/rp-pr/p1/2011/2011-03-19/html/reg2-eng.html

104 Ibid: “It is estimated that 10 per cent of all asylum claims will come from DCO countries with a 57 per cent decline in claims from such countries following the 12-month followings such designation. Furthermore, it is estimated that faster removals will lead to lowered social benefit costs, which indicates that the cost-benefit analysis is dependent on meeting the ambitious timelines set out in the regulations.” 105 Anca Gurzu, “Backlog will remain with new refugee system,” Embassy magazine, July 13, 2011. 106Showler, Peter. Sept. 15, 2011. “Expect a stormy session around refugee policy in Ottawa,” Maytree Conversations. http://maytree.com/blog/tag/bill-c-11/

93 calibrated to get support in a minority Parliament,” said Minister Kenney in an interview with the

Parliament Hill newspaper Embassy, several months after the 2011 election when the government had won a majority.107

In spite of the high degree of involvement of political actors and stakeholders in Bill C-

11, the fall after it was passed the government introduced Bill C-49. The renewed focus on public safety could be seen in the fact that the bill was sponsored by both the Minister of

Citizenship and the Minister of Public Safety. C-49 was a very public response to the arrival of the MV Sun Sea, a ship bearing refugees from Sri Lanka in August of 2010. Announced by

Public Safety Minister Vic Toews, the Bill proposed denying refugee claimants arriving through

“irregular” channels permanent resident status and the ability to sponsor family members for five years, as well as several other measures that would further refine C-11.

The refugee claimants arriving on the Sun Sea were depicted as ‘queue jumpers,’ not only in ministers’ statements to the media, but also in government documents in which the paying of human smugglers was compared to a cited 41,000 applications for refugee resettlement through Canada’s Refugee and Humanitarian Resettlement Program.108 Parliamentary debate on the bill shows that the government employed similar strategies to the U.K., invoking once again, the rate of denied asylum claims.109

107Shane, Kristen. 2011. “Interview with Jason Kenney,” Embassy. Sept. 28, 2011. http://immlawyer.blogs.com/my_weblog/2011/09/embassy-interview-with-jason-kenney.html 108 Public Safety Canada, “Canada’s generous program for refugee resettlement is undermined by human smugglers who abuse Canada’s system,” https://www.publicsafety.gc.ca/cnt/nws/nws- rlss/2011/20110616-3-eng.aspx.

109Jason Kenney , October 28, 2010, House of Commons Debates, Oct. 28, 2010

The differentiation between refugees based on how they attempted to enter the country violated the 1951 Refugee Convention. The Bill received a heated debate in Parliament in the fall of 2010 but was not re-introduced until after the 2011 election.

The measures contained in C-49 would not be passed until 2012 in C-31. With the power of a majority parliament behind them, C-31 finally reneged on the compromises made in C-11 that had allowed appeals for refugees from DCO countries and had obliged the minister of immigration to establish an advisory panel determining designated ‘safe’ countries. The designation of safe countries would be based on quantitative criteria set out in ministerial orders while qualitative criteria would be part of the legislation. Europe, the Minister of Citizenship and

Immigration argued, should simply not be a source of refugees for Canada. In the year prior to the legislation, Canada received 2,300 claims from Hungary, for example.110 In addition several other restrictive measures were introduced. The legislation, for the first time, restricted the ability of refugee claimants to work by allowing the issuance of work authorization only after 180 days had elapsed without a hearing, or until the claim of a DCO appellant was approved. Migrants arriving as part of a “designated irregular arrival” would face detention without review for 12 months or until the claim was accepted (a timeline the government amended to 14 days without review, followed by an 180-day review). Finally, the bill included legislation for biometric identification of visitors entering the country under tourist visas from select countries.

CIMM hearings were divided according to party lines, with the Conservatives bringing in

40 witnesses, the NDP 24 and eight for the Liberals, who testified for 14 meetings over

110 Jason Kenney , March 6, 2012, House of Commons Debates.

95 approximately two weeks. As will be further discussed below, from the time the bill was introduced to its passage in the Senate, groups which had mobilized against its predecessors C-4 and C-49, organized new mobilizations against it. As many of the objections raised over C-11 bill were repeated with C-49, C-4 and C-31, the later legislation’s importance is due to the contrast it provides to the negotiations and influence exercised by opposition parties and the interest groups which appealed to them. The government’s ability to pass C-31, rather than have it suffer the fate of the previously abandoned C-49 and C-4 bills, highlights the power of the executive under Westminster democracy: A majority government did not have to engage in protracted negotiations to implement measures that were still hotly contested by a wide variety of interest groups and alliances. In the absence of effective political pressure, the executive enjoyed almost complete control over the content and outcome of the agenda it had set.

2.16 Executive control

The cross-country hearings on immigration policy which began in 2008 and focused primarily on the TFW program, led to the re-mobilization of advocacy and settlement groups within the Status campaign which had argued for the regularization of non-status residents since

2005. The coalition had organized with regional labour councils and drafted a framework for a possible regularization program for undocumented migrants. Its proposal was concurrent with indications by then Liberal Immigration Minister Dennis Coderre that the government was considering granting amnesty to some non-status migrants.111 Its testimony to the CIMM committee on the TFW program reflected this prior position; two years later, in its second deputation to the CIMM, the coalition addressed Part six of Bill C-50. It testified that it had been neither consulted nor warned about the immigration provisions the Budget bill contained.

111 Maureen Murray. 2003. “Hopes. Dreams, but no status.” The Toronto Star. Nov. 15, 2003.

Bill C-11 led to the mobilization of new groups alongside existing actors. New groups coalesced into two key organizations that opposed the measures – the Justice for Refugees and

Immigrants Coalition and the Canadian Association of Refugee Lawyers (CARL). Unusually, health service groups testified, as did academic research institutes and one international advocacy group, Human Rights Watch, which argued that the changes considered by the

Canadian legislation were far-reaching enough and similar to shifts in policy in Australia and

New Zealand that a direct intervention was warranted.

CARL was formed in September 2011 in response to the introduction of Bill C-4 and defined its goals as court interventions, parliamentary submissions, legal support for refugee lawyers and promotion of research in the arena. In addition, CARL adopted an explicit public education mandate. Its staff was drawn from long-time experts and included, at the time, immigration lawyer and advocate Lorne Waldman, former Immigration adviser Peter Showler and refugee law expert Audrey Macklin. In its CIMM testimony, CARL challenged the constitutionality of the bill’s detention provisions, arguing that detention without review would violate the Supreme Court’s ruling in the Charkoui case. As the government abandoned C-4 and introduced C-31, CARL joined with other groups in an alliance that also composed Amnesty, the

Canadian Civil Liberties Association and the CCR. The Justice for Refugees and Immigrants

Coalition created five articles written by coalition members or allies on several aspects of the bill and which were published in mainstream and alternative print and online media. In addition, the coalition recruited international allies such as Human Rights Watch who also wrote and published op/ed pieces in newspapers and testified at CIMM.112 Three medical or health associations testified before the CIMM for the first time for C-31, along with health-focused

112 Bill Frelick, Mar. 30, 2012”Bill to fight human smuggling only punishes its victims,” Toronto Star.

97 research institutes, and collaborated in some of the strategies designed to draw attention to their opposition to C-31.113 Three Canadian health associations dealing with the health of children had pressured the government through prior written submissions to exclude the detention of children under 16 from Bill C-4 and Bill C-31 had responded to these concerns; but retained the detention of children when they accompanied adults.

The representative from the Canadian Pediatric Society was opposed to the bill in its entirety but emphasized its opposition to the detention provisions that would see children under

16 detained with or without their parents for a period of up to a year. The Women’s College

Hospital submission criticized the bill on several grounds, including the extended separation of parents from children, the detention provisions for refugees who used smugglers to reach the country and the differentiation between refugees based on their country of origin. Finally,

Montreal’s primary provider of refugee health and settlement services, the Centre de santé et de services sociaux de la Montagne, highlighted the presentation of asylum seekers as benefit- shoppers as well as some of the same concerns and held joint press conferences with the

Women’s College and McGill University’s Division of Social and Cultural Psychiatry. None of this lobbying and co-ordination led to any changes.

The government was able to carry its case with almost no support from the NGO sector.

One of the few groups supporting the government was the Centre for Immigration Policy Reform

(CIRP), represented by Martin Collacott at the CIMM. Collacott, a senior fellow at the Fraser

Institute, founded the centre in 2009, and it disseminated its views on immigration through the

113Centre de sante et de services sociaux: accessed at: http://www.csssdelamontagne.qc.ca/fileadmin/csss_dlm/zones_promotion/nouvelles/C31_press_release_a pril30.pdf

98 media. The Centre’s position is consistently restrictionist on immigration, opposing the import of temporary foreign workers, arguing for a reduction in the current levels of permanent immigrants, possibly to half the current number, limited family reunification and the prioritization of Canada’s economy as the primary goal of any immigration policy. Collacott praised the bill’s proposal for the biometric identification of immigrants, but also advocated for increased security measures and resources such as face-to-face interviews for visa applicants. At the same time, James Bissett, who had been director general of the Canadian Immigration

Service between 1985 and 1990, and was now a director at the CIRP, also presented individual testimony to the CIMM, in which he argued that in order for the refugee backlog to be cleared, the bill would have to include provisions that would bar claims from those coming from countries where protection was available through that state’s courts.

The support for the bill offered by the Centre was not unqualified – in fact, the bill was regarded as not providing enough security measures – but it represented one of the few sources of support provided by witnesses. While the Centre focused on security measures, the Canadian

Taxpayers Federation seized on the bill’s potential to reduce the costs of refugee determination hearings. Its rationale for entering the policy-making process were the cost savings to be realized from processing claimants faster and thus limiting the amount of time an asylum seeker could access health and social benefits.114

2.17 Limited space for interest groups Two conclusions can be drawn about the determinants of immigration policy-making from the Canadian cases. First, compromises and negotiations with the other political parties

114 Derek Fildebrand, May 1, 2012. 0950: “But we do know that if there is an efficient part of the refugee process, it's the ability to get linked up with social services and plugged into the health care system almost right away.”

99 occurred only when the Conservative party was in a minority government position. Indeed, the government also used or created tools to further enhance its control over immigration policy, in the case of labour policy through Bill C-50, and in the case of refugee policy through the introduction of a designated countries of origin category that was to be adjudicated by the minister of citizenship. Second, any compromises on C-11 were temporary and revisited in a series of bills that brought the legislation in line with the government’s intention of controlling which refugees would be admitted. The executive, under conditions of majority government, has near-total control over refugee policy.

As Bacharach and Baratz noted some time ago (Bacharach and Baratz 1962) and

Baumgartner and his colleagues confirmed more recently (Baumgartner et. al 2009) institutional practices can “limit the scope of the political process to public consideration of only those issues which are comparatively innocuous” to the party attempting to control the conversation (B&B

1962: 948). That is exactly what the government achieved with C-50. The flexibility and limited consultation made possible through Bill C-50 may in fact be its greatest asset to politicians. On

April 28, 2008, for example, as the bill was being examined at the Finance Committee, the

Minister said that ministerial instructions could indeed be used as an instrument through which to set the number or limit family class applications, an assertion that was invoked by CIMM members to question the bill’s intent, and was indeed implemented almost four years later.

In the area of worker migration, a governing party’s natural desire for increased control was not the only rationale behind the Conservative government’s changes. By the time it introduced C-50, the government had deepened its relationship with industry through the development and adjustment of the TFW, a program that as Minister Finley argued to the CIMM, shaped its thinking on Bill C-50. (Interestingly, this suggests that business groups did have an influence on the permanent immigration stream, an idea that contradicts Rheault’s quantitative

100 study of corporate lobby groups and immigration policy-making [Rheault 2013]). One line of inquiry in the hearings around Bill C-50, consistently advanced by CIMM co-chair Thierry St-

Cyr, concerned the extent to which interest groups had been consulted prior to the legislation’s introduction. The only constituency which reported discussions with government officials were business association lobbyists. The views of interest groups not supportive of the federal government’s measures in the area of labour migration were similarly excluded from the development of temporary worker policies. But as has been briefly suggested, business groups did not ‘win’ entirely. As the recession took hold, some of the administrative efficiencies they had persuaded the government to implement were eliminated. And in 2014, following national attention on companies at all skill levels that were replacing domestic workers with foreign workers – including the Royal Bank of Canada – the government introduced a suite of changes to the TFWP that among other measures, raised the fees for obtaining a LMIA; made the process more onerous, requiring employers to track and explain why they did not hire a Canadian to fill the position; and imposed caps on the percentage of TFWs they may employ.

Still, as the conclusion will argue, business groups had greater influence than pro-refugee ones in seeing their preferences respected: the new Express Entry system introduced a labour- market test for employers wanting to hire from abroad, borrowing some of the features of the temporary worker program for the permanent regime.

In contrast, when other interest groups found ways to influence government policy they did so in limited ways. In response to the lack of access to decision-makers, labour and refugee groups created new alliances and undertook new types of challenges, including turning to the courts. Groups invoked Canada’s existing commitments to refugee entries, court precedents and historical memories, all powerful institutional factors limiting a government’s ability to implement a significant change of direction. The courts, rather than interest groups, are a

101 significant, post-Charter check on executive power (though they are beyond the scope of this thesis).The introduction of Bill C-49/C-4 makes it clear that interest groups could have an immediate impact on policy only during a minority government. The re-visiting of the most contentious measures present in C-11 in C-4 suggests that governments also gain experience from prior episodes, and revisit their goals at a time that they are not faced with institutional impediments.

Refugee groups found political allies who advanced their aims, therefore shifting the government’s initial proposals – during the period of minority government. As the visual representation of the components of C-11 makes clear (Appendix B and C), the alterations made to the original C-11 legislation rendered it unable to solve the problems of the application backlog that formed part of the government’s justification for the introduction of the legislation, a deficiency that the government rectified as soon as it had a majority. Given their limited gains in refugee policy, interest groups can be said to have ‘won’ some of the battle over specific policies, but to have ‘lost’ the wider policy war which was controlled by the executive.

102

3 Labour and refugee policy in the United Kingdom 2002 – 2009

In November of 2009, U.K. Prime Minister Gordon Brown spoke to party members in

London on the subject of immigration. Brown began his discussion with a defence of the benefits of migration, but devoted most of his remarks to the measures the government was taking to protect British workers and society from the potentially negative impacts of migration. These measures included a reduction in the number of professions listed as experiencing labour shortages; an increase in deportations of failed asylum seekers and foreign-born criminals; and the creation of a fund to be financed through a £70 fee from non-European migrants aimed at managing the impact of foreign workers in communities. At the same time, Brown defended

Labour’s refusal to impose a cap on the number of immigrants able to enter the country through a point system the government had introduced several years before.

“You see, if you are working for a multinational company in a growing sector in a big city, then a more diverse workforce from across the world is likely to seem like an exciting source of new ideas - and it is. If you work in a sector where wages are falling or an area where jobs are scarce, immigration will feel very different for you, even if you believe that immigration is good for overall employment and growth. … British society has gained immeasurable benefit from its diversity, from being continually refreshed by new talent and new perspectives … .”115

While the cap on migration had been proposed by the Tories, Brown specifically referenced the British National Party in his remarks: “Immigration is not an issue for fringe parties nor a taboo subject - it is a question at the heart of our politics, a question about what it

115 “Brown toughens rhetoric on immigration,” James Boxell, Nov. 12, 2009, Financial Times.

103 means to be British; about the values we hold dear and the responsibilities we expect of those coming into our country; about how we secure the skills we need to compete in the global economy; about how we preserve and strengthen our communities.”

The speech encapsulated the main strains of British immigration policy over the previous

12 years of Labour government. This period was defined by tension between measures that restricted the ability of refugees to enter the country and their rights and entitlements once resident in the U.K., and an immigration policy for workers that made it easier for those outside the EU to access employment. Brown’s remarks were typical of the duality that had characterized Labour’s immigration policy. The speech was followed by a 243-page bill that would restrict the rights of movement for failed asylum seekers and students.116 It was the last bill in a long list of nationality and immigration legislation proposed by Labour during its term in power, bills that the government characterized as “firm but fair.”

Analysis of the relationship between labour and refugee policy is far more developed in the U.K. than in Canada and is indeed preocuppied by the same question which dominates this project: the extent of influence that interest groups exercise over government actors

(Sommerville 2010; Statham and Geddes 2006; Freeman 1995, 1994). While Sommerville and

Goodman find that business groups influenced government policy (2010), Consterdine (2015) argues that business simply accepted the liberalization of labour migration that the government had independently decided was required. By looking at examples of policy openness driven by politicians rather than lobbied for by industry groups, she finds that business groups accepted

116 Travis, Alan. Nov. 12, 2009, “Non-Europeans shut out from skilled jobs,” Alan Travis, Nov. 12, 2009, The Guardian

104 rather than lobbied for a more open migration regime. That conclusion is entirely not supported by the research here, which reveals that government and business debated, negotiated and compromised, but that ultimately state actors could exercise unchallenged authority. Still, interest groups – including weaker refugee interests – found a measure of success over time, particularly when they formed alliances with each other and societal groups (Ford et al 2015).

In short, the three cases studied here in part refine an emerging stream of literature which shows that interest groups are more influential than scholars of Westminster systems would predict and certainly more influential than dominant understandings of U.K. policymaking in this arena had previously found. At the same time, by looking at policies over time and through national comparisons, it also finds that such qualifications, while interesting, do not justify the imposition of Freeman’s interest group model on either of the two countries under discussion.

Indeed, the research presented below confirms many of the conclusions reached by Sommerville and Goodman in their comparative study of interest groups in each area, which concluded that business and labour unions had more impact on government policy than refugee advocacy groups. The policy cases here reveal that some of the influence exercised by labour unions was indirect, and due to the concurrence of views between this group and industry rather than to an independently influential relationship with government. Further, extending the comparison from one between interests to one between countries shows that a key difference with Canadian labour groups is the propensity of British unions to form alliances, both with refugee groups and industry.

While the conclusions of this research suggest that some interest groups did have access and a policy impact on political actors, politicians were the unquestioned decision-makers. The

British government responded to changing economic conditions and increasingly negative headlines and public opinion. The U.K government, for example, shocked industry when it

105 decided to retain regulations limiting the ability of workers from Bulgaria and Romania to work in Britain in April of 2009. The decision made political sense as the country was entering into recession, but did not meet business interests and was not welcome by these groups.

The government was acutely aware that its decision not to impose labour market restrictions beyond registration on the first wave of workers from former Eastern European states cost it public support. In September 2005, a Ministerial Working Group on Asylum and

Migration stated that any loosening in the scheme “is likely to be perceived domestically as a loosening of the Government’s grip on migration and policy shopping.” In a media climate that was “arguably more hostile to migration than in early 2004” doing so would be “reigniting the media debate to no obvious (domestic public” advantage”. (MWG 2005).

Electoral priorities were particularly important to the Labour party during the years under discussion here, as the party’s support base was in flux. The 1997 Labour manifesto promised that it would also prove its centrist credentials, leaving “intact the main changes of the 1980s in industrial relations and enterprise” (cited in Heffernan 2000: 165), similarly to how

Conservatives had been forced to accept much of the postwar social democratic settlement upon returning to power in 1951 (Hamman and Kelly 2003). As the electoral strategy of Labour increasingly came to rely not on a notion of trade union solidarity, particularly marked after

Labour's decision to privatize some public services (Bevir 2003), but rather on attracting professional, urban voters, its political model turned to what some analysts have critically termed

“a consumer model,” animated primarily by electoral considerations, and driven by pragmatism and the need to gain power rather than ideational beliefs (Pierson 2007.) Flexible, rather than union-bound labour, was one of the effects of these shifts in the government’s wider political allegiances.

Between its electoral victory in 1997 and its defeat by the Conservative party in 2010, the

106

Labour government made immigration one of the central planks of government. It passed five immigration and asylum-related bills (and proposed the aforementioned sixth in its final year in power), and published several landmark position papers. The 2002 White Paper – “Secure borders, safe havens: integration with diversity in modern Britain” – set out the three main tenets of what the government termed its ‘managed migration’ vision: attracting economically- beneficial immigrants; supporting legitimate asylum claims; and enforcement of immigration regulations that stress the importance of “returning foreign national prisoners, failed asylum- seekers and other immigration offenders to their countries of origin.”117 (Home Office: 2002).

From the beginning, the government presented labour migration as dependent on the public’s confidence in the asylum and enforcement system. Such confidence, Labour argued, could be maintained through the efficient adjudication of asylum claims and the prompt removal of failed claimants. As the Border Agency states in its mandate, the effective enforcement of migration policy leads to the maintenance of “public confidence in the integrity of our immigration and asylum systems.”

Several analyses have argued that in choosing to link labour and refugee migrants, the

Labour government directed restrictionist publics to focus their demands on the refugee stream

(Khosravinik 2007; Mulvey 2010). Without government direction, public opinion would not independently distinguish between refugees and economic immigrants, scholars argue (McLaren and Johnson 2007; Joppke 1997). As one observer argued, “in view of their apparent support for many of the economic and labour market reforms of the Conservatives, Labour leaders seem to have become convinced that electoral success depended on accommodating, rather than shaping, the preferences of the electorate” (Hamman and Kelly 2003: 654). For Sales, the strategy of

117Foreign and Commonwealth office: http://www.fco.gov.uk/en/global-issues/managed-migration/

107 linking successful border control to popular tolerance of immigration “accepts the notion that immigrants are a problem undermining the supposed growth of tolerance,” even as it fails to challenge a prejudiced public (Sales 2007: 157). Both approaches imply criticism of what they see as Labour’s failure to re-educate the public toward more progressive policies.

Government policy papers presented multiculturalism as a value which the country embraced and which did not negatively impact citizenship and nationality. The goals of immigration policy were precisely to reinforce the values and importance of diversity and educate newcomers as to its benefits. “British nationality has never been associated with membership of a particular ethnic group,” it stated in Controlling our Borders: Making

Migration Work for Britain. “For centuries we have been a multi-ethnic nation. This diversity is a source of pride. We want to develop among migrants and the settled population a stronger sense of social participation and shared values. Those here should accept that individual freedom and tolerance of diversity are fundamental to our democracy and society” (Home Office 2005:

22). While in the passage above, the threat to diversity and to societal belief in its social goodness is not identified, in later documents, it shifts to certain types of migrants, who rather than enhance diversity, threaten its continuation. Those willing to accept poor working conditions produce anger and resentment in the native-born population and as such undermine social cohesion. Termed “selective control,” this construction presents a restrictionist approach as complementary to anti-racism strategies (Squire 2005).

This thesis argues that insofar as the British government stressed the importance of controlling asylum claims and irregular labour migration, it did so not in order to encourage racist sentiment but rather to reinforce the control it had over its borders. The openness in the labour migration stream was motivated by the state’s understanding of its functions in enabling

108 trade and was supported by its relationship to interest groups. It is important to note that the government did not just throw open the borders to former Eastern European workers, but instead welcomed East European workers at the same time as it introduced a managed migration system for immigrants outside the EU that prioritized a highly-skilled, valuable group of immigrants in the worker stream. Worker migration had benefits, was the government’s message.

3.1 A brief history of immigration to the U.K.

The debates over citizenship and the relationship between immigration levels and integration that have characterized the current era are not new. At the turn of the 19th century, for example, the entry of Eastern European Jews and their residence in the East End was marked by debates over housing and jobs and the ability of the city of London to absorb the new immigrants successfully. The history of immigration to Britain, particularly in the post-war era, is also the history of the development of notions of citizenship. From a citizenship predicated to belonging to empire to one redefined as based on jus sanguinis, controls have defined not only who has the right of residence but also the right of belonging. The early history of British immigration equated the empire with openness (Schain 2012) with immigrants from the New Commonwealth admitted with no differentiation from their Old Commonwealth brethren. The Commonwealth

Immigrants Act (CIA) marked the first division between types of British subjects, marking a move away from an “imperial citizenship.” The 1962 Act also introduced work vouchers awarded in three categories: for those with jobs in Britain; those with skills; and for unskilled workers seeking employment. It placed quotas on the first two categories while the third was abolished within a few years. Similarly to the rationale presented half a century later, restrictions on immigration were advocated on the grounds that they would enable smoother integration by avoiding battles over resources with the native-born population.

109

Advocates for the continued entry of Commonwealth workers without restrictions, such as business and the Colonial office, were at odds with government departments (i.e. the Ministry of Labour) that believed the need for workers was ebbing by the late 1960s and the domestic labour market needed protection (Hansen 2000). Hansen (2000) argues that the demise of the

Colonial Office, preoccupied with Britain’s relationship with the Old Commonwealth, enabled an era of controls beginning in the 1960s through to the 1970s. Explicit citizenship criteria introduced with the 1968 Commonwealth Immigrants Act by the Labour government were further adjusted in 1971 by the Conservatives and had the effect of restricting immigration from

New Commonwealth citizens by establishing citizenship provisions, eventually only allowing entrants from the New Commonwealth if they had job offers (Sales 2007). Prompted by the goal of controlling the entry of Kenyan Asians, the 1968 Act restricted a U.K. passport to those born, naturalized or adopted in the country or with a parent or grandparent under the same circumstances. The 1971 Act created a requirement for work permits for entrants, which would be awarded only to skilled immigrants. Ten years later, the British Nationality Act removed automatic citizenship rights from those born on U.K. territory.

An analytical battle has been waged retrospectively over the 1960 - 1971 era of rapid and significant change in policy, with the vast majority of scholars arguing that politicians moved to implement border controls as the result of racism and hostility (Hampshire 2005). While explicitly not depicting British politicians as racist themselves, Hampshire contends that notions of citizenship and belonging were utilitarian, introduced to “restrict the entry of ‘coloured’ immigrants whilst avoiding the introduction of explicit racial distinctions into law” (Hampshire

2005: 15). Hampshire maintains that considerations of empire dominated the debate on how far the door should be left ajar for immigrants from the New Commonwealth with the discussion limited by a recognition that Britain was in transition from a “formal empire to an empire of

110 influence.” (Hampshire 2005: 23). Hansen (2000), however, argues that politicians were not motivated by prejudice: his work identifies the source of support for continued open entry in the commitment to the Old Commonwealth of Australia, Canada and New Zealand rather than opposition to the new Commonwealth countries.

Until the 1992 election of John Major – in which Major questioned Labour proposals to increase the number of immigrants (Hansen and King 2000) - immigration was not at the political forefront. How it became one of the most active files in the Labour government is the subject of the case studies here, beginning with an assessment of the interests active in worker migration.

3.2 Interest groups in labour migration policy The Westminster system ensures that as in Canada, the study of interest groups in the

U.K. is defined by the limited channels organized civil society has to engage with policymakers, in contrast to the United States. I discovered acute differences between labour and business groups in Canada and Britain during the course of my research. The first is the larger areas of agreement between labour and business in Britain, and the second, the greater degree of access to government decision-makers enjoyed by unions. Furthermore, in media accounts, policy papers, government testimony and interviews, labour and business have demonstrated that they have a shared interest in a continuing liberal migration regime, although the source of that commonality differs. As one interviewee stated: “We often disagree, but the one thing the CBI and TUC agree on is migration.”118 As one would predict and as will be explored in much more detail below, most industry groups are interested in and agreeable to a liberal migration regime as a way to

118Interview with Jim Bligh, senior policy advisor, employment, skills and pension, Confederation of British Industry, London.

111 expand the range of the labour supply. Labour could be expected to exhibit some degree of resistance to an influx of new entrants into the national labour market. However, and in spite of opposition to foreign workers from some of their own members119– trade unions were in favour of increasing the liberalization of entry requirements for A8/A2 workers. Instead, their main focus has been the protection and extension of the rights enjoyed by domestic workers. Unions have advocated for regulations that do not inadvertently lead to the possibility of rights violations that would encourage the establishment of a dual labour market, with one tier poorly protected and/or underpaid. These concerns are shared by business organizations wishing to prevent undercutting by employers using poorly-protected labour.

One might argue that confronted with the irrelevance of borders in protecting national labour regimes from new EU entrants, labour interests adjusted their outlook to incorporate these factors. However, and echoing studies of the relationship of American labour unions to foreign workers (Haus 1995), British labour unions’ advocacy on behalf of migrant workers is not entirely due to self-interest but also contains an element of an increasingly European, if not international, outlook that encompasses the rights of workers in other countries. How that outlook played out in labour immigration policy – and how it interacted with business interests –

is the subject of the next section.

119 The strike at the Lindsay oil refinery in the winter of 2008, for example, saw British workers striking with the phrase British jobs for British workers on their placards, and saw solidarity strikes break out over England in protest against the hiring of subcontractors seen to undercut British-set minimums. But it also pitted Italian and Portuguese workers against British ones, with little consultation with the foreign workers, and left a legacy of trade union mobilization based on national identity rather than the defence of collective agreements (Dolvik and Visser 2009). Flynn, Don. 2008. “British jobs for British workers: what impact on migrants?” http://www.migrantsrights.org.uk/downloads/newsletters/MRN_Newsletter_Feb09.pdf

112

3.3 Employment policy The debates around the migration of workers and the issues of the British labour market are joined in the discussion surrounding the ‘upskilling’ of U.K. citizens. Indeed, immigration has been presented as a solution to the ‘skills’ crisis, an interconnected set of education, cultural

(that is, a poor work ethic) and training issues that continue to prove difficult for government to solve. And yet, as the state’s role in the economy has decreased, these areas have taken on increasing importance in assessing a government’s efficacy. The Labour party that came to power in 1997 had signed on to monetarist principles, prioritizing the control of inflation over the goal of full employment (Kitson and Wilkinson 2007; Coutts, Glyn and Rowthorn 2007); decreasing the government’s role in the demand side of the economy, and granting the Bank of England independence from political interference. Involvement on the demand side was restricted to setting minimum wage levels and conditions.

The particular combination of incentives and benefit reductions that were aimed at encouraging (or forcing) inactive workers to join the labour market are beyond the scope of this research. Suffice to say that in the wake of an economy that was recovering from the loss of its manufacturing base and the creation of a top tier of positions in London and the southeast and struggling employment elsewhere, the state was preoccupied with increasing the participation rate of native workers. The government set out its priorities for worker migration in its 2005 paper, “Controlling our Borders: Making Migration work for Britain,” which outlined the measures that would lead to a flexible, demand-driven immigration system. It proposed a points- based system, modeled on Australia’s highly flexible, demand-driven regime, which combined foreign, highly-skilled labour, students and a national skills council into a matrix of economic levers. The national skills councils would help develop native labour in areas identified as having shortages. In the meantime, shortage occupations would lead to prioritized immigration entries.

113

Concurrently, an independent, arm’s length body would be established which would assess the needs of the British labour market based on frequently updated information. This would eventually become the Migration Advisory Committee. In the midst of steady economic increases – British GDP had grown by 3 per cent in 2004 - the government said it was creating the points-based system to enable “skilled staff to come here to fill the vacancies our growing economy has created.” For the most highly-skilled workers, the group that would eventually enter under Tier 1, the government would not impose a cap on the number of workers granted annual entry and would create pathways to settlement. (This would become one of the key areas of contention for the government almost immediately upon the launch of the managed migration scheme several years later).

3.4 Business groups in labour policy-making On both the high and low end of the economy, British business are keen on having a pool of available foreign-born workers; for the high-end industries, that supply is international, while for the low-end services sector, that pool is increasingly drawn from the A 10 countries, made up of the original A8 countries and the A2 entrants of 2006 (Czech Republic, Estonia, Hungary,

Latvia, Lithuania, Poland, Slovakia, Slovenia and Romania and Bulgaria). In industries that are international in scope, immigration functions as a means of drawing on top talent from around the world; while in lower-end industries, such as food processing, travel and hotel services, a liberal immigration regime is indeed a way to temper wage demands.120 Along with the economic rationale, business in lower-skilled sectors have expressed a preference for foreign workers due not to wage differentials but to the perception of superior employability skills. As a

120In addition, Britain has seen a rise in “agency work” where employees are deployed by temporary placement agencies to various places of work and do not receive the protections of permanent or contract employees. Many immigrants are agency workers (Hyman 2009).

114

MAC report notes, “given some employers’ perception that migrants have a ‘superior work ethic’

(see House of Lords, 2008), it is possible, at least in theory, that employers in some sectors prefer to retain migrants rather than non-migrants even during economic downturns” (MAC 2008: 42).

In the agricultural sector, for example, 84 per cent of workers are foreign-born: “Sector representatives asserted that increasing wages to attract the resident labour force is not a feasible option because wage rises are constrained by prices received by farmers. It was also argued that low wages were not the problem in terms of attracting local workers. Effects on benefit eligibility and the work ethic of UK workers were cited as larger factors.” However, the MAC added that “we do not accept low wages and tough working conditions are themselves a sufficient argument for immigration” (MAC 2008: 104).

The skills gap, business maintained, was a motivation gap. “Businesses that have been hiring in central Europe over the past year or two invariably comment on the incomers' very different work ethic,”121 said the president of the Confederation of British Industry. The CBI argued its members share the perception that A8/A2 entrants will work longer for lower pay and have high employability skills. More colloquially, as one interviewer said “you're unlikely to find

British workers working at dawn in the freezing cold,” as A8/A2 workers in agricultural industries are willing to do.122

In spite of their joint need for labour, there were differences within industry in terms of their perception and reality of access to decision-makers. Looking at the CBI and the Association of Labour Providers (ALP) quickly demonstrates this. The CBI’s membership is composed

121Richard Lambert, 'Sunday business comment,” The Telegraph, June 25, 2006. 122Interview with Sarah Mulley, associate director, IPPR. As in the Canadian case, the issue of higher employability for foreign workers was connected to that of the conditions attached to gaining a work permit: A8workers may have been reluctant to leave jobs that are not ideal due to the requirement to remain employed for a period of 12 months to be eligible for any benefits should they be unable to find work after that period.

115 primarily of businesses that employ highly-skilled workers, while the ALP services companies that provide temporary labour – with the vast majority of workers drawn from A10 countries – to the agriculture, food and food-processing industry (workers who process items for the extensive ready-to-eat market at Britain's supermarket chains).

3.4a Confederation of British Industry (CBI) The CBI has 90 employees in policy research, 2,000 member companies in 32 categories and includes 80 of the 100 Financial Times Stock Exchange (FTSE) companies. It focuses primarily on ensuring that British industry has access to a highly-skilled pool of international labour. Its goal is to minimize administrative burdens for its members.123 In discussions, media reports and their own policy papers, the CBI stated its support for a relatively open migration regime directed by the needs of industry. Migrants fill in skills shortages while keeping a lid on wage inflation, CBI argued. At the same time, immigration must be balanced with skills training so as not to provoke a backlash to the import of labour. CBI supported the introduction of a points system for migrants to the U.K. and welcomed the absence of a numerical cap for highly skilled workers when that stream was first introduced. The eventual imposition of a cap on the number of workers by the minority Conservative party, a 2009 election promise, was seen as

“deeply unhelpful if it does not bring the right number of people.” (Bligh 2009)

The CBI was not always certain of the Labour government’s commitment to a liberal migration regime. The Home Office, according to the CBI, made policy based on politics and industrial unrest. While the driving impetus for immigration policy should be the state of the labour market, the reality, in CBI’s perception, was that social issues were a key driver, “what

123In 2009, for example, the U.K.'s IBM branch for example, employed eight people to deal with the administrative requirements of immigration issues, and other business members face similar hurdles to employing foreign labour, the group said.

116

happens on p. 3 of the Daily Express.” 124As such, the evidence-based process the government set up was seen by the CBI as having some limitations: Economists can suggest policy, but the

“onus is on the government to justify its social policies.”125

The CBI sometimes agreed with, or at least co-operated with, union groups, particularly with the Trades Union Congress. The protection of vulnerable workers, one of the central initiatives of the TUC in the area of migrant workers, serves business because the threat of employment undercutting leads to unfair competition for companies that cleave to the rules. The

CBI and the TUC also co-operated on the question of agency workers, agreeing that agency workers should receive the same legal protections as permanent workers after 12 weeks on the job. “We proposed one year and the TUC proposed one day and we had to meet in the middle,” a

CBI representative said in an interview.

As might be expected for an organization whose one-time director-general (Richard

Lambert) was a member of the Bank of England’s monetary policy committee from 2003 to 2006 and the editor of The Financial Times, the CBI also enjoys a high level of access to government policy. Along with its formal lobbying efforts, the CBI has a network of informal contacts and is in frequent communication with government departments. It hosts an annual dinner, the 2009 edition of which featured a keynote speech by Gordon Brown, while the 2008 featured U.K.

Chancellor Alistair Darling.

3.4b The Association of Labour Providers (ALP) The ALP was established in February 2004, the same year as the Gangmasters Licensing

Act, regulating labour providers (the act followed the drowning deaths of cockle pickers in

124 Interview with Jim Bligh. 125 Ibid.

117

Morecambe Bay). It is an organization for employment agencies that supply employees to the food, agriculture and food processing industries, sectors employing low-skilled workers. Mark

Boleat, its chairman during the period under discussion, was previously the director of the council of mortgage lenders and a member of the National Consumer Council. While the CBI focused on influencing the point system regulating the entry of professional workers, the

Association of Labour Providers (ALP) was most active on the question of unskilled workers from the A8/A2 countries. The ALP actively campaigned against the Worker Registration

Scheme that was imposed on Romanian and Bulgarian workers, arguing that while it has “has kept some business in Britain that might have otherwise gone abroad,” it also enabled undercutting of labour standards by employers using unregistered labour and created undue burdens for employers and employees, including a half-hour process of filling in administrative forms.126 Along with differences in the groups they service, the other crucial difference between the two groups is in their access to policy-making. The ALP has a seat on the Gangmasters

Licensing Board, which licenses labour providers, but interviews with ALP representatives, policy papers and responses to MAC reports are characterized by charges that the immigration committee did not solicit enough input, with enough notice, into its decisions, and that even when it did so, it frequently produced reports that simply legitimized what the government had already decided was the politically prudent policy to follow (ALP 2009).

Other business organizations that sometimes played a role in policy-making include the

British Chambers of Commerce, an organizational network for regional accredited chambers of commerce. It advocated for skills training of young Britons rather than immigration and believes foreign workers should only be used to fill in gaps or aptitude shortages. New business groups

126See for example, the ALP response to MAC April 2009 decision. http://labourproviders.org.uk/wp- content/uploads/2012/11/Extension-of-the-WRS-submission-by-the-ALP-17-April-2009.pdf

118 also arose to support Labour’s approach to worker migration, including Business for New

Europe, a group that expanded from a migration advocacy position to defending the benefits of membership in the European union more broadly. Funded by private firms, the group nevertheless is associated with the Labour party, participating in its national conferences (Grice

2014). Once activated as supporters of Labour’s expansionary migration policies, business groups continued to be influential into the Conservative term in power, pressuring the government to abandon caps on visas for inter-company transfers and criticizing several planks of the Conservatives’ immigration policies.

3.5 Labour unions in the making of policy on labour migration Turning to labour, one would expect that unions would oppose policies that could have the effect of A) potentially increasing the labour pool and lowering wages and/or B) lead to a reduction in unionization rates or prevent an increase in union membership. The argument advanced here contends that British unions' positions on immigration were driven by an enlightened self-interest combined with economic realities that endanger the existence and position of unions in policy making both in the U.K and Europe. The result was that British unions have advocated policies on behalf of foreign workers even when the measures proposed may have run counter to some of their individual members’ interests. As a Trades Union

Congress document stated, while there may be specific areas of the labour market that may see slight downward pressure on wages, “there is no generalized, negative impact across the whole or large parts of the economy from immigration” (TUC 2007: 5; Meardi 2012).

Certainly, a partial explanation for unions' advocacy work for migrant rights and a liberal migration regime sees recruitment of foreign workers as a response to declining membership. At its peak in 1979, union membership stood at 13 million, declining to 7.5 million by 1997 and reaching seven million in the late 2000s. Union density (the proportion of employees who are

119 unionized) had fallen from just under half of all workers to around 30 per cent by 1997. In the private sector, only 20 per cent of workers were unionized, but 72 per cent of workers in the public sector were covered by collective agreements by the mid 2000s (Shackelton 2007;

Grainger and Holt 2005). This decline was not due to workplaces losing union certification, but rather to workers never having union membership, the result of Britain moving to a service- driven economy in both the high and low skilled ends of the labour market (Coutts, Glyn and

Rowthorn, 2007). As more sectors become lightly unionized, labour groups are faced with the increasing fragmentation of their ability to apply political pressure (Hamman and Kelly 2003).

The principle that animated the position of British unions is that restrictions and/or the monitoring of the movement of labour from A8 countries by increasing administrative burdens have the potential to encourage workers to seek employment without official authorization, and as such, enables employers to deny the rights of migrant workers through infringements of salary and/or employment conditions (interview with TUC representative Nicola Smith 2009). As a

GMB report states: “Failure to tackle exploitation of migrant workers will threaten collective agreements and pay and conditions for all, which will benefit no-one” (GMB 2008). At the heart of union support for fewer restrictions to movement is the recognition that labour migration, at least from within the new borders of Europe, cannot be stopped.

Rather than focus opposition to foreign labour on the workers themselves, both the GMB and the TUC have emphasized opposition to working conditions that erode employment stability, such as the 'flexicurity' model (GMB 2007). The emergence of an open market for labour encompassing the countries of the former Eastern Bloc raised fears of “social dumping,” and resolutely turned labour unions toward what might be called an accommodation of new labour realities as a way to combat that possibility. Whether responding to the cross-border movement of labour to Britain or capital away from the island, British unions have increasingly attempted to

120 engage in supranational strategies, establishing links to other unions, particularly those in Eastern

European countries, and specifically targeting migrant workers arriving from countries where

British unions have established relationships with national unions. The TUC, for example, signed an agreement with Solidarnosc and OPZZ to help Polish workers in the U.K and committing all the unions to encouraging workers to join a trade union in the country where they are working.

The TUC also ran a two-year project aimed at protecting the rights of vulnerable workers.127 It fielded 500 complaints a month through community agencies and a special office that was set up in Tower Hamlets: 62 per cent of the workers who approached the Vulnerable Workers Project were migrant workers. The GMB, the third-largest union affiliated with the Labour party, set as one of its goals at the 2008 Congress, the organizing of A8/A2 workers in Britain, but also links to unions in those countries and appealed to European union MEPs from new member states to

“encourage workers planning to move to another country to join trade unions in the host country before they leave their home country as the most effective way of protecting their interests and avoiding social dumping.”

British unions are not motivated solely by utilitarian considerations. As several authors have chronicled, historically, unions have led their members on introducing progressive programs. On race in particular, the TUC advanced liberal ideas even as its members were still coming to grips with a changing Britain. As Neville (2008) notes, the 1959 Labour party conference declared that “[t]he transformation of the old British Empire into the first inter-racial

Commonwealth of free nations” was the supreme achievement’ of the 1945 Labour government..

It is interesting to note here the sharp contrast with other national labour organizations, such as the Australian Workers' Union, which only pledged in 1972 to end its commitment to the 'White

127 TUC. 2012. “Vulnerable workers project: final report” accessed at: http://www.vulnerableworkersproject.org.uk/

121

Australia' policy favouring white immigration to the country and the end of race-based discrimination against new members (Neville 2008: 38). What began as policies on race shifted to involvement in the asylum system. In 2001, Bill Morris, the secretary of the transport and general workers union promised to launch an attack on the dispersal policy at the annual Labour

Party conference (a policy which saw asylum claimants dispersed to areas outside of London)

(Cohen, Humphries and Mynott, 2002; Flynn 2005). However, there was also debate between unions on the benefits of recruiting Polish workers. Limited resources should be prioritized for workers in Britain, rather than reaching out to new and potential members who may or may remain in the U.K for the long-term, some unions argued (Fitzgerald and Hardy 2009).

Scholars have differing interpretations of the relationship between the Labour party and labour unions during the period of this study, depending on the criteria for comparison. What is certain is that the historical relationship between the party and trade unions, which had left an institutional and ideational legacy, was under severe pressure at the turn of the century. A relationship that had been based on mutual benefit, where workers would see improvements to welfare grow in step with growth in national prosperity, was no longer possible in a post-

Thatcher environment where unions had lost power and growth was likely to come from new industries rather than declining industrial areas(Page 2007: 32).

Still, unions’ response to foreign workers was tempered politically by their rejection of the

Conservative party in massive, public battles with Thatcher and in smaller measures such as the abolishment of wage councils that set minimum salaries in low-paying industries (Shackleton

2007). The unions believed that to criticize the Labour party for its liberal strategy would be to aid the Conservatives and eventually fringe right-wing parties (McIlroy 1998).

The return of Labour to power saw some of the losses of the Conservative years restored.

In 1999, a new national minimum wage of 3.6 pounds took effect and introduced protections to

122 striking workers. Employees could not be dismissed during the first eight weeks of picketing.

Importantly for the purposes of this work, the government also formally increased the involvement of union leadership in government decision-making through their appointment to task forces and working groups on economic issues, privileging a model of union involvement in decision-making that saw state actors and the union leadership engaged on an individual level, rather than a continental, corporatist scheme (Ludlam and Taylor 2003). This was no return to the world described by Harold Wilson as one where politicians “pleaded with union leaders over beer and sandwiches at No. 10,” in order to avoid crippling strikes (Wilson 1990: 84).

Although representatives from TUC said that informal meetings with policy officers were some of the most productive in making their views known, access to government did not have the “flavor” described by business where issues could be resolved or expedited through wide informal networks. Formal networks were weak. A representative from TUC, for example, sat on the Migration Impacts Forum which looked at the social impact of migration, but the Migration

Advisory Committee, responsible for making recommendations to the government was composed of academic experts with wide experience in the civil service who were presented as being able to give government impartial, evidence-driven advice. Finally, Hamman and Kelly point out that the 31 trade unionists appointed to various government boards by 2003 were outnumbered by 350 appointments drawn from business.

To summarize broadly, the government introduced and implemented its labour migration policies in an environment where the majority of British businesses and unions agreed on the outlines and some of the details of an ideal migration policy. This would be a liberal regime that provided flexible, cheap and plentiful labour, as well as access to highly-skilled foreign workers, while at the same time, being governed by regulations that would prevent unfair competition on labour costs and the undercutting of unionized labour conditions and individual workplace rights.

123

3.6 Labour Migration Policy Business needs for foreign workers had grown prior to Labour’s electoral win. In 1994, the Institute for Public Policy Research (IPPR) released a comprehensive report on immigration.

It included advice to government to follow the lead of Australia and Canada and begin considering the entry of foreign workers, particularly in high-skilled categories, in spite of potential effects on the domestic labour market (Spencer 1994). The report was a response to the rise in work permits that was showing that business demand for foreign workers – particularly in the area of reassigning existing corporate employees to U.K. branches – was acute.128

There were two major planks to the government’s move to liberalize entries. The first were minimal entry regulations for workers from Eastern Europe. The second was the introduction of a managed migration system, with tiers and points reflecting the mix of human capital characteristics and national economic needs. Managed migration would not have been possible without the entry of the former Eastern European countries into the EU, providing a work force that could fill shortages as needed, while retaining ties with their home countries. The government signaled its direction toward openness with the accession to the EU of the A8 countries in 2004. Along with Sweden and Ireland, the U.K. chose to allow workers from the former Eastern European countries immediate access to the labour market, requiring only that they register – a process which temporarily limited their access to job-seekers’ benefits. Home

Office minister John Reid predicted that flows would reach 10,000. One year after accession, the

128 Findlay, Allan. 1994. “An Economic Audit of Contemporary Immigration,” in Sarah Spencer. 1994. Strangers and Citizens. London: Rivers Oram Press. 20, 348 permits were awarded in 1987 versus 34, 267 in 1990 under regulations that allowed foreign labour only when domestic labour force could not fill positions and only if the position filled was substantially similar in wages and conditions to equivalent existing jobs.

124 number of A8 workers had reached 160,000 entrants registered under the Worker Registration

Scheme (IPPR 2007) and almost a million by December 2008 (MAC 2008).129 The mistaken estimate would fuel anti-immigration sentiment for several years. A direct policy result of the

2004 decision was that in 2006, Romania and Bulgaria, the A2, found their workers’ access to the British labour market governed by much more stringent rules. Rather than simply requiring registration under the Worker Registration System as was the case for the A8, A2 migrants could only work in Britain without a job offer if highly-skilled or enrolled in sector schemes for low- skilled workers. Following the most accurate statistics cited in MAC reports, the number of registrations for National Insurance numbers for A8 and A2 workers over a decade are indicated below. 2014 marked the year when nationals of Romania and Bulgaria faced no restrictions on their ability to seek work in the U.K.

129 A study conducted in August 2006 had found that between 2004 and 2006 over 427,000 Eastern European immigrants had registered for work. As a comparison, in 1999, the British government issued 80,000 work permits (Hatton 2005). Almost four-fifths of the EE arrivals earned between 4.50 and 6 pounds an hour compared to the native population out of which only a fifth earned less than 6 pounds an hour. Half of the Eastern Europeans found work through a temporary agency. The high numbers of immigrants was such that the British Chamber of Commerce, one of the policy’s original supporters, became opposed to continuing a liberal temporary migration policy (Economist 2006).

125

350000

300000

250000

200000 NINo A8 150000 NINo A2 100000 Source: 50000 Office of National 0 Statistics

Figure 10: U.K. National Insurance Number registrations, A10 I proceed by first analyzing the forces that led to a liberal entry policy in 2004 and then discuss the factors that led to imposing restrictions on future waves of A10 migration. The movement of policy led to the U.K from becoming one of the countries with one of the most liberal entry policies, to one of the comparatively most restrictive European jurisdictions.

In 2004, with the British economy roaring and experiencing labour shortages, many of the interest groups in the country were in support of the government’s open approach. The CBI supported minimal controls on accession states. These controls took the form of a Worker

Registration Scheme which required workers from the A8 countries to register and receive

National Insurance Numbers. Under the EU’s Treaty of Accession the regulations would be reviewed every two years for seven years and could be maintained for the final two only if the country continuing to impose them could show that its labour market had faced “serious disturbances or a threat thereof” (MAC 2009).130

130Monitoring the impact of the Accession States Worker Registration Scheme on the UK labour market (a joint paper by the ALP, the NFU and the TUC), 26 September 2006. Accessed at: http://labourproviders.org.uk/wp-content/uploads/2012/11/ALP-evidence-to-MAC-enquiry-on-

126

By 2006, business was publicly expressing doubts about the degree of openness.

Projections had forecast between 5,000 to 13,000 workers a year. Instead, 12 times that number of WRS permits were issued in the first 11 months after accession. The government attributed the gap to other countries' imposing restrictions (contrary to expectations), and leading workers to flood one of the few nations that would accept their labour.131 In 2006, the newly installed CBI head, Richard Lambert, argued that Romania and Bulgaria should not enjoy unregulated access to the British market, adding that the wave of migrants has 'potential implications for the social fabric' of the U.K.132 The free movement of accession workers presented the government with a dilemma: It had chosen to exercise only minimally more power over the movement of A8 workers than over the movement of other European workers and the result had been the highly visible arrival of tens of thousands of Polish and other East European workers. Its first opportunity to appear to pay heed to the criticism arrived as Romania and Bulgaria entered the

EU in 2006. Rather than award the A2 the rights which had been enjoyed by the A8, the government imposed more demanding transition measures. While Romanian workers could travel and reside in the U.K. under the same conditions as other European nationals, those wishing to seek work had to register with the U.K. Border Agency and employers had to file work permits to employ them. (Low-skilled workers were also restricted to working in food services or agriculture). Only students and self-employed persons were exempt from these requirements.

transitional-provisions-for-A8-workers-3-March-2009.pdf 131Daily Express, “We got it wrong over migrants, says Woolas.” Wednesday, May 13, 2009. Interview with David Metcalfe, head of Migration Advisory Committee, April 8, 2009. 132Christopher Hope, “CBI boss says hold fire on EU entrants,” Sept. 6, 2006, The Telegraph, http://www.telegraph.co.uk/finance/2946800/CBI-boss-says-hold-fire-on-EU-entrants.html

127

At the end of 2006, the majority of original EU member states had lifted transitional measures, while Britain was increasingly discussing the social impact of the new migrants. The tenor of the debate in the country at the time is suggested by the committee’s decision to address the social impact of the migrants by acknowledging the public’s questions: “our terms of reference do not include the social impacts of immigration, e.g. impacts on public services or social cohesion. The Migration Impacts Forum was set up to consider these sorts of issues”

(MAC Dec 2008: 15). Its only other mention of the issue of social security in its December 2008 report was to point out that A2 workers had very low rates of requesting social assistance.133

In the spring of 2009, the MAC released its recommendations on whether the government should lift regulations governing the access by nationals of the A8 countries. The MAC recommended that the scheme be retained as allowed in EU legislation. While it argued that disbanding the regulations may not have large labour market impacts, given that the U.K. was experiencing “serious disturbances to the labour market,” retaining the restrictions would guarantee that the labour market would not be further affected by a free movement of Eastern

European workers. The MAC believed that lifting the restrictions while U.K. unemployment had increased from 5.8 per cent in November to 6.5 per cent by March 2009 would be perceived as odd. The MAC stated that lifting the restrictions was likely to result in only small increases in flows from the A8 and foresaw only a potential small increase in social security claims, but that both those eventualities were sufficient to warrant the conclusion it recommended. The MAC, was and is headed by David Metcalfe, a professor of industrial relations at the LSE, who had

133 MAC 2008: 56. In light of a stock of 700,000, the numbers of A8 immigrants applying for income and housing benefits were low (UK Border Agency, 2008a.) From the date of accession to June 2008, approximately 10,000 applications for income support have been made by the A8 nationals of which less than 2,000 proceeded for further processing. In the same period, approximately 13,000 applied for Jobseekers’ alloance, of which fewer than 5,000 proceeded and around 500 applications for the State Pension credit were made, of which only 180 procedeed.

128 previously been a member of the Low Pay Commission established to study the effects of the minimum wage introduced in 1998 under the National Minimum Wage Act. “There is not much difference [to lifting the restrictions or not],” he said in an interview. “In troubled times, it makes sense to continue [the scheme].” Metcalf also emphatically rejected the idea that the MAC recommendations benefited from any political influence, stressing the independence of the committee.

As it had done on other issues affecting the A8/A2, the U.K. government announced it would be following the advice of the MAC. “Migration only works if it benefits the British people, and we are determined to make sure that is what happens,” said Immigration Minister

Phil Woolas. “That is why I am delighted to announce that we are keeping in place restrictions which mean we can continue to count how many people are coming here, and which limit eastern Europeans' access to benefits.” 134 In continuing the restrictions, the U.K. became one of the few states retaining restrictions (Germany, Austria and Switzerland maintained substantive restrictions, while the U.K. was the only one to maintain a monitoring scheme). The U.K, as the

MAC indicated in its recommendation, was the first to invoke ‘serious labour market disruption’ to justify maintaining restrictions. The decision was not expected135 not least because the MAC had made clear in several prior reports and indeed in the April 2009 report itself, that as a monitoring policy, the registration scheme was not adequate. Statistically, it was not accurate,

134 BBC, April 8, 2009. “East Europe worker curbs kept.” 135 MAC reports, including the Dec. 2008 and April 2009 reports rely primarily on numbers from the Labour Force Survey. While the number of WRS registrations was at 965,000 up to December 2008, the number of National Insurance numbers allocated to A8 workers was 1.24-million between April 2004 and September 2008. According to numbers from the Labour Force Survey, the number of A8-born workers living in the U.K. rose from 100,000 in the first quarter of 2004 to 610,000 in the third quarter of 2008. “Because of exemptions and non-registration, the record of WRS registrations does not provide a complete picture of the flows of A8 nationals into the UK,” (MAC 2009: 16)..

129 counting only entries not exits from the U.K; it represented a dis-incentive to registering because of the £90 pound fee (originally £50); and most importantly, registration was not mandatory and was indicated as not required for workers declaring themselves self-employed, the situation of many.

The decision was a clear instance of the government exercising its autonomy with little regard for stakeholders’ opinions. Disliked and unexpected, the decision imposed continued administrative costs on business and the workers themselves. Among the issues raised about the scheme had been questions about the accuracy of its statistics (Tory Leader David Cameron,

Confederation of British Industry); its role as a means of restricting social benefits (Labour unions, anti-migration group Migration Watch, Conservatives); and its encouragement of substandard employers (Trades Union Congress). Meanwhile, the EU reiterated in its response to the decision that it encourages member states to maintain an open market. In addition, the MAC report was flexible enough that it could have been interpreted as providing a rationale for removing restrictions.136 A similar lack of definitive advice accompanied its discussion of eligibility for social benefits. (The eligibility for assistance was the main substantial difference between A8 nationals and existing EU members who are able to make social security claims provided they can demonstrate “habitual employment” in the countries from which they entered

Britain.)137 Finally, the continuation of the WRS would not give the government any tools

136 After discussing evidence of small negative impacts on the lower-paid workforce, impact which was attenuated by the national minimum wage, the report concluded that it could not determine whether the distribution of A8 workers was “likely to make local labour markets more or less vulnerable to the effects of recession. It is similarly not possible to conclude whether sectors or occupations where A8 immigrants are concentrated are likely to be disproportionately affected.”

137 The MAC found no relationship between the number of claimants registering in an authority and benefit claims; and furthermore, the report suggests that since Sweden which had much more generous benefits and placed no restrictions on the entry of A8/A2 workers has not been swamped with A8 migrants, workers are not arriving in order to benefit shop. The Dec. 2008 report however also notes – in

130 against unscrupulous employers. Employers were expected to hire only registered A8 nationals, but 300,000 unregistered workers were employed and not a single prosecution had been recorded, the MAC report showed.

The decision to continue the WRS was surprising to most of the stakeholders and parties affected and to some of the groups that had had input into the policy, and was contrary to the expectations of many. Indeed, the Association of Labour Providers said in its March 2008 submission to the MAC that it had already advised its members that the scheme would end (ALP

2009: 1). The TUC believed that A8 workers should not be subject to restrictions not faced by others in the EU. “The ruling does not serve a useful purpose,” said Nicola Smith, TUC policy officer, citing in particular the inaccurate statistics, the imposition of a 90 pound fee to register and the retention of the workers' passports while their applications are processed. According to the TUC, only 50 per cent of workers were registering, however, the 12-month registration period may pressure workers to stay with an unsuitable or exploitative employer only to accumulate the time necessary (although workers can leave employment during that time they cannot have periods of unemployment longer than one month). The TUC also opposed the tie-in of social benefits to registration, an issue that is particularly hard to advance in terms of public opinion during a recession, as they recognized.138

The head of the MAC explained the decision as the result of the incipient recession. The

MAC was aware that overly optimistic projections about the small flows of migrants expected in

passing - that the very small number of migrants to Sweden may also be accounted for by the control of wages in Sweden through corporatist style bargaining which leads to a lower demand for flexible labour. There is also the issue of language. 138Interview with TUC policy officer Nicola Smith.

131

2004 rocked the government and the press when they proved wrong. The government was

“politically dreadful wrong on A8” inflows, Metcalf said. “Because the government report was so wrong on A8, there is a need to be circumspect on A8 as there was a much larger inflow than expected.” The legacy of that episode was a climate of caution in government policy, and a seizing of the immigration portfolio as an electoral wedge issue, made more resonant by the recession.

If the recession limited the government’s options, it also revealed its ability to act autonomously and in opposition to the pressures exercised by civil society stakeholders. The decision to continue the WRS registration had - for employers – administrative repercussions – and for employees – practical effects. The costs borne by the government in continuing the scheme were limited, while the potential costs of eliminating the requirements for the final two years would be further criticism by the press. Perhaps the largest effect from the entry of A8 workers was that it enabled the government to restructure its labour migration policy toward a system that streamlined the entry of immigrants based on their human capital characteristics.

3.7 Managed migration The government accompanied its opening to the A8 with the introduction of a point system for skilled migration. Managed migration represented one of the most liberal entry policies of a Western government to the movement of highly skilled workers. The first indication that the Labour government would reverse decades of migration policy that focused on placing limits to entry at all levels of the labour market, came in 2002 with the introduction of the Highly

Skilled Migrant Program (HSMP), under which visas were available without the previously- necessary employer-sponsored work permit. A series of papers starting with the aforementioned

2002 Secure Borders, Safe Haven; the Nationality, Immigration and Asylum Act of 2002, and the

2005 Controlling our Borders: Making Migration work for Britain, in which the idea of an

132 immigrant-selection system based on points was introduced, followed. In March 2006, a

Command Paper set out the new PBS, A points-based system: Making Migration work for

Britain. The point system erased the last vestiges of any differentiation between Commonwealth migrants and other entrants and replaced 80 entry streams with five. A work permit system run with the goal of protecting British labour was supplanted by one facilitating foreign workers, and led to an increase in the capacity to process permits from 40,000 a year in the mid-1990s to over

200,000 in 2003 (Flynn 2005: 465 – cf. Sales 2007).

In October 2007, the arrival of the point system was heralded by then Immigration

Minister Liam Bryne. While announcing the PBS, Byrne added that it would be introduced along with new enforcements of prohibitions against illegal workers and a controversial fingerprinting system (which was altered and then re-introduced). “Today we begin to strike a new balance in

Britain's migration policy, weighing the economic benefits with frontline feedback about wider impacts,” he said. “We know migration added about £6 billion to our economy last year, but we know of wider impacts too. What we need to do is strike the right balance for Britain's national interest, starting with the decision on Bulgarian and Romanian workers a little later this year.” 139

The business community welcomed the point system. The less onerous administrative burden enabled by streamlining and the initial absence of numerical caps met the corporate sector’s demands for foreign workers in the high and middle-end sectors, particularly for ease in inter-company transfers in software industries. In the run-up to the introduction of the point system, the CBI had two dozen meetings with the Home Office, both on an informal and formal basis. The meetings were designed to clarify what was required of businesses hiring foreign workers for whom the work permit system would be replaced by the Tier 2 category, the pathway

139 Home Office, Oct. 16, 2007. “Byrne heralds new balance in migration policy,”http://press.homeoffice.gov.uk/press-releases/migration-policy-balance

133 for inter-company transfers. As the introduction of the point system and the implementation of the Tier 2 loomed in November 2007 the government had not formalized the administrative framework. The CBI turned to Pat McFadden, the minister for the Department of Business,

Enterprise and Regulatory Reform (BERR) with which it has frequent contact, to intervene with the Home Office to expedite the roll out of the administrative apparatus.

Along with the Tier 1 category, which enabled the migration of highly-skilled independent immigrants, the other contentious category was Tier 3. Targeted to low-skilled migrants, this category was set to replace seasonal employment schemes in areas such as agriculture. The category was suspended upon the introduction of the point system in favour of operating such schemes with workers sourced entirely from the A2 countries. Starting in 2009, under the Seasonal Agricultural Workers Scheme (SAWS) for A2 workers, the number of

Bulgarians and Romanians admitted under the scheme increased from 16,250 places to 21,250, while the number recruited under the Sector Based Scheme for food processing remained at

3,500.140

The point system’s inauguration coincided with the beginning of the recession and the government began to adjust the points applicable to each category not long after its introduction.

Several changes were made to the scheme, all of them presented as tightening eligibility. In

February 2009, employers wishing to sponsor a foreign worker under Tier 2 had to advertise the position at a local JobCentre Plus (employment office) – this requirement was extended in

December of 2009 from two to four weeks. The shortage occupation list would be used to trigger

140 It bears noting here that as indicated earlier in this paper, the real number of A10 migrants working in these industries exceeded official numbers, as many were hired through agencies or entered the country under the self-employed category and proceeded to jobs in these sectors. For unions, the elimination of other low-skilled channels of entry – particularly for the Caribbean workers who had been employed under such schemes – was seen to risk an increase in illegal working.

134 skills review that would focus on training residents in those areas; and the government asked the

MAC to consider the possibility of restricting the Tier 2 category only to occupations on the shortage list. Meanwhile, the qualification to enter under the independent highly-skilled Tier 1 category was raised from a B.A. to a Master's Degree and prior earnings of £20,000. Speaking on the increasingly restrictive guidelines, the new Home Office minister Jacqui Smith said: “Just as in a growth period we needed migrants to support growth, it is right in a downturn to be more selective about the skill levels of those migrants, and to do more to put British workers first.”141

After Labour’s electoral loss, the Liberal-Democrat coalition imposed a cap of 10,000 entries in the Tier 1 category, only the first of many restrictions in this category that would follow.

The recession and the arrival of many workers from the A8 countries prior to the introduction of managed migration left the government with a public perception problem. It had far underestimated the number of workers who would enter the country, and the newspapers, particularly the Daily Mail, were daily featuring headlines on immigration issues that were not supportive of the government’s measures. As the recession took hold, minister’s announcements began to emphasize both a reduction in the numbers of immigrants coming to the U.K., and a repeated promise to protect British workers, British wages, and indeed, British culture. Still, the government was reluctant to abandon its message that immigration benefitted the economy: As late as June 2008, in response to a House of Lords report on the benefits (and drawbacks of migration),142 the government stressed that immigration had a net beneficiary effect of a half percentage point increase in GDP per head. Not only did immigration have a net beneficiary

141 Alan Travis, February 22, 2009. ‘Foreign workers could be barred from entering UK,” The Guardian. 142The government reply to the first report from the house of lords committee on economic affairs: the economic impact of immigration, June 2008. http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/reports/economicimpactsmigration/ec onomicimpactsmigration?view=Binary

135 effect on the economy, Byrne argued :“The evidence suggests that migrants on average make a stronger net fiscal contribution than those born in the UK” (Secretary of State for the Home

Department 2008). Concurrently, the government attempted to present managed migration as a method through which it could identify skills shortages in the U.K, particularly through Tier 2.

The appearance of an occupation on the shortage list would lead to immediate action on the government's part to train domestic workers. In fact, eight occupations were removed from the shortage list early on in 2008.

Yet the government also undermined its support for labour immigration through statements that aimed to show it was concerned about the pressure exerted on local communities and social housing. Enforcing the policing of illegal working presented opportunities to showcase the government’s enforcement of borders. As well as announcing thousands of deportations, the Border Agency trumpeted smaller targets such as the arrest of eight illegal workers in Heanor in the east Midlands.143 It implemented a fee payable for migrants arriving from outside the EU, to be used toward settlement services, a measure with symbolic value that contradicted the government’s message that immigration represented a benefit for the country.

By January of 2009, several months before the election, Woolas’s message was barely intelligible, stressing that the point system would reduce the number of foreign workers in the country but that such workers were still required: “The points system is one of the most radical

143 An announcement from the home office read like a criminal detective story: Officers from the East Midlands local immigration team swooped on Noble House, Chinese restaurant in Ray Street, Heanor at 1800 on 6 November. The specialist team sealed all exits before checking the immigration status of the workers. Eight foreign nationals - four men and four women - were arrested after officers confirmed that they had no legal right to work in the United Kingdom. Seven of the illegal workers were Chinese nationals, aged between 18 and 48, whilst the eighth illegal worker was a 28-year-old Malaysian man. The UK Border Agency is now taking steps to remove all the immigration offenders from the country as soon as possible. The business was issued with an on-the-spot penalty notice for employing illegal workers and may now face a fine of up to £80,000. Published in M2 PressWIRE on Wednesday, 25 November 2009 www.m2.com/m2/web/story.php/20096D6A4E4E6F0A2AA18025767900282AFD

136 changes we've made to the immigration system in a generation and today's figures show that it is being delivered successfully. It is crucial that only those foreign workers we need come here and this new system will ensure that - we already know that there would have been a 12 per cent reduction in the numbers coming here through the equivalent work permit had the system been in place last year.”144

The discussion will now shift to the area of refugee policy where the government’s ability to initiate and implement policy will be seen to have been significantly less attentive to interest groups than in labour migration.

3.8 U.K. refugee policy: a response to public opinion?

Refugee policy exhibited a basic contrast to labour policy, one that is the subject of the wider work here: whereas labour policy sought to promote the country’s integration into the

European migratory system, refugee policy was marked by the desire to widen the space between

Britain and the continent. The externalization of borders was a key instrument145, with the goal of preventing refugees from reaching the country’s (rather wet and windy) shores. The Labour government passed legislation covering three related areas of refugee policy.146 The first two categories focused on border security: entry regulations and determination of successful claims and the adjudication of failed refugee claims (a category including refugees scheduled for

144 UK Border Agency and Points System. January 7, 2009. http://www.workpermit.com/news/2009-01- 07/uk/uk-border-agency-and-points-system.htm 145 The U.K. did not find European-level restrictions sufficient. Under the Dublin convention, which became active in 1997, countries can send refugees back to the country through which they passed through only as long as the person would not face inhumane or degrading treatment in the receiving country (Hatton 2011). The U.K., however, opted out of Dublin; the government preferred to negotiate agreements with individual countries and maintain flexibility for its scope of action. For example, it negotiated the closing of the Sangatte camp from which refugees were taking the Channel (Zappi 2003). 146 The process of claiming refugee status in the U.K. is based on the 1951 Geneva Convention and its 1967 protocol as well as the European Convention on Human Rights (Sales 2007).

137 deportation and resistance to deportation as a result of failed claims). The third category revolves around national membership, and measures promoting social integration and exclusion, such as forced settlement outside major cities (dispersal) and the provision of social benefits through vouchers (Mynott 2002, Mulvey 2010, Bloch and Schuster 2005). While entry regulations and legal sanctions fall within the government’s border control powers, the third – which also encompasses proposals relating to ideas such as probationary citizenship – are founded on the state’s role in determining categories of citizenship and national belonging.

Analyses of Labour’s treatment of refugees during its time in power have primarily focused on the question of whether Labour proactively propelled a restrictionist agenda or whether it reacted to popular and political forces. No one had expected Labour to pursue the restrictionist agenda it did and that surprise – justified or not – runs through the assessments

(Squire 2008). Sarah Spencer recounts, Labour did not appear as a party that would make immigration and refugees one of the mainstays of its governance (Spencer 2011). Hatton, for example, finds that the government independently moved refugee policy in the direction of increased regulations (Hatton 2011). For Gibney, many of the provisions of the early 1999 and

2002 bills aimed to reconcile societal norms prevalent in a liberal society with the government’s policy goals, removing, isolating and fast-tracking refugee claimants from society through detention centers and expedited administrative processes (Gibney 2008).

Other work finds a mutually constitutive relationship. The opinions held by members of the public opposed to immigration are justified on grounds mirroring those offered in political speeches and government papers. For Back et al, Labour did not create an environment where refugees were vulnerable to public opposition, but attempted to mollify a segment of the population through policies and papers that portrayed the government as recognizing such

138 opinions to be provoked by legitimate concerns about impacts on local communities, national belonging or threats to territorial and personal security. A subset of this literature and analysis locates the motivation for Labour’s desire to pacify restrictionist, even racist, sentiment in the party’s general preoccupation with media and public opinion as revealed in headlines and polls.

It would be an exaggeration to say that Labour’s immigration policy was dictated by the Daily

Mail, said one interviewee, but the assertion contains a grain of truth.147 As one-time

Immigration minister Phil Woolas told an immigration conference held by the Confederation of

British Industry “If you ignore the Sun reader in this debate, you are not going to move it forward.” (BBC 2008)

Research assessing whether Labour was reactive or proactive shares an inattention to the background against which Labour took action. That is not to deny that refugee policy was perceived by Labour leaders as an area of political weakness vis-à-vis the opposition (Campbell

2007.) Whether in contemporary polls or historically, the Conservative party has at times benefitted from the perception that they are more likely to control borders than Labour (Schain

2006; Saggar 2003). The government was trapped in the paradoxical position of having its actions criticized by human-rights groups as harsh and by the Conservative opposition as soft.

The restriction of public benefits and the detention measures which were presented as necessary to ensure public support, for example, did not decrease the Conservative party’s demands for even tighter restrictions. In the 2001 election, the Tories emphasized the introduction of more

147 Lewis represents a cogent interpretation of this strain. He writes that Labour was dependent on “sampling, polling and focus group techniques … to become perhaps the most responsive government ever to tabloid scares and moral panics.” (Lewis 2005). As a result, he argues, the party practiced a “strategic illiberalism.”

139 detention centers and increased removals. In Parliament, asylum was connected to terrorism, particularly during passage of the Anti-terrorism, Crime and Security (ATCS) bill. The

Conservative opposition blamed the incorporation of the European Convention for the

Protection of Human Rights and Fundamental Freedoms into British law for the legal difficulties of passing the anti-terrorism bill: “I hope that we are aware that we are undermining the rights of our citizens because we have given so many rights to people, including suspected international terrorists, who come to this country and claim asylum” Conservative George Osborne said in the

House on Nov. 19 2001 (Huysmans and Buonfino 2008 cf. Hansard, col. 107) (as will be seen, the strongest opposition to a key aspect of the 2002 bill relied precisely on European human rights law). Four years later, at a time when the debate over refugees had lost the fervor it possessed earlier in the decade when the number of applications had surged, the Conservatives proposed withdrawing the U.K. from the 1951 Convention, accompanied by quotas on immigration and refugee numbers (Smith 2008). At the same election, the Greens and the Liberal

Democrats, parties that had opposed deportation, suggested they would be supportive of voluntary deportation (Squire 2008).

It is not the purpose of the present study to determine whether the Labour party was reactive or proactive in its policy, nor do policy papers and statements allow such a determination. The party responded to external pressure and advanced its own restrictionist measures, primarily to demonstrate that it could act to close borders as well as open them to workers. The debate also offers useful background for understanding the context in which the party interacted with refugee groups. Measures were often initiated following public failures of refugee policy or increases in refugee claims, but not in an ad hoc manner. Rather, policies were accompanied by policy papers and statements as to the necessity of tough action in order to maintain support for a multicultural Britain. Unlike in the arena of labour policy-making, the

140 government did not engage interest groups throughout the policy-making process; its legislation was actively opposed by advocacy groups, with very limited success.

3.9 Refugee interest groups in immigration policy-making

Faced with an overwhelming opponent in the power of the British state and dependence on state funding by significant parts of the sector, refugee groups engaged in selective cooperation and used legal channels to mount opposition to restrictive policies. The first complexity of the relationship between refugee groups and the state was the former’s role delivering services for refugee clients. After the state introduced policies that dispersed refugee claimants and replaced financial benefits with vouchers, the Refugee Council, the largest agency working with refugees said cooperating with the government was preferable. It was ‘more tolerable for the clients than if it were left to private, profit-making companies.”

This might be so, but cooption limited the Council’s ability to criticize the government.

Refugee staff also fulfilled two roles: that of social worker who would help with applications for support services but also immigration officer tasked with recording the immigrant’s method of entry. “The shift from a rights-based approach to a more professionalized involvement in providing contracted services” had implications for the campaigning role refugee agencies were able to assume (Sales 2007: cf Griffiths 2005). 46 per cent of these groups are funded by the central government as service agencies, and make 14 per cent of claims on the state as tracked by

Statham and Geddes. The effect of government funding is suggested by the fact that a quarter of claims advanced by refugee groups were made by the independent Joint Council for the Welfare of Immigrants. How refugee groups used such channels as were open to them can be seen in the implementation and response to the 2002 Nationality, Immigration and Asylum Act.

141

3.10 The 2002 Nationality, Immigration and Asylum Act

The first immigration-related act passed by Labour in 1999 had established the National

Asylum Support System (NASS). NASS enabled the dispersal of claimants across the country and substituted food vouchers for a portion of welfare benefits, igniting protests from refugee advocates (Stevens 2004; Hatton 2011). Its last bill, the 2009 Borders, Citizenship and

Immigration Act was proposed before Labour lost the 2009 election, and as such was never implemented.148

The 2002 Bill represented a key point in the development of the Labour government’s position on asylum, refining the 1999 Act in accordance with the government’s 2002 paper,

“Secure Borders, Safe Haven –Integration with Diversity in Modern Britain.” Secure Borders had set out the government’s managed migration approach and formally established a relationship between economic migration and asylum claims. Economic migration was presented as a desirable goal while the integrity of the asylum system was questioned and its impact on the social cohesion of the nation state emphasized (Back, Keith, Khan 2002). Indeed, the measures found in the bill were first discussed in the policy document (Sales 2007). Specifically, the 2002 bill proposed securing borders through removal targets; the introduction of non-suspensive appeal (which would enable deportations even when an appeal was launched) (Gibney 2008); no right to a work permit after a six-month residence term; and increased capacity in deportation centres (Sales 2007). The option of receiving support without accommodation that had been controversially introduced in the 1999 Act, was replaced by a proposal to build four

148 At the other end of Labour’s tenure, the 2009 Act was a risky electoral gambit that an appeal to patriotism and British heritage through the concept of probationary citizenship would prove popular with the electorate.

142 accommodation centres with 3,000 places each. Claimants would reside in the centres while their case was decided, and children of refugees would be educated there rather than integrated into local schools (Stevens 2004).

As Gibney points out, the detention measures visibly separated claimants from the society in which they hoped to settle. As a result, any social ties on which claimants had relied to evade deportation were also severed by the bill. It is worthwhile noting here that the government had introduced social exclusion measures with the 1999 Nationality bill, which took the administration of refugees’ social benefits away from local councils and transferred it to the newly created National Asylum Support Service, turning agencies which had helped refugees into providers of services to the national authority. This would have the long-term effect of making refugee organizations reliant on the central government and less likely to criticize it directly.

The immediate background to the 2002 act was the refugee crisis of the late 1990s-early

2000s. While asylum applications were at 26,200 in 1990, by 1999 they had risen to 71,000 and reached a peak of 84,130 in 2002 (Gibney 2008: 149). Refugee flows as a proportion of the population were even greater in other European countries, as a result of increased global conflicts. Still, the perception was that sudden jumps in numbers reflected the government’s inability to control borders (Squire 2008; Hatton and Williamson 2004: 37). In response, the government undertook a number of measures. The time to a decision for an asylum claim was reduced from 22 months in 1997 to two months in 81 per cent of cases in 2003.149 The decrease was achieved at a cost as the number of successful judicial appeals also increased, raising

149 Home Office, second report: Asylum. 2004. http://www.publications.parliament.uk/pa/cm200304/cmselect/cmhaff/218/21806.htm

143 questions as to whether the initial speed of the decision, which was a public number, was bought with an increase in successful appeals, a number that was less publicized (Sommerville 2007:

163). At the same time, while recognizing in its own testimony to the Home Affairs Committee

(Home Office 2004) that the primary engine of refugee flows were push factors - political and economic instability – the government took action to eliminate or tighten benefit programs for refugee claimants. The discussion in this area evolved over the early 2000s: Whereas Labour had begun from the premise that social benefits were unlikely to be a pull factor, it shifted in its policy papers to the idea that an unrealistic perception of pull factors contributed to the propensity of claimants to choose the U.K. as a destination (Mulvey 2011).

The rationale for the 2002 Bill were also found in external events that drew attention to the illegal networks that brought refugees to the U.K. In June 2000, the bodies of 58 Chinese workers were found on a refrigerated lorry arriving from Dover, at the same time as national and international news sources were increasingly reporting the flight of refugees housed at Sangatte to the United Kingdom. Testimony before the passage of the bill addressed Sangatte as one element among several that was turning public opinion against refugee claimants. The

Committee on Home Affairs encouraged the government’s new framing of pull factors, arguing that publicized and avoidable delays in the application and appeal process can “reinforce hostility towards [asylum applicants]” (Home Office 2001). The committee did concede that most refugees were drawn to Britain as a result of political and economic instability in their home countries, but it also argued that the government was right to reduce the attraction of the

U.K. Benefits were part of that attraction. The actual level of British benefits, the committee underlined, was meager. Claimants, however, believed the state to be of a much greater generosity. And while benefits may be of limited value, the ease of accessing public services enabled false claims and could be rectified by issuing entitlement cards for benefits.

144

The two most contentious areas of the bill were Sections 54 and 55. The former denied support to failed refugee claimants. The children of families rendered destitute as a result would be taken into care to meet the U.K’s legal obligations. Section 55 made claimants who failed to file their claim as soon as “reasonably practicable” also ineligible for public support, and would become the focus of criticism and opposition. “People who may have been living in this country for some time but have no real claim to remain cannot expect to rely on making a claim for asylum as a means of extending their stay at the taxpayers' expense” explained Lord Filkin during House of Lords debate.150

Other provisions included the requirement for claimants to reside at an induction centre for 14 days and the introduction of measures allowing the U.K. government to deport those convicted of criminal offences and sentenced to two years. Furthermore, the 2002 Act expanded the categories under which claims could be declared “clearly unfounded” and therefore automatically denied, to include a list of “white countries” which started with the 10 countries acceding to the European Union in 2004.151 Labour had been critical of a similar list of safe countries introduced by the prior Conservative government (Squire 2008) but once in power, it adopted the strategy (Steves 2004). David Blunkett discussed the measures in the context of a debate in which refugees’ obligations were formulated to be akin to those of welfare recipients.

In so far as welfare recipients received assistance only when they complied with work or reporting conditions, refugees would be the recipients of help on a “something for something

150 House of Lords Hansard, Oct. 17, 2002, column 979. Accessed at: http://www.publications.parliament.uk/pa/ld200102/ldhansrd/vo021017/text/21017-06.htm#21017- 06_head0

151 Within a year of the bill’s introduction, the list was expanded to include Albania, Bulgaria, Jamaica, Macedonia,Moldova, Romania and Serbia-Montenegro, Bangladesh, Bolivia, Brazil, Ecuador, South Africa, Sri Lanka and Ukraine (Stevens 2004).

145

basis.”152 Approval rates following the passage of the 2002 Bill fell from 10 per cent in the year of the bill’s passage, to 7 per cent in the first and second quarters and 5 per cent in the third quarter. There was as well a drop in applications and a reduction in the backlog of removals, both steeper as a percentage than that experienced by other European countries and attributed to improving human rights conditions (Stevens 2004).

The discussion of the interest group response will focus on Section 55, a case study of how refugee groups structured their response and the scope of their success.

3.11 Response to the bill

Scholars have argued that refugee organizations have faced multiple limitations in mobilizing against state efforts to curtail asylum claims. The principal challenge was the size of and power of their opponent. As Sommerville and Goodman summarize, “The power of the

Home Office as the major resource in the asylum policy’ network was unrivalled…”

(Sommerville and Goodman 2010: 959). There was in fact another state policy actor: the Prime

Minister, whose office was engaged with immigration files as with no others. Refugee advocacy groups were the weakest actors in asylum policy-making, and were not part of a “policy community” – defined by actors with a shared outlook working toward common outcomes through frequent opportunities for discussion and consultation. The refugee migration policy community was made up of think tanks such as the Institute for Public Policy Research, business and legal organizations, and the government, its departments and the arm’s length agencies it set up to advise it.

152 Oct. 7, 2002. The Telegraph, “White list will end mad policy.”

146

Yet asylum advocacy groups also worked effectively with the legal sector to mount a successful partial challenge to the 2002 Bill. The groups turned to a legal strategy out of frustration that Section 55 rendered them unable to offer support to asylum claimants who did not rapidly apply for benefits as the section dictated. NGOs sent clients to lawyers both to seek immediate relief by invoking the bill’s provision that it had to meet European rules prohibiting cruel and inhumane treatment, and to serve as test cases for a judicial review of the bill. The groups did not attempt to mount a campaign relying on public support. Judicial review allowed

“for pressure group activity in the absence of a larger scale social movement and a concerned or sympathetic public” (Morris 2009: 367). National advocacy groups for refugees, such as the

Refugee Council, Shelter and the Joint Council for the Welfare of Immigrants, as well as local providers of assistance, testified that they could not fill the gap created by the denial of social and housing benefits to those who applied later than the government had envisioned – because they were reliant on government funding to provide such services. People to whom Section 55 applied would therefore be left indigent. A concerted pipeline between NGO support organizations and lawyers led to the High Court having to intervene in hundreds of cases within the first eight months of the bill passing, a quarter of the court’s work (Morris 2009: 370).

As we saw in the Canadian mobilization against refugee bills, NGOs also formed new coalitions. The Coalition against the destitution of asylum seekers joined up with the U.K.’s largest refugee service organizations, such as the Refugee Council and Shelter, and activist groups such as the Joint Council for the Welfare of Immigrants and city-based groups in London,

Liverpool and Birmingham to pressure the government to repeal Section 55 (Sharma 2011).

Dozens of refugee advocacy groups, many of them neighbourhood-based associations, also contributed testimony to a report commissioned and published by the office of the Mayor of

London which recommended that the city track the expenses and social dislocation associated

147 with refugee claimants rendered homeless by the legislation. Published in February of 2004, the report was evidence of mobilization of lower levels of government to change asylum policy.

(The city published another report that year on refugee children, which urged the government to treat unaccompanied children as children first and refugees second (Mayor of London 2004)).

The report rejected the specification of 3 days as the length of time during which claimants would be able to file successful petitions for housing.

It took a series of cases and appeals for the government to accept that Section 55 would need to be revised. Within six weeks of the legislation passing on January 8, 2003, the High

Court had ruled that part of the legislation was likely to infringe the Human Rights Act of 1998, which had incorporated European human rights legislation. On March 18, the Court of Appeal ruled against the government’s appeal but also indicated that if the state could show that those turned down for support were able to access other aid, Section 55 would not contravene human rights provisions (Shelter 2003). In response, in December of that year, the government formally gave asylum seekers three days to lodge a claim for support (Stevens 2004). A Home Affairs

Select Committee advised that the government commission an independent review of the section

(Home Affairs 2004). In May 2004, the government lost an appeal on the provision (BBC

2004)153 but vowed to continue the fight, telling media that “[t]he essential point of section 55 is that we are not prepared to use taxpayers' money on supporting people who make speculative asylum claims or who have some alternative source of support.” In November 2005, however, the government lost its final appeal in the House of Lords with the decision telling the government that it had a duty not only to redress the situation of claimants who found themselves in distress but also to prevent them from being treated inhumanely if such a possibility was

153 http://news.bbc.co.uk/2/hi/uk_news/politics/3735203.stm

148 almost certain. As Billings and Edwards summarize the ruling, “The Home Secretary was under a duty to exercise his … powers to prevent degrading treatment that … was an imminent prospect by virtue of the entire regime imposed on the respondents by the state.”(Billings and

Edwards 2006: 174).

It is stressed, however, that in so far as the refugee advocacy sector was successful in several policy cases, it acted through the courts, with the help of refugee lawyers working pro bono. Other scholars agree: although refugee lobby groups demonstrate the highest number of claims-making actions, these claims are made in a context that is “dominated by the state.”

(Statham and Geddes 2006: 265; Mulvey 2010). In short, in the face of a co-ordinated and well- resourced state, the lack of continuous organization between refugee groups, and the status of many of the key refugee groups as service and charity-delivering organizations reliant on state funding meant that their impact was limited (Zetter 2000; Cullen 2009). To the extent that the

British state faced constraints, it did so because of the judiciary.

3.12 The post-2002 years

Even the judicial limitation was short-lived. As the government was battling in court over the 2002 Bill, it introduced its successor, containing a harsher measure that allowed the children of failed asylum claimants to be taken into care if their parents were deemed to not be eligible for social benefits support - and the removal of the right to appeal or judicial review (Stevens 2004).

The intent of the provision, known as Section 9 of the bill, was to strongly encourage failed asylum seekers to leave the country. Section 9 was denounced by national and international refugee advocacy groups (Giner 2007). After a pilot implementation revealed more families went underground than presented themselves for deportation, the government announced it would repeal the section for the 2006 Bill.

149

No government retreat was final. Refugees continued to be the target of restrictive policy through the government’s time in power. Following the July 2005 subway bombings, some of the measures that the government introduced under the Immigration, Nationality and Asylum

Act of 2006 included increased search powers for immigration officials, the rejection of asylum claims from an individual found to have associations with terrorism, increasing the grounds under which naturalized citizens would have to prove “good character;” and finally the signing of Memorandums of Understanding that foreigners deported from the U.K. and seeking to appeal their deportation orders would not be subject to torture in the receiving countries. The last measure enabled the U.K. to deport such individuals without contravening the Human Rights Act of 1998 (Hampshire and Saggar 2006).

The essential point is the overwhelming power of the restrictionist British executive.

Analysts stress that the Labour government’s early history of legislating in the refugee area was influenced by the agency of political leaders, key among them Home Office Secretary David

Blunkett (Back et. al 2002; Flynn 2005: Mulvey 2010). But it was not a matter of personality, as suggested by those attributing particularly harsh measures to the preferences of certain ministers.

These interpretations fail to recognize that the government demonstrated its control and autonomy regardless of changes in the minister’s office. Ministers claimed that maintaining a measure of public support for refugee admission was one of the principles that animated policy- making. In testimony on asylum in 2002, Blunkett rejected the Home Office committee’s recommendation to offer those slated for deportation 100 pounds to give them both an incentive to leave and a start in the country to which they were deported. “We have enough problems persuading the British people to accept that we are robust but fair already,” said Blunkett in

150

testimony before the Home Office subcommittee.”154 A year later, he would tell the press that

“British society was like a coiled spring,” echoing the Safe Borders report, and failing to implement and enforce measures controlling refugee flows could lead to “tension and frustration spilling over into the disintegration of community relations and social cohesion [and] people taking the law into their own hands.”155 The importance of public confidence and its dependence on effective admission measures for legitimate refugee claimants and removal processes for unfounded claims continued to be emphasized long past Blunkett’s term in office.

The 2007 paper from the Home Office, Enforcing the Rules: a strategy to ensure and enforce compliance with our immigration laws, demonstrates this approach. It begins by citing the Council of Europe convention against trafficking in human beings which aims to prevent organized crime from benefitting from poor and desperate people. “But, equally importantly,” it continues “is that migrants in shadowy jobs undermining conditions of British workers, breeds discontent and racism, especially among those who don't believe they're getting economic or social opportunities they should because others who have flouted the law are getting on ahead of them. So tackle illegal trafficking and the illegal jobs at the end of them …” wrote then Home

Secretary John Reid in the introduction. Enforcing the Rules invoked fraudulent claims for public benefits and “health tourism” as undermining confidence in the system and pointed to high rates of asylum refusal to suggest that social benefits function as pull factors rather than legitimate claims, contrary to conclusions reached and shared many times during the government’s mandate. A similar emphasis on the impact of irregular migrants on communities persisted in 2008’s Enforcing the Deal, which cited the removal of failed asylum seekers from

154 Select Committee on Home Affairs, Session 2002 – 2003. Minutes of evidence for Wednesday, Sept. 18, 2002. 155 January 23, 2003. Guardian. “Blunkett fears attacks on refugees.”

151 housing waiting lists in a London borough and fines levied against landlords renting to illegal immigrants as aims, and set the goal of preventing deportees from going underground by expelling a higher number of failed asylum claimants and increasing spots in detention. The aim of border controls, the document continued, is the preservation of an open society, “while addressing the real concerns some sections of the public feel about immigration and coming down hard on the criminals that make their living from this trade.” The introduction argued that politicians responded to public opinion on immigration in order to protect economic gains derived from foreign workers and that in so doing they highlighted the state’s ability to control borders. At the same time, acknowledging that domestic populations were suspicious of foreigners risked affirming anti-immigration sentiment and political forces. Rational, vote- seeking U.K. politicians, however, attempted this balance, one that focused on the competent execution of the state’s fundamental functions. That attempt ended with Labour’s loss at the ballot box. Once Labour left office, labour immigration policies more explicitly courted anti- foreigner sentiment, even risking the economic future of the U.K. in order to appease such forces, events the conclusion will take up further.

3.13 Concluding remarks: A powerful state This chapter has argued that interest groups faced different levels of responsiveness from

British policymakers. Business groups were able to access senior bureaucrats and politicians, while refugee groups were excluded from the policy-making process. The latter group was able only to react to government-imposed restrictions to asylum. Furthermore, the successes extracted by refugee groups were won only through, and were dependent upon, legal avenues. What’s more, government policy reversals in the refugee arena were temporary. Refugee policy was continually driven by the state’s attempt to limit pull factors by reducing social benefits. Labour groups occupied an interesting space in their relation to the government. Because trade unions’

152 strategy in relation to new entrants from the A10 countries was one of incorporation rather than exclusion, labour unions were not in conflict with policymakers. In instances where the state exercised its autonomy, both labour and business groups were disappointed in their expectations and demands. This was particularly true in the decision to continue the worker registration scheme, a decision the government maintained was made in an abundance of caution, but was at least partly driven by negative public perception of swelling numbers of Eastern European workers. The British state, constrained only by relatively weak courts and, more profoundly, free movement provisions of the EU acquis, drove policy on both refugees and labour migration.

Business interests appear more influential, but that was partly because the Labour government’s preferences aligned with those of business. When those interests diverged – as they did over A2 workers – the business sector had no more success than refugee lobbies in influencing government policy. The impact of continuing the WRS scheme, however, was limited by the supranational level of the EU. While lobbied against by business groups, the WRS was ultimately an administrative hurdle that had no power to interrupt the flow of workers from the

A8 countries. In the short term, therefore, business would have to pay a price in efficiency for the government’s economic and political caution.

153

4. Conclusion

In the summer of 2016, the number of refugees in the world was at its highest level since the Second World War. Some left their countries to seek better, more advantageous economic conditions elsewhere, but the majority did so because of unrest in their own states.156 “Push factors” are variables difficult to influence through domestic government policy rather than engagement with the international relationships of trade and security that affect the movement of humans across borders. Yet since the advent of mass migration, politicians have been reluctant to admit that circumstances in sending countries have implications for state-bound migration control measures. They have designed immigration policy to protect the physical and economic security of the state and in an effort to influence the choices made by potential immigrants abroad – workers or refugees. To attract highly-skilled migrants, governments in Canada and the

U.K. have implemented immigrant selection and processing systems that promise rapid processing and settlement. To discourage refugee claims, on the other hand, the two countries have limited social entitlements and processes for determining claims and status.

This dissertation set out to answer the question of whether politicians have acted in these areas due to pressure and influence from interest groups, an issue of debate in current literature.

The research has looked at six policy cycles in Canada and the U.K. In Canada, the thesis examined changes to the permanent migration process and the growth of temporary foreign workers; in the area of refugee policy, Bill C-11 and its resolution. In Britain, it has examined the introduction of managed migration and the expansion of labour migration from former

Eastern European countries; and the 2002 Nationality, Immigration and Asylum Act. Over the

156 Refugees surpass 50,000,000; UN pinpoints political ‘incapacity.’ June 20, 2014. http://www.euronews.com/2014/06/20/refugees-surpass-50000000-un-pinpoints-political-incapacity/

154

2002 – 2013 period during which these policies were enacted, programs converged within and between streams in both countries. By following immigration episodes, the work attempted to transform time-limited incidents of contention into policy cycles. In so doing and in examining cases across two streams, the relationship between political agency and organized civil society groups could be probed through time.

Drawing on American models of interaction between political actors and civil society groups, scholars – particularly in the United Kingdom – have attempted to apply the model to the

Westminster system. It will be recalled that Freeman argued that groups’ success can be predicted by looking at where they are located in the matrix of costs and benefits faced by politicians. In liberal democracies, he argues, clientelist politics lead to a small set of groups for whom benefits are concentrated, interacting with the government, while the wider public for whom both costs and benefits are diffuse is absent from the conversation. This interest-based framework is at odds with dominant explanations of policy-making in parliamentary systems.

Veugelers, for example, studies the maintenance of high immigration levels in Canada during the early 1990s and argues that it was an instance of strong political control (Veugelers 2000).

Neither business nor labour had a coherent analytical framework that countered the government’s decoupling of immigration numbers from the labour market.157

The findings of scholars of the U.K. experience have been contradictory, with analysts such as Sommerville and Goodman finding that access by interest groups varies by type of immigration, while Consterdine supports the landmark Statham and Geddes thesis that political

157 For analyses of interest group influence in Canadian policy-making see Presthus 1973: Smith 2005; Boatright 2009.

155 actors are largely immune to appeals from organized groups (Consterdine 2015). Such contradictory findings highlighted the need for further comparative work that would investigate the sources of similarity or difference across cases. Canada and the U.K. have similar political structures that allowed the system-wide variables to be held constant. As a result, the differences and similarities in immigration policies could be compared, and the source of the difference between labour and refugee streams assessed in order to determine how “different processes and actors [played] a role in determining opposing outcomes” (Sommerville and Goodman 2011:

967) in each stream.

This conclusion will address the central question posed in this study: did interest groups have an impact on policy-making? To the extent that the answer is affirmative, it will summarize the reasons for such influence in each country and suggest further areas of research that can further illuminate the conditions under which the views of interest groups will be reflected in policy. To the extent that the answer is negative, it will examine the institutional factors that prevent interest groups from accessing policy-makers. It will be argued that political actors in the two Westminster systems make immigration policy autonomously, and further, that they have actively expanded the tools available to them to do so. We have seen this most clearly with the introduction of Bill C-50 in the Canadian case. Some interest groups, principally business, however, are continuously engaged in policy-making and their preferences are reflected in legislation. Instances when politicians make policy that contradicts the advocacy of these interest groups demonstrate the ultimate autonomy of government, but they do not alter the fundamental nature of the relationship between politicians and business, which is one informed by government’s function to ensure a flow of trade in goods as well as people, where such trade contributes to a nation’s economic security.

156

At the same time, a secondary contribution of the work is in what it has revealed about the impact of interest groups that were previously found to have a very circumscribed influence on legislation. This was not a finding that the researcher anticipated, but rather one that emerged from looking at policy areas over a number of episodes. Doing so demonstrated that each policy episode contained the seeds of a future mobilization and the adoption of new strategies and networks by interest groups responding to government actions. Refugee groups in the U.K. and

Canada worked with other actors to stop aspects of legislation which they believed would have adversely impacted refuge seekers. This opposition forced politicians to reintroduce legislation through several rounds or to abandon it altogether, as was the case with Section 55 in the 2002

U.K. Bill. Similarly, outside of the United States there has been very little research on how labour groups respond to business demands for workers and how they co-operate (or not) with other immigrant advocacy groups. Comparing the actions of Canadian and U.K. labour unions showed that the former were focused on opposing increases in foreign labour rather than attempting to attract workers as new members. Lacking the cross-national connections of

European unions, Canadian labour groups only approached their relationship with foreign workers through a national lens.

These concluding remarks will proceed by underlining the cross-national differences between interest groups, before turning to a discussion of how policymakers demonstrated their autonomy from these interests. It will then briefly assess what the research here tells us about the importance of restrictive publics in encouraging government to ignore interest group lobbying.

Finally, the project will address continuing gaps in the research and the new questions that arise out of this work.

157

4.1 Differential access by interest groups

As we have seen in the case studies, refugee, labour and business groups enjoyed different types and levels of access in each country and across the two cases. Refugee advocates relied on institutional factors to force open the policy-making process in the Canadian case, exploiting the voice they gained during a minority government to limit the power of government to determine a safe list of countries and refugees’ avenues of appeal. At the beginning of the policy cycle, refugee advocates shifted from mobilizing to advance new agenda items – such as amnesty for non-status workers, an issue that the prior Liberal government had signaled they were considering – to defending existing guidelines from a rights retrenchment. Similar to

Smith’s conclusion that minority governments can lead to policy innovation (Smith 2005), the research found that minority governments expand the range of options that policy-makers must consider by expanding the points of access and encouraging caution by political parties. The government had to amend the appeal process it had brought forward in Bill C-11 and was forced to remove many of the measures that it had argued would meet the key goal of shortening processing times.

As was also evident, however, the success of refugee groups was short-lived as subsequent bills reintroduced components of C-11, and indeed aimed to further restrict the rights of some refugees, especially those arriving through irregular channels. As importantly, the government utilized the administrative tools at its disposal to reverse the political compromises to which it had agreed. Through ministerial instructions, the Minister of Citizenship and

Immigration reduced the time allotted for a first refugee status claim and the process through which a country would be included in a list of designated countries. The same administrative strategy was even more broadly applied in the area of worker migration where the federal government introduced Bill C-50, giving the citizenship minister the authority to fine tune

158 immigration policy without oversight from parliamentary committees or hearings. If prior to Bill

C-50, labour interests and settlement agencies could influence the integration of migrants, somewhat secure in their position as supporters of a strategy of permanent immigration that prioritized long-term economic needs, the Conservative government’s administrative changes left these groups attempting to get a foothold in shifting sands. As a result, some agenda items will no longer enter the public record of debate (Baumgartner 2009).

The large number of labour and refugee advocacy groups that did present at the Standing

Committee on Immigration and Citizenship, particularly during the consultation for the temporary foreign workers’ program which travelled across the country, suggests that many such groups do not enjoy direct formal or informal access to politicians. Labour groups in Canada clearly had the least influence across the policy cases studied. For Canadian labour groups, business’s ability to secure access to a flexible labour force was perceived to have come at the cost of workers’ rights and working conditions. As a result, the unions that have been most active in their opposition to temporary foreign labour publicly advocated for these workers’ rights but were opposed to the increase in entries. Unions advanced selected legal challenges to the work conditions of temporary workers, but they did so primarily because the lack of union certification

– for example – undermined the domestic labour force. Canada’s federal system also meant that provincial positions on the rights of TFWs varied. In Manitoba, where labour has an institutional history of government access and economic interests favour increases in population, labour did have limited success in raising the working conditions and opportunities of migrant workers both through government action and employer buy-in.

Business interests, on the other hand, have enjoyed frequent contact with political actors and seen their perspective incorporated into policies. Business and government worked together

159 at ministerial roundtables, on a range of issues. Those pre-existing relationships meant that labour shortages were not isolated concerns but existed in an ecosystem of co-operation. Groups such as the Federation of Canadian Taxpayers or small business industry organizations testified on immigration issues, but only as part of other concerns on which they tried to influence government policy. At the same time and as the Canadian discussion emphasized, government actors had implemented pilot projects on temporary workers throughout the 2000s. If government was receptive to business demands for expedited access to TFWs, it was due to an unprecedented oil boom in the Western provinces, but also because of changes in immigrant selection that had, over time, already decreased how much consideration was given to the impact of temporary workers on the Canadian labour market.

The situation was somewhat different for labour interests in the U.K. In spite of the

Labour party’s move to the middle of the political spectrum, its historical relationship and formal and informal networks with trade unions meant that the government engaged in tripartite negotiations with labour and business in areas of the economy where the number of foreign workers was considered to pose a risk to labour conditions for all workers. For example, CBI and the TUC co-operated on the question of agency workers – often foreign workers employed on temporary contracts. They agreed that agency workers should receive the same legal protections as permanent workers after 12 weeks on the job, an agreement that took six years to broker with the government. As a result of supranational linkages with unions in the former Eastern Europe, workers from some of the A10 countries benefitted from connections between unions in the U.K. and unions in their home countries, such as we saw with the campaign targeted at vulnerable workers by the Trades Union Congress (Hardy and Fitzgerald 2008). In short, because labour unions were already positively oriented toward new entrants to the labour market - as a result of history, institutional channels of accessing decision-making and the impact of the supranational

160 level – A10 migration did not lead to strong opposition from existing labour groups as occurred in the Canadian case.

A close examination of the 2002 Nationality, Immigration and Asylum Act, showed that refugee groups were only successful in reversing changes to the bill in one area. They could not arrest the legislation, which continued the move begun in the 1999 Bill to address pull factors and removal failures by limiting benefits and delaying the integration of refugees into the local population. The research found that over the course of almost two years, advocacy organizations pressured the government into dropping Section 55, denying refugee claimants support unless they had applied in a three-day period. Prior research had argued that dependency on state support limited the ability and desire of refugee groups to lobby government for changes.

Work that examined mobilization against Section 55 in detail revealed that refugee advocacy organizations used three strategies to exert pressure: they exploited networks they had formed with legal organizations and lawyers, they worked with lower levels of government, and they partnered with labour unions. In the first instance, the groups’ close and frequent contact with claimants meant that they created a pipeline of potential test cases, while in the second, that experience on the ground helped lead to cooperation with the city of London on how Section 55 had affected the lives of refugees living in London. As in the Canadian case, the success of refugee organizations in rolling back policy was temporary and restricted to particular categories that were difficult for the government to defend. Labour continued attempting to scale back social benefits with a new bill, even as it was defending itself against legal challenges surrounding Section 55. In 2003, the government published the Asylum and Immigration Act, removing support from failed asylum seekers regardless of whether they had children. (The 2002

Bill restricted the provision to failed asylum seekers without children.) As with Section 55,

161

Section 9 was removed through an amendment to a later bill. Refugee groups were also successful in 2006 in winning an amnesty for refugee families who had been in the country for over three years without having their claims heard (Giner 2007). The continued attempts by government to roll back benefits demonstrate that refugee groups did not have a network of access to policy-makers through which they could lobby.

Business groups in the U.K. could not present a starker contrast. As this work has previously noted, recent research suggests that the Labour government was early among

European countries to opening its borders to A8 workers because of its global orientation.

Interviews with some stakeholders conducted as part of the U.K. case study, confirmed that ideational factors certainly played a role in Labour’s actions. More important, however, was business lobbying and encouragement to liberalize worker migration across the skills spectrum, including “middle-skilled” intercompany transfers, through the introduction of a managed migration scheme alongside the opening of borders to former Eastern European citizens. At key points, delays in the implementation of such a scheme were resolved through direct contact between the Confederation of British Industry and the Home Affairs office. It is true that the continuation of the worker registration scheme (WRS) in the spring of 2009 did not respond to business demands for streamlined administrative procedures. It should be remembered, however, that the WRS was a voluntary scheme that lacked all enforcement mechanisms. One report from the Migration Advisory Committee found that approximately 300,000 unregistered workers were working, but not a single employer had been identified or sanctioned for employing them (MAC

2009).

Finally, government policy led to the creation and mobilization of new interest groups. In the U.K., a new business think tank arose alongside CBI to support the Labour government’s

162 worker policies. In Canada, groups that launched court action against the federal government’s cuts to refugee health care – specifically the Canadian Association of Refugee Lawyers - were formed during earlier policy-cycles and joined in alliances in response to government actions.

Similarly, a coalition of refugee lawyers and on the ground social assistance groups came to informal but highly effective arrangements in efforts to stop aspects of the U.K’s 2002 Bill that rendered claimants indigent and continued acting together through further policy cycles in that area.

Refugee groups and policy-makers did not find points of agreement in their ideational framework in the manner of government, business and even labour. Was greater concurrence of views responsible for observed outcomes in labour policy? In other words, did government act autonomously in the labour policy stream with lobbying confirming state decisions rather than shifting them? This research has not directly assessed the impact of ideas, partly because prior research has shown that it is exceedingly difficult to be certain of the source of idea shared by actors in the same epistemic community. Sommerville and Goodman, for example, place the state as one node among five in their model of state-society relations, eliding but not responding to the question of how ideas are transmitted. Furthermore, work attempting to isolate the impact of ideational variables has consistently relied on interest or political opinion variables to explain processes residual to those explained by ideas. For example, the opening to worker migration affected by the Labour party was due to a confluence of business interests and the party’s creation of a pro-capital Third Way ideology, Balch finds. Similarly, the post-Labour coalition government appeared set to be influenced by the Liberal Democrats’ ideological resistance to caps on highly-skilled immigration, other research has found (Hampshire and Bale 2015). Yet to explain the closing of labour migration channels, Balch turns to a ‘political imperative’ variable

163

(Balch 2011: 617). In government, the Liberal Democrats are persuaded by public opinion polling to adopt only the most minimal resistance to the Conservatives’ moves on immigration.

An explanatory variable that cannot be sustained or even identified across policy episodes may be considered incidental to the work here. Ideas mattered some of the time, but the state’s interests mattered all of the time and were expressed across cases. No interest group saw its views ultimately represented in legislation over time. At critical junctures, Canadian and British governments demonstrated their independence from all such organized interests. In the Canadian case, most strikingly, a series of increasingly restrictive and expensive measures were imposed on employers wanting to recruit workers from abroad. Measures in 2008 – 2009 were not primarily the result of lobbying from labour groups, but were a response to Parliamentary hearings on temporary foreign workers in which labour advocacy groups had testified and the resulting report. The government had agreed to implement some changes to the process of hiring a foreign worker – assessing the genuiness of a job offer, an employer’s past compliance with legislation and a worker’s legal status - and the decline in the economy made such additional requirements less painful than would have been the case had the boom continued. No requirements were as severe as those which were imposed in 2012 – 2013 when media scrutiny of numbers began rising again. In the U.K. case, Labour acted against business interests in continuing the WRS and continued to propose legislation that had been challenged in court in the refugee arena. It campaigned in the 2010 election, however, on a promise not to impose caps on the managed migration program as the Conservative government promised to do (Lewis et al

2012).

164

4.2 The source and uses of government autonomy

As has been emphasized throughout, this work rejects interpretations that ultimately require the analyst to attribute some explanatory power to racist appeals (Back et al. 2002; Squire

2005; Watson 2007). There is no doubt, as highlighted throughout, that media and public attention to temporary migration and refugee entries motivated the government to act in both remits. Importantly, however, what is not being argued is that in order to respond to anti- migration pressures in the worker stream, politicians implemented restrictions in the refugee stream or courted xenophobic, anti-immigration sentiment. As we have seen, border controls were depicted – in speeches and policy papers – as crucial to maintaining support for immigration. In short, politicians are attentive to public opinion – but they did not make policy to make controversial politics. Politicians do not “construct asylum as a problem. … They have no interest in stirring up political controversy. Indeed, the most desirable situation from a government’s point of view is one in which the economy hums along, producing high employment and low inflation; there are no riots or demonstrations to disturb social peace; and international affairs are characterized by calm, cordial relations among affluent states producing no migrants” (Hansen 2014).

Rather, politicians emphasized their national economies’ need for domestic workers and the need to limit avenues for refugee applications because, when successful, both areas demonstrate the function of government. Certainly, events – rapid and unpredictable hikes in refugee claims, economic cycles, security concerns, global regulations – all play a role in migration policy-making. Yet because immigration is ultimately an area of state control, politicians, particularly in Westminster systems, have wide latitude in how they translate these pressures to the domestic sphere. In short, this work has argued that they do so by attempting a precarious balance between refugee and worker migration, a tension that highlights their skill at

165 balancing while controlling the societal and political conflict that migration may endanger.

Recalling Menz’s conceptualizing of border security as also encompassing the opening of borders to migrants and companies that can help grow the economy, this idea redefines borders as gates. A state that controls when gates open and slam shut is much more effective than one that can only secure one of those states.

Concern with demonstrating mastery of immigration policy-making can also be seen in the way that the U.K. government in particular repeatedly turned to expert advice, set targets or established arm’s length groups from which it requested advice and whose conclusions it drew on for support. Target setting and evidence-based new public management have multiple audiences: the bureaucracy which is put on notice that they must meet political goals or face endless reshuffling, but also the key audience of the public to whom politicians are broadcasting competency (Balch 2011). In 2004, for example, Tony Blair announced the ‘tipping point’ target that would see more asylum claimants removed than the number who would be accepted

(Sommerville 2007). The ‘tipping point’ target was introduced in spite of Labour’s unsuccessful

Hstory of target setting,158 an exercise that saw numbers almost always missed or revised – giving the opposition a facile target of criticism (Mulvey 2010).159

158 The tipping point was invoked despite the failure of prior targets that had been questioned by the Home Affairs committee as unrealistic. In the 1990s, the government had accepted 12.1 per cent of refugee claims (compared to a European average of 11.1 and below the world rate of 15 per cent), but the vast majority of the individuals whose applications had been denied remained in the country, with removals and voluntary departures in 1999, at 7,665 (Home Office 2002: 6) and a backlog reaching 120,000. For 2001 – 2002, the government set a goal of 30,000 removals, a target that was characterized as “wholly unrealistic”(Home Affairs 2003). These failures did not stop the government from invoking the “tipping point” target in subsequent government reports (Home Office 2005; Home Office 2007). 159 See also Gibney (2008) for description of Conservative attacks during the 2000 local elections after asylum targets were missed by then Home Office Secretary Jack Straw.

166

Shuffles in the Home Office also indicate how important the area was to the government. Over a

14-year period, six Home Office secretaries in Britain held the post, each initiating reforms that hoped to reduce fraud, limit claims and revalue British citizenship (Jennings 2011). Yet U.K. bureaucrats continued to miss targets even as each new minister was presented as the one who would be able to enforce the goal of reducing “unfounded asylum claims” (Jennings 2011: 549,

557).160 This suggests that target-setting may be its own goal, a performative exercise as much as a reasonable aim.

The most significant example of how administrative changes served the larger goal of demonstrating competency is the creation of the two migration advisory bodies. The very creation of the two agencies was a signal to the public that Labour’s decisions on immigration were driven by evidence. Born after the demise of the Immigration and Nationality Directorate in

2006 following then Home Office secretary John Reid’s comment that the IND was ‘not fit for purpose,’ (Mullholand 2006), The Migration Advisory Committee (MAC) and the Migration

Impacts Forum (MIP) would collect information from stakeholders and economists, advise the government on policy directions and comment on its actions. The MAC assessed the benefits to the British economy of foreign workers and the MIP considered the local impacts on neighbourhoods. As has been stressed in a previous chapter, the MAC in particular provided advice to the government that it believed was insulated from political considerations and which, once acted upon, would lend the government an expert-approved armour against charges that it was making immigration-policy to serve its own political ends.

160 The failure of every minister to extract the results desired by the Home Office and promised by the Prime Minister should not be surprising to those familiar with Richard Rose’s insight that ministers loyal to the political leadership may provide moral support but are powerless to affect, quickly, the everyday work processes of civil servants on which outcomes depend (Rose 1985: 426).

167

4.3 Future areas of study

This work has restricted its investigation to the question of how interest groups in the immigration arena lobby policy-makers in two states. That question could be fruitfully extended in two ways: across regions and across political domains. Although the project referenced the varieties of migration literature, it did not engage in a comparison between CMEs and LMEs.

The research could be extended to an examination of the channels available to interest groups in social democratic countries, where consociational state-society arrangements would predict a greater degree of formalization than in Canada and the U.K. Whether such groups may have more influence over the short term in Nordic countries would also have to be assessed in light of the position of labour and business groups in these states’ economic and industrial mix (Borang and Cerna 2015). Differences exist in the dialogue between interest groups and the state in liberal market economies, yet intra-unit regional differences and any impact they may have on the degree of societal penetration into state structures were only touched upon in the analysis here

(Cerna 2009, Caviedes 2010).

Ongoing research in this area is particularly important as the causal arrows it suggests are contrary to those found here. Unions with fewer institutional pathways to the political sphere, for example, have been hypothesized to be more likely to incorporate migrants as members rather than oppose their entry into domestic labour markets (Marino, Penninx and Roosblad 2015). Yet such preliminary conclusions require a careful and detailed assessment of how political channels facilitate or obstruct unions from advancing specific legislative agendas. Few variables can, alone, explain union strategies or predict which unions will seek to incorporate rather than resist migrant workers, across countries and economic conditions (Pennix and Roosblad 2000). Given the increasing complexity of the migrant worker – in terms of skill profile and source country – some researchers suggest that internal union dynamics should also be considered, particularly

168 historical union attitudes to immigration (Marino, Pennix and Roosblad 2015). That is confirmed by the preliminary findings here: pro-migration attitudes among British trade unions contrasted with those of Canadian labour organizations and the former worked to incorporate workers from the A10. Others have found that sectoral positioning rather than ideational history are better explanations of the propensity of unions to look to migrant workers as potential members

(Bengtsson 2013). Clearly, further comparative work is warranted.

Related to such an approach is further research into the pathways through which interest groups affect policy. Under what circumstances are politicians the primary contact for refugee groups and do advocacy groups’ network differ based on their area of focus? What are the effects of differing access to politicians and bureaucrats? Examples from the case studies here seem to confirm the results of Aberbach, Putnam and Rockman, who found that bureaucrats reported more contact with organized interests than their political counterparts who are equally, if not more concerned, with the perceptions of the unorganized public (Aberbach et al 1981: 213 – 5).

Respondents from business organizations frequently referred to working groups led by civil servants as their most frequent and fruitful points of contact with government, such as Deputy

Minister advisory committees.161 In Canada, the Human Resources and Social Development department streamlined and expedited the process of issuing labour market opinions starting in

2007 – 08 in response to employer demands and labour shortages.162 Close contact between bureaucracies which advocate or protect the position of civil society groups can create a clientelist framework in which dependency on the government’s financial support can also create a reluctance to criticize legislation. For example, refugee charity groups in the U.K. opposed

161 Interview with Corinne Pohlmann, Canadian Federation for Independent Business. 162 Andrew Kenyon testimony to CIMM, Monday, February 25, 2008.

169 some restrictionist legislation but did not mount campaigns opposing bills because of financial support for their work from the government (Sommerville and Goodman 2010).

Finally, perhaps the most interesting gap raised by research here is that of an assessment of how the supranational level influenced policy and interest group access in Britain versus

Canada. Obviously, the EU opened possibilities for a new framework of U.K. migration and

(temporarily, as it turned out) foreclosed options available to governments intent on closure after

Labour’s electoral loss. Hollifield tells us that by “creating a regional migration regime and a kind of supra-national authority to deal with migration and refugee issues, [the EU] allows the member states to finesse, if not escape, the liberal paradox ... using symbolic politics and policies to maintain the illusion of border control help governments fend off the forces of closure, at least in the short run” (Hollifield 2004: 903). The EU’s influence, however, can support two contradictory hypotheses. The first is that Britain has shifted away from a pattern of immigration regulation that had been characterized by restrictions on the entry of workers because it was compelled to do so by the European Union. The second is that Britain moved faster and more extensively toward opening the borders to Eastern European workers because supranational institutions only made possible what the state would have pursued otherwise, the rapid entry of workers from abroad.

What has not been examined in a systematic comparison is whether interest groups accessed supranational entities in either case and what explanatory power such appeals may have. Scholars have looked at the way that firms access the European level (Guiraudon and

Lahav 2006; Martiniello 2006), but a consideration of how labour groups are engaging with

European-level politics, on what issues, and an assessment of such strategies is just emerging

(Schain 2009; Meardi 2010).

170

4.4 Post-research events

The research here chronicles a period of time in which the migration of workers was expanded and refugee rights and benefits restricted. While the second stream of migrants continued to be curtailed after the end of the research period, trends in the first stream have been reversed. Steadily and incrementally, the Canadian government eliminated measures which had expedited processing of work permits and implemented new demands for employers to report the number of Canadian workers who applied for a job, a cap on low-wage TFWs each employer could hire and reduced the length of low-wage permits to one year from two (ESDC 2015). In

2014, then citizenship minister Jason Kenney promised that the government would review whether to allow any temporary foreign workers to enter in 2016 (Curry 2014). In spite of the rhetoric, numbers declined slowly, from 117,525 in 2012 to 73,222 in 2015. Moreover, the new

Express Entry immigration processing system that was implemented on January 1, 2015 brought the design of the temporary foreign worker program to the permanent stream, awarding applicants who had a labour market impact assessment from a Canadian employer additional points counting toward acceptance.

Meanwhile, in the U.K, the coalition government first imposed caps for non-EU workers for the top two tiers of the managed migration program. Skilled workers with a job offer and making less than approximately 150,000 pounds were capped at 20,700 in 2010. The Tier 1 pathway was reshaped to allow 1,000 individuals of exceptional talent entry while no new visas would be processed for highly-skilled workers who had been the target of recruitment efforts under Labour. The coalition then moved to limiting student numbers, arguing that this entry path was a way to access low-skilled jobs post-graduation. As Bale and Hampshire recount (Bale and

Hampshire 2012), the government was unprepared for the response from the university sector and was forced to scale back its initial proposals and adjust policies through tighter eligibility

171 criteria for higher education institutions, students and post-graduation employers.163 These moves appear modest in light of the events of the summer of 2016.

A major difference also emerged between the two countries after the period of the research discussed here: the presence of a viable anti-immigration party on the right. Analyses of the impact of far-right parties in France and England have argued that mainstream parties are more likely to move to the right on immigrant rights when a far-right party is part of the political spectrum (Schain 2006). This work did not require consideration because in neither country was a right-wing political force an important intervening variable during the time period examined.

However, toward the end of Labour’s tenure in power, scholars have argued that the government’s policies were responsive to inroads made by the British National Party during

European elections and its growing number of votes in select local elections.

Once a Conservative government was in power, UKIP pushed the Tories from the right to adopt measures that would stem immigration from poorer European countries without contravening European rights to free movement. Such measures include more severe prosecution of employers not offering minimum wages, to deportation of Europeans relying on social assistance for a set period of time (Ross and Dominiczak 2014). In 2011, Prime Minister

Cameron spoke directly to this force, stating that the government’ response on immigration would be shaped by the need to make immigration an issue on the margins on national debate rather than at its centre, by implementing restrictions. Only this decisive approach would “starve

163 http://www.publications.parliament.uk/pa/cm201213/cmselect/cmbis/425/42505.htm

172 extremist parties of the oxygen of public anxiety they thrive on and extinguish them once and for all.”164

Out of power, the Labour party moderated its stance on labour migration and seemed to apologize for its rush to embrace free movement. The party had been mistaken, wrote former

Immigration minister Barbara Roche, to cede the centre ground to a polarized debate with restrictions on one hand and a sometimes radical openness on the other (Roche in Johnson 2011).

Such rethinking prompted analysts to argue that Labour had engaged in ‘irrational exuberance’ and then rewritten its openness as a “story in which [it] plays the contrite villain” (Sommerville

2011; Riddell 2014). The debate is far from over. Regardless of the final agreement that will be made on Britain’s exit from the European Union, and indeed, even if ‘Brexit’ never occurs, any

U.K. government will proceed cautiously before championing a liberal worker migration strategy.

This work has been especially interested in the relationship between political actors and interest groups. Ultimately, however, the policies implemented by politicians and lobbied for by organized society have ethical implications for domestic economies and societies as well as source countries. Concerns have been voiced about the future of states in which worker flexibility is a key mechanism of economic growth through private investment. Menz argues immigration policy can mask, for a time, national gaps in education and training systems, and productivity gaps leading to a reliance on employment in low-skilled service sectors. Calling this model “semi-permanent free riding,” he argues that it entails “the danger of structural neglect of educational and training system faults” (Menz 2008: 266). Indeed, some scholars have argued

164 Cameron, David. 2011. David Cameron on immigration: full text of the speech. http://www.theguardian.com/politics/2011/apr/14/david-cameron-immigration-speech-full-text

173 that the U.K. turned to migration rather than address underinvestment in training and the lack of coordination between employers and unions (Wright 2012). In this context, it is important to note that highly-publicized measures to limit employers’ reliance on temporary foreign workers – such as the imposition of caps or requirements to search harder for a domestic employee – do not address supply side issues. Neither do they address domestic political constraints such as the barriers imposed by national professional bodies to the licensing of highly-skilled foreign workers (Triadafilopoulos 2013).

Ultimately, human migration has benefits as well as costs, and is the result of many decisions taken by families who act on imperfect information about policies made far away from their homes and pushed by elements often beyond their control. Some migrations are the result of mass involuntary movement of people fleeing violence in their home countries. Other times, they are the result of decisions made about which stream, worker or refugee, can best protect or aid an individual’s and a family’s goals. The research has looked at the impact of immigration policies on individuals and domestic politics in receiving states, but another set of questions attends the impact on sending states. Scholars remind us that recruitment and admission policies affect source countries as well. The flipside of migration can be a brain drain from states that can ill afford the loss (Shachar 2013). At the same time, increasing the rights of migrants already living in a receiving state can make it more difficult for future generations of migrants to be accepted, as the duties and costs of reception increase (Ruhs 2011). These questions cannot be explored here, but are one more reason to continue research on labour and refugee policies.

174

Bibliography

Abbott, Michael G., 1988. “Immigration and Labour Market Adjustment,” in C.M. Beach and A.G. Green, Policy Forum on the Role of Immigration in Canada's Future. Kingston: John Deutsch, 27 – 39.

Aberbach, Joel, Robert Putnam and Bert Rockman. 1981. Bureaucrats and politicians in western democracies. Cambridge: Harvard University Press

Akkerman, Tjitske. 2012. “Comparing radical right parties in government: Immigration and Integration policies in nine countries (1996 – 2010),” West European Politics, vol. 35, no. 3, 511- 529.

Anderson, Bridget. "Mobilizing migrants, making citizens: migrant domestic workers as political agents." Ethnic & Racial Studies 33, no. 1 (January 2010): 60-74.

Anderson, Christopher and Jerome H. Black. 2008. “The Political integration of newcomers: minorities and the Canadian-born: Perspectives on naturalization, participation and representation,” in Immigration and Integration in Canada in the Twenty-first Century, eds. John Biles, Myer Burstein and James Frideres. Montreal and Kingston: McGill-Queen’s University Press.

Back, Les, Michael Keith, Azra Khan, Kalibr Shukra and John Solomos. 2002. “New Labour’s White Heart: Politics, Multiculturalism and the return of assimilation,” in The Political quarterly, vol. 73, no. 4, 445 – 454.

Balch, Alex. 2009. “Labour and Epistemic Communities: The case of managed migration in the UK, British Journal of Politics and International Relations, vol. 11, no. 4

Bale, Tim. 2008. “Turning round the telescope. Centre-right parties and immigration and integration policy in Europe,” Journal of European Public Policy, 15, 3, 315- 330.

175

Bale, Tim and James Hampshire. 2012. “Easier said than done? The Conservatives, the coalition, and immigration policy,” in Timothy Heppell and David Seawright (eds.) Cameron and the Conservatives: the transition to a coalition government. Basingstoke: Palgrave Macmillan

Banting, Keith and Will Kymlicka, 2010. “Canadian Multiculturalism: Global. Anxieties and Local Debates,” British Journal of Canadian Studies, vol. 23, no. 1, 349 – 377.

Barnes, Annmarie. 2009. “Displacing Danger: Managing Crime through deportation,” International migration and integration, vol. 10, 431 – 445.

Baumgartner, Frank, Jeffrey Berry, Marie Hojnacki, David C. Kimball and Beth Leech. 2009. Lobbying and Policy Change. Chicago: University of Chicago Press.

Beland, Daniel. 2005. “Ideas and Social Policy: An Institutionalist Perspective,” Social Policy and Administration, vol. 39, no. 1, 1 – 18.

Betz, H.G. 1993. “The new politics of resentment: radical right-wing populist parties in Western Europe,” in Comparative Politics, vol. 25, no. 4, 413 – 427.

Belanger, Eric and Jean-Francois Godbout. 2010. “Why do Parties merge? The Case of the Conservative Party of Canada,” Parliamentary Affairs, vol. 63, no.1, 41 – 65.

Bevir, Mark and R.W Rhodes. 2003. Interpreting British Governance. London: Routledge.

Black, Jerome and Bruce M.Hicks. 2008. “Electoral Politics and Immigration in Canada: How Does immigration matter?” International migration and integration, vol. 9, 241 – 267.

Bleich, Erik. 2003. Race Politics in Britain and France. Cambridge: Cambridge University Press

Bloch, A. and L. Schuster. 2005. “At the extremes of exclusion: Deportation, detention and dispersal,” Ethnic and Racial Studies, vol. 28, no. 3, 491 – 512.

Blouin, Chantal. 2005. “Liberalizing the movement of service suppliers: Lessons from the Canadian experience with temporary worker programmes,” Journal of World Trade, vol. 39, no. 5, 881 – 894.

176

Borang, Frida and Lucie Cerna. 2015. “Swedish Labour Immigration Policy: The Role of Unions, Employers and Political Parties,” Centre on Migration, Policy and Society, Oxford. https://www.compas.ox.ac.uk/media/WP-2015-127-Bor%C3%A4ng- Cerna_Swedish_Labour2.pdf

Borzel T. and Risse T. 2003. “Conceptualizing the Domestic Impact of Europe,” in The Politics of Europeanization, eds. Kevin Featherstone and Claudio Radaelli. Oxford: Oxford University Press, 57 – 80.

Boswell, Christina. 2003. European Migration Policies in Flux. London: Wiley-Blackwell.

Boswell, Christina. 2007. “Migration control in Europe after 9/11: Explaining the absence of securitization,” in JCMS, Journal of Common Market Studies, vol. 45, no. 3, 589 – 610.

Boswell, Christina. 2007. Theorizing Migration Policy: Is there a third way?, International Migration Review, vol. 41, no. 1, 75 – 100.

Brodie, Janine and Jane Jenson. 2007. “Piercing the Smokescreen: Stability and Change in Brokerage Politics”, in Gagnon and Tanguay, eds. Canadian political parties in transition. Peterborough: Broadview Press, 3rd edition.

Burman, Jenny. 2006. “Absence, removal, and everyday life in the diasporic city: antidetention/antideportation activism in Montreal,” Space and culture, vol. 9, no.3, 279 – 293

Burman, Jenny. 2010. “Suspects in the city,” Cultural Studies, vol. 24, no. 2, 200 – 213

Carter, T, Morrish, M and Amoyaw, A. 2008. “Attracting Immigrants to Smaller Urban and Rural Communities: Lessons learned from the Manitoba Provincial Nominee Program,” Journal of International Migration and Integration, vol. 9, no 2.

Carty, R. Kenneth, William Cross and Lisa Young. 2000. Rebuilding Canadian party politics. Vancouver: UBC Press

Castles, Stephen. 2006 “Guestworkers in Europe? A resurrection?” in International Migration Review, vol. 40, no. 4, 741 – 766

177

Carvalho, João. 2014. "British and French policies towards high-skilled immigration during the 2000s: policy outplays politics or politics trumps policy?" Ethnic and Racial Studies, vol. 37, no. 13, 2361-2378.

Cavanagh, Matt. 2010. “Numbers Matter,” in Immigration Under labour, eds. Tim Finch and David Goodhart. London: IPPR.

Caviedes, Alexander. 2010. "The sectoral turn in labour migration policy." Labour migration in Europe. Palgrave Macmillan, 54-75.

Cerna, Lucie. 2009. "The varieties of high-skilled immigration policies: coalitions and policy outputs in advanced industrial countries." Journal of European Public Policy, vol. 16., no. 1, 144-161.

Christian Dustmann, Albrecht Glitz, and Tommaso Frattini. 2008. “The labour market impact of immigration,” in Oxford Review of Economic Policy, vol. 24, 477-494

Cochrane, Chris. 2010. “Left/Right Ideology and Canadian Politics,” vol. 43, no. 3, Canadian Journal of Political Science, 583 – 605.

Cohen, S. and Humphries, B. and Ed Mynott. 2002. From immigration to welfare controls. London: Jessica Kingsley Publishers.

Coleman, William. 1988. Business and Politics: A Study of Collective Action. Montreal: McGill University Press.

Coleman, David and Robert Rowthorn. 2004. “The economic effects of immigration into the United Kingdom,” Population and Development Review, vol. 30, no. 4, 579 –624

Consterdine, Erica. 2015. "Managed Migration under Labour: Organised Public, Party Ideology and Policy Change." Journal of Ethnic and Migration Studies, vol. 41, no. 9, 1433-1452.

Coutts, Ken, Andrew Glynn and Bob Rowthorn. 2007. “Structural Change under New Labour,” Cambridge Journal of Economics, vol. 31, no. 6, 845 – 861.

178

Craig A. Parsons and Timothy M. Smeeding. 2006. “What's unique about immigration in Europe?” in Immigration and the transformation of Europe. Cambridge: Cambridge University Press.

Cunningham, Steve, and Jo Tomlinson. 2005. "‘Starve them out’: does every child really matter? A commentary on Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act, 2004, Critical Social Policy, vol. 25, no. 2, 253-275.

Dayton-Johnson, Louka T. Katseli, Gregory Maniatis, Rainer Münz and Demetrios Papademetriou. 2007. Gaining from migration, towards a new mobility system. OECD. de Guerre, Katherine. 2009. “Temporary Foreign Workers in Alberta’s oil sector,” Working paper, no. 54, University of Sussex, Sussex Centre for Migration Research.

Demetrios G. Papademetriou, Will Sommerville, Hiroyuki Tanaka. 2008. Hybrid Immigrant- Selection Systems: The Next Generation of Economic Migration Schemes. Migration Policy Institute (http://www.migrationpolicy.org/research/hybrid-immigrant-selection-systems-next- generation-economic-migration-schemes).

DeVoretz, Don. 2000. “A Canadian Evaluation Model for Unskilled Temporary Immigration,” Metropolis Institute. RIIM Commentary Series 00-02, Simon Fraser University. http://mbc.metropolis.net/assets/uploads/files/wp/2000/C00-02En.pdf

Diab, Suha. 2015. "Fear and (In) Security: The Canadian Government’s Response to the Chilean Refugees," Refuge: Canada's Journal on Refugees, vol. 31, no. 2, 51 – 61.

Dolvik, Jon Erik and Jelle Visser. 2009. “Free movement, equal treatment and workers' rights: can the European Union solve its trilemma of fundamental principles?” in Industrial Relations Journal, vol. 40, no. 6, 491- 509

Dustmann, Christian and Francesca Fabbri, “Immigrants in the British Labour Market,” Fiscal Studies, vol. 26, no. 4, 423- 470

Ebbinhaus, Bernard and Philip Manow. 2001. Comparing Welfare Capitalism. London: Routledge.

179

Evans, Peter. 1995. Embedded Autonomy. Princeton: Princeton University Press.

Facchini, Giovanni, and Anna Maria Mayda. 2008. “From individual attitudes towards migrants to migration policy outcomes: Theory and evidence.” Economic Policy, 23, 652-713.

Fitzgerald, Ian, and Jane Hardy. 2010. "‘Thinking outside the box’? Trade union organizing strategies and Polish migrant workers in the United Kingdom," British Journal of Industrial Relations, vol. 48., no. 1, 131 – 150.

Flynn, Don. 2005. “New borders, new management: The dilemmas of modern immigration policies,” Ethnic and racial studies, vol. 28, no. 3, 463 – 490

Ford, Robert, Will Jennings, and Will Somerville. 2015. "Public opinion, responsiveness and constraint: Britain's three immigration policy regimes." Journal of Ethnic and Migration Studies, vol. 41, no. 9, 1391-1411.

Freeman, Gary. 1995. “Modes of Immigration Politics in Liberal Democratic States,” International Migration Review, vol. 29, no. 4, 881 – 902.

Freeman, Gary. 2005. Political science and comparative immigration politics, in Michael Bommes and Ewa Morawska, International migration research, Cornwall: MPG Books.

Freeman, Gary. 2006. “National Models, Policy Types, and the Politics of Immigration in Liberal Democracies,” West European Politics, vol. 29. no. 2, 227 – 247.

Freeman, Gary. 2006. “Political Science and Comparative Immigration Politics,” http://www.tulane.edu/~dnelson/PEMigConf/Freeman.pdf

Freeman, Gary P. 2011. "Comparative Analysis of Immigration Politics A Retrospective." American Behavioral Scientist, vol. 55, no. 12, 1541-1560.

Gagnon, Alain and Brian Tanguay. 2007. Canadian political parties in transition. Peterborough: Broadview Press, 3rd edition.

Geddes, Andrew. 2005. “Getting the Best of Both Worlds? Britain, the EU and migration policy,” International Affairs, vol. 81, no. 4, 723 – 740.

180

Gibney, Matthew J. 2008. “Asylum and the Expansion of Deportation in the United Kingdom,” Government and Opposition, vol. 43, no. 2, 146 – 167.

Gidengil, Elizabeth, Patrick Fournier, Joanna Everitt, Neil Nevitte, and André Blais. 2009. “The Anatomy of a Liberal Defeat,” paper presented at CPSA, May 2009. Canada Election Study. http://ces-eec.org/pagesE/publications.html

Gilroy, Paul. 1987. There Ain’t no Black in the Union Jack.: The Cultural Politics of Race and Nation. Chicago: University of Chicago Press.

Giner, Clotilde. 2007. "The Politics of Childhood and Asylum in the UK." Children & society, vol. 21, no. 4, 249-260.

Goldring, Luin, Carolina Berinstein, Judith Bernhard. 2009. “Institutionalizing precarious migratory status in Canada,” Citizenship Studies, vol. 13, no. 3, 239 – 265

Grainger, Heidi and Heather Holt. 2005. “Results of the second flexible working employee survey,” National Statistics. London: Palgrave Macmillan.

Grant, Angus Gavin and Sean Rehaag. 2015. “Unappealing: An Assessment of the Limits on Appeal Rights in Canada's New Refugee Determination System,” Osgoode Hall Law School, legal studies research paper series, vol. 11, no. 9, accessed at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2647638

Green, Alan G. and David Green. 1999. “The Economic Goals of Canada’s Immigration Policy, Past and Present,” Canadian Public Policy, vol. 25, no. 4, 425 – 451.

Green, David. 2007. Wages, markets and temporary workers, Toronto: Canadian Centre for Policy Alternatives.

Gross, Dominique and Nicolas Schmitt. 2012. “Temporary foreign workers and regional labour market disparities in Canada,” Canadian Public Policy, 38, no. 2, 233 – 263.

Guiraudon, Virginie and Gallya Lahav. 2000. A reappraisal of the state sovereignty debate, Comparative Political Studies, vol, 33, no. 2, 163 – 195

Hall, S. 2003. “New Labour’s double-shufﬂe,” Soundings, 24: 10–24

181

Hamann, K. and J. Kelly. 2003. “The Domestic Sources of Differences in Labour Market Policies,” British Journal of Industrial Relations, vol. 41. No.4, 639 – 663.

Hampshire, James. 2009. “Disembedding Liberalism? Immigration Politics and Security in Britain since 9/11” in Terry Givens, Gary Freeman and David Leal (eds.) Immigration and Security: U.S., European and Commonwealth Perspectives. London: Routledge.

Hancke, Bob, Martin Rhodes and Mark Thatcher. 2007. Beyond varieties of capitalism. Conflict, contradictions and complementarities in the European economy. Oxford: Oxford University Press.

Hansen, Randall. 2002. Citizenship and Immigration in Postwar Britain. Oxford: Oxford University Press.

Hansen, Randall. 2002. “Globalization, Embedded realism and path dependence,” in Comparative Political Studies, vol. 35, no. 3, April 2002, 259 – 283

Hansen, Randall. 2011. “Making cooperation work: interests, incentives, and action, in Hansen, R, Koehler J., Money J., eds. Migration, nation states, and international cooperation. Routledge, New York

Hansen, Randall, 2014. "State controls: Borders, refugees, and citizenship."The Oxford Handbook of Refugee and Forced Migration Studies, 253-264.

Hansen, Randall and D. King. 2000. “Illiberalism and the new politics of asylum: Liberalism’s dark side,” Political Quarterly, vol. 71, no. 4, 396 – 403.

Hardy, John and Fitzgerald, Ian. 2008. “Cross Border Trade Union Collaboration in the Context of Competition and Arbitraging Labour in an Enlarged Europe,” Changing Cultures of Competitiveness, ESRC Research Seminar Series. Manchester. http://www.academia.edu/3795782/Cross_Border_Union_Trade_Collaboration_in_the_Context_ of_Competition_and_Arbitraging_Labour_in_an_Enlarged_Europe

Hathaway, James C. 1987. "Selective concern: An overview of refugee law in Canada."McGill Law Journal, vol. 33, 676 – 715.

182

Hatton, Timothy J. 2005. “Explaining Trends in U.K. Immigration,” Journal of Population Economics, vol. 18, 719 – 740

Hatton, Timothy. 2011. Seeking Asylum: Trends and policies in the OECD. London: CEPR

Haus, Leah, Unions, Immigration and Internationalization: New Challenges and Changing Coalitions in theUnited States and France. New York: Palgrave Macmillan, 2002.

Heffernan, R. 2000. New Labour and Thatcherism: Political Change in Britain. Basingstoke: Macmillan

Helly, Denise. 2008. Breakdown in Legitimacy? Immigration, Security, Social Cohesion and Nativism. Montreal: Centre Urbanisation, Culture et Societe. http://canada.metropolis.net/pdfs/denise_helly_securite_nov08_e.pdf

Hennebry, J. 2009. “Mobile Vulnerabilities, Transnational Risks:Temporary Agricultural Migrants in Ontario,” International Settlement Canada 22: 10-15.

Hiebert, Daniel. 2006. “Winning, Losing and still playing the game: the political economy of immigration in Canada,” Tijdschrift voor Economische en Sociale Geografie, vol. 97, No. 1, 38 – 48.

Hollifield, James. 1992. Immigrants, Markets and States. Cambridge: Harvard University Press.

Hollifield, James F. 2000. “Migration and the ‘New’ International Order: The Missing Regime,” in Bimal Ghosh, ed. Managing Migration, Time for a new International Regime? Oxford: Oxford University Press.

Hollifield, James. 2004. “The Emerging Migration State,” The International Migration Review, vol. 38, no. 3, 885 – 912.

Huysmans, Jeff. 2000. The European Union and the Securitization of Migration, Journal of common market studies, vol. 38. no. 5, pg. 751 – 77

Huysmans, J. and Alessandra Buonfino. 2008. “Politics of Exception and Unease: Immigration, Asylum and Terrorism in Parliamentary Debates in the UK,” Political Studies, vol. 56, no. 4, 766 – 788.

183

Hyman, Richard. 2005. “Trade Unions and the Politics of the European Social Model,” Economic and Industrial Democracy, vol. 26, no. 1, 9-40.

Ibrahim, Maggie. 2005. “The Securitization of Migration: A racial discourse,” International Migration, vol. 43, no. 5, 163 – 187.

Jennings, Will. 2010. “Bureaucratic Performance and Control in British Politics: Asylum Policy 1994- 2007,” The British Journal of Politics and International Relations, vol. 12, 539-68.

Johnson, Nick, ed. 2011. Migration: Where next? Developing a new progressive immigration system. London: Smith Institute

Joshi, Shirley. 2002. “Immigration controls and class” in Steven Cohen, Beth Humphries, and Ed Mynott, eds. From Immigration Controls to Welfare Controls, London and New York: Routledge

Joppke, Christian. 1998. Why do liberal states accept unwanted immigration, World Politics, vol. 50., no. 2, 266- 293.

Joppke, Christian. 2001. “The legal domestic sources of immigrant rights, the United States, Germany and the European Union,” Comparative Political Studies, vol. 34, no. 4, 339 – 366.

Joppke, Christian. 2008. “Comparative Citizenship: A restrictive turn in Europe?” Demography and Human Rights, vol 2, no. 1, 1 – 41.

Kelley, Ninette and Michael Trebilcock. 2010. The Making of the Mosaic: A history of Canadian immigration policy. Toronto: University of Toronto Press

Kingdon, John. 1997. Agendas, Alternatives and Public Policies. New York: Addison-Wesley.

Khosravinik, Majid. 2007. “The representation of refugees, asylum seekers and immigrants in British newspapers during the Balkan conflict (1999) and the British general election (2005), Discourse & Society, vol. 20, no. 4, 477 – 498.

Kitson, Michael and Frank Wilkinson. 2007. “The economics of new Labour: Politics and Performance,” Cambridge Journal of Economics, vol. 31, 805 – 816.

184

Kofman, Eleonore. 2008. “Managing migration and citizenship in Europe,” in Governing International Labour Migration, eds. Christina Gabriel and Helene Pellerin. London: Routledge.

Koopmans, Ruud, Marco Guigni and Florence Passy, 2005. Contested Citizenship: Immigration and Cultural Diversity in Europe. Minnesota: University of Minnesota Press, Minnesota.

Kymlicka, Will. 2010. “Ethnic, linguistic and multicultural diversity of Canada,” in The Oxford Handbooks of Canadian Politics , David Smith and John Courtney, eds., New York: Oxford University Press, 302 – 320

Lahav, Gallya and Virginie Guiraudon. 2006. “Actors and venues in immigration control: Closing the gap between political demands and policy outcomes,” in West European Politics, vol. 29. no. 2, 201 – 223

Lavanex, Sandra. 2006. “Shifting up and out: The Foreign policy of European immigration control,” West European Politics, vol. 29, no. 2, 329 - 350.

Li, Peter S. 2003. Destination Canada: Immigration Debates and Issues. Oxford University Press

Leo, Christopher and Martine August. 2009. “The Multilevel Governance of Immigration and Settlement: Making Deep Federalism Work,” Canadian Journal of Political Science, vol. 42, no. 2, 491 – 510.

Lewis, Gavin. 2005. “New Labour and Post-Fordist ideology: inherent contradictions?” Arena Journal, vol. 23, 19 – 28.

Lewis, Hannah, Peter Dwyer, Lisa Scullion and Louise Waite. 2012. “From restrictions to the cap: trends in UK migration policy,” Journal of Poverty and Social Justice, vol. 20, no. 1, 87 – 95.

Lillie, Nathan and Ian Greer. 2007. “Industrial relations, migration and neoliberal politics: the case of the European construction sector,” in Politics & Society, vol. 35, no. 4, 551-581.

Lijphart, Arend, “Comparative Politics and the Comparative Method,” American Political Science Review, vol. 65, no. 3, 1971

185

Lowe, Sophia. 2010. “An examination of Canada’s shifting immigration policies,” Metropolis 2010. http://canada.metropolis.net/pdfs/cdn_issues_CITC_mar10.pdf

Lowi, Theodore. 1964. “American Business and Public Policy: Case studies and political theory,” World Politics, vol. 16, no.4, 677 – 715.

Lowi, Theodore. 1969. The End of Liberalism. New York: W.W. Norton.

Ludlam, Steve and Andrew Taylor. 2003. ‘The Political Representation of the Labour interest in Britain,” British journal of industrial relations, vol. 41, no. 4, 727 – 749.

Macklin, Audrey. 2005. “Disappearing Refugees: Reflections on the Canada – U.S. Safe Third Country Agreement,” Columbia Human Rights Law Review, no. 36, 365 – 426

Macklin, Audrey. 2013. “A safe country to emulate? Canada and the European refugee.” The Global Reach of European Refugee Law, Hélène Lambert, Jane McAdam, Maryellen Fullerton, eds., Cambridge University Press, Forthcoming (2013). Accessed at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2355727

Mann, Alexandra. 2009. "Refugees who arrive by boat and Canada’s commitment to the Refugee Convention: A discursive analysis." Refuge: Canada's Journal on Refugees, vol. 26, no. 2

Marino, Stefania, Rinus Penninx and Judith Roosblad. 2015. “Trade unions, immigration and immigrants in Europe revisited: Unions’ attitudes and actions under new conditions,” Comparative Migration Studies, vol. 3, no. 1, 1 - 16

Martiniello, Marco. 2006. “The new migratory Europe: Towards a proactive immigration policy?” in Immigration and the Transformation of Europe, Craig Parsons and Timothy Smeeding, eds. Cambridge: Cambrige University Press, 298 – 326.

Marwah, Inder, Triadafilos Triadafilopoulos and Stephen White. 2013. “Immigration, Citizenship and Canada’s New Conservative Party,” in James Farney and David Rayside, Conservatism in Canada. Toronto: University of Toronto Press.

Mau, Steffen, Heike Brabandt, Lena Laube and Christof Ross. 2012. Liberal States and the Freedom of movement: Selective Borders, Unequal Mobility. London: Palgrave Macmillan

186

McDonald, Ted, Elizabeth Ruddick, Arthur Sweetman and Christopher Worswick, eds. 2010. Canadian Immigration: Economic evidence for a dynamic policy environment. Kingston: School of Policy Studies.

McIlroy, J. 1998. “The enduring alliance? Trade unions and the making of new Labour, 1994 – 1997,” British Journal of Industrial Relations, vol. 36, no. 4, 537 – 64.

McLaren, Lauren and Mark Johnson. 2007. “Resources, Group Conflict and Symbols: Explaining Anti-Immigration Hostility in Britain,” in Political Studies, vol. 55, 709 – 732

Meardi, Guglielmo. 2010. “Union Immobility? Trade unions and the freedoms of movement in the enlarged EU,” British Journal of Industrial Relations, vol. 50, no.1, 99 – 120.

Menz, Georg. 2006. “Useful Gastarbeiter, burdensome asylum seekers, and the second wave of welfare retrenchment,” in Parsons and Smeeding, eds.

Menz, Georg. 2008. The Political Economy of managed migration. Oxford: Oxford University Press.

Menz, Georg. 2009. “The Neoliberalized state and migration control: The rise of private actors in the enforcement and design of migration policy,” Debatte, vol. 17, no. 3, 315- 332.

Menz, Georg. 2011. "Employer Preferences for Labour Migration: Exploring ‘Varieties of Capitalism’‐Based Contextual Conditionality in Germany and the United Kingdom," The British Journal of Politics & International Relations, vol 13, no. 4, 534-550.

Money, Jeannette, Fences and Neighbors: The Political Geography of Immigration Control. Ithaca, NY: Cornell University Press, 1999.

Montpetit, Eric. 2010. “The Deliberative and Adversarial attitudes of Interest Groups,” Oxford Handbook of Canadian Politics, John Courtney et al, eds. Oxford: Oxford University Press.

Mulvey, Gareth. 2010. “When Policy Creates Politics: the problematizing of Immigration and the Consequences for Refugee Integration in the U.K.,” Journal of Refugee Studies, vol. 23, no. 4, 437 – 462.

187

Mynott, Ed. 2001. “Nationalism, racism and immigration control,” in From Immigration Controls to Welfare Controls, Steve Cohen, Beth Humphries and Ed Mynott, eds.. London: Routledge.

Nakache, Delphine and Paula J. Kinoshita. 2010. “The Canadian Temporary Foreign Worker Program: Do Short-term economic needs prevail over Human Rights Concerns?,” Ottawa: IRRP. http://oppenheimer.mcgill.ca/The-Canadian-Temporary-Foreign

Page, Robert. 2007. ‘Without a song in their heart, new Labour, welfare state and the retreat from democratic socialism, Journal of social policy , vol. 36, no. 1, 19 – 37.

Paquet, Mireille. 2012. “Beyond Appearances: Citizenship Tests in Canada and the U.K.,” Journal of International Migration and Integration, vol. 13, no. 2, 243 – 260.

Pascoe, Bradley and Beverly Davis. 1999. “Canada’s Temporary Foreign Worker Program: A New Design,” ceris.metropolis.net http://mbc.metropolis.net/assets/uploads/files/wp/2000/WP00-S8.pdf

Paul, Kathleen. 1997. Whitewashing Britain: Race and Citizenship in the Postwar Era. Ithaca, NY: Cornell University Press.

Pauly, Louis and Simon Reich. 1997. “National Structures and Multinational Corporate Behavior: enduring differences in the age of globalization,” IO, vol. 51, no. 1, 1 – 30.

Pearce, Nick. 2004. “Diversity versus solidarity: a new progressive dilemma,” Renewal: A journal of labour politics, vol. 12, no. 3, 79 – 87.

Marino, Stefania, Rinus Penninx, and Judith Roosblad. 2015. “Trade unions, immigration and immigrants in Europe revisited: Unions’ attitudes and actions under new conditions.” Comparative Migration Studies 3.1

Perlmutter, Ted. 1996. "Bringing Parties Back In: Comments on Modes of Immigration Politics in Liberal Democratic Societies',” International Migration Review, vol. 30. No. 1, 375-388.

Pierson, Paul. 2004. Politics in Time. Princeton University Press.

Piore, Michael. 1979. Birds of Passage. New York: Cambridge University Press

188

Preibisch, Kerry. 2007. “Local Produce, Foreign Labour: Labour Mobility Programs and Global Trade Competitiveness in Canada” Rurual Sociology, v. 73, no.2, 418 – 449.

Presthus, Robert Vance. 1973. Elite Accommodation in Canadian Politics. Macmillan Company of Canada.

Prezeworski, Teune and Henry Teune. 1971. The Logic of Comparative Social Inquiry. New York: Wiley.

Puddicombe, Warren. 2012. “The world according to Kenney: Bill C-31 and Designated countries of origin,” http://refugeelawyers.net/2012_CLE/paper_puddicombe.pdf

Rachad Antonius, Micheline Labelle et François Rocher. 2007. “Canadian Immigration Policies: Securing a Security Paradigm,” International Journal of Canadian Studies / Revue internationale d’études canadiennes, no. 36, 2007, p. 191-212.

Reitz, Jeffrey. 2002. “Host Societies and the reception of immigrants: research themes, emerging theories and methodological issues,” The international migration review, vol. 36, no. 4, 1005 – 1020.

Robert Rowthorn. 2008. “The fiscal impact of immigration on the advanced economies,” in Oxford Review of Economic Policy, vol. 24, 560-580

Roche, Barbara. 2010. “Making the best of immense challenges,” Immigration Under New Labour. London: Institute for Public Policy.

Rose, Richard. 1987. “Steering the ship of state: One tiller but two pairs of hands,” in British Journal of Political Science, vol. 17, no. 4, 409 – 433.

Roos, Christof, and Natascha Zaun. 2016. “The global economic crisis as a critical juncture? The crisis’s impact on migration movements and policies in Europe and the US,”1579-1589.

Roy, Arun. 1997. “Job Displacement Effects of Canadian Immigrants by Country of Origin and Occupation,” International Journal of Migration Studies, Vol. 31, no. 1, 150 – 161

Ruhs, Martin. The price of rights: Regulating international labor migration. Princeton University Press, 2013.

189

Saggar, Shamit. 2003. “Immigration and the Politics of public opinion,” in The Political Quarterly, vol. 74, 178 – 194

Sales, Rosemary. 2007. Understanding Immigration and Refugee Policy: Contradictions and Continuities. London: Policy Press

Shachar, Ayelet. 2013. "Talent matters: immigration policy-setting as a competitive scramble among jurisdictions." Wanted and Welcome? Springer New York, 85-104.

Schain, Martin. 2006. “A Transatlantic comparison,” in Immigration and the Transformation of Europe, eds. Craig Parsons and Timothy Smeeding, Cambridge: Cambridge University Press.

Schain, Martin. 2006. “The Extreme right and immigration policy-making: Measuring direct and indirect effects,” West European Politics, vol. 29, no. 2, 270 – 289.

Schain, Martin. 2012. The politics of immigration in France, Britain and the United States. New York: Palgrave Macmillan.

Shackleton, J.R. 2007. Britain’s Labor Market Under the Blair Governments,” Journal of Labour Relations, Vol. 28, 454 – 476.

Shields, John. 2003. “No Safe Heaven: Markets, Welfare and Migrants,” Ceris working paper series, ceris.metropolis.netl: http://www.ceris.metropolis.net/Virtual%20Library/Demographics/wkpp22_shields.pdf

Siemiaticki, Myer. 2010. “Marginalizing Migrants: Canada’s Rising reliance on temporary foreign workers,” Canadian Issues, Metropolis Canada, 60 – 63.

Smith, Miriam. 2005. A civil society? Collective action in Canadian political life. Toronto: Broadview Press

Smith, Julie. 2008. “Towards consensus? Centre-right parties and immigration policy in the UK and Ireland,” Journal of European Public Policy, vol. 15, no. 3, 414 – 430.

Sommerville, Will. 2007. Immigration Under New Labour. Bristol: The Policy Press.

190

Sommerville, Will and Sarah Goodman. 2010. “The role of networks in the development of UK migration policy,” Political Studies, vol. 58, 951 – 970.

Soroka, Stewart and Sarah Roberton. 2010. A literature review of Public Opinion Research on Canadian attitudes towards multiculturalism and immigration, 2006-2009, Ottawa: Citizenship and Immigration Canada. http://www.cic.gc.ca/english/resources/research/por-multi-imm/

Soskice, David. 2007. “Macroeconomics and varieties of capitalism,” in Beyond Varieties of Capitalism, Bob Hancke, Martin Rhodes and Mark Thatcher, eds. Oxford: Oxford University Press.

Spencer, Sarah. 1994. Strangers and Citizens. London: Rivers Oram Press.

Spencer, Sarah. 2007. ‘Immigration,” in Anthony Seldon, ed. Blair’s Britain 1997-2007. Cambridge: Cambridge University Press.

Statham, Paul and Andrew Geddes. 2006. “Elites and the Organized Public: Who Drives British immigration politics and in which direction?” West European Politics, vol. 29. no.2 , 248 – 269

Stone, Diana. 1999. “Learning Lessons and transferring policy across time, space and disciplines,” Politics, vol. 19, no. 1, 51 – 59.

Squire, Vicky. 2005. “Integration with diversity in Modern Britain: New Labour on nationality, immigration and asylum,” in Journal of Political Ideologies, vol. 10, no. 1, 51 – 74.

Stevens, Dallal. 2004. “The Nationality, Immigration and Asylum Act 2002: secure borders, safe heaven?” Modern Law Review, vol. 67, no. 1, 616 – 631.

Studlar, Donley T., and Kyle Christensen. 2006. "Is Canada a Westminster or consensus democracy? A brief analysis." PS: Political Science & Politics, vol. 39, no. 4, 837-841.

Sweetman, Arthur and Casey Warman. 2010. “Canada’s foreign temporary workers program,” Canadian Issues, 19 – 24.

Tanguay, Brian A. 2009. “What’s so bad about cultivating our own theoretical gardens? The study of political parties in Canada,” in The Comparative Turn in Canadian Political Science. Vancouver: UBC Press.

191

Triadafilopoulos, Phil. 2010. “Global norms, domestic institutions and the transformation of immigration policy in Canada and the U.S.,” Review of International Studies, vol. 36. no. 1, 169 – 193

Triadafilopoulos, Triadafilos, ed. 2013. Wanted and Welcome?: Policies for Highly Skilled Immigrants in Comparative Perspective, Springer Science & Business Media.

Veugelers, John, W.P. 2000. “State-Society Relations in the Making of Canadian Immigration Policy during the Mulroney Era,” in Canadian Review of Sociology and Anthropology, vol. 37, no. 1, 95 – 110.

Vineberg, R. A. 1987. Federal‐provincial relations in Canadian immigration. Canadian public administration, 30(2), 299-317.

Vineberg, Robert. 2010. Temporary worker migration and labour market responsiveness in the Prairie provinces, Canadian Issues, 37 – 41.

Yee, Albert S. 1996. “The Causal Effect of Ideas on Policies,” in International Organization, vol. 50, no. 1, 69 – 108.

Young, Lisa and Everitt, Joanna. 2004. Advocacy Groups. Vancouver: UBC Press.

Walsh, James. 2008. “Navigating globalization: Immigration policy in Canada and Australia,” Sociological forum, vol. 23, no. 4, pp. 786 – 813.

Watson, Scott. 2007. “Manufacturing Threats: Asylum Seekers as Threats or Refugees?” Journal of international law and international relations, vol. 3, no. 1, 95 – 117.

White, Linda A., Richard Simeon, Robert Vipond and Jennifer Wallner. 2009. The Comparative Turn in Canadian Political Science. Vancouver: UBC Press.

Woolas, Phil. 2010. “Untying the gag,” in Immigration Under New Labour. London: IPPR.

Wright, Christopher. 2011. Policy Legacies and the politics of labour immigration selection and control: the processes and dynamics shaping national-level policy decisions during the recent wave of international migration. University of Cambridge, PhD Dissertation.

192 https://www.repository.cam.ac.uk/bitstream/handle/1810/237050/CWright_PhDThesis_compress ed.pdf?sequence=1

Wright, Christopher. 2012. “Immigration policy and market institutions in liberal market economies,” Industrial Relations Journal, vol. 42, no. 2., 110 – 36

Wright, Christopher. 2012. “Policy legacies, visa reform and the resilience of immigration,” West European Politics, vol. 35, no. 4, 726 – 755.

Zolberg, Aristide. 1987. “Wanted but not welcome: Alien Labour in Western Development,” Population in an Interacting World, ed. William Alonso. Cambridge: Harvard University Press.

Government and Interest Group reports

Alberta Federation of Labour. 2006. AFL Policy Statement on Temporary Foreign Workers. accessed at: https://d3n8a8pro7vhmx.cloudfront.net/afl/pages/470/attachments/original/1279203765/2006%2 0May%20Policy%20Statement%20Temporary%20Foreign%20Workers.pdf?1279203765

Alberta Federation of Labour. 2007. Temporary Foreign Workers: Alberta’s Disposable Workforce.

Alberta Federation of Labour. 2010. Report on Temporary Foreign Workers in Alberta. http://www.afl.org/index.php/View-document/267-2010-Dec-16-Report-on-Temporary-Foreign- Workers-in-Alberta.html

Alberta. 2007. A Workforce Strategy for Alberta’s Construction Industry. https://work.alberta.ca/documents/workforce-strategy-construction-industry.pdf

Alboim, Naomi. 2009. Adjusting the Balance. Fixing Canada’s Economic Immigration Policies. Maytree Foundation. Toronto

Amnesty International Canada. 2012. Unbalanced reforms: recommendations with respect to Bill C-31. Accessed at: https://www.amnesty.ca/sites/amnesty/files/ai_brief_bill_c_31_to_parliamentary_committee_0.p df

193

Canada Gazette. “Ministerial Instructions Amending the Ministerial Instructions Respecting the Express Entry System, 2016-1,’ Nov. 12, 2016.

Canadian Chamber of Commerce. 2016. Immigration for a Competitive Canada.Ottawa.

Canadian Council for Refugees. 2010. Protecting rights in a fair and efficient refugee determination system Submission on Bill C-11. http://ccrweb.ca/files/c11submissionmay2010.pdf

Citizenship and Immigration Canada. 2009. Annual report.

Citizenship and Immigration Canada. 2010. Managing the federal skilled workers program: Balancing supply and demand. Accessed at: http://www.cic.gc.ca/english/department/media/backgrounders/2010/2010-06-26.asp

CIC. 2011. “Summary report: Temporary foreign worker program - consultations with stakeholders.” http://www.cic.gc.ca/english/department/consultations/tfw-consultations- stakeholders/index.asp

Conference Board of Canada. 2009. Immigrant-Friendly Communities: Making Immigration work for employers and other stakeholders

Elgersma, Sandra. 2015. Immigration Policy Primer. Library of Parliament Research Publications, Ottawa.

Finance Canada. 2006. Advantage Canada: Building a strong economy for Canadians.

Home Office. 2001. Secure Borders, Safe Haven – Integration with Diversity in Modern Britain.

Home Affairs. 2001. First Report. http://www.publications.parliament.uk/pa/cm200001/cmselect/cmhaff/163/16302.htm

Home Affairs Committee. 2003. Asylum Removals. Fourth Report.

Select Committee on Home Affairs. 2004. Second Report: Asylum Application. http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhaff/280/28014.htm

Home Office. 2005. Making Migration Work for Britain.

194

Home Office. 2007. Enforcing the rules: a strategy to ensure and enforce compliance with our immigration laws.

Home Office. 2008. The Path to Citizenship: Next Steps in Reforming the Immigration System, Consultation Questions.

Home Affairs Section. Dec 6, 2013. Immigration and Asylum Policy: Government plans and progress made. House of Commons Library.

House of Lords, Economic Affairs Committee. 2008. Economic Affairs. First Report. Accessed at: http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeconaf/82/8202.htm

Human Resources and Social Development Canada. 2008. International Mobility of Highly- skilled workers: A synthesis of Key Findings and Policy Implications. Accessed at: https://www.ic.gc.ca/eic/site/eas-aes.nsf/vwapj/SRIsr04.pdf/$FILE/SRIsr04.pdf Apr 4.

Human Rights Joint Committee. 2009. 25th Report, Children’s Rights. http://www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/157/15702.htm

IPPR. 2007. Floodgates or Turnstiles? London.

IPPR. 2010. Immigration Under Labour. Tim Finch and David Goodhart, editors.

Information Technology Association of Canada. 2014. The Importance of Global Workers in Canada’s ICT and Digital Media Industries. Accessed at: http://itac.ca/wp- content/uploads/2014/01/ITAC-ESAC-White-Paper-on-Global-Workers-FINAL.pdf

Migration Advisory Committee. 2008. The labour market impact of relaxing restrictions on employment in the U.K. of nationals of Bulgarian and Romanian EU member states. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/257239/relaxing- restrictions.pdf

Migration Advisory Committee. 2009. Transitional measures for nationals of member states that joined the EU in 2004. April 1, 2009.

Migration Advisory Committee. 2011. Transitional restrictions: UK labour market access for Bulgarian and Romanian nationals. November 2011.

195

OECD. 2008. The Global Competition for Talent: Mobility of the Highly Skilled. Accessed at: http://www.oecd.org/innovation/inno/theglobalcompetitionfortalentmobilityofthehighlyskilled.ht m

Office of the Auditor General of Canada (OAG). 2009. Fall Report of the Auditor General of Canada, Chapter 2. http://www.oag-bvg.gc.ca/internet/English/parl_oag_200911_e_33252.html

Parliament of Canada. 2009. Government of Canada Response to the Report of the Standing Committee on Citizenship and Immigration:Temporary Foreign Workers and Non-Status Workers. accessed at: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=4017803

Saggar, Shamit and Will Sommerville. 2012. Building a British model of integration in an era of immigration: Policy Lessons for Government. Transatlantic council on Migration. Migration Policy Institute.

Secretary of State for the Home Department. 2008. The Economic impact of Immigration, the government reply to the first report from the House of Lords Committee on Economic Affairs. Accessed at: http://www.parliament.uk/documents/upload/governmentresponse.pdf

Standing Committee on Citizenship and Immigration. Temporary Foreign Workers and Non- Status Workers. May 2009, 40th Parliament, 2nd session.

Trades Union Congress. 2005. Refugees and Migrant Workers: A TUC Fact file and activities for trade union tutors. Accessed at: http://www.newunionism.net/library/internationalism/TUC%20- %20Refugees%20and%20Migrant%20Workers%20-%20Fact%20File%20-%202005.pdf

Trades Union Congress. 2007. The Economics of Migration. Accessed at: http://lastradainternational.org/lsidocs/TUC.%20economiscs%20of%20migration.pdf

Trades Union Congress. 2009. “Vulnerable Workers Project: Final Project,” accessed at http://www.vulnerableworkersproject.org.uk/

Metropolis. 2010. Temporary Foreign Workers. Metropolis.

196

Media reports

Barrett, David. “Net migration soars over 200,000 despite David Cameron’s pledge” Feb. 27, 2014, The Telegraph, http://www.telegraph.co.uk/news/uknews/immigration/10664667/Net- migration-soars-over-200000-despite-David-Camerons-pledge.html

Brooking, Pip. 2013. “Work permit and visa reforms: Is the UK closing its doors to talent?” Business Voice. Accessed at: http://www.cbi.org.uk/media-centre/news- articles/2013/03/business-voice-work-permit-and-visa-reforms-is-the-uk-closing-its-doors-to- talent/

Canadian Press, Feb. 21, 2013. Federal employees making house calls as part of EI audit. Accessed at: http://www.cbc.ca/news/politics/federal-employees-making-house-calls-as-part-of- ei-audit-1.1362579

Chiose, Simona. 2016. “Ontario halts residence program for international students amid backlog,” The Globe and Mail, May 16, 2016

Economist. 2006. “Second Thoughts: Why the door will not open for workers from Romania and Bulgaria,” Economist, Aug. 24, 2006.

Euractive. 2013. “Clegg attacks ‘illegal’ UK plan to rein in EU workers,” Dec. 17, 1013.

Fekete, Jason. 2010. “Alberta wins battle to bring in more foreign workers,” Calgary Herald, August 10, 2010

Friesen, Joe. 2010. “Leap in temporary foreign workers could create social unrest, critics say,” Globe and Mail, May 14, 2010.

Grice, Andrew. 2014. “Business leaders come out in support of Labour’s new Europe policy,” The Independent, March 12, 2014.

Lindell, Rebecca. 2013. “Employer blacklist empty despite labour complaints from foreign workers,” Accessed at: http://globalnews.ca/news/721611/employer-blacklist-empty-despite- labour-complaints-from-foreign-workers/

197

Mason, Rowena. 2014. “Tory backbenchers urge party to tone down immigration rhetoric,” The Guardian, March 23, 2014.

Milewski, Terri and Susana Mas. “Jason Kenney effectively phasing out temporary foreign workers in low-wage jobs,” CBC.ca. June 21, 2014.

Mills, Carys. 2012. “How applicants are stumbling on the final step to becoming Canadians,” Globe and Mail. June 29, 2012.

Mullholand, Helene and Matthew Tempest. 2006. “System not fit for purpose, says Reid,” The Guardian, May 23, 2006.

Osborn, Andrew. 2013. “Cameron’s plan to recast EU ties, migrant rules, strains coalition,’ Reuters, Dec. 16, 2013.

Payton, Laura. “Immigrant settlement money shuffled among provices,” Nov. 25, 2011, cbc.ca

Ridell, Mary. 2014. “David Cameron will pay a heavy price in 2015 for alienating immigrant voters.” The Telegraph, April 16, 2014.

Ross, Tim and Peter Dominiczak. 2014. “David Cameron draws up immigration laws to foil Ukip,” The Telegraph, May 24, 2014.

Samanta, Sen. 2001. “UK Urged to end a degrading voucher system for refugees,” April 9, 2001. Interpress Service

Trew, Stewart. May 22, 2012. “EU Parliament debates visa threat to Canada-EU free trade deal,” Council of Canadians, http://canadians.org/blog/?p=15277

Wingrove, Josh. 2014. “Ten ways Ottawa is changing how to become a Canadian citizen,” Globe and Mail, Feb. 6. 2014.

Zappi, Sylvia. 2003. ‘Sangatte Shutdown Signals new Anglo-French cooperation,” Migration Policy Institute. http://www.migrationpolicy.org/article/sangatte-shutdown-signals-new-anglo- french-cooperation

198

BBC. May 21, 2012. Euro MPs urge Canada to end visa demands, http://news.bbc.co.uk/democracylive/hi/europe/newsid_9721000/9721441.stm

199

Appendix A: Refugee Determination process: IRPA 2002

Landing

Initial eligibility interview1

Personal Information Form (due 28 days after) Personal interview with RPD member (15 days after initial)

Hearing: Expedited (very well founded, proceeds to full if claimant not granted hearing through expedited process); Fast-track; Full (hearing 6 to 18 months after PIF; 1 person IRP Tribunal process)

YES NO person can proceed to permanent residency Federal court application for judicial review (on legal error YES grounds) 15 days after decision? – Suspends removal order

Goes back to RPD NO

CIC Pre-removal risk assessment looks at new evidence since hearing (no removal while ongoing) due 15 days after form given by IRB, 15 days after hearing, 3 per cent approval

Humanitarian and compassionate application can be Launched anytime, but does not stop removals Can apply to federal court for review of PRRA (2 per cent success rate) NO Can apply to Federal court for appeal (16 per cent granted Leave, but no reasons given for refusal to hear case)

1 Ineligible applications are those from persons with refugee status in another country, who have been refused refugee status in another state, entrants covered by Third Safe Country agreement.

200

Appendix B: Refugee Process C-11 proposed and final reading

Eligibility interview (8 days within landing, 15 as amended)

YES RPD HEARING proceed to permanent residency

(Within 60 day: DCO Claimants: designated Within 90 days: Within 90 days: All by minister with advisory panel Manifestly unfounded other claimants

NO 15 days for RAD application NO

Refugee Appeal Division can hear new evidence that it was not Refugee Appeal Division can hear new evidence that it was possible to present to RPD (decision within 30 days) not possible to present to RPD (decision within 120 days)

NO NO Federal appeal (but no suspension of removal) H&C applications barred for one year following failed refugee application

H& C applications can be advanced at any time but do not allow for stay of removal and must be considered only on the grounds of hardship rather than personal risk as defined by refugee Determination legislation

RPD Pre-removal risk assessment (PRRA) barred for one year following failed, withdrawn or abandoned refugee claims (move to RPD of PRRA claims comes into force three years after Royal Assent)

Youth sentenced as adults under the Youth Criminal Justice Act now inadmissible

Humanitarian changes come into force when bill receives royal assent and other provisions two years at latest

Sources: Library of Parliament. 2011. Legislative Summary: Bill C-11: An Act to Amend the Immigration and Refugee Protection Act and the Federal Courts Act (Balanced Refugee Reform Act); Canada Gazette, March 19, 2011. Regulations Amending the Immigration and Refugee Protection Regulations;

201

Appendix C: National Insurance Number registrations for A8/A2 workers – U.K

National Insurance Number registrations

Year NINo A8 NINo A2 2003 13000 6000 2004 26000 10000 2005 154000 7000 2006 270000 5000 2007 320000 14000 2008 288000 40000 2009 186000 36000 2010 157000 29000 2011 181000 39000 2012 173000 34000 2013 184000 28000 2014 161000 85000 2015 216000 214000

Source: Office for National Statistics

202

Appendix D: Worker migration in Canada

Worker Entries 2000 - 2013 in all categories and LMO requests 2008 - 2013 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Workers with LMO 46435 48917 50002 49377 52541 57370 65899 85154 98466 81736 71139 70222 80613 83740

IT workers 927 904 839 1059 1308 1783 2155 2984 3215 2697 2871 606 210 29 SAWP 16710 18512 18615 18694 19050 20280 21248 22571 24181 23372 23914 24500 25414 27566 Live-in Caregiver 2684 4372 4739 5086 6708 7199 9334 13775 12882 9816 7545 5884 6242 4671 Low-skill pilot 0 0 2592 2671 3204 4237 6997 15870 26333 19656 14143 15167 20636 23414 Other LMO* 26114 25129 23217 21867 22271 23871 26165 29954 31855 26195 22666 24065 28111 28060

Workers w/out LMO 70105 70771 60896 53851 60002 65324 73148 79638 93815 96742 107936 120346 132960 137533

Total 116540 119688 110898 103228 112543 122694 139047 164792 192281 178478 179075 190568 213573 221273

% w/out LMO 60.15531 59.12957 54.91172 52.16705 53.31473 53.2414 52.60667 48.32638 48.79057 54.20388 60.27419 63.15121 62.25506 62.15535 % low-skilled pilot 0 0 5.183793 5.409401 6.098095 7.385393 10.61776 18.63682 26.74324 24.04816 19.8808 21.59864 25.59885 27.96035

Appendix E: LMIA Requests v. approvals

Number of LMIA requests 294529 210713 215522 229500 269575 220034

Percentage of LMIA requests to total LMO workers 33.43168 38.7902 33.00777 30.59782 29.90374 38.05775

Source: Temporary Foreign Worker Program Labour Market Impact Assessment (LMIA) Statistics Annual Statistics 2008-2015

*As data is collated from three different sources, CIC's administrative note should be noted: "The numbers appearing in this report for the period prior to 2013 may differ from those reported in earlier publications. These differences reflect adjustments to CIC's administrative data files that normally occur over time."

203

Appendix F: Federal skilled worker applications and PNPs

Source: CIC, Facts and Figures 2014.

Spouses and Partners 39,797 39,537 39,855 39,703 39,245 36,436 34,229 35,196 38,010 37,347

204

Appendix G: Informant interviews and key questions

Interviewees for the Canadian case studies were identified from among the groups that testified at the CIMM on labour and refugee migration. To further target the most active refugee and labour groups, CIMM witnesses from interest groups were then cross-referenced to identify the groups with long-standing public positions across a number of policy cases. Each informant was provided a package of information which included a summary of the project, the questions each would be asked and an agreement form. The questions were identical for every interviewee, although clarifications on issues of fact were sought.

The same questions were asked of informants in the U.K, who were identified through media and academic reports as some of the key stakeholders who participated in the development of labour immigration policy.

Rivka Augenfeld, representative, table des concertacions des organismes au service des personnes refugiees et immigrantes

Jim Bligh, senior policy advisor, Confederation of British Industry

Yessy Byl, temporary worker foreign advocate, Alberta Federation of Labour

Percy Cummins, executive director, immigration policy and programs, Alberta Human Resources

Patrick Dillon, business manager, Provincial Building and construction trades council of Ontario

Stan Raper, national coordinator of the agriculture workers’ alliance, UFCW

Karl Flecker, National director, human rights, Canadian Labour Congress

Don Flynn, U.K. Joint Council for the Welfare of Immigrants

Bill Frelick, director, Human Rights Watch refugee program

Rory McAlpine, senior vice-president, government and industry relations, Maple Leaf Foods

James McNamee, director, immigration strategies and analysis, Citizenship and Immigration Canada

205

David Metcalfe, chair, Migration Advisory Committee

Sarah Mulley, associate director, migration, integration and communities, IPPR

Gloria Nafziger, Amnesty International, Toronto, refugee coordinator

Corinne Pohlmann, senior vice-president, Canadian Federation of Independent Business

Nicola Smith, senior policy officer, Trades Union Congress

Justin Taylor, Vice President, Labour and Supply, Canadian Restaurant and Foodservices Association

Chris Thomas, Chair of Human Resources TDL Group (Tim Hortons)

Gregory Thomas, federal director, Canadian Taxpayers Federation

What do you believe to be the goals that immigration policy should achieve?

Who would benefit most if those goals were achieved?

Who would be the losers if those goals are achieved?

Were your goals shared by any other participants or stakeholders in the discussion? Which ones?

Do you feel your aims are reflected in the outcome of the discussions around this policy event?

Do you think the outcome of the policy discussion has hurt or helped your long term organizational objectives?

Who do you think benefits most from the outcome of policy discussions? Why?

Are there strategies, coalition-building, public opinion that you may use to deal with this issue that you think you may wish to use next time to better achieve your goals?

What were the main impediments/main sources of support for your organization’s goals?

Do you think future immigration policy has changed irrevocably by the outcome of the policy episode?

206