Temporariness, rights, and citizenship: the latest chapter in Canada's exclusionary migration and refugee history.

Author:Hari, Amrita


Immigration has been recognized as a cornerstone of nation building in Canada since Confederation in 1867. The chapter of Canadian immigration history discussed in this article begins during the post-Confederation settler era but is focused on the changes to immigration and refugee determination policies made since 2012. Historically, rights and entitlements to membership in the Canadian state were premised on territorial presence and the granting of permanent status. Contemporary membership in Canada's sociopolitical community is the ascription of permanent resident status and/or citizenship by the state. Incorporation into the nation remains more subjective. Nation refers generally to a sentiment of solidarity based on cultural similarity, but more importantly mutual recognition. (1) Canadian nationality incorporates both of these elements and assigns an individual a place in the community and a say in the effective control of the state.

Canada, as an entity, can exercise sovereignty or control over its territory to some extent, epitomized by its immigration and refugee determination policies that are designed to reflect Canada's interests. By attaching specific rules and codes to each entry category, Canada effectively creates a hierarchy of rights to stay, access to the labour market, and entitlements to state membership for all non-citizens. Much like designating citizenship, designating "illegality" assigns an individual a political and juridical identity, as well as a specific social relation to the state. States perceive unwanted and/or illegal migration as an affront to national sovereignty. The "illegalization" and "criminalization" of some migrations, therefore, is intricately connected to a perceived "loss of control" by the government. (2)

Canada has responded to the wake of perceived threats to national security, heightened in the post-9/11 era, concerns over the perceived diminishment of control over its borders, and a dilution of national identity, by expanding its "security perimeter"--an ever-growing and ever-present discursive security blanket with a vague functional definition. (3) Despite the active expansion of this blanket, Canada continues to accept what it considers to be unwanted immigration of persons it does not actively solicit.

Gary Freeman explains this passive acceptance of unwanted immigration by disaggregating migration policy into four distinct policy arenas: (1) managing legal migration through migration planning and selecting migrants to meet specific nationally prescribed immigration objectives; (2) controlling illegal migration by implementing border controls, employer sanctions, and visa requirements; (3) administering temporary worker programs; and (4) refugee determination and processing of what the state considers to be genuine asylum claims. This disaggregation of migration policy suggests that sweeping assessments of state control over its borders, even within the contemporary securitization era, must be replaced with more limited and specific claims. (4)

Historically, Canada has always passively accepted unwanted immigration, particularly for humanitarian reasons, following the ratification of internationally legislated refugee protocols. Over time, it has also had to recognize individual rights, specifically for family reunification of labour migrants, invoked in the Canadian Charter of Rights and Freedoms, and the pragmatic challenges of controlling "illegal" migration. (5) As a post-9/11 securitized state, Canada has made concerted efforts to ensure that immigration and refugee determination, in tandem with citizenship laws, are associated with the essence of the nation, effectively transforming migration and refugee laws into the "last bastion of sovereignty." (6)

This article examines how Canada maximizes its limited sovereignty in administering migration and refugee claims, evident in the changes to the temporary worker programs and the processing of in-land asylum claims made since 2012. The argument is presented in two parts. First, I argue that these changes have increased the occurrence and persistence of temporariness for specific groups of migrants in Canada, contributing to the systematic exclusion of these growing numbers of non-citizens, who live and work in the territory, from a wide range of rights (including permanent status and/or citizenship, work, access to provincial workplace standards, and social assistance). Second, in adopting the perspective of temporariness, I argue that the recent changes illustrate striking similarities in the state's approach to two specific categories of non-citizens: lowskilled temporary foreign workers and refugee claimants.

Scholarly discussion on temporary foreign workers and refugee claimants often places them in analytical and political silos, in part as a result of the distinct rationales for admitting these two groups of migrants. This article is not intended to be a robust comparison by any account, but instead selects specific aspects of admission procedures, access to social assistance (with a focus on Ontario), provisions for family reunification, and entitlements to permanent status and citizenship, as they apply to these two groups. These seemingly distinct groups occupy a low rung in the hierarchy of rights and entitlements to citizenship in Canada, inevitably affecting their social and economic outcomes in the host society.

The Evolution of Temporariness in Canada

Canadian immigration policy has many purported goals, including humanitarian, family reunification, and foreign policy; however, a primary historical and contemporary use of immigration policy is as a tool of economic policy to meet immediate shortages in the labour market. Temporary foreign worker programs have always played a key role in meeting this objective. The historical programs designed primarily to recruit foreign domestic help and farm labour first paved the pathways for temporariness in Canada.

The delegation of domestic work to foreign women is a longstanding practice in Canada. Young English and Scottish women served British-Canadian families from the 1890s to the 1920s, followed by Eastern European refugee women during the Second World War, who served one year as indentured domestics. The growing shortages of domestic help in the 1950s were met with special programs for German women to enter Canada to become permanent residents, later expanded to include Italian and Greek women. The Caribbean Domestic Scheme, characterized by the most restrictive and coercive practices, was the first program of its kind to recruit women of colour to work as domestic workers in Canada (as opposed to white women arriving through earlier programs), but these women were categorically denied the right to permanent residence. (7) Foreign farm workers were recruited through short-term permits, with no entitlements to permanent status, which emerged out of separate bilateral agreements with the Mexican and Caribbean governments.

The Non-Immigrant Employment Authorization Program (NIEAP), established in January 1973, replaced these dispersed and diverse temporary worker programs. NIEAP was intended to allow the Canadian government and employers to use immigration policy to meet short-term market interests more flexibly and effectively. (8) Temporary foreign workers (TFWs) were restricted to a specific job and employer. The NIEAP eventually evolved into a bifurcated program with two general streams: one targeted at high-skilled workers and the other at low-skilled workers. This bifurcation persists in the contemporary Temporary Foreign Worker Program (TFWP), which has "undergone seismic changes in its purpose, size and target populations." (9) The number of temporary foreign workers present in Canada (on 1 December) rose by 148 per cent between 2002 and 2008. Since 2008, the number of temporary foreign workers admitted annually overtook the number of permanent residents, in a trend that has continued since. (10)

Temporariness in Canada implies limited rights based on temporality (often limiting period of stay) and conditionality (rights conditional upon behaviour such as requirements to satisfy a specific employer to remain in the country). (11) The number of persons holding temporary status in Canada is diverse, demonstrating a multitude of forms of temporariness. Specific to economic and labour migrants, Rajkumar et al. (2012) (12) have conceptualized the forms of temporariness on the basis of a temporary-permanent divide: a permeable paper border for the transnational elite that is less permeable for the majority of temporary migrants. Canada offers privileged forms of temporariness and inclusive membership to those categorized as high-skilled while reserving restrictive and restricting forms of temporariness for those categorized as "low-skilled."

Rajkumar et al. (2012) identify three primary categories: (1) temporarily temporary (e.g., high-skilled temporary foreign workers who are eligible for expedited permanent residency through the Canadian Experience Class), (2) permanently temporary (e.g., seasonal agricultural workers), and (3) temporarily permanent (e.g., foreign-born permanent residents who could be deported upon violation of immigration and security laws). For the purposes of the discussion in this article, within the temporarily temporary category I would include asylum seekers awaiting a decision on their claim, which could result in permanent residence, if they are granted refugee status, or deportation if rejected. In the next two sections, I shall discuss the two distinct groups of non-citizens that demonstrate some striking similarities.

Low-Skilled Temporary Foreign Workers

The hallmark of the contemporary Temporary Foreign Worker Program is a formalized distinction between high-skilled and low-skilled work, in accordance with the National Occupational Classification, which the Canadian government uses...

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