Access Denied: Towards a New Approach to Social Protection for Formally Excluded Migrants
| Date | 01 June 2013 |
| Author | Gijsbert Vonk,Sarah Van Walsum |
| DOI | 10.1177/138826271301500202 |
| Published date | 01 June 2013 |
| Subject Matter | Article |
TOWARDS A NEW APPROACH TO SOCIAL
PROTECTION FOR FORMALLY EXCLUDED MIGRANTS
Gijsbert Vonk and Sarah Van Walsum*
Abstract
Th
is article discusses some recent trends in the area of immigration and social
security. Access to social security is rendered more diffi
cult, particularly for irregular
immigrants, while the scope of application of the social security system is more closely
linked to the national border (retrenchment to the national borders). It is argued that
these trends can be attributed to restrictive immigration policies and the implicit
rejection of transnational citizenship. Th
ese factors also appear to aff ect the strength
of the transnational informal social security networks of which migrant groups
are members. Th
e article calls for an alternative strategy for the social protection
of irregular migrants based upon respect for human rights, extra-territorial
responsibility of migrants and more socially inspired return policies.
Keywords: extra-territorial responsibility; human rights; immigration; irregular
immigrants; return policies; social security
1. INTRODUCTION
Th
is article reports on some of the outcomes of research projects carried out within the
framework of the Cross-Border Welfare research programme. Th
is privately funded,
fi ve-year programme ran between 2006 and 2012 and accommodated four PhD posts
as well as a number of smaller, auxiliary research initiatives (see, for a summary of
*
Gijsbert Vonk is Professor of Social Security Law at the University of Groningen. Address: University
of Groningen, Faculty of Law, Department of Administrative Law and Public Administration, Oude
Kijk in ‘t Jatstraat 26, 9712 EK Groningen, Th
e Netherlands; tel:+31 (0)50 3635765; email: g.j.vonk@
rug.nl. Sarah Van Walsum is Professor of Migration Law and Family Ties at the VU University
Amsterdam. In 2011 she was awarded the prestigious NWO Vici grant for a research proposal
entitled ‘Migration law as a Family Matter’. Address: VU University Amsterdam, Faculty of Law,
Department of Constitutional and Administrative Law, De Boelelaan 1105, 1081 HV Amsterdam,
Th
e Netherlands; tel: +31 (0)20 5982591; email: s.k.van.walsum@vu.nl.
124
Intersentia
Access Denied
the outcomes of the separate research projects, Vonk 2012)1. Th
e programme focused
on the social security position of non-EU migrants and its central aim was to gain
a better understanding of how law and policies in the area of immigration, social
security and civic integration interact.
Th
ere is one common theme that can be observed in all the studies that were carried
out. Th
is is the mechanisms by which migrants are included or excluded from social
security. In other words, how is the line between inclusion and exclusion defi ned for
diff erent groups of migrants; how has this line changed over time and why; and how
do the exclusions manifest themselves in the concrete legal position of migrants? Th
is
article elaborates on this theme.
Mapping the line between inclusion and exclusion is not the fi nal objective of
the present exercise. We want to take the argument a little further by looking at
the consequences of excluding migrants from social security. Th
e central question
addressed is a paradoxical one. Knowing that the exclusion of certain immigrants
from social security is legitimate from the point of view of national policies and
interests, or even from the point of view of the logics of the social security system itself,
what alternative strategies can be developed in order to address the social protection
of immigrants without undermining these policies, interests and logics?
Th
e purpose of this article is to develop alternative approaches to social protection
for migrants who are excluded from the regular social security system − in particular,
irregular migrants. A number of options for the social protection of migrants will
be explored, ranging from codifying minimum care obligations arising from human
rights standards to providing temporary income support and credits to migrants
who voluntarily return to their countries of origin. Th
e willingness to address such
alternative approaches is what we refer to as ‘a new approach to social protection for
formally excluded migrants’.
Th
e article is structured in a ‘dialectical fashion’, which is a way of saying that
it falls into three sections that can be presented as a thesis, an antithesis and a
synthesis. Section 2 contains the thesis dealing with the exclusion of migrants from
the formal, public social security schemes. It discusses how the new dynamics result
in a deterioration of the legal position of migrants in social security, particularly
in terms of the exclusion of certain groups and migrants (in particular, irregular
immigrants) and retrenchment of the national border system (which aff ects, inter
alia, the exportability of benefi ts). Section 2 fi nishes by raising the question of how
international human rights law responds to these trends.
Section 3 is presented as the antithesis. It addresses the position of immigrants in
relation to social security provided outside the formal state framework, in informal
social security. As will be shown, these alternative forms of social security challenge
the formal concept of social security. Th
ey do so because, in the fi rst place, they do not
form part of the public arrangements in the host country but are based on civil society
1
Th
is article is a highly abridged version of the fi rst chapter of this book.
European Journal of Social Security, Volume 15 (2013), No. 2
125
Gijsbert Vonk and Sarah Van Walsum
initiatives; and, secondly, because they are not locked up in the nation state, but are
transnational by nature. On the basis of a number of case studies in the Netherlands,
we demonstrate that the two trends of exclusion and retrenchment can equally aff ect
informal social security arrangements for migrants.
Section 4 connects the two spheres of formal and informal social security for
migrant workers and constitutes the synthesis. It is entitled ‘towards a new approach
to social protection for formally excluded migrants’. Th
e question dealt with is ‘what
are the responsibilities of the (international) government towards excluded migrants?’
Th
is section off ers a list of alternative forms of protection that are not necessarily at
odds with formal government policies, such as the provision of minimum care for
vulnerable persons, respecting private and informal social security arrangements,
giving extra-territorial protection to immigrants and emigrants and providing
fi nancial support to voluntary returnees. Because such forms of protection are not all
considered to be part of the regular social security system, in section 4 we employ the
wider term ‘social protection’.
When commenting upon the position of migrants in social security, we refer to
international law, to European Union law and to the situation in diff erent countries.
One country in particular serves as a fi xed point of reference, i.e. the Netherlands.
As such, this is not a bad choice, as the Netherlands has made a series of quite well
articulated choices in formulating the legal position of migrants in social security.
In this way, the Netherlands has created an interesting laboratory for testing new
policies. However, it means that the reader must be careful not to extrapolate the
Dutch experience too easily to other countries. Very oft en this is not possible (see, for
example, comparative analysis carried out by Kapuy (2011) and the Dutch Advisory
Committee on Migration Aff airs (ACVZ 2012), which has pointed out that Dutch
exclusion practices vis-à-vis irregular immigrants are far more strict than those of
other European countries).
In this article considerable attention is focused on the position of irregular
immigrants. Defi ning the irregular immigrant is an art in itself (Guild 2004: 3–17).
Between a legal ‘white’ status and an irregular ‘black’ status there are many shades of
grey. Th
is study employs a deliberately broad defi nition of ‘all non-citizen migrants
staying in a county without the required authorisation’. Th
is defi nition includes
migrants who have not been given a positive decision as to their right to stay or reside
by the authorities of the host state. Th
is means that not only groups without any
status (e.g. unreported immigrants) and those who must leave immediately (e.g. on
grounds of an expulsion order), but also other categories such as immigrants who
are awaiting the outcome of an application for a residence permit and ‘overstayers’
are also included in the defi nition. Asylum seekers, defi ned as persons applying for
protection in another country until a fi nal decision on that application has been made,
are, however, treated as a separate category. Th
is is done by reason of the fact that in
view of the principle of non-refoulement, states have a stronger responsibility towards
the social protection of asylum seekers.
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Access Denied
2.
THE EXCLUSION OF MIGRANTS FROM THE FORMAL
SOCIAL SECURITY SYSTEM
2.1. SOME GENERAL STARTING POINTS
Social security is based on the notion of solidarity. Solidarity is expressed within
certain groups. Th
erefore, each social security scheme automatically draws a line
between those who are in and those who are out. Contrary to what is sometimes
suggested, these lines are not necessarily drawn between the...
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