Migrants and Work-Related Rights (Critical Essay‪)‬

Professor Carens is concerned with finding a way to move beyond the in tensely politicized and apparently irreconcilable positions that characterize much of the discussion on the rights of "irregular migrants." These migrants tend to be cast either as victims or as villains: victims of unjust immigration laws and exploitative employers, or abusers who "play" the system to their advantage. In order to overcome this dichotomous approach, Carens begins by accepting the premise that states have a right to control entry into their territories, and goes on to explore whether, this being the case, it is morally acceptable to deny certain types of rights to this particular group of residents. While this approach is useful for his discussion of human rights, it is somewhat more problematic when Carens turns his attention to work-related rights. For it becomes clear that he is in fact not only allowing that the state has a right to control entry (and, by extension, removal) of noncitizens, but also that the state has the right to set differential terms of access to labor markets for citizens and noncitizens after they have entered its territory. But the right of states to distinguish between citizens and noncitizens in this way is not a necessary concomitant of entry controls. It is conceivable, for example, that all those who have been given permission to enter be given a time-limited entry and residence permit giving free access to the labor market. Currently, conditions of entry for certain groups of visa holders (1) can be linked to personal characteristics: for example, au pair visa holders in the United Kingdom must be between certain ages, unmarried with no dependents, and can only be of certain listed nationalities. This, Carens has allowed. However, states may also require that, having entered the country, an au pair, to continue the example, cannot earn more than a stipulated amount per week, must live as "part of a family," and cannot work other than in a private household. The legality of this visa holder's residence depends on compliance with certain conditions. This is a step beyond controlling entry, and it has important implications for Carens's argument.