The Human Rights-Based Approach to Social Protection for Migrants: tensions and contradictions in practice
The principle of social protection may be to meet universal needs. However, social protection is defined, organized and provided in specific contexts. The right to social protection is defined by social norms, economic choices and political contestation. This generates contradictions between universal human rights and particularist rights to social protection. These contradictions make it especially difficult for migrants to access social protection as they move from place to place. This commentary examines the key reasons for these difficulties and the common barriers migrants face, and demonstrates that these can be significant even for relatively privileged migrants, such as European Economic Area (EEA) nationals living and working in other EEA countries.
Rights, law and conditions of social security
Societies may choose to organize social security schemes in different ways, and this is recognized by Article 22 of the Universal Declaration of Human Rights (UDHR) 1 and in the International Labour Organization’s Social Protection Floors Recommendation, 2012 (No. 202). Benefits and services can be delivered in a number of different ways, including cash transfers, and/or in-kind benefits like access to health and care services. Each way of organizing social protection generates conditions of contribution, behaviour or residence, from contributory schemes to conditional cash transfers to universal basic income. In meeting individual social protection needs, the institution that provides for that need also establishes conditions for membership.
So, unlike the UDHR, which focuses on universality, States focus on legally binding and highly specified rights for individuals or groups. There may be different social protection entitlements for workers and non-workers, old and young, men and women, parents and children. These differentiated “rights” may correspond to differences in need, but may restrict the “dignity and free development” of some groups and not others. Indeed, they can also express and legitimize the exclusion of some groups — such as migrants — in direct contravention of international human rights law.
Social security and international migrants
Both the legal categories of entry/stay and the way that social security is organized in the country of destination will affect whether migrants can access social security.
The right to mobility itself is not given, and protecting the social security rights of migrants raises complex legal problems. While Article 13(2) of the UDHR states that “everyone has the right to leave any country, including his own, and to return to his country”, this does not include the right to enter or stay in another country. In practice, national admission policies decide who has a right to be mobile. These policies, and how they are implemented, then generate a framework for selectively applying social security rights. It is therefore their selectivity that limits the realization of “economic, social and cultural rights indispensable for his dignity and the free development of his personality”.
In addition, international migrants are diverse. Migrants’ legal categorization may change over time or according to life events, and their status in the countries of destination is also strongly shaped by how they are defined in national immigration legislation. They may be family members and dependants, seasonal workers, temporary contract workers, permanent residents, highly-skilled migrant workers, students, asylum seekers, refugees or migrants in an irregular situation. Each of these categories carries conditional “rights” in immigration legislation, to enter, stay, work, vote, bring additional family members and access social security.
Although a number of countries recognize the principle of equal treatment between national and non-national workers in their social security legislation, some discriminate against migrant workers. Legislation may exclude or apply less favourable treatment for foreign-nationals, a category that may cover both migrants and non-migrants. In other cases, specific categories of migrants may be directly or indirectly excluded from social protection coverage, due to rules on residence or requirements for long-term contributions, for example. Furthermore, social security is organized in one “place” and migrants, by definition, move from place to place. This tension between social security designed for a particular place and people’s mobility results in difficulties for international migrants.
There are two main aspects of migrants’ access to social security. First, whether migrants can access social security in their country of destination (for example, accessing family benefits, health care or housing benefits). Second, whether they can access social security entitlements earned in one country when they move to another (such as collating pension insurance contributions from two or more countries to generate pension income). In both cases it matters whether the benefits in question have contributory and/or residence requirements, and how these intersect with a person’s migration status.
Migrants in irregular situations and those in informal employment may be excluded from all but the most basic social security in the country of migration, such as emergency health care, if they are neither legally or permanently resident nor formally employed. Even seasonal workers who are legally working and residing for many months, sometimes returning to the same employer each year for many years, may still be explicitly excluded from social security due to their temporary stay in the host country. All migrant workers who frequently move countries will find it difficult to fulfil conditions relating to a minimum number of contributory years for social insurance, or minimum residency conditions for access social assistance, health and care services. Providing that there is no explicit exclusion from social security on grounds of national citizenship, regularly employed and legally resident migrant workers’ rights would be expected fall under those outlined in UDHR Article 22. As such, regularly employed migrant workers provide a test of the best case scenario under which migrants might access social security in practice, both in the country of migration, and when moving between countries.
Migrant workers in the European Union: a test-case of privilege or rights?
The ability to move social security rights from one country to another can be secured by bilateral or multilateral agreements aimed at the coordination and portability of social security rights and benefits. Portability in practice usually applies to contributory benefits and can be arranged bilaterally between countries or may be organized multilaterally, involving many countries. Portability agreements usually refer to specific selected schemes in the countries concerned. Both bilateral and multilateral social security agreements address equality of treatment, the maintenance of acquired rights, and of rights in the course of acquisition, as well as payment of benefits abroad.
The EU provides an interesting case for exploring the social security rights of migrant workers. First, the national citizens of the 28 member States of the EU as well as Iceland, Liechtenstein, Norway and Switzerland, have rights to residence and work in another EU member State similar to national citizens of those countries. Second, in addition to bilateral agreements, there is an elaborate and longstanding multilateral system of social security coordination to enable EU citizens who are defined as paid workers to move their social security entitlements with them as they move between member States.
In principle, this means that EU mobile workers exercise similar rights as nationals of the host State. The protection of their social security rights covers all nine branches2, general and special social security schemes (with the exception of some specified schemes), contributory and some non-contributory benefits, including schemes based on employer liability and, depending on employment history in the member State concerned, social assistance. EU Directive 2004/38 contains detailed provisions implementing the principles of equality of treatment, and Regulations 883/2004 and 987/2009 set out the maintenance of rights acquired, and in the course of acquisition, as well as portability of benefits. As such, the legislation affords specific rights, particularly when comparing the social security rights of EU-national migrant workers’ with those of non-EU nationals. The principle of equality of treatment is also applied to both EU citizens and non-EU citizens who qualify for permanent residency (EU Directive 109/2003). However, EU citizens who are not defined as workers do not have equal access to social security, especially in relation health insurance and social assistance. Indeed, their rights have been increasingly restricted in a number of restrictive judgements from the European Court of Justice since 2014. So how does equality of treatment work in practice?
Significant barriers to effective access for precarious and mobile migrant workers
The University of Bath’s TRANSWEL research project3 traces the social security rights of regularly and irregularly employed migrants between four pairs of countries: Hungary-Austria, Bulgaria-Germany, Poland-United Kingdom and Estonia-Sweden. The first phase found that despite – and sometimes even because of — the coexistence of both EU and national conditions, there can be significant barriers to accessing and portability of social security rights for these workers. There are three main barriers:
- Residency: coexistence of national and EU residency rules, that also vary by benefit, generate contradictory residence requirements for individual migrant workers.
- Employment/contributions: social security system differences affect access as migrants move their rights between member States with different rules, and depending on how those rules fit within the EU framework.
- Operational conditions: procedural requirements associated with special regulations for migrant workers, plus institutional complexity and administrative discretion make it difficult for migrant workers to access and move their social security rights.
Even straightforward aspects of national social security regulations — like length of contributions for entitlement to unemployment insurance — can be treacherous for the mobile worker, even more so when they are precariously employed. A basic income is not necessarily a solution for migrant workers due to the importance of residence conditions under such schemes.
Therefore, access to, and portability of, social security rights, even for this highly protected group of migrant workers, is often highly conditional. In particular, migrant workers who move between countries more often are exposed to exclusionary, rather than rights-based, provisions due to the combination of contributions requirements and coexisting residence requirements. More mobile migrants may find it difficult to show habitual residency4 in either the country of origin or destination. They may find that previous residency and/or contributions are unrecognized and they have to re-acquire or re-establish their rights within social security system of the country of destination.
The complexity and degree of discretion affecting access and portability of benefits is also likely to favour educated and better-off migrants who can navigate the system more easily while disadvantaging those with less access to information, lower language skills, in short-term or temporary employment and those who are more mobile between countries.
The EU’s free movement framework and coordination of social security rights is seen as a good example of how migrant workers’ social security rights can be ensured. Research from the TRANSWEL project shows that even for this group of workers, it does not do so in a way that universally secures their social, economic and cultural rights and dignity. It rather privileges particular, preferred types of migrant worker. We should campaign for reformulations and extensions of transnational regulations on social security that are specifically designed to protect the ‘dignity and free development’ of all migrants, especially the most precarious and vulnerable.
ABOUT THE AUTHORS
- “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”. ↩
- Social security benefits (cash and in-kind) in: health/medical care, sickness, unemployment, old age, invalidity, maternity, family, injury compensation, survivors. ↩
- Mobile Welfare in a Transnational Europe: An analysis of Portability Regimes of Social Security Rights (TRANSWEL): http://www.bath.ac.uk/casp/projects/transwel/index.html. Detailed results at https://welfarestatefutures.files.wordpress.com/2017/05/wsf-working-paper-transwel-1-december-2016-webfinal.pdf ↩
- The purpose of the habitual residency test is to establish whether an individual have the right to live in the country (known as the right to reside) and whether they intend to settle there. ↩