By Stephanie J. Silverman
Published on openDemocracy, May 29, 2015
Tens of thousands of law-abiding foreign workers residing in Canada became deportable last April. This sudden vulnerability to deportation resulted from the Parliamentary passage of a small legislative change called the “cumulative duration rule”, known colloquially as the “4 in, 4 out” or the “4 and 4 Rule”. Under this rule, non-citizens working on temporary labour visas for four years who had not transitioned to permanent resident status must leave the country for four years—or transfer to visitor or student status—before applying to return.
The 4 and 4 Rule is an instantiation of unjust and unequal treatment based on class and labour qualifications.
What this means for children depends on where they were born. Canadian-born children have Canadian citizenship and can stay, while their non-citizen parents must leave; foreign-born children have been asked to quit school and leave. Either way, their parents who have not successfully transitioned to permanent resident status are being faced with the tasks of packing up their (working) lives, including their tax rebates, unpaid wages, and Canadian Pension Plan contributions in a short timeframe.
The 4 and 4 Rule may be the federal government’s reply to mounting criticisms that too many people are gaining admission to Canada through temporary labour migration programs. While Canada has adopted and run such programmes since the 1960s, the government has come under fire more recently from opposition groups who argue that these programmes siphon jobs from Canadians hard-pressed to find employment in this tough economy. Although industry by and large supports temporary labour migration, the unions are mixed. Gil McGowan from the Alberta Federation of Labour, for example, says that these programmes provide “a cover for providing employers with a mechanism that keep wages low when economic conditions suggest that they should go up. The program needs to go.” Partially in response, the Canadian federal government seems to be retrenching the revolving door of exploitable labour through measures such as the 4 and 4 Rule.
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As Luin Goldring and Patricia Landolt argue, there are essentially two tracks for migrant workers arriving in Canada: ‘immigrants’ (understood as workers and long-term settlers) versus ‘temporary residents’ (differing reasons for entry but allowed only short-term periods of residence). Independent yet bounded, the entry tracks “lead workers along separate paths, into distinct labour market segments, and sort them into future citizens and noncitizens. Temporary residents are only temporary: their path leads them to leave Canada and go ‘back home,’ perhaps to return but again on a temporary basis.”
As the numbers of temporary labour migrants have grown over the last decade, so too has confusion over the programmes under which they are admitted to Canada. In addition to categories such as working holiday programs, the three main streams are the Seasonal Agricultural Workers Program (SAWP), the Live-in Caregivers Program (LICP), and the Temporary Foreign Workers Programme (TFWP). As the oldest, the SAWP was started in 1966 as a bilateral agreement with Jamaica. Management of SAWP was privatised in 1987 and placed under the control of Foreign Agricultural Resource Management Services (FARMS). Since SAWP is premised as a circular migration programme with lower-skilled workers leaving Canada after eight months, its enrolees were largely unaffected by the “4 and 4 Rule”. The LICP is a unique two-step program to employ (female) workers as domestic caregivers in exchange for a pathway to citizenship. Reformulated in 1992, the LICP opened a pathway to apply for permanent residence, but only after enrolees completed two years of live-in domestic service in the private household of their charges/employers. While the government changed the LICP in 2014 to withdraw the live-in requirement, the caregiver is still bonded to her employer in significant ways. LICP caregivers admitted under the pre-2014 changes are not subject to deportation orders under the “4 and 4 Rule”.
With the highest public profile in Canada, the final programme, the TFWP, is plagued by pernicious misunderstandings of its operations. A stop-gap solution meant to fill acute labour shortages, the TFWP is, according to an article from the Financial Post, “intended as a last-resort, short-term solution so businesses can continue to grow and create more opportunities for Canadians”. Jason Foster has tracked the de-skilling of the TFWP: whereas a majority of TFWP enrolees in 2000 were higher-skilled, by 2008 the lower-skilled occupations had become the largest category. With its growth from about 100,000 enrolees in 2002 to as many as 338,000 in 2014, it follows that there is a diverse list of employers looking to hire TFWs.
The expansion of the TFWP in an age of austerity has attracted a swell of attention and made it a stand-in for all things to do with foreign workers. Public debate and discord ranged from partisan mud-slinging in the federal Parliament to angry locals claiming that their jobs were swiped. A major bank’s hiring (higher-skilled) TFWP enrolees to replace local employees was greeted by a large enough storm of controversy that the bank felt compelled to issue a public apology. General coverage in the media ranged from sympathy with the workers over unpaid wages and dirty working conditions to resentment that they were allowed to come during a period of high unemployment, often in the same article.
- Patti Tamara Lenard, Not for Sale: Protecting the Victims of Human Trafficking in Europe and Canada
- Natalie Brender, There’s Weirder Stuff Than Niqabs at Stake in the Citizenship Oath
This snapshot illustrates the complex background against which the problematic 4 and 4 Rule is being implemented. Besides from the clear xenophobic issues, there are worrying class dimensions to the selection of 4 and 4 Rule targets. To begin with, the high recruitment, airfare, and other fees associated with signing up can lead to a situation of de facto debt bondage for TFWP enrolees as they work off these ‘loans’. Second, the 4 and 4 Rule applies to people labouring in the lower-skilled TFWP industries, such as retail, hospitality, and manufacturing. The Canadian government has formally exempted the small minority of workers employed in management and professional capacities as well as their spouses and dependants. In fact, there is an option to apply for expedited permanent status under the Canadian Experience Class that is available exclusively to these higher-skilled “immigrants”, to use Goldring and Landolt’s helpful phraseology. Such immigrants will be spared the decision of whether to leave their children in Canada because their pathways to permanent residence have been cancelled. Delphine Nakache also points out that, if the government is truly concerned with labour shortages, wouldn’t it make more sense to place temporal limits on the employer’s use of the programme and not on the migrants themselves?
The 4 and 4 Rule is an instantiation of unjust and unequal treatment based on class and labour qualifications. While higher-skilled migrants are walking the path to permanent residence, and LICP domestic workers are still citizens-in-waiting, the majority of TFWP enrolees in Canada have been consigned to a fate of return or removal. The 4 and 4 Rule is propping open the revolving door, and pushing out those people deemed to be disposable workers.
Stephanie J. Silverman is the SSHRC postdoctoral research fellow at the Graduate School of Public and International Affairs, University of Ottawa, and an instructor in Ethics, Society, and Law at Trinity College, University of Toronto. She is also the co-editor of Immigration Detention: The Migration of a Policy and its Human Impact (Routledge, 2015).