Keynote Lecture by Christine Langenfeld (Göttingen) and Holger Kolb (Berlin): “Legal Limits”


by Caleb Yong and Maximilian Scholz

Panel 1: Precarious Migration

The conference began with a panel centered on the theme of precarity in labor migration. The opening presentation by Bridget Anderson, Professor of Migration, Mobilities and Citizenship at the University of Bristol, drew attention to the importance of notions of time and life stage in the construction of the “migrant worker” and hence in the regulation of labor migration. She noted that states are much less resistant to admitting temporary migrants compared to long-term migrants. Similarly, states prefer younger migrants who are likely to be healthy, economically active, and without dependents. Bernard Ryan, Professor of Migration Law at the University of Leicester, then offered a comparative analysis of the economic and policy impact of the integration of low-skilled migrants into the labor markets of regulated employment law systems such as Germany, on the one hand, and on flexible employment law systems such as the United Kingdom, on the other. He argued that in regulated employment systems, the worry that labor migration will undercut existing protections has led to policy responses that constrain the hiring of temporary migrant workers and irregular migrants. In flexible employment systems, by contrast, there will tend to be a greater propensity to hire temporary and irregular migrants, with the policy response limited to combatting the worst abuses.
In a third presentation, Hiroshi Motomura, Professor of Law at UCLA, developed an analysis of precarious and temporary labor migration via the lens of four different perspectives. The first perspective looks at states’ attempts to respond to unauthorized migration, given the high domestic demand for low-skilled migrant labor but restrictive legal regimes for the admission of labor migrants. The second perspective examines the tension between expanding legal routes for temporary labor immigration and the imperative of creating an underclass of second-class (de facto) citizens. The third perspective asks how immigration policy can promote, or conversely harm, international development. The final perspective then considers the domestic economic impact of labor immigration, given that different segments of the receiving society capture differing shares of the overall economic gains from labor immigration.


Christine Langenfeld, Professor of Public Law at the University of Göttingen and Judge on the Federal Constitutional Court, and Holger Kolb, Senior Researcher at the Expert Council of German Foundations on Integration and Migration, delivered the conference’s keynote address. Langenfeld and Kolb took as their primary theme the debate over whether Germany is a country of immigration, that is, a state that attracts and hosts large numbers of voluntary migrants. They noted that, as a simple empirical matter, Germany experiences large inflows of labor migrants. At the same time, Germany is rarely conceived as a major destination country for labor migration. This disconnect between sociological reality and public perception
can be traced, Langenfeld and Kolb suggested, to the fact that many labor migrants to Germany are EU nationals whose legal basis for entry and residence rests on freedom of movement for EU citizens. These migrants therefore are not officially classified as labor migrants but as persons exercising their mobility rights as EU citizens. Langenfeld and Kolb then elaborated on this main theme by branching out to discuss a range of related questions. They touched on the factors that determine a country’s attractiveness as a destination for highly skilled migrants, the prospects for the harmonization of labor migration law at the European level, and the possibility of channeling migration away from an “asylum” route to a “labor migration” route.

Panel 2: Migration, Labor, and Trade

The second panel of the conference examined the interconnections between labor migration and global economic integration and interdependence more generally. Michael Trebilcock, University Professor at the University of Toronto Faculty of Law, opened the panel with a discussion of immigration’s role within the framework of the four economic freedoms of globalization, namely the free cross-border movement of goods, services, capital and people. Trebilcock developed some hypotheses to explain why the international legal infrastructure for international migration is weaker than for the other three freedoms. One important possibility he canvassed is that highly skilled workers often have fewer incentives to
migrate than is often assumed. Jennifer Gordon, Professor of Law at Fordham University, followed by drawing attention to “human supply chains” in the global economy. This is the phenomenon of companies in high-income economies contracting with recruitment firms to supply them with low-skilled, low-waged migrant workers from developing countries. These human supply chains create structural conditions that enable exploitation and other abuses. Gordon proposed legal reforms that would make the companies at the top of these human supply chains liable for abuses downstream. Marion Panizzon, Senior Researcher at the University of Bern’s Institute of Public Law, concluded the panel by offering an assessment of the EU-Jordan Compact. The Compact seeks to prevent secondary refugee movement to the EU by requiring the Jordanian government to issue work permits to Syrian refugees arriving in Jordan, thereby incentivizing these refugees to settle in Jordan, in exchange for the EU extending trade preferences to Jordan. Panizzon noted that this framework facilitates the mobility of goods from Jordan to the EU, while simultaneously curtailing the mobility of persons in the same direction.

Panel 3: High Skilled Migration

The closing panel examined the subject of high skilled migration. The panel’s chair, Peter-Tobias Stoll of the University of Göttingen, noted that high skilled migration demands attention from both economic and legal theorists. Starting from the economic perspective, Hillel Rapoport, Professor at the Paris School of Economics, University of Paris 1 Panthéon Sorbonne, challenged the idea that high skilled emigration negatively impacts the sending country, an idea commonly called brain drain. Rapoport positioned his research in opposition to the brain drain literature of Jagdish Bhagwati and Robert Lucas and demonstrated how high skilled emigration connects the sending country to the global economy and, through the individual migrant’s transmission of his/her local knowledge, facilitates foreign investment in the sending country. France Houle, Professor of Law at the University of Montreal, then presented her legal study of foreign-trained professionals in Quebec and the obstacles they faced in obtaining a license to practice their profession. Quebec’s forty-six licensing boards are bound by treaty to recognize licenses issued in France, yet in reality, the boards frequently impose illegal conditions on foreign-trained professionals, such as extended internship periods in Canada. As Houle discovered during interviews with licensing boards, the conditions imposed on foreign-trained professionals frequently exceeded the “protect the public” legal mandate held by the boards. Concluding the panel and the conference at large was a presentation by Ayelet Shachar, Director of the Max Planck Institute for the Study of Religious and Ethnic Diversity and the host of the two-day conference in Göttingen. Shachar shed light on one of the most troubling yet understudied phenomena to emerge out of competition over “high value” migrants: the purchasing of citizenship. In the 1980s, several small island nations began to offer citizenship in exchange for a modest capital investment. Other countries began to copy this model and starting in 2010, a swell of new investment-for-citizenship programs launched globally with more than half of the world’s countries now offering citizenship for some amount of capital investment. Shachar described the construction and implementation of these programs and revealed through her research, the disproportionate role played by for-profit intermediaries, such as global law firms and other consultancies that constructed citizenship-purchase schemes by, on the one hand, petitioning governments to offer such systems and, on the other hand, offering to facilitate the process for wealthy applicants, for a price. Shachar concluded with a chilling assessment of the ways in which membership-by-investment schemes diminished the concept of citizenship by dissociating it from notions of equality and shared duties, a somber warning on which to end the conference.