Migrant workers in labor and social security law

This study titled "Migrant Workers in Labor and Social Security Law" examines the situation of migrant workers in labor and social security law. Migration is not a new concept. In fact, migration has been a phenomenon that has been going on since the beginning of humanity. Moreover, due to wars in the Middle East, Russia's invasion of Ukraine and global climate changes, migration has become one of the most important topics of today. Therefore, it can be stated that migration is a topic that never loses its actuality. Due to its geopolitical location, our country has also been affected by migration throughout history. Our country, which was known more as a migrant sending or a transit country in modern times, has suddenly been exposed to a massive migration flow and has become a migrant hosting country, especially due to the civil war in Syria. This situation has led to legal problems as well as economic, demographic, sociological, political, etc. As a matter of fact, Turkey, which has not previously encountered such a large migration wave, has also been caught unprepared in terms of law against migration from Syria. The legal status of these people within the framework of law of foreigners could not be determined for a long time and temporary protection status was regulated to overcome this problem. However, it is observed that, particularly due to the influence of the media, Syrians continue to be frequently labeled as "refugees". In fact, the concept of "refugee" in Turkish law is not a concept that can be used for those coming from Syria. Since the concept of "migrant" is used in a very limited sense in our law, this concept does not include Syrians when considered in the context of Turkish law. It can be said that the migrations from Syria have highlighted the confusion over the legal status of the people migrating to our country within the scope of law of foreigners. xxvii Although the issue of migration has been frequently examined by various disciplines, particularly sociology, it is observed that studies in the field of law are less compared to other disciplines and the number of studies in the field of labor and social security law is much more limited. However, migrants who have come to our country have also affected the labor market and since they started to work here within the framework of employment contracts, problems have also started to arise in terms of labor and social security law. Considering migrants as chep labor, the tendency to employ them unregistered, violating their rights arising from the employment relationship much more easily, the discriminations in employment relationships due to being migrants constitute the basic problems in labor and social security law. When the issue is considered in terms of irregular migrants, an even worse picture is encountered compared to regular migrants. Indeed, irregular migrants are often forced to accept the working conditions imposed on them and are also reluctant to claim their rights due to the threat and fear of deportation. The very limited number of lawsuits filed by irregular migrant workers demonstrates this situation. Furthermore, there are many unanswered questions in labor and social security law, especially regarding irregular migrants. For example, whether the employment contracts of irregular migrants who violated the provisions regarding work permits will be considered valid or not is not yet a matter on which a consensus has been reached. Since there are not many academic studies on migrant workers and there are many questions about these people waiting to be answered, it was decided to examine migrant workers in terms of labor and social security law. The main aims of this study are to reveal the problems migrant workers face in terms of labor and social security law, to explain which rights they have, to propose solutions to existing or potential legal problems and to present these issues to the discussion of academia. In our study, the comparative law method has also been utilized. The reason for this is that comparing the legal system of one country with another can provide better solutions to existing or potential legal problems. In this context, comparisons have been made between our law and German law. The reason for choosing German law is to reveal what solutions German law offers to the problems caused by migration in the field of labor and social security law, since Germany, like our xxviii country, is a migrant hosting country. Quantitative data has also been frequently used in our study. Thus, our study is also supported by mathematical data. This study is systematically structured into three main parts. Since it has been observed that the concepts of migration, migrant and migrant worker are not emphasized much in legal studies, the first part of our study focuses on these concepts. It should be stated that there is no consensus on the definitions of these concepts. In order to eliminate this uncertainty, the definitions and explanations of the International Organization for Migration (IOM) are frequently used in this study. Indeed, IOM is a leading organization in the international arena of migration studies. By explaining these concepts, the study aims to clarify the differences between the concepts of migrant and foreigner and to define who the concept of "migrant worker" refers to. In the second part, migrant workers are examined in terms of labor law. Here, firstly, the right to work of migrant workers is examined and it is observed that this right is subject to some restrictions. These restrictions are obtaining a work permit and not working in jobs allocated to Turkish citizens. It should be noted that migrants who obey these restrictions are classified as regular migrant workers, while those who do not obey are classified as irregular migrant workers. This distinction is quite important in terms of labor law, because the question of whether the employment contract is valid or not can be answered based on this distinction. Following these discussions, the relation between the type of work permit and employment contract is examined. Then, the fundamental rights of migrant workers in working life are discussed and within this framework, trade union rihgts of migrant workers, the discriminations migrant workers face in working life and occupational health and safety measures are emphasized. In the final part of our study, migrant workers are examined in terms of social security law. It is observed that the main problem experienced in the field of social security law regarding migrant workers is that they are employed without insurance. It should be stated that the solutions to the problems arising in terms of social security law will be shaped according to the interpretation to be made regarding the validity of the migrants' employment contracts. xxix Keywords: Migration, Migrant, Migrant Worker, Labor Law, Social Security Law