On European Anti-trafficking Day, 18 October, we spoke to government representatives to the Council of Europe, about key measures to ensure access to justice for all victims of trafficking, including when undocumented.
The side event, co-organised with La Strada International, highlighted critical evidence and recommendations, in the context of the third monitoring round for the Council of Europe Convention on Action against Trafficking in Human Beings addressing access to justice and effective remedies for trafficked persons, irrespective of their residence status.
Over the years, we have found that the fact that undocumented migrants do not usually have access to justice reduces their bargaining power with their employer, and as a result, increases the risk of experiencing and remaining in situations of exploitation.
People with irregular residence status face a wide range of barriers in accessing justice, that both prevent them from reporting abuses and limit their access to justice within the proceedings.
Exploitation of workers must be seen as a continuum, with decent work on one end of the spectrum and forced labour and trafficking on the other end. This means that a labour rights approach is as crucial and PICUM analyses the situation in both the criminal justice system and civil/ labour justice systems.
A key issue is that undocumented people are not able to report abuses because they risk being detained and deported to their country of origin. In practice, we see that, when identified by authorities as an undocumented migrant, people are usually not informed of their rights as trafficked or exploited persons, victims of crime and/or workers, and are required to return or deported before they can access remedy. People are also concerned that if they are not able to prove they are a victim of trafficking, they will be known to authorities and at risk of deportation, so do not want to take the risk. At best, if they are recognised as victim and provided a residence permit as a result, in many countries its length often only covers the duration of the proceedings, at the end of which the person will be required to return. Together with other practical and legal barriers, this means that trafficked persons without a residence permit are rarely able to access justice and effective remedy. The anti-trafficking frameworks fail to recognise that the majority of trafficked and exploited persons have migration projects, and to address their needs and wishes to migrate to work and to have a better life for their families.
At the same time, employment tribunals in many countries will address labour cases equally, regardless of the status of the worker. There are numerous cases of undocumented workers successfully claiming unpaid wages and compensation and not facing immigration enforcement (e.g. in Belgium, France, Ireland, and Geneva), though these key mechanisms remain vastly underused. Major barriers include risks of employer retaliation and/or becoming known to immigration authorities; lack of information, support, interpretation and legal assistance; inability to prove the working relationship and extent of labour violations; risk of provoking an inspection of the workplace that leads to identification and deportation, including of co-workers; and in some countries, penalties or sanctions for irregular residence or work, particular criminal sanctions. And, whether you will actually receive any of the unpaid wages and compensation that you are owed – whether ruled by the criminal or civil courts – is a whole other question and area of concern.
At PICUM we’ve long been campaigning for solutions that allow all people to fight against their exploitation. These include allowing everyone to safely report abuses to the police and putting in place effective labour monitoring, complaints and redress mechanisms.
To make complaints mechanisms effective, five key elements should be addressed:
- A clear separation (a firewall) in law and practice so that interaction with labour and social inspectors and authorities does not lead to immigration enforcement. This must apply at every stage, from inspections on the work-floor, to lodging a complaint to relevant bodies, and in the labour courts.
- A complaints body with sufficient powers and resources, including access to all places of employment and powers to investigate.
- Fair legal proceedings: the undocumented worker should have the right to be involved and supported by a third party in any proceedings, guaranteed access to legal representation, and have a right to appeal.
- Residence status: The complaints body should request a residence permit for the undocumented worker and their family at least for the duration of the procedure, with the possibility of extension and to change the type of permit.
- Mechanisms to ensure unpaid wages and compensation are actually received by the undocumented worker, even if the worker is no longer residing in the country.
Such elements are necessary and implied for the effective implementation of existing EU legislation, including the Victims’ Rights Directive and the Anti-Trafficking Directive. Effective complaints mechanisms are already required for undocumented workers by the Employers Sanctions Directive. In addition, EU law provides that mechanisms to compensate workers in the case of employer insolvency cannot exclude undocumented workers.
Beyond EU legislation, effective complaints mechanisms are further required by human rights law, and the International Labour Organisation Labour Inspection Convention amongst others, as well as recommended by United Nations, Council of Europe, and EU human rights bodies.
The government representatives to the Council of Europe also heard more about the barriers to trafficked persons receiving just compensation from La Strada International, and an analysis of the implementation of the landmark ECHR judgement Chowdury and Others v. Greece by lawyer Vassilis Kerasiotis. While the farm workers in this case have received compensation, and in some cases, residence permits, exploitation of undocumented farm workers remains endemic in the area, and across Europe.