By Kadri Soova,
This blog will look at how lack of authorised migration status contributes to increased vulnerability of migrants in situations of human trafficking and exploitation. It is widely known that due to imperfect identification processes, the majority of trafficked persons are not recognised as victims of trafficking, and thus fall into the broader category of irregular migrants. PICUM’s starting point when looking at the issue of trafficking is that not all undocumented migrants are trafficked persons but a majority of all trafficked persons will be undocumented migrants. Therefore many issues linked to those of trafficked persons are very common to a wider group of undocumented migrants- issues around access to basic services, access to protection and justice mechanisms.
As a result of the fact that the trafficking framework is currently not offering the necessary support and protections to all victims of abuse and exploitation, we need to address the question- what happens with those people who for one reason or another fall out or do not fit into the trafficking framework? This can happen because of a too narrow interpretation of the law, because fear prevents victims from working with law enforcement or because we simply do not reach those victims because they are so isolated and cut off from any public services.
Focus should lie on actions ensuring the human rights of these migrants and identifying which other systems are in place or need to be put in place to improve their access to services, care, justice and protection and fight discrimination. Reinforcing protections in crucial areas, where undocumented migrants face discrimination is of utmost importance for victims of exploitation and abuse. Access to basic labour rights and fair working conditions, access to protection, justice mechanisms and redress as well as access to basic social services are most relevant
ACCESS TO BASIC LABOUR RIGHTS
Labour rights enforcement that is focused on establishing fair working conditions first and foremost and not on pursuing the migration status of workers is essential. In the EU, a directive on Employers Sanctions was passed a couple of years ago, which establishes sanctions for employers of undocumented migrants and provides for some guarantees for the workers. However, this directive was passed as part of a DG Home Affairs package to “combat irregular migration” which already paints a very clear picture of the foreseen objectives and focus.
NGOs were trying very hard to put their concerns across- they were worried that the directive will actually have the opposite effect and would push undocumented workers further underground into more isolation and into worse working conditions. PICUM already has received some indications from its members that these sanctions are not on one hand having the deterrent effect- it is still cheaper to risk paying the fines than hire workers regularly and on the other hand workers are not reporting abuse and exploitation because there are no guarantees in relation to their migration status. The implementation deadline for this directive was last summer and in 2014 an implementation review is foreseen from the Commission. PICUM intends to collect information and put together a shadow report on this issue.
So in the first instance, for labour rights enforcement to be effective, there must be a firewall between labour inspections and migration status, otherwise abuses are not reported.Secondly, there need to be more regular avenues for migrants to enter Europe for low wage work. The first and only EU wide initiative of this sort is the proposal for a directive on seasonal work. This is still being discussed in the Council and many question marks remain around the nature of circular migration.
Thirdly, the right to change employer should be an obvious one. Employer dependent migration status is a huge driver for exploitation, abuse and underreporting. This is closely linked to the second key area that we need to address in order to provide that necessary landing for those victims not identified as victims of trafficking.
ACCESS TO JUSTICE AND PROTECTION
Lack of authorised migration status and employer or spouse dependent status or what is sometimes called an insecure migration status is a factor of vulnerability both in terms of being more vulnerable to trafficking and exploitation and being unable to seek assistance and protection.
It is crucial that all victims of crime regardless of migration status would have equal rights in terms of assistance and remedies. The EU recently passed a directive on the rights of victims of crime, which, even though does not explicitly establish safeguards for undocumented migrants, does clearly refer to rights of all victims regardless of migration status, which means that the directive applies also to irregular migrants.
Trafficked persons who do not want to press charges or who are not identified depend on this directive on victim’s rights, as it provides for access to support and practical assistance from the earliest possible moment irrespective of whether the crime has been reported to authorities. Now it will depend on the member states how they will implement this directive and if it would be possible to include specific safeguards to national level legislation that would really ensure that undocumented migrants will be able to report crimes against them without the fear of being deported.
PICUM has in recent years done extensive research in relation to the realities of undocumented women experiencing violence and the often devastating situation many find themselves in. We found that undocumented women are more exposed to ill-treatment. Add to this, the risk of deportation if they contact the police, difficulty to gain access to women’s shelters, to legal and financial assistance for victims of violence, and it becomes clear that this specific group of women is unprotected against violence in Europe. These women face structural and institutional discrimination because of their migration status, in addition to gender-based violence.
Safeguards, such as giving a temporary residence permit and allowing for free legal counsel, would prevent irregular migrants from becoming a “zero risk victim” and help combat impunity. In France and in Spain there are specific laws in place that guarantee undocumented women the right to access justice and ensure that all victims can report a crime without fear of being arrested or deported.
ACCESS TO BASIC SERVICES
Non-discriminatory access to basic services such as health care, education and decent housing will have both preventative benefits but will also help to identify victims of trafficking. Irregular migration status prevents migrants from accessing services like health care due to legal barriers as well fear of being arrested and deported, victims often suffer in isolation. Education for undocumented children is another crucial one- be the children living with families or unaccompanied, having access to the education system has a strong preventative role in terms of falling prey to traffickers. Decent housing and shelter is equally essential- safe havens open to all persons regardless of migration status are absolutely vital. Unfortunately, the reality is far from it as in most EU countries, for various reasons, women’s shelters and homeless shelters remain closed for people with an irregular migration status.
As a recurrent and intersecting recommendation, PICUM calls for a firewall to be put in place between the ability to access such essential human rights and any potential proceedings on grounds of migration status in order to guarantee protection for all vulnerable migrants in exploitative and abusive situations.
This blog entry was posted also on the website of Flyktingbloggen (Refugee Blog) on 31 October 2012.