Migrant workers need safe complaint mechanisms

This blog post was written by Emer Connor, PICUM Trainee.

A recent report on the exploitation of workers during the construction of the European Council’s Europa building sheds light on Europe’s reliance on and frequent mistreatment of workers with precarious or irregular status and raises important questions about accountability in supply chains.

The EU has come under fire from the Belgian newspaper De Standaard, which alleges subcontractors who worked on the construction project withheld pay from irregularly employed EU and undocumented workers. Many of them were never given a contract or covered by any insurance. Despite reporting to the labour inspectorate, the Bulgarian complainants never received any compensation, and the complaint has since expired without anyone being held accountable.

This lack of accountability and failure of redress mechanisms is symptomatic of EU-wide shortcomings in effective complaints mechanisms for people who experience labour exploitation. Fairwork Belgium’s Jan Knockaert reported to De Standaard that they received almost 500 calls from migrant workers about mistreatment in 2019, in multiple employment sectors. Across Europe, we are failing victims of labour exploitation, particularly those with irregular or precarious status who are not formally identified as trafficked persons and left without support or access to any form of remedy.

PICUM, La Strada International and Victim Support Europe recently collaborated with MEP Domènec Ruiz Devesa to organise an event in the European Parliament to address the current shortcomings in support and compensation for migrant workers who experience violence and exploitation. The event took place on 2 December 2019, the day before EU justice ministers met to adopt the Council’s conclusions on victims’ rights, calling on the Commission to draw up a new EU strategy to ensure that victims’ rights apply in practice, building on recommendations from the Special Adviser to the President of the European Commission on compensation for victims of crime, which include, among others, a recommendation on safe reporting for undocumented victims.

A clear take away from the event was the need for firewalls to be implemented between reporting mechanisms and immigration enforcement. The bottom line is that people will not feel safe reporting crimes or labour rights violations until there is a clear policy and practice that guarantees they will not face immigration enforcement as a result. This is a public safety issue, as fear and lack of trust among those in the community hampers police ability to investigate crime and protect people. This is evident, for example, from the police campaign following the discovery of 39 bodies in a freight lorry in the UK. In their appeals for information, British police encouraged undocumented witnesses and family members of victims to come forward “without fear”, promising that no action would be taken against anyone that could help with the investigation. However, when pressed, the UK police could not guarantee that witnesses details would not be shared with the Home Office.

A recent project by COMPAS at the University of Oxford explores policy surrounding the reporting of crime by irregular migrants in four European countries –  Belgium, Italy, Spain and the Netherlands – and the United States and highlighted some positive practices. The ‘Free in, Free out’ initiative by police in Amsterdam aimed to guarantee that anyone who reports a crime as a victim or witness would be allowed to leave the police station (or interaction with police on the streets) without having their details passed to immigration authorities. This initiative led to a national policy on safe reporting in the Netherlands. Spain has introduced special permits for victims of domestic violence as well as victims of trafficking. Return proceedings are immediately halted once an undocumented person is identified as a victim of domestic violence (once a protection order or report by the Public Prosecutor has been issued).  They may be eligible for a special permit once the perpetrator of the violence has been convicted (and an interim permit during proceedings). These policies and practices need to be further developed and implemented, and made accessible for more people, in more countries.

A full report of the 2 December event can be viewed here. It brought together representatives of the European Commission, European Parliament, the International Labour Organisation (ILO), the EU Fundamental Rights Agency (FRA) and a range of civil society organisations. The organisers presented several legal, policy and practical actions to be taken at EU level to promote safe reporting to the police, effective labour complaint mechanisms, and access to justice for all victims, including people with precarious or irregular status.

Key recommendations were made the following areas:

Policy Coordination:

• Create a cohesive approach across the relevant Directorates (DGs) and Committees
• Include measures to support access to justice for undocumented workers in relevant EU strategies, including the planned EU Victims’ Rights strategy and Gender strategy.
• Reinstate the network of national compensation authorities.

Funding:

• Use EU funding to support everyday operations of quality services that assist victims, across different service sectors, without discrimination based on residence status.
• The European Commission should seek to ensure that member state’s labour complaints mechanisms are effective for everyone, including those without authorisation to work, through the oversight of national programmes for AMF and ESF+.

An effective legal framework:

• Real impacts and outcomes for workers and victims should be part of EC evaluations of the Employers Sanctions Directive, Compensation Directive, Victims’ Directive and Anti-trafficking Directive. The European Parliament should commission an independent evaluation of the impacts of sanctions on employers of undocumented workers.
• Encourage ratification of ILO instruments (in particular those on domestic workers, violence and harassment in the workplace and forced labour)
• Facilitate access to stable residence and work permits for victims. In particular, in the revisions of the Return Directive and Dublin procedure, strengthen provisions on access to permits during procedures, or at least guarantee that no return decisions will be issued or enforcement pursued during or as a result of engaging as a claimant, victim or witness in civil or criminal procedures.

Meaningful civil dialogue structures:

• The EU should listen to non-governmental bodies with direct experience when developing and evaluating policies. Victims’ and workers’ voices must be heard along with service providers.
• The European Labour Authority should consult with organisations representing migrant workers. NGO involvement in the European Network on Victim’s Rights should be expanded.

PICUM has developed a number of resources on the firewall, including leaflets and animated videos on the firewall in the context of the police and criminal justice system and in the context of labour inspection and the labour justice system. All resources are available here.