Abusive labour migration policies: Amnesty International’s statement on the occasion of the UN Committee on Migrant Workers’ Day of general discussion on workplace exploitation and workplace protection

Mexican construction workers

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Ladies and gentlemen,

Amnesty International would like to thank the UN Committee on Migrant Workers and the Office of the High Commissioner for Human Rights for inviting the organisation to participate in this Day of general discussion.

My observations today will focus on abusive labour migration policies, i.e. labour migration policies that increase migrant workers’ risk of suffering labour exploitation and other abuses at the hands of their employers.

These observations are based on field research on labour exploitation of migrant workers, conducted by Amnesty International in Hong Kong (China), Italy, Qatar and South Korea between 2009 and 2014. You will find more details in Amnesty International’s written submission to the Committee. Individual testimonies and detailed legal and policy analyses have been published in country-specific reports.

In many of the cases of labour exploitation that Amnesty International investigated, the abuses suffered by workers were not only due to the actions or failures of an individual employer, but were linked to systemic problems in the way migrant workers’ employment is regulated in the destination country. We have found that, in many destination countries, labour exploitation is rooted in serious flaws in the processes by which migrant workers are recruited and employed, which facilitate and enable employers to subject migrant workers to exploitative practices.

Let me give you some details about two types of abusive labour migration policies:

  1. Labour migration policies that give the employer control over the migrant worker’s residence status;
  2. Labour migration policies that tie migrant workers to a specific employer.

1. Labour migration policies that give the employer control over the migrant worker’s residence status

Amnesty International’s research has found that labour migration policies that give the employer control over the migrant worker’s residence status increase the risk of labour exploitation.

In Qatar, the Sponsorship Law gives the employer the exclusive responsibility to complete the administrative procedures to issue or renew migrant workers’ visas and work permits. This means that the employer has the power to arbitrarily make migrant workers irregular, even when they meet the relevant legal requirements about entry and stay. Amnesty International researchers met hundreds of migrant workers arbitrarily left “undocumented” by their employers. Without the documents necessary to prove their migration status, migrant workers find themselves at constant risk of arrest by police, who regularly stop migrant workers to check their papers. This highly precarious situation reduces migrant workers’ ability and likelihood to access assistance by the authorities in case of labour exploitation.

In Italy, the seasonal permits system has de facto become an unofficial regularisation mechanism for the many migrant workers in an irregular situation. As the procedure can only be initiated by the employer, irregular migrant workers are completely dependent on their employer’s willingness to apply for the documents necessary to regularise their status. The employer’s effective power to determine the worker’s migration status can easily become a tool to intimidate or threaten workers, undermining their ability to negotiate better wages and working conditions. Amnesty International’s research has shown that the promise of regular documents is often used by employers to induce migrant workers to accept exploitative labour conditions. The non-payment of wages or arbitrary wage deductions, which are common instances, are often justified by the employer as payments for his/her “cooperation” in the process to obtain documents.

2. Labour migration policies that tie migrant workers to a specific employer

Amnesty International’s research has found that labour migration policies that tie migrant workers to a specific employer increase the risk of labour exploitation.

This is the case, for example, of:

  • Visas or work permits which require permission by the first employer for the migrant worker to change jobs;
  • Visas or work permits immediately or rapidly expiring when a migrant worker leaves a job or is fired.

 A. Visas or work permits which require permission by the first employer for the migrant workers to change jobs

Some countries impose limitations on the labour mobility of migrant workers, requiring them to obtain permission by their first employer in order to change jobs. In Qatar, such a permission is known as “No objection certificate”, or NOC; in South Korea, the employer signs a “release” document.

If workers find that they have been deceived about the terms and conditions of their contract during the recruitment process, or are subjected to abuse by their employer, the question of whether or not they can change jobs depends on their employer. Where permission to change jobs is not granted, migrant workers who leave their job lose their regular migration status, thus risking arrest, detention and deportation.

Amnesty International’s research has found that the employer’s power to prevent workers from leaving their job can be used to pressure them to continue to work in situations where they are subjected to exploitation or when the individual simply wants to resign and return home. These practices are inconsistent with the right of everyone to the opportunity to gain a living by work which he or she “freely chooses or accepts” (Article 6, International Covenant on Economic, Social and Cultural Rights).

B. Visas or work permits immediately or rapidly expiring when a migrant worker leaves a job or is fired

Visas or work permits that expire immediately or shortly after a migrant worker leaves a job or is fired, leaving them in an irregular migration situation, increase the risk of labour exploitation because they greatly reduce the likelihood that the worker would seek help from the authorities in case of abuse, for fear of being detected as irregular and deported.

This is the case for visas that do not allow the worker to change employer, thereby expiring when the employment relationship with the first employer ends, such as the United Kingdom’s visa for migrant domestic workers.

However, the same risk of labour exploitation arises with respect to labour migration policies that allow migrant workers only a very short time to find a second employer after the end of the employment relationship with the first one, such as the Two-Week Rule in Hong Kong (China) and the Employment Permit System in South Korea.

Migrant workers who lodge a complaint against their employer are likely to have their contract terminated. Labour migration policies that impose on them a very short time to find another job leave them with little choice but to remain in abusive and/or exploitative conditions or accept jobs with unfavourable work conditions in order to maintain their regular migration status. Fear of losing their job and quickly becoming irregular increases migrant workers’ reluctance to complain about abusive labour conditions.

Recommendations

Amnesty International recommends that the Committee requests states parties to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families to provide detailed information on the following aspects of their labour migration policies:

  • Labour migration policies that give the employer control over the migrant worker’s residence status;
  • Labour migration policies that tie migrant workers to a specific employer;
  • Measures taken to ensure the right of all migrant workers to the opportunity to gain a living by work which he or she freely chooses or accepts;
  • Measures taken to ensure that all migrant workers are able to report instances of labour exploitation and obtain an effective remedy for human rights violations.

 

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San Papier, the patron saint of undocumented migrants

Image

In Southern Italy, Catholic monotheism often turns into not-too-orthodox forms of quasi-polytheism via the worshipping of a plethora of saints, blessed people and spiritual guides. Every city, town and village has its own patron saint (San Gennaro, Saint Januarius, in Naples; Santa Rosalia in Palermo; San Nicola, Saint Nicholas, in Bari), celebrated once a year in great pomp and splendor. Then there are patron saints for specific occupations (San Giuseppe, Saint Joseph, for example, is the patron saint of carpenters) and others for specific calls or functions (Santa Lucia, Saint Lucy, is the patron saint of eyes and eyesight). It was only a matter of time until irregular migrants found their patron saint, too.

Enter San Papier, the patron saint of migrants without visas! The name is a delightful pun combining San, Italian for saint, with sans papier, French for undocumented.

San-Papier

The image appeared online at some point during 2009 and then was adopted during the ‘migrants’ strike’ of 1 March 2010. My favourite version is the one provided by the Comboni missionaries (Association Black and White) based in Castel Volturno, Caserta – there is even a prayer, asking for the abrogation of the crime of irregular migration…

The 2007 Italy – Egypt readmission agreement * in English and Italian

Source: Wikimedia

Source: Wikimedia

The Cooperation agreement on readmission between the government of the Italian Republic and the government of the Arab Republic of Egypt (“Accordo di cooperazione fra il governo della Repubblica Italiana e il governo della Repubblica Araba di Egitto in materia di riammissione”) was signed in Rome on 9 January 2007 and entered into force on 25 April 2008.

According to the Italian Ministry of Interior, responding to a Parliamentary question, the agreement was still being applied in August 2013.

The Italian and English texts of the agreement were published online by terrelibere.org in September 2013.

* * *

Download the 2007 Cooperation agreement on readmission between the government of the Italian Republic and the government of the Arab Republic of Egypt in English (PDF)

Scarica l’ Accordo di cooperazione fra il governo della Repubblica Italiana e il governo della Repubblica Araba di Egitto in materia di riammissione in italiano (PDF)

Sfruttamento lavorativo: Governo italiano modifica la procedura per la “sanatoria” 2012

Con il decreto-legge n. 76 del 28 giugno 2013 il governo italiano ha parzialmente modificato la procedura della “sanatoria” 2012, il provvedimento di regolarizzazione per i migranti occupati irregolarmente iniziato lo scorso 15 settembre 2012 (art. 5, decreto legislativo n. 109 del 16 luglio 2012).

In particolare, l’articolo 9.10 del decreto legge dispone che:

–  nei casi in cui la dichiarazione di emersione sia rigettata per cause imputabili esclusivamente al datore di lavoro, ma siano presenti gli altri requisiti di legge, al lavoratore possa essere rilasciato un permesso di soggiorno per attesa occupazione;

– nei casi di cessazione del rapporto di lavoro oggetto di una dichiarazione di emersione non ancora definita, la procedura di emersione si considera comunque conclusa in relazione la lavoratore, al quale e’ rilasciato un permesso di attesa occupazione (o un permesso di soggiorno in presenza della richiesta di assunzione di un altro datore di lavoro).

In un memorandum pubblicato nel settembre 2012, Amnesty International aveva denunciato il fatto che la procedura della “sanatoria” 2012 limitasse la capacità dei lavoratori migranti di partecipare in maniera effettiva alla regolarizzazione del proprio status, rendendoli completamente dipendenti dal datore di lavoro ed accrescendo la loro vulnerabilità allo sfruttamento lavorativo.

Amnesty International aveva raccomandato che la procedura della “sanatoria” 2012 fosse modificata in modo da assicurarne la conformità con l’obbligo di prevenire e contrastare lo sfruttamento lavorativo, in particolare in modo che i lavoratori migranti fossero in grado:

– di completare la procedura anche senza la cooperazione del datore di lavoro, se in possesso dei requisiti del caso;

– di cambiare datore di lavoro legalmente durante il periodo di tempo necessario per il completamento della procedura.