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.

 

M, or how the UK can fail victims of trafficking and forced labour

The Appellant in this case requested that there be no reporting of any details that could identify her or her former employers, even though they have already been used in the public domain in the past. In this article, she is identified as M. and the respondent is identified as Mrs A.

The story, as reported by the Employment Tribunal which later heard the case, is unfortunately common. M., a Nigerian girl in her early teens, had been working as a domestic worker for two years when she was offered the opportunity to travel to the United Kingdom to look after the A. family’s children. She was promised that she would be paid £50 a month and attend school in the UK. She accepted the offer, especially as she wanted the opportunity to go to school. To get a visa and a passport, she told the authorities that she was planning to visit her grandmother, lying about her name and age.

M. lived with the A. family about one and a half year, during which she looked after three young children aged 5, 4 and 3, feeding, cleaning and dressing them, as well as cleaning the house and washing the dishes. Contrary to what she had been promised, she was not paid for her work and did not go to school. She suffered serious physical abuse and it is unclear whether she ever left the house alone.

In the words of the Employment Tribunal, M.’s irregular migration status in the UK gave the A. family “power and control over [her] by threatening that if she was noticed by the authorities then she would likely be imprisoned”. When M. was found in a supermarket car park, after having finally been thrown out of the house, she was afraid of the police and very worried about what might happen to her because of her migration status.

Trafficking for labour exploitation

M.’s case seems to fall squarely within the UK definition of trafficking. According to the Employment Tribunal, M.’s arrival in the UK was arranged by the A. family. Once in the UK, she was reportedly subjected to both threats and deception to induce her to work. Her young age and lack of resources, friends and family in the UK increased her vulnerability and dependence in her relationship with the A. family.

In fact, there are remarkable similarities between M.’s case and the 2005 case of Siliadin v. France, in which the European Court of Human Rights found that a Togolese girl was held in servitude in violation of Article 4 of the European Convention on Human Rights (ECHR).

The presence of indicators of trafficking for labour exploitation and domestic servitude should have pushed the UK authorities to start a criminal investigation into M.’s case, as required under international human rights law (see: ECtHR, C.N. v The United Kingdom, judgment, para69). Instead, there is no mention of criminal investigations into M.’s complaints in the Employment Tribunal’s decision.

In view of the gravity of the crimes possibly suffered by M., the silence of the Employment Tribunal on the trafficking and labour exploitation aspects of her case is deafening. The Tribunal found that M. performed “a function similar to that of an au pair”, ignoring that she was underage, unpaid, in an irregular migration status and not allowed to pursue education.

Of course, it can be argued that it is not for an Employment Tribunal to consider the criminal aspects of a case before it. Let’s consider, then, what should have been the Tribunal’s main concern: compensation.

 No compensation for irregular migrants?

Article 13 of the European Convention on Human Rights guarantees the right to an effective remedy to all those whose rights under the Convention are violated. A specific right to compensation and legal redress for victims of trafficking is guaranteed, among others, under Article 15.3 and 15.4 of the Council of Europe Convention on Action against Trafficking in Human Beings, which the UK ratified in December 2008.

Despite these obligations, the Employment Tribunal held that, as M. knew that she was not legally allowed to work in the UK, her contract of employment was illegal, with the result that she could not bring claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay. The Tribunal applied what is known as “illegality doctrine” or “illegality defence”, whereby courts can refuse to enforce obligations arising from an illegal deal.

Acknowledging that M.’s case was “probably one of the saddest case that has come before this Tribunal”, however, the Employment Tribunal decided that her dismissal was an act of unlawful direct racial discrimination and awarded her £6,000 for injury to feelings. These findings were initially confirmed in appeal. The Court of Appeal (Civil Division), on the other hand, applied again the “illegality defence” to reject M.’s claim and refuse any compensation.

The “illegality defence” and human rights

The Court of Appeal’s decision is currently under review before the UK Supreme Court. Unless it is quashed, irregular migrant workers who are victims of labour exploitation, trafficking for labour exploitation, servitude and slavery would be unable to obtain compensation from UK employment courts on either contractual or discrimination grounds.

In a 2009 consultation paper on The Illegality Defence, the UK Law Commission recommended that the courts should apply the “illegality defence” only after a consideration of when this is justified on the basis of the policies that underlie it, including “furthering the purpose of the rule which the illegal conduct has infringed” (para 8.3). In the case of individuals in an irregular migration situation, the purpose of the rule infringed would be the regulation of migration flows. While this is a legitimate purpose, states’ discretion in the adoption and enforcement of migration policies is limited by their obligations under international human rights law.

As the Law Commission itself put it,

“any national rules on illegality must comply with the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) as incorporated into UK domestic legislation by the Human Rights Act 1988” (para 3.90).

In particular

“if, and to the extent that [the application of the illegality defence in a contractual context] might [infringe any rights protected by the ECHR], it is quite clear that the defence would have to be applied flexibly in order to satisfy the requirement of legitimacy and proportionality” (para 3.95).

In M.’s case, as well as in all other cases of labour exploitation and trafficking of irregular migrant workers, national rules on illegality should not apply when their application would result in a violation of the right to remedy under Article 13 of the ECHR. The irregular status of migrant workers who become victims of trafficking and exploitation cannot stop them from obtaining justice from UK courts.

How to cite this article:

Francesca Pizzutelli, “M., or how the UK can fail victims of trafficking and forced labour”, The Rights Angle, https://therightsangle.wordpress.com/, 5 April 2013.