International Labour Day: Undocumented Migrant Workers are Widely Exploited, Despite Existing Legal Frameworks
On the occasion of International Labour Day, The Platform for International Cooperation on Undocumented Migrants (PICUM) calls attention to persisting labour exploitation of undocumented migrant workers and urges governments to implement tools ensuring labour rights protection for all migrant workers, regardless of residence status.
While undocumented migrant workers meet essential needs of labour markets in countries of destination - often jobs in sectors such as construction, agricultural work or domestic and care work – they can easily become exploited by employers who take advantage of their irregular status and inability to access justice in cases of complaints.
Ahmed*, an undocumented worker from Morocco employed as a construction worker in Brussels, Belgium stated:
“I had to work day and night for my boss. He made me carry stones to the top of an embassy building in Brussels so that he wouldn’t have to pay for a crane. Ever since I did this job my back hurts. The least he could do is pay me as he has promised but even that was too much for him. I have worked as hard and as good as any other worker so I demand that my labor rights will be respected. That is why I filed a complaint against my boss.” With the help of the Organisatie voor Clandestiene Arbeidsmigranten - OR.C.A. (Organisation for Undocumented Migrant Workers), Ahmed managed to file a complaint with the labor inspector but was unsuccessful in gaining redress as he could not provide sufficient proof of employment.
Recognising the widespread exploitation faced by migrant workers through the world, in April 2014 the United Nations Special Rapporteur on the Human Rights of Migrants, François Crépeau, delivered a thematic report on this issue which will be presented to the UN Human Rights Council in June 2014, noting:
“Unrecognized labour needs in destination States, especially for low-skilled labour, constitute a major pull factor for irregular migration. Opening up more regular migration channels for workers considered “low-skilled”, thus recognizing the labour needs of destination States, and sanctioning exploitative employers, would reduce irregular migration and limit the power of smugglers’ organizations, thus contributing to the better respect, protection and fulfilment of the human rights of migrants. All migrant victims of abuse and exploitation should have access to effective remedies, including the possibility of pursuing compensation claims, regardless of their residence status, without fear of retribution."
One of the barriers in accessing justice are employer dependent statuses which put undocumented migrants at risk of apprehension or deportation if they chose to report exploitation or abuse. In addition, undocumented workers frequently have no or little information about their rights and ways to file complaints. Trade unions should encourage participation of workers in an irregular situation to ensure their empowerment, encourage them to gather evidence of exploitation and inform them of their rights and legal ways to get redress.
Governments should effectively implement existing frameworks allowing undocumented victims of crime and labour exploitation to report to the police and other authorities and access justice without fear.
At global level, the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families – which currently has 47 ratifications - sets out standards for equal treatment of all migrant workers concerning working conditions and recognition before the law. Article 68(c) imposes sanctions on persons which use violence or intimidation against migrant workers or members of their families in an irregular situation. The Migrant Workers’ Committee – tasked with monitoring states parties’ reports to this convention – recently held a Day of General Discussion on the labour exploitation of migrants and has also issued a General Comment on the rights of migrant workers in an irregular situation and members of their families.
In the European Union, the Victims of Crime Directive 2012/29/EU establishes minimum standards on the rights, support and protection of victims of crime. When transposed into national law, the directive will be a key tool to ensure access to justice and support for undocumented migrants who become victims of exploitation and crime. Article 1 of the directive establishes that rights and minimum standards apply to all victims of crime, irrespective of their residence status. All EU member states, except Denmark which opted out of the Directive, are required to transpose these rules into national law and practice by November 2015.
Moreover, a thorough implementation of labour rights provided in the Employers’ Sanctions Directive 2009/52/EC would contribute to effectively address impunity of employers exploiting undocumented migrants and ensure that undocumented migrants can claim redress. Although the directive’s primary aim is to deter irregular migration, Article 6 establishes that undocumented migrant workers can demand back payments of exploitative and abusive employers.
To ensure that undocumented workers are able to make claims for redress, the guidelines developed by the EU Agency for Fundamental Rights (FRA) “Apprehension of migrants in an irregular situation – fundamental rights considerations” demand the establishment of a ‘firewall’ - a clear separation between accessing labour protection and services and means of immigration enforcement such as apprehension. All measures taken should ensure a human rights-based approach to migration and protect the rights of all workers, including those who are undocumented.