European Platform Against Trafficking in Human Beings

Case study

(Labour) Migration policies

The rise of economic inequality and increasing economic insecurity, as well as the consequences of political and armed conflict, have led to an increase in human movement for labour and to an increase in informal and unprotected work. Furthermore, the increasing informalisation of and competition within the global economy has led to more flexible labour markets and the demand for cheap labour, triggering migration and the gradual erosion of labour rights protection worldwide. While the member states and the European Council and Commission now recognise the need for regulated international migration channels for (highly) skilled labour, they remain reluctant to publicly acknowledge their dependence on low-paid and informal forms of migrant labour.

It is generally accepted that state policies in promoting restrictive immigration controls and reducing opportunities for regular migration have created a market for irregular migration, often as serious organised crime, through human trafficking and smuggling. It has also been widely recorded that restrictive immigration laws and the criminalisation of (undocumented) migration have left a large number of migrants, and specifically migrant workers, vulnerable and open to varying degrees of exploitation and abuse by recruiters, in particular traffickers, but also employers operating within the irregular market and private households. This is not only due to the barriers to legal migration channels, but also to a lack of adequate state monitoring of employers’ adherence to the labour rights of undocumented migrants within these irregular labour markets.

La Strada International has identified several areas of concern with regard to recent developments in the EU’s migration policy that are likely to impact negatively on the rights of trafficked persons, or even create conditions for persons to become trafficked.

  • Seasonal Workers Directive

In February  2014 the European Parliament voted on the Directive on conditions of entry and residence of third-country nationals for the purpose of seasonal employment in EU Member States, the so-called “seasonal workers directive”. The new rules will give non-EU seasonal workers the some labour rights on minimum pay, dismissal, working hours, holidays, and health and safety requirements, as EU nationals. The legislation requires all applications for entering the EU as a seasonal worker to include a work contract or a binding job offer specifying payments, working hours, as well as evidence that the worker will have appropriate accommodation. Employers in breach of their obligations will face penalties and will have to compensate the seasonal worker concerned.  However, member states will keep the right to decide how many seasonal workers they allow into their country each year and to fix a maximum length of stay of between five and nine months over a year.

Civil society originations working with migrant workers and undocumented migrants have, together with La Strada International, welcomed and strongly supported measures agreed upon by the European Parliament and the Council that aim at creating better working and living conditions for third-country seasonal workers across the EU. However, some of the measures regarding social rights and equal treatment of workers, were not taken into account, which might jeopardise the effectiveness of the Directive by not sufficiently addressing exploitation risks. More information can be found here.

  • Employers’ sanctions Directive

The criminalisation of undocumented forms of labour is dealt with in the European Commission’s Directive on sanctions against employers of ‘illegally’ resident third-country nationals. La Strada is concerned that sanctions to penalise employers for hiring undocumented workers has negative impact on migrant workers themselves. Raids on workplaces often result in the deportation of undocumented and exploited workers, who might have been trafficked. Workplace controls, which are necessary to ensure the protection of labour rights, should therefore be uncoupled from immigration controls, as the conflation of the two renders the proclaimed objective of protecting migrant workers ineffective. We believe that the protective measures that are included in the Directive should be part of a different, rights-based approach that does not start from migration control objectives but that gives priority to the enforcement of labour rights for all workers regardless of their status, and addresses specific situations that make certain groups of workers particularly vulnerable. Article 6 of the Directive stipulates that undocumented workers can claim compensation from their sanctioned employers for unpaid wages, but there is little to no record of cases of workers actually claiming their rights.

Furthermore, any measures on irregular employment should be monitored for their human rights impact, in particular their impact on trafficked persons.

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