Enhancing the labour rights of exploited migrant workers: the role of migration policies in guaranteeing access to justice
Labour market shortages across the European Union have led to an increased use of restrictive and/or temporary migration mechanisms that seek to facilitate access to the EU labour market, particularly for lower to medium skilled workers (European Commission, 2022; Bauböck and Ruhs, 2022). Whilst it has been accepted that migrant workers must not anticipate full access to political and civil rights (Ruhs, 2013), the pitfalls of such stringent mechanisms and the likelihood for them to be used as a means of exploiting or abusing the labour and social rights of migrant workers is well documented (Anderson, 2010). Significantly, more recent literature has emphasised the need to be mindful of groups of individuals who are excluded from political participation and are unable to voice concerns about the consequences of any restriction to their rights (Mantouvalou, 2023). In particular, the practice of tied visa regimes – whereby the right to work is coupled to a specific job and employer – leaves unscrupulous employers plenty of room to engage in fraudulent practices (Mantouvalou, 2015; Weatherburn and Muraskiewicz, 2016; Niezna, 2022). Increasingly, research reveals that the abuse of these mechanisms leads to labour rights violations such as systemic non-payment of wages and/or social security contributions, unreasonably long working hours, abusive, discriminatory and threatening behaviour towards the worker and their family, and making unlawful and illegitimate deductions for accommodation, transport, clothing and food all add to the ways in which workers rights are not respected or guaranteed (Weatherburn et al, 2022, Weatherburn, 2023 (forthcoming), see also Jokinen & Ollus, 2019). These practices are in effect facilitated by structural mechanisms, such as tied visa regimes, that create precarious migration status and “a well-founded fear that the loss of employment could result in the loss of work permits, of deportation and of then being unable to support themselves and their families” (Schoultz et al, 2023).
In what follows, the two key EU instruments that require Member States to provide of support and assistance for exploited workers will be outlined, namely the 2011 Anti-trafficking Directive and the 2009 Employers Sanctions Directive. The recognition of the need to protect workers from exploitation is to be welcomed, however, there are significant limitations to the scope of these protection mechanisms. For instance, the severity of the exploitation in the context of human trafficking must meet a very high-threshold that limits the number of victims who are formally registered (and thus entitled to support and assistance) and the protection measures of the employers sanctions directive are only applicable to “illegally staying third-country nationals”. We will then move on to consider the provision of support and assistance for migrant workers who are regularly residing and have the right to work in an EU country but nevertheless experience workplace exploitation. One fairly recent response has been to incorporate into labour migration policy the provision of temporary residence permits for those who i) are regularly residing and have the right to work and ii) have experienced workplace exploitation as a means of facilitating their access to justice and/or reorientating them towards new employment in the labour market. To date, a specific residence permit that can be granted to those who have experienced workplace exploitation has only been introduced in one EU Member State, Finland, but is part of a trend that is also seen beyond the borders of the EU in Canada, New Zealand and in proposed legislation for Australia. The Finnish residence permit or certificate due to exploitation by the employer will be outlined with a view to providing insight into how such a temporary residence permit can facilitate reinsertion into the labour market and guarantee protection of migrant workers’ fundamental rights to decent work.
Undocumented and exploited? Help is available…. In theory.
It is well known that the exploitation and abuse of migrant workers is further exacerbated by their undocumented status, wherein their employers will take advantage of their irregular migration status and, in addition to the forms of exploitation above, also threaten denunciation to state authorities if they do not acquiesce to their demands (Luo, Gadd and Broad, 2023). In addition to the exploitation suffered in the workplace, the opportunity for workers to seek assistance and support is also restricted by their fear of authorities, the consequences of denouncing their employer and the uncertainty of what will happen to them should they make themselves known (Chowdury and others v Greece, ECtHR, 2017).
Two key pieces of EU legislation provide for protective mechanisms for undocumented workers who find themselves in such difficult circumstances. A key outcome of the most recent review of both of these instruments is that they require better implementation at national level (European Commission, 2022; European Commission, 2021).
The first mechanism is through the Anti-trafficking Directive where an exploited worker may be identified as a potential victim of human trafficking and will be entitled to a temporary residence permit, psycho-social support, legal assistance and the opportunity to claim unpaid wages and access to compensation through the criminal justice system. However, the effectiveness and access to the anti-trafficking support mechanisms provided by Member States is hampered by difficulty in detecting and identifying human trafficking victims and a narrow interpretation of the threshold of the offence of human trafficking (ILO, 2021), as demonstrated by the low number of victims registered in the EU (European Commission, 2022).
For those undocumented workers who are not “sufficiently” exploited to be categorised as victims of trafficking, the Employers Sanctions Directive introduces a number of protective measures including requires Member States to provide for a temporary residence permit for those illegally staying third country nationals who have experienced particularly exploitative working conditions (Article 13(4)). The purpose of which is to facilitate their engagement in any ongoing legal proceedings that will ensure that their unpaid wages and social security contributions are recuperated. Unfortunately, the transposition of this Directive by Member States has been lamented. In particular, Member States have failed to fully engage with the protective measures foreseen, including the temporary residence permit, right to recuperation of non-paid wages and social security contributions and the right to access a third-party complaints mechanism. (PICUM, 2020; FRA, 2021; European Commission, 2021).
Right to work and exploited? Help is on its way….
Of course, the aforementioned anti-trafficking mechanism also applies to regularly residing migrant workers and indeed EU citizens. However, where regularly residing migrant workers have experienced exploitative working conditions, but they are not deemed serious enough to be identified formally as victims of human trafficking there are very limited options for accessing support mechanisms (ILO, 2021; Schoultz et al, 2023; see also Pekkarinen et al, 2021). This is problematic for the cohort of migrant workers whose regular migration status -as outlined in the introduction- heavily depends on the employer.
Notably, not all exploited migrant workers who are not identified as human trafficking victims are undocumented third country nationals, leaving them with a legal vacuum in relation to the possibility to extend their residence in a country where they may have ongoing legal proceedings and/or to have enough time to seek new employment. The crux of the matter is that, in many circumstances, exploited workers are required to comply with conditions of their work permit that would, should they decide to contravene them by e.g. leaving an exploitative employer, they will in turn find themselves with an irregular migration status.
….. Workplace exploitation permits: Finland as a best practice model?
To address this legal vacuum, several countries have introduced innovative migration policies that are empowering migrant workers to leave abusive employers without risking their immigration status and stay in their country of employment to enforce their labor rights. These policies differ slightly in nature and include: i) visa portability for exploited migrant workers to leave their sponsoring employer, make a complaint and find a new sponsor without losing their visa (Canada, New Zealand, and Finland); ii) short-term visas to pursue wage claims at the end of a migrant workers permit (proposals in Australia); iii) deferral of a removal with work rights for undocumented workers who pursue labour claims (US) (Migrant Justice Initiative, 2023).
In light of meetings in May-June 2023 with relevant Finnish stakeholders, the focus will remain on the European context, where, in 2021, amendments to the Finnish Aliens Act establishing a residence permit or certificate due to exploitation by the employer entered into force. The goal will be to provide preliminary insight into how it has been implemented in practice to date (see also case study in PICUM, 2022).
The temporary residence permit foreseen in the Employers Sanctions Directive has been transposed in Article 52d of the Aliens Act (as amended in 2019), however, the Finnish legislation goes one step further and also introduces a residence permit or certificate for migrant workers who have an existing right to reside (article 54b) and have found themselves in a situation of significant employer negligence or exploitation, including long working hours, non-payment of wages in accordance with national legislation and threats of violence towards the individual and or their family, among others.
Unlike the high threshold of human trafficking, the residence permit or certificate is granted following a fairly “light” assessment of a credible story provided by the worker that only needs to be backed up by limited evidence. The lower threshold is to be welcomed in circumstances where workers are perhaps not in a position to provide concrete objective evidence to back up their own subjective statement and will prevent having to send workers back to exploitative employers to gather evidence (ILO, 2021).
Once a permit is granted, the worker is given 12 months to search for employment and in the meantime will receive unemployment benefits, and support in accessing language classes and other measures to facilitate integration into Finnish labour market. It is to be noted that a key characteristic of migrant workers who are at a higher risk of exploitation in Finland is that they often are unable to ensure linguistic and/or cultural integration because they often lack contacts outside of their workplace (Ollus, 2016).
Since 2021, where migrant workers who seek to renew their work permit are invited by the Finnish immigration service to an interview, the residence permit or certificate will be referred to where a worker reveals indicators of exploitation. In such instances, the applicants will be informed that their renewal will not be granted on the grounds of the indicators of exploitation but that there is an alternative that will allow them to continue to legally reside in Finland via the workplace exploitation permit. Between October 2021 and May 2023, a total of 25 permits have been granted from 29 applications (Data on file with author provided by the Finnish Immigration Service).
The implementation of the permit so far reveals a gap between the number of migrant workers who have – according to Finnish Immigration Authorities – been told about the permit and the number who have then gone on to apply for it. The main reason for this gap is, as yet, uncertain given that it is still early days. However, there are a number of considerations that may prevent workers from engaging with the possibility to extend their residence status and seek employment with better working conditions.
In some instances, the lack of self-identification and recognition of their situation as amounting to exploitation can mean that they may not be willing to engage with the system. In addition, they may, in practice, experience some difficulties to leave their current employer – even if this means that they risk falling into undocumented status once their current work permit expires. For example, by virtue of the sector (e.g., forest berry picking) and the remote location of their place of work, options for alternative employment may be limited. Indeed, it may be that leaving their employment also has an impact on their housing situation, as employer-provided housing is common. Furthermore, for cultural and familial reasons, Finnish professionals also suggested that migrant families may not be willing to uproot their children if they are integrated in local schools. Similarly, they may be unwilling to lose existing ties with the diaspora community and/or be identified within the community as someone who denounces exploitative working practices. Previous cases involving the exploitation of Vietnamese and Nepalese migrant workers in agriculture and restaurants respectively, highlight the intricate web of connections between the exploiters and the victims, making it very difficult to engage with potential victims and investigate the alleged exploitation and human trafficking.
Recognition of these barriers and the need to better disseminate the added value of this alternative visa requires some additional efforts from Finnish authorities. One example of a best practice is the development of a video campaign as part of a collaboration between the Finnish Immigration Service and Victim Support Finland. The aim is to change the perception of the visa that is offered by underscoring the benefits of the visa and that shifting the focus away from the implication that a person is considered as a victim of exploitation. The latter is particularly crucial where a lack of self-identification amongst exploited migrant workers – and in particular male migrant workers – is an obstacle to ensuring that they are given the opportunity to support and assistance (Villacampa, 2023).
In addition to the perception of the applicants themselves, there are also procedural aspects that must be addressed as they appear to be having an effect on the number of applications submitted. For instance, despite the provision of mandatory E-learning on spotting the signs of exploitation/trafficking for all new staff members, the need to introduce a large number of new staff numbers due to the situation in Ukraine may have led to less of a focus on and awareness around the existence of this permit amongst authorities. Similarly, the shift to an automated traffic-light system to assess applications for renewal may also lead to certain situations not being identified during the course of a face-to-face interview.
Despite these challenges, the implementation of these forms of residence/work permits that facilitate reorientation in the national labour market are to be supported and welcomed. However, access to the EU labour market that respects the dignity of migrant workers must be premised not only on regular migration pathways but also the necessary accompanying resources that will facilitate the social, cultural and economic integration of migrant workers into society, including by providing them assistance in remedying any injustices they encountered in previous exploitative workplaces, without which, creating legal migration channels alone is not sufficient to minimise the risk of labour exploitation (De Hert and Weatherburn, 2020).