COMBATTING
THE EXPLOITATION OF UNDOCUMENTED MIGRANTS
6TH
international metropolis conference 2001
by
Irena Omelaniuk,
Director, Migration Management Services, IOM Geneva
A. International Conventions and National Policies
against smuggling and trafficking
Our
focus today - combatting the exploitation of undocumented migrants - addresses
an important phenomenon of our time, namely the privatisation (or
"commercialisation") of migration.
Economic globalisation is affecting migration trends - both legal and
illegal - in many ways: regional and international trade regimes are
facilitating freer movement of skilled labour, and more and more employers seek
to recruit their personnel from an international stock of talent to remain
competitive.Kick-off
quote from the G8 summit
May 1998: "Globalisation has been
accompanied by a dramatic increase in transnational crime..(that) takes many
forms, including ..smuggling of human beings" (G-8, 1998b)
The OECD concludes that in periods of
economic expansion, labour migration tends to be higher than when the economy
is stagnant. New and growing economies
with high demands attract foreign workers.
As unemployment drops (e.g. in the US IT sector in recent years), and
labour demand escalates, foreign workers are a quick solution to production
bottlenecks at the upper end. During
periods of growth, migrants also have increased chances of finding regular work
and obtaining residence and work permits through legal channels. They may, however, have to remain illegal for
a long time, with no or few rights - leaving them vulnerable to exploitation
and susceptible to criminality.
At the lower end of the
market, businesses are finding ever cheaper sources of labour from the growing
pool of "have not" regions, and in the race to be competitive are using any
means to procure such labour and keep it cheaply. Many companies increasingly sub-contract their work, which places
the workers outside the normal benefits, conditions and wage controls of the
host country - and leads to exploitation.
Alongside the
proliferation of multinational corporations there has been an equally dramatic growth of
the shadow industries - people smuggling and trafficking - with a massive
shadow migration accompanying them. Migrant
smuggling is today a comparable "multinational" enterprise, with competitive
global profit levels estimated atof ca. To my knowledge
nobody has this figure:
ergo "Estimated to be" USD 5 - 7 billion a
year The G8
summit of
May 1998 concluded that "Globalisation has
been accompanied by a dramatic increase in transnational crime..(that) takes
many forms, including ... smuggling of human beings" (G-8, 1998b). People have increasingly become commodities
in this trade.
(people ARE the
commodity)
At
this point I do not want to diminish the push factors, or the supply element in
this supply/demand-driven form of migration. It is flight from poverty,
persecution and conflicts, still, that forces many people into irregular
situations; and the asylum option remains an important factor in the burgeoning
growth of shadow industries
in the west. People in and on the
margins of the asylum systems are particularly prone to exploitation in the typical, poorly
regulated niche markets,
such as the sex industry, and labour-intensive
production lines. How successfully
Governments address this phenomenon invariably impacts the continuing
credibility of the asylum system - indeed regular migration programs generally.
The challenge for today's
discussion is how the international community and Governments can on the one
hand facilitate regular, beneficial migration through freer movement, and on
the other hand curtail irregular migration and migrant victimisation through
more controlled movement. At the level
of irregular migration, Government policies often fail; and it is the smugglers
and traffickers increasingly driving the migration policy. Governments and society then pick up the
costs.
International Conventions and national Policies
Available legislation. The two most significant international political and legal
instruments dealing with trafficking and smuggling are the Protocols against
Trafficking in Persons and Smuggling of Migrants pursuant to the United Nations
Convention against Transnational Organized Crime (adopted on 15 November 2000
by the UNGA and signed by 80 states in Palermo in December 2000.
At the national level,
they have been most comprehensively taken forward by the US Victims of
Trafficking and Violence Protection Act of 2000.
The Protocols and the US
Bill are innovative by addressing both the crime and the victimisation, and
proposing comprehensive, coordinated solutions to prevent, protect and
prosecute. They reflect dissatisfaction with previous attempts at regulation
(e.g. the 1949 UN Convention for the Suppression of the
Traffic in Persons and of the Exploitation of the Prostitution of Others)
and of current national/international attempts at curbing the growing
problem.
The three instruments are
particularly significant for drawing a definitional distinction between
trafficking and smuggling. This is
important because in differentiating between the willing compliance of a
smuggled person and the victimisation of a trafficked person, they establish
clear directions for policies and responses.
This opens the way for protection of genuine victims. The USA and the EU clearly agree with this and base their
prescriptive definitions on this distinction.
(In reality, we know that there is often little distinction between the
two - e.g. trafficking more often than not starts with willing compliance - and
the human rights violations on both counts are the same.)
The call for protection in
the Protocols and the US counter-trafficking Bill particularly covers persons
whose status as victims continues to be ignored in detention, during expulsion
and upon return by many - if not most - countries of origin, transit and
destination. Regarding prosecution, the instruments specifically call on
nations to unite in combating trafficking and smuggling by adapting and
changing national laws in order to make both smuggling and trafficking criminal
offences, and they oblige nations to cooperate through various means including
the exchange of information. The Protocols and the US Act oblige their signatories
to extend support and protection to the victims, especially when they act as
witnesses during subsequent criminal procedures.
The victims should also be
assisted in
safety to return in safety to their countries of origin. The Repatriation clause of the Protocol on
Trafficking is innovative by including in international law for the first time
the obligation of countries of origin to accept the return of their trafficked
nationals.
That Protocol also calls for training
of appropriate authorities in prevention, protection and prosecution; and for
more research and information sharing on the subject.
European Legislation:
At the EU level, there are references in the Tampere
Conclusions to criminalizing smuggling and trafficking; and political agreements
have been reached on Framework Decisions among the 15 member States and 13 EU Candidate Governments to harmonize
legislation and action against these crimes.
According to the recent EC Communication on a Common Policy on Illegal
Migration, European regulations should also be harmonised on visa standards,
prosecution of smugglers and traffickers, employer sanctions, assets
confiscation and return and readmission of smuggled and trafficked
persons. In May this year, EU member
states agreed to raise the maximum penalty for smuggling and hiding illegal
immigrants to 6 - 10 years.
The issue here is that these EU documents are generally
not binding, and based on
the principle of subsidiarity,therefore do
not oblige Member state to implement them. The best case scenario is the
approval of an EU Directive, which obliges the State to aim for the prescribed
results but has little power to influence the means. This means that, once ratified, the Protocols could be the guiding document for all
Governments.
Coordinated National Policies:
Concerning smuggling, most
countries have existing legal provisions against aiding and abetting the
illegal crossing of state borders, and many of these have been used more
rigorously since the Dover tragedy last year. (In April this year a British Court sentenced the respective truck owner to 14 years on 59 manslaughter charges.) Most Governments now provide for carrier sanctions, immediate
expulsion of migrants in irregular situation, imprisonment both for smugglers
and in some cases the smuggled migrants, information systems to detect
fraudulent documents and to register the movement of irregular migrants caught
by law enforcement agencies.
Already in 1996, the USA made "alien smuggling"
a criminal offense under the Racketeer Influenced and Corrupt Organization Act
(RICO). This is a federal (FBI) statute, which among other things
allows for wire-tapping and seizing of assets derived from criminal activities.
Concerning trafficking, a
number of Governments have introduced stiff penalties for traffickers,
including prison sentences if convicted.
Few of these provisions are in Criminal Codes, which rather tend to
focus on issues such as prostitution or illegal migration. The USA and Vietnam provide for imprisonment
of up to 20 years for trafficking offences; Germany's sanctions range from several months to 10
years; Kosovo has recently criminalised
trafficking for sexual purposes with prison sentences of between 3 months and
10 years.
A few Governments (Italy, Belgium and the Netherlands) have addressed the
victim protection issue and grant victims some residence status while
testifying against the traffickers. In
a pioneering move, Italy has recently introduced in Article 18 of the Law on immigration
(Decreto Legislativo 25 July 1998, n. 286)
provisions to grant
a special residence permit to victims, to enable them to escape the vicious
circle of abuse and dependency and gain access to social assistance and other
integration programs such as education and employment. Change of status to indefinite residence is
possible on grounds of employment; and to residence for educational purposes
when there is a formal enrolment at an educational institution.
To assist coordination
within Government on counter-trafficking, some Governments, like Australia,
USA, Ukraine and Serbia have created inter-Ministerial mechanisms to deal with
the multifacetted policy issues of the phenomenon. Other countries like Italy,
France and Switzerland have established ad
hoc parliamentary committees to better understand the trafficking
phenomenon and therefore better advise their government on possible new
legislation.
All countries
participating in the Stability Pact for South East Europe have developed, in
collaboration with IOM, a National Plan of action to fight against trafficking.
This will result in the adoption of new legislation and in the development of
concrete activities on counter trafficking.
The Netherlands has appointed a national coordinator for protection of
victims.
But it is the USA which has been most active
to date, particularly in galvanising other States and agencies. It is estimated that 45 - 50'000 people,
primarily women and children, are trafficked to the USA annually; and the US
Administration is strongly committed to combating trafficking at home and
around the globe. The Trafficking Victims Protection Act provides the authority
and funding base for a plethora of projects, programs and initiatives the world over. The Act
provides $95 million, over two years, for enforcement of anti-trafficking
provisions and for new assistance programs.
The most interesting aspect of the US Act is the
establishment of "minimum standards for the elimination of trafficking, which
Governments have to adhere to", which all US Embassies have to report and act
upon annually, and the fact that non-compliance can result in diplomatic
pressure and withholding economic aid. The first report, published this summer,
compiles the efforts of 186 US Embassies and Consulates together with their
host Governments, international organizations and NGOs. The report divides the world into 3 tiers:
Tier 1 = full compliance with the Act's minimum standards (12 countries), Tier
2 = countries making significant efforts to bring themselves into compliance
with the minimum standards (47 countries), and Tier 3 = Governments whose
efforts were deemed insufficient (23 countries).
The report covers 82 countries, selected on the
basis of their significant number of victims. It will be published annually in
order to monitor Governments' compliance with the Act. Interestingly, EU member
states are represented in all three Tiers: Tier 1 - Austria, Belgium, Germany,
Italy, Netherlands, Spain, UK, Tier 2 - France and Sweden, and Tier 3 - Greece.
On the latter it is important
to notice that a Draft Law on the Establishment
of a National Observatory against Trafficking (NOT) has now been prepared. It
is expected that the NOT, through its activities, will fill the vacuum in the
legislation on trafficking and will contribute to combating this phenomenon.
IOM Support of International and
National Efforts
In its
activities IOM has for many years taken a multi-pronged approach to prevent trafficking and to assist and protect its victims, where
possible through cooperative partnerships among countries of origin, transit
and destination, and with NGOs and other international and regional agencies.
1. For
prevention: IOM
organizes seminars and fora to raise community awareness about trafficking and
share experiences among affected people. In many countries of origin, IOM
conducts nation-wide Information Campaigns to inform potential victims of the
dangers of trafficking. Almost a dozen such campaigns have been implemented in
countries in Eastern and Central Europe as well as South-East Asia. Educational
activities in schools are being carried out in Bulgaria and Hungary.
2.
For
assistance: IOM helps many victims return home and start a new life in
dignity. Along with many NGO partners
and Governments such as Belgium and Italy, IOM stresses the importance of
reintegrating trafficked persons in order to:
a) prevent re-trafficking through special
attention during the vulnerable phase just after the return;
b) redress the Human Rights Violations
suffered by the victims; and
c) ensure sustainability of adjustment
through psychological, medical, social
and economic support.
3. Capacity Building and
Training - IOM organizes
training of officials and other institutions and provides technical assistance
in the drafting of new legislation on Counter Trafficking; and once laws have
been approved IOM trains judges and barristers on their proper application.
Recently, IOM organized training for media people in order to make them aware
of the security issues that both victims and people assisting them can face if
confidential information is disclosed - also of the risk of stigmatization if
case-related information becomes public. To
strengthen its prevention work, IOM will in the coming months establish a law
enforcement coordination function to:
-
rapidly
gather, evaluate and exchange intelligence on an inter-agency basis;
-
provide
practical training to national and international law enforcers, in how to
detect and intercept traffickers, and collect and analyse information;
-
provide expert
support to key areas in other agencies dealing with victims of this type of
crime;
-
establish a
Directory of multi-agency contacts on a country-by-country basis.
B. Government Actions directed at domestic Industries and Employers
Turning
now to what happens at the back end of the smuggling and trafficking
trajectory, namely the irregular and often exploitative working arrangements
for such migrants, and what Governments undertake against these:
There are many well documented, and even more
undocumented, cases of exploitative conditions under which undocumented
migrants work, particularly in "sweat shop" environments, ranging from the
poultry industry in rural America to the French garment industry in the suburbs
and poorer neighbourhoods of Paris. The advantages of irregular migration tend
to be on the employers' side since they can pay lower wages to people working
longer hours, the labour is more flexible, and the wishes of the migrant not to
be caught protect the employer. As
undocumented work is part of the informal sector, arrangements tend to be made
by word of mouth, and through sometimes elaborate middle-men networks.
When the number of seasonal workers increases beyond the
capacity of normal accommodation, labour-camps, dormitories, trailers, and
shelters provide alternative shelter.
Some migrants use garages, utility sheds, vacant lots, and farm storage
areas. Some double up and triple up or
sleep in shifts, they share water supplies, bathe in restaurant rest rooms and
roam the streets when the space at home is occupied. Non-seasonal workers who remain in one location are commonly
found in city slums. In such cramped settings low quality shelter and
unsanitary conditions are conductive to tensions and conflict. At work, undocumented workers are subject to
exploitation; beyond the workplace irregular migrants are limited in their
abilities to access safe and sanitary housing, health care, and other basic
entitlements natives can automatically access.
In many immigrant-receiving countries, there is a dichotomy
between the capacity and need for the economy to absorb migrant labour and the
rising anti-immigrant ideologies and practices within local communities (or
even implicitly in Government policies).
Local sentiments against migrants are often at odds with the globalising
reality, as they fail to take into
account the social and economic changes taking place locally and globally.
Their economies often tolerate (or prefer) undocumented workers.
Government
Strategies to Curb Employment of Irregular Migrants
Despite the
tolerance of the market place for irregular migrants, most Governments have
understood that, in order to address the problems of illegal immigration
comprehensively, the illegal employment of migrants needs to be at the top of
the political agenda. This has been recognised by the European Commission in
its recent communication to the Council and European Parliament on a common
policy on illegal immigration.
Sensibly,
the emphasis of any punitive measures is on the industries and employers
creating the pull factor, rather than the migrants themselves. The EC's aim is to eliminate competitive
advantages through harmonisation of sanctions which should as a rule achieve
two things: criminalise the act of
illegal employment; and diminish the gains for employers.
Most
current Government policies to combat the employment of irregular migrants
focus on control measures, including mandatory visa regimes, stricter border
controls, effective forced departure and some employment controls and
penalties. Some additional, less
punitive measures like regularisation campaigns (amnesties), have also been
tried with varying degrees of success.
Border
Control is difficult to implement where there are large numbers and varieties
of temporary entrants - mainly tourists and visitors. It is difficult to distinguish the potential irregular migrant
from the genuine one at the point of entry.
In addition, control over entry does not equate to control over length
of stay. The internationalisation
of economies, the volume of international travel, the unrelenting and
increasing economic imbalances between rich and poor nations, and the existence
of trafficking and
smuggling networks will all continue to militate against controlled
migration.
Sanctions against Sub-contractors
As is clear in the cases
of the U.S. poultry industry and the French garment industry, it is often the
sub-contractors who hire undocumented workers.
In a few countries, such as France, Austria, the Netherlands, Finland
and the U.S.A., these subcontractors also face fines and/or time in prison. To ensure that employers do not generate
improper benefit, some countries also include sanctions to protect
workers.
Under such systems,
which exist in France, the Netherlands, Finland, the U.S. and Spain, workers
are entitled to payment of proper wages and benefits. In quite a few countries those who assist illegal employment are
also liable for punishment. For
instance, in Switzerland those who intentionally arrange employment for
migrants in breach of national laws have to pay a fine of up to CHF
100,000. In Japan, middlemen who commit
offences related to illegal employment, including prostitution, face up to
three years in prison and fines up to JPY 2 million.
Assets
Confiscation
The EC sees as a top
priority policy the removal of financial advantages for the
smugglers/traffickers. The European
Union has adopted a Framework Decision on money laundering, and the
identification, tracing, freezing, seizing and confiscation of means and assets
from crime, which is an important instrument also to prevent and reduce
smuggling and trafficking. A number of
countries are already seizing assets from smugglers and traffickers they have
been able to prosecute, but use these assets in different ways: mostly either feed them back into
enforcement work or forfeit them to general national revenue.
The EC wisely recommends
that the finances gained from sanctions could be channelled back into voluntary
return to help create a perspective for returned migrants in their countries of
origin. The EC further proposes to
establish the regulatory framework for a harmonised approach to this deterrent
measure.
Effect of the Sanctions
The OECD concluded in 1999 that sanctions
"'appear to be of very limited effectiveness,'" in deterring illegal entry and
employment (1999). Two major reasons
are the difficulty of enforcing them, particularly given the ease with which
false documents can be obtained, and the legal and political obstacles to
prosecuting persons with false documents.
Failure to prosecute is
due both to political pressures from enterprises that do not want to or cannot
pay the market fare for labour, and the risks that a cessation of activities
would have on the employment of nationals (Tapinos, p. 35).In the USA in 1998,
12 years after IRCA, the INS dismantled an organisation which had arranged the
passage to the US of approximately 10,000 people, and 2 million fake ID's were
seized in Los Angeles.
Another reason sanctions
have a limited effect is that employers are willing to risk penalisation if the
cost is less than the difference between labour costs of undocumented and
documented workers. Such policies can
also lead law-abiding employers to discriminate against employees who have low
skill levels and poor command of the language, since they fear that the
worker's documentation may be forged.
The ILO comments that with powerful and
often mutual worker and employer incentives to violate the law, sanctions must
be aggressively enforced and constantly fine-tuned to keep up changes in
employer and worker behaviour in response to sanctions laws and enforcement
efforts.
In Europe, combating the
employment of irregular migrants is part of a wider campaign against
clandestine employment, in an attempt to secure compliance with employment
legislation. In the USA, the
perspective is different- the focus is on curbing irregular migration, as the
employment of irregular migrants is believed to be of greater benefit to the
economy, and implementing laws against employers has a negative economic
impact. This difference can be
attributed to differing systematic approaches to government involvement in
internal societal affairs. The USA has traditionally been less interventionist
in the economy than its European counterparts.
Non-Punitive
Measures
Regularisation Campaigns (amnesties) for irregular
Migrants:
These have been resorted
to by countries like Spain, Italy, the U.S.A, Greece, France, and
Portugal. In such programs, irregular
migrants who meet certain conditions can apply for regular residence
status. These conditions have included
entry prior to a specific date, employment or possession of a work contract,
and proof of direct family ties with citizens of legal residents. Many OECD countries fear that granting
amnesties might be a pull factor, and attract new migrants (some might seek to
take advantage of the amnesty, or wait in hope of a future amnesty).
The U.S.A's 1986
Immigration Reform and Control Act coupled tighter sanctions on employers with
amnesties for irregular migrants who had lived in America continuously since
1982 - in other words, it combined the "carrot and the stick". Border patrols were also increased along the
Mexican border. An Immigration and Naturalization Service
(INS) report indicates that 2.7 million persons received legal permanent
residence permits ("green cards"), but by 1997 the number of irregular migrants
stood at the same level as before the amnesty (at 5 million irregular
migrants).
In addition, the 1986
amnesty increased the flow of undocumented migrants for the following years to
800,000 a year, before eventually dropping back to its pre-IRCA level of
500,000 annually. If the purpose of the
amnesties was to reduce the inflow of irregular migrants, they were unlikely to
succeed, as the (perceived) incentive for entering the host country with the
possibility of obtaining legalisation increased. Using such standards, IRCA was a failed venture.
While amnesty programs
might not reduce the inflow of irregular migration, and have a tendency to be
unpopular with the general public, they can nevertheless help to check the
frequency and intensity of discrimination and racism. The OECD comments that migrants in an irregular situation are
more vulnerable to exploitation and discrimination than those in a regular
situation. In addition, amnesties can
produce a wealth of information about the migrants (profiles), the nature of
illegal employment, and can help Governments gain a more accurate estimate of
the number of irregular migrants within their territories and the conditions
that have allowed them to reside irregularly, including the nature of the
networks.
Information
campaigns
These can be a useful
prevention strategy if applied in the most likely countries of origin of
irregular migrants. At least they help demystify and make things clear - raise awareness
about dangers and knowledge about legal choices. They have been implemented by Governments
and international organizations in both countries of origin and destination to
target potential undocumented workers and their employers, informing them of
procedures, rules, and rights. Let me
highlight here specifically the information campaigns against trafficking which
have been implemented by IOM in countries like Ukraine, Romania, Bulgaria,
Russia, Moldova, Hungary, Czech Republic, Thailand, Philippines, Cambodia et al
to raise the awareness of potential victims of the dangers of falling prey to
traffickers.
Incentives
to Employers
Countries like the
Netherlands, France, and Germany offer financial incentives to employers to
recruit only documented workers. In the
Netherlands, employers are exempted from social charges for temporary jobs of
less than six weeks, according to a law that took effect in March 1997, which
was passed to encourage the employment of documented workers for seasonal
jobs. In France, it is possible to
obtain tax rebates and reductions in social charges for certain jobs, including
gardening, child care, and household help.
The purpose of these
measures is to encourage employers to hire documented workers. In Germany, it is possible to obtain tax
rebates for certain domestic jobs. In
addition, if those on unemployment benefits find seasonal jobs for up to three
months, they may obtain financial incentives (DEM 25 net per day) from labour
offices. A complementary measure to
encourage the employment of documented workers, exempts this incentive from
social security contributions and taxes.
There are a number of other possibilities one could consider, like
taxing employers heavily for every foreign worker, but this is more to protect
the local labour market than to dissuade irregular employment of foreigners.
Return and Readmission
Forcing
irregular migrants to return home is expensive and often controversial. No industrialised recipient country has
plans for a mass-scale return program for irregular migrants. Public opinion is in favour of restrictive
measures, but more reluctant to accept coercive return measures. Australia, Norway, the U.S., Austria, the
U.K., France, Germany, and Greece do resort to forced removals or deportations.
In the U.K. this is the most common sanction for employed irregular
migrants. Spain and the Netherlands do
not sanction undocumented workers, but do force foreigners without residence
permits to leave.
One
well-tried alternative to forced returns is assisted voluntary return, which
has been implemented by Governments and by IOM on behalf of Governments for
some decades now. This alternative,
however, is only effective if it is swift, combined with some reinsertion or
longer term reintegration assistance in the country of origin, and complemented
by the "stick" of possible deportation.
Regular Immigration Programs
According to the OECD,
the volume of illegal migration depends primarily on a Government's capacity to
set migration policies and to regulate and enforce these policies. Their argument is that strict application of
such laws delineates the borderline between legality and illegality.
It is interesting to
observe how EU and other western countries are increasingly committed to
developing regular immigration programs - partly in response to the so-called
demographic gap and UN projections about diminishing populations and pension
banks. But increasingly these
initiatives cannot be de-linked from the question of why so many thousands are
resorting desperately to illicit entry and work in the west. Italy is a pioneer in this regard, by
working with IOM on a program that recruits and trains Albanian migrants for
labour gap-filling in Italy, but also for alleviation of the unemployment and
labor surplus problems of Albania.
To sum up:
Piecemeal and reactive migration policies frequently do not work, or
have unexpected consequences. They need
to be coordinated and comprehensive, both at the national and international
levels. Policies to address smuggling
and trafficking should include proactive immigration policies and clearly
regulated, but open, immigration regimes. There is no sense in having a stick
without a carrot, nor will it be credible or possible to barricade the
so-called back door without some parallel efforts to open the front door.
IOM, November 2001
