An analysis on the effectiveness of the human rights safeguards afforded to irregular migrants and undocumented workers in the EU against severe labour exploitation

Abstract

The European Commission adopted the New Pact on Migration in September 2020 and acknowledged that workers from third countries are filling key shortages, including in occupations vital to the COVID-19 response. The pact pledged to initiate agreements with non-EU countries adapted to the EU’s labour market needs - a strikingly economic rationale - without due acknowledgement of the human rights of the subjects of the pact or indeed those already living and working irregularly within their territories in need of strengthened employment and rights protections. Regardless of their status, irregular migrants and undocumented migrant workers in the EU are holders of human rights and are safeguarded by a multi-level human rights framework, and EU governments have positive obligations to protect them. This dissertation will analyse how the increasingly blurred line between immigration control and labour inspection, the trend towards the criminalization of irregular status, and purely economically driven EU-policies without adequate human and labour rights considerations, is increasing undocumented workers’ vulnerability to severe labour exploitation, and even servitude and forced labour. It will examine the ILO assertion that the threat of denouncement of an irregular migrant worker to the authorities by the employer constitutes “the threat of a penalty” under the definition of forced labour. With this understanding, all cases of the widespread severe labour exploitation in certain sectors of EU State economies, where such a “threat of penalty” is present, should be considered “forced labour” and treated accordingly across EU States. At present EU legislation and policies, especially economic and immigration-related ones, do not always manifest such a central commitment to human rights, or demonstrate an understanding of the severity of the implications of their de facto tolerance of the labour exploitation of irregular migrants. Both are causing widespread human rights violations and undermining the EU’s human rights reputation.