Global Compact for safe, orderly and regular migration: Irregular migration and regular pathways, including decent work, labour mobility, recognition of skills and qualifications and other relevant measures

12 and 13 October 2017, Vienna

Position paper by the Global Alliance Against Traffic in Women (GAATW) 

1. THE RIGHTS OF MIGRANTS IN IRREGULAR STATUS

In the global compact, states should:

• Protect and promote the human rights of all migrants, regardless of status, including the enjoyment of all economic, social and cultural rights.
• Commit to provide easily accessible and affordable documentation for their nationals including regarding the acquisition, change or retention of their nationality and free birth registration.
• Ensure that border governance, immigration control, and anti-trafficking initiatives are in line with states’ existing obligations under the international human rights framework and other relevant areas of international law.
• Ensure that migrants are not criminalised solely on the basis of their migration status and that irregular entry and stay are never be considered criminal offences.
• Commit to use appropriate and non-discriminatory language to reduce the negative populist representations of all migrants.
• Implement and publicise clear and binding firewalls to ensure that all migrants can enjoy their rights regardless of the migratory status of the migrant or any members of their family.

Migrants may be in irregular status for many reasons. Some have no papers to begin with, such as when they have not had their birth registered, or are stateless, which prevents them securing documentation to travel through regular channels.[1] When a country struggles to issue adequate documentation to its citizens in the first place, individuals may have little option to migrate through regular channels.^[2] Others cannot access or navigate the bureaucracy to obtain documentation, for reasons including language differences or discrimination within the process that favours a particular ethnic group.[3] Often the cost of such procedures is prohibitive and migrants choose to migrate through irregular channels to avoid debt. Such cost-based decision-making can favour men over women in the family.[4] An asylum seeker may decide they cannot wait any longer for their application to be processed, or knowing that the process can take years, may not apply for asylum and thus be in an irregular situation.^[5] Regular channels for labour migration are often preferentially offered for jobs deemed by the government as more valuable to the economy, meaning that many individuals migrating to the “dirty, difficult and dangerous” jobs that nationals will not take at the low wages and poor working conditions on offer are excluded from the limited regular migration pathways available.[6] In GAATW’s research, women migrants have reported that they have chosen to be in an irregular situation because they assess it to be a better option for them. Even given some of the limitations on them as undocumented migrants such as the use of bribes, limits on their freedom of movement and other rights, they prefer to be in an irregular situation for reasons such as the ability to leave abusive work situations, and the ability to exercise their right to family life.^[7] That some migrants choose to remain or to move into an irregular status shows that regularisation alone is not the answer.

Migrants’ status may change during the course of their migration – such as when migrants make decisions to move on in response to the particular situation, regardless of their initial plans or documentation; when the migrant leaves an abusive situation but their work or residence permits are tied to the employer or where the migrant worker requires an exit permit from the employer to leave; when a migrant’s asylum application is rejected but they cannot return to their country of origin for fear of being subjected to human rights violations; when children’s status is linked to that of their parents, who are in irregular status.[8] Regardless of the reason for their irregular status, it should not deprive migrants of their human rights: the international human rights treaties including the eight ILO Fundamental Conventions, apply to everyone, without discrimination. Yet in reality, states often deny or restrict the rights of migrants in an irregular situation, though undocumented status can make migrants more likely to face human rights abuses at all stages of their migration process, at the same time making them afraid or unable to seek protection and assistance from the authorities.[9]

Too often states approach the situation of undocumented migrants through immigration control and law enforcement, invoking their sovereign prerogative to control their borders and in doing so, informing discriminatory attitudes to migrants.[10] However international law is clear that these concerns are subordinate to states’ obligations to respect, protect and fulfil the rights of all persons, regardless of their migration status, and states need to better incorporate the protection of migrants’ rights into their border governance and immigration enforcement measures.[11] As such, the criminalisation of irregular migration exceeds the legitimate interests of states in protecting its territories and regulating irregular migration flows.[12] The use by politicians, media, and others of inaccurate and hostile language against migrants, or misrepresenting the impact of migration on the domestic economy, labour market and social services, and often focusing on those in irregular status, creates a situation where migrants of any status – or anyone who is judged to be from a different country – can face discrimination and verbal or physical attack.[13] This anti-migrant rhetoric, combined with a lack of firewalls between essential services and immigration enforcement, denies migrants the opportunity to realise their rights or integrate into their countries of destination/residence.[14] There are numerous examples of non-discriminatory language in relation to migrants and migration, including undocumented migrations – the global compact provides a new opportunity to urge states to lead.[15]

2. REGULAR PATHWAYS AND PATHWAYS TO REGULARISATION

In the global compact, states should:

• Make available more regular, long-term or permanent pathways available to all migrants without discrimination, for migration for decent work across sectors and skills/pay-levels as well as other migrations.
• Recognise that regular pathways are not necessarily safe for migrants and ensure that those available to migrants are in full compliance with human and labour rights including the principle of non-discrimination.
• Provide equity of opportunity, within a reasonable period of time, to access affordable and simple procedures for the regularisation of undocumented migrants at all skills levels.

The focus on regular pathways can obscure the fact that many of these labour migration schemes facilitate abuse, restrict labour rights, and reinforce gender, racial, class, caste and other discriminations in workplaces and communities. Regular channels of migration do not necessarily constitute safe migration and may create conditions for forced labour or trafficking of migrant workers, especially women migrant workers in sectors that are not covered by labour laws.[16] The work available to women migrant workers through regular migration channels typically replicates gendered divisions of labour and is often only temporary. Temporary migration programmes often exclude workers from some human rights protections, including access to economic and social rights and the right to family life, and as such constitute decent work deficits. Temporary, guest-worker, or circular migration programmes often contain inherent risk factors for exploitation, such as worker-paid recruitment fees, substandard living and working conditions allowed under such schemes, sponsorship schemes tying visas to a specific employer.[17] Where migrant workers are reliant on employers for their visa – as sponsors or for repeated annual seasonal work, for example – this serves as a strong disincentive to reporting labour and other human rights abuses, denying migrants access to assistance, justice and redress. The obligatory live-in policy for domestic workers in some countries and favoured by some employers puts migrant workers, who are mostly women, at a higher risk of violence while also severely restricting their access to justice. The immunity afforded diplomatic households denies justice for migrant domestic workers who cannot sue their employer for unpaid wages or seek justice for other abuses including labour exploitation or violence.[18] Options such as multi-year work visas, with family reunification for those who want it, and visas that permit a period of job-searching so that leaving an abusive employer does not need to mean losing regular status, are better options for migrants and would help reduce undocumented migration and stay.

Migrants who are themselves or have a family member in an irregular situation, live with the threat of detention and deportation. Rather than disrupting the lives of individuals and communities when a migrant has been building their and their family’s ties with the state, including through working and paying taxes, regularisation offers a way to strengthen social cohesion. Regularising the situation of migrants in irregular status can be the most effective measure to address the needs and protect the rights of migrants, including those in vulnerable situations.^[19] The procedure needs to be accessible, affordable, simple, implemented within a reasonable period of time, and publicised to migrant workers.[20] The processes should be gender-responsive: current requirements for regularisation programmes can be discriminatory against women, requiring a level of income  or credentials that women are less likely to have, for example by not taking the gender pay gap into account. Migrants should be able to initiate their regularisation process without permission from employer or fear of reprisal.[21] Though many migrants view their work in the country of destination as a temporary livelihood strategy and would not want or see the benefit of securing citizenship, it should be an option, without discrimination, after an agreed period of time.

3. DECENT WORK AND LABOUR MOBILITY

In the global compact, states should:

• Reaffirm the right to work and the right to just and favourable conditions of work for all migrants.[22]
• Guarantee decent work for all migrant workers and ensure equality of treatment and non-discrimination of migrants with nationals and among all workers without distinction in respect of the terms and conditions of employment, and commit to closing the gender pay gap.
• Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment.[23]
• Commit to bringing all forms of work, for all workers including migrants regardless of status, under the equal protection of labour laws.
• Call on states who have not yet done so to ratify and implement ILO Convention 189 on decent work for domestic workers.
• Ensure that migrants, regardless of status, labour sector or length/type of contract, can enjoy their rights to freedom of association and collective bargaining.
• Ensure policy coherence between all areas that affect the lives of migrants, regardless of status, and all stages of migration, coordinating across government and other stakeholders to ensure that the policies are migrant-centric and gender-responsive.
• Eliminate any gender discriminatory restrictions on migration in law, policy or practice that limit opportunities for women’s labour migration and ensure gender equity and respect for women’s autonomy in relevant policies including those regarding access to visas, residence permits, work permits and other documentation for migration.
• Ensure that any pre-departure trainings and skills trainings have a rights-based, decent work agenda and do not reinforce gendered power dynamics; trainings should be accessible for the migrant and not contribute to their debt burden.
• End discriminatory conditionalities in recruitment, including the practice of making the migration status of migrant workers conditional on the sponsorship or guardianship of a specific employer.
• End employment practices and procedures that discriminate against women in their intent or impact, including those that require women provide information related to their reproductive health.
• Eliminate abuses and fraudulent practices by labour recruiters and employment agencies and institutionalised risks of exploitation in labour migration programmes.
• Regulate, license and monitor labour recruiters and employment agencies and commit to moving to ethical recruitment measures
• Eliminate in law and practice the charging of recruitment fees to workers and other forms of economic coercion.
• Ensure the meaningful participation of migrant worker representatives in interventions on recruitment practice throughout all stages of the recruitment process from the sub-agent to the employer.
• Facilitate access to social protection for migrant workers and their families, including access to national social protection systems, including social protection floors, which aim to ensure among other things, access to quality public services, and work to ensure the portability of migrants’ benefits.
• Institute clear and binding firewalls and implement and publicise them to ensure migrants, including those who are in irregular status, are able to report human and labour rights abuses including occupational safety and health risks to labour inspectors or other authorities without the fear of expulsion.
• Cooperate with independent human rights based monitoring of implementation of bilateral agreements.
• Prevent and eliminate labour exploitation, forced labour and trafficking in persons, provide protection to the affected workers as well as access to appropriate remedies, and bring the perpetrators to justice.

International labour law is founded on the principle that labour is not a commodity.[24] However, the reality is that labour exploitation is embedded in our economic model that has created a system of precarious, low-wage labour such that abuses including those that constitute human trafficking are often not aberrations but the logical outcome of this model.[25] In this model, migrant workers are often instrumentalised as an easily available and disposable labour supply that can be controlled by the constant threat of deportation. Migrants face restrictions on their rights at work with labour migration policies sometimes increasing migrant workers’ risk of exploitation.[26]

Human rights, including the right to work, are not dependent on documentation. International human rights law makes clear that all migrants, including those in an irregular situation and in all forms of work, have the right to work and the right to just and favourable conditions of work.[27] The aim of “decent work for all” has received the full backing of states, most recently in the 2030 Agenda for Sustainable Development.[28] Creating decent work opportunities – in countries of origin, transit, and destination – will address some of the drivers of migration as well as supporting the rights of migrants. Working in unfair conditions constitutes a violation of migrants’ right to work: migrant workers are entitled to treatment that is no less favourable than that which applies to national workers in relation to remuneration and other conditions of work.[29] Migrants, like all workers, should be paid at least the living wage.[30] The right to work encompasses several interdependent rights including the right to freedom of association. This, which includes collective bargaining, is a crucial enabling right and essential to progress and the elimination of forced labour, but it is often denied to migrants.[31] Realising the full spectrum of migrants’ right to work promotes social inclusion and sustainable development.[32]

A lot of the work that is open to migrants is described as low-skilled, although this does not reflect the skills and qualities that are needed and devalues the work and the worker.[33] This devaluing also limits access to training and skills recognition for these workers.[34] A shortage in the domestic workforce willing to take on roles offering lower wages, difficult or unpleasant working conditions drives a lot of the demand for migrant labour although there is often a lack of coherence with immigration policy.[35] Many migrants find work in zones where rights are effectively denied where governments offer corporations an agreed special legal regime favouring business activity and investment. The agreements that found these Special Economic Zones (SEZs) often violate residents’ rights by destroying traditional livelihoods and causing displacement, as well as permitting companies to abuse workers’ rights.[36] Such conditions are not in compliance with the global compact goal of facilitating safer migration: as the UN Secretary General observed, safe migration cannot be limited to the global elite.[37] Moreover, policies that deny or severely restrict migration through regular channels to foreign workers, especially when combined with xenophobic discourses, fuel the idea that it is acceptable to exploit migrant workers. This creates the preconditions for labour abuses including human trafficking, if employers or criminal actors seize the chance to make sizeable profits by meeting the resulting demand for cheap labour.[38] Perversely, such abuses can also fuel anti-migrant sentiment when individuals identify and locate the blame for the harm – the labour violations – with migrants. This in turn can fuel nationalism as well as further abuses of migrants’ rights, including in the context of detention and returns.[39]

Socially prescribed gender roles persist in the workplace, contributing to occupational segregation and a gendered division of labour.[40] Across the globe, women earn less than men for the same work.[41] Many migrants, especially women migrants, are restricted to work in the informal economy – that encompasses more than half or the global workforce with women making up the majority of informal workers in all regions outside of the Middle East and North Africa – and are often excluded from legal protection, with little or no recourse to justice or redress for rights abuses at work.[42] The care economy – largely low-paying, precarious and informal work and characterised by an absence of decent work and labour rights – is the largest driver and beneficiary of women’s labour migration. Women also, simultaneously, subsidise the economy with a disproportionate responsibility for unpaid care work.[43] The lack of value given to this gendered work informs the undervaluing of women’s migrant labour in the transnational care economy. To be meaningful for women migrant workers, any labour mobility agreements or policies need to be undertaken in conjunction with efforts to value, reduce and redistribute unpaid care work by prioritising social protection policies, including accessible and affordable social services.[44]

Other options for women migrant workers can be based on a clear feminisation and racialisation of the labour market, where women migrant workers of particular countries of origin are favoured on the basis of reductive and discriminatory claims to tradition, culture and gendered aptitude.[45] Often, and particularly for women, employers dictate conditionality on aspects of the migrant worker’s private life, for example demanding that women have the permission of their husband, male guardian or head of family to migrate and work, or allowing only women with a particular marital status.[46] This is discrimination and functions as a form of social control for the employer and the state, including providing an assurance that a worker separated from their family will return home at the end of the contract. Women workers face gender-based forms of oppression when they are subject to mandatory pregnancy tests or having their employment terminated if they are pregnant.[47] Other times women migrant workers face gendered bans on some migrations or gendered restrictions in MOUs.[48] Women migrant workers are sometimes unable to benefit from family reunification schemes, which may not extend to workers in women-dominated sectors, such as domestic work or the entertainment sector.[49]

Pre-departure trainings can provide migrants with valuable training and information to support their migration and life in the country of destination if they follow a rights-based, decent work agenda. Trainings promoting knowledge of labour laws and regulations can help to prevent trafficking by informing workers of their rights and how to exercise them, and can provide additional routes for those who are trafficked to access justice.^[50] However too often they do not, instead requiring individuals to attend sessions, often far from their home districts, that are not relevant to equip migrants for the work they will be doing and the situations in which they will be living. These add to the costs of migration – in the cost of the training, travel and stay in the city where it is delivered, and the loss of working days – in some cases increasing migrants’ debt burden. Labour law requires states to eliminate the charging of recruitment fees to workers, recognising this as a risk factor for forced labour.[51] It is critical that states and private actors do not look to recoup these charges through other means such as mandatory pre-departure trainings, to prevent economic coercion. In some cases, pre-departure trainings add a layer of corruption to the migration process where migrants pay to secure the certificate of attendance without participating in the training. Sometimes these trainings are mandated by the state only for women migrating into the domestic work sector, making this a gendered burden. The responsibility for delivering these trainings is often outsourced to private companies, and respond to short-term needs. GAATW’s members have reported that some pre-departure trainings which women are obligated to attend lack basic, up-to-date necessary information for potential migrants, are stocked with out-of-date, inoperative, sometimes still plastic-wrapped equipment, and facilitated by trainers who are not qualified in the languages and skills they are supposed to be teaching and who are themselves in a precarious labour situation working on short-term contracts. As well as not supporting migrants’ in their work, the emphasis on pre-departure trainings put the onus on the individual migrant rather than state responsibility for protection from human rights abuses. Moreover, poor quality trainings can increase the risk of human rights abuses against migrant workers where training sessions focus more on pressuring women to be obedient and submissive in the supposed interest of maintaining family and national so-called honour than on imparting useful information about potential abuses.[52] Whilst they could support safer migrations, pre-departure trainings are also part of the apparatus that normalises a culture of large-scale labour migration in countries of origin.[53]

The emphasis on temporary or circular labour migration schemes creates a distinction between “good” (documented and temporary) and “bad” (undocumented) migrants, a distinction that is constantly reinforced and reiterated through policy, and media and political discourse.[54] Moreover, with their decent work deficits,[55] they often do not meet the safe migration criteria of the global compact and cannot be the only option for regular migration. The right to work gives all migrants the right to work that is decent, not precarious. The global compact must not become a means of facilitating such temporary or circular migration schemes in countries of destination. These create a tiered labour market, entrenching precarity and substituting the creation of longer term migration options for workers to fulfil permanent labour needs.[56] The global compact should not enable employers to secure a precarious, low-wage workforce in place of secure workers whose human rights are realised.

Protecting migrant workers from possible abusive and fraudulent practices during the recruitment and placement process is essential to preventing labour abuses including forced labour and trafficking in persons.[57] Promoting recruitment can be counter-productive in some contexts. Where prevailing working conditions are egregiously poor, such as in the women-dominated sectors of domestic and garment sector work, the promotion of recruitment combined with poor regulation of recruitment risks institutionalising labour abuses including human trafficking. It is very important that the global compact only promotes recruitment that ensures good working conditions and promotes decent work – as part of the understanding of safe migration.^[58] There is increasing attention to fair or ethical recruitment from international organisations and migrant rights’ organisations, transnational corporations, and large recruitment and employment agencies.^[59] However much recruitment, like the labour sectors in which migrants work, is informal and such good practices are not easily applied or monitored there. Addressing poor recruitment practices requires regulatory incentives that involve worker representatives, including representatives of migrant workers, in the design, implementation, and monitoring of recruitment practices. Special measures are necessary to ensure that recruitment practices are not only accountable to employers, labour recruiters and regulators, but also importantly to workers.

Where workers cannot leave employers without losing their regular status they face the added risk of criminalisation if they leave an abusive situation.[60] At the same time, migrant workers face barriers to reporting dangerous working conditions or rights abuses if they fear doing so will bring them to the attention of immigration enforcement actors. Mechanisms to ensure labour rights and occupational safety and health – including complaints mechanisms and labour inspection services – should be separated by clear and binding firewalls from immigration enforcement authorities to ensure they are not used to check the migration status of workers so that migrant workers can safely report labour issues without fear of arrest, detention and expulsion.[61] Investigations into reports of labour abuses must respect the rights of workers, including migrant workers regardless of status.[62]

Fulfilling migrants’ rights to social security by providing access to social protection for them and their families is an important step to creating equity between national and migrant workers and realising sustainable development.[63] However migrants are often deliberately excluded from welfare systems and social protection initiatives.[64] Being able to move with the benefits to which they have contributed is critical to migrants’ benefiting from their labour and to realising the development potential of migration.

Many of these temporary labour migration schemes are governed by bilateral agreements or memoranda of understanding that are not adequately rights-based or gender-responsive and lack independent monitoring of their implementation.[65] These agreements between states, whether bilateral or multilateral, must never undermine states’ existing obligations under international human rights and labour law, including by ensuring a human rights due diligence process to identify, prevent, mitigate and account for how the activities of businesses address their impacts on human rights.[66] There can be a race to the bottom as countries of origin in a weaker bargaining position agree to undermine the rights of their citizens, including in relation to wages and workplace protections, gender equality, economic and social rights, in order to make their citizens more attractive to countries of destination as workers and maintain the flow of remittances, regardless of how this increases their risks of exploitation and other rights abuses.[67] For women migrant workers, these agreements can restrict their opportunities to gendered occupations and create risks of exploitation and other human rights abuses. There is some evidence that gendered restrictions on migrations for example through bans on women’s migration in certain corridors, to particular sectors, or below a specific age, increase the power of those setting labour market conditions allowing them to lower working conditions for all. Furthermore, states have reported that restrictions on women’s migration can strain diplomatic relations reportedly making bilateral relations and negotiation more difficult.^[68] Efforts to monitor inter-state agreements or corporate activity must include attention to workers’ agency and their freedom of association, including for migrant workers and women migrant workers specifically.[69]

Migrant workers who have been trafficked should be identified and provided with appropriate assistance and protection.[70] However, all migrant workers who have experienced labour rights abuses, including forced or compulsory labour or trafficking in persons, irrespective of their migratory or residence status or labour sector, should have access to appropriate and effective remedies, such as compensation, that are not conditional on their willingness to cooperate in criminal or other proceedings.[71] Consular services are a critical resource for migrants in providing assistance, legal aid, and access to justice, but are often under-resourced and lack adequate training to meet migrants’ needs.^[72]

[1] Human Rights Council, The right to a nationality: women and children, A/HRC/RES/20/4, 16 July 2012; Human Rights Council, Report on discrimination against women on nationality-related matters, including the impact on children: Report of the Office of the United Nations High Commissioner for Human Rights, A/HRC/23/23, 15 March 2013, for example at paras.25, 39. Nationality acquisition and statelessness are gendered issues, see CEDAW, General recommendation No. 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women, CEDAW/C/GC/32, 14 November 2014; Working Group on the issue of discrimination against women in law and in practice, Discrimination against women in nationality, Position paper,  May 2017, available at http://www.ohchr.org/Documents/Issues/Women/WG/DiscriminationAgainstWomenNationality.docx

[2] Chou Bun Eng, Secretary of State of Ministry of Interior, Cambodia, Cambodia’s Efforts to Contribute to Safe Migration, presentation at Safe from the Start: Panel Discussion on Migrants’ Protection in Countries of Origin, 23 September 2017, SEA Junction, Bangkok, information available at https://www.facebook.com/events/1638769922841996/

[3] For example, where one ethnic group is more likely to have the documentation required to access regular migration options. See R. Napier-Moore and K. Sheill, High rise, low pay: experiences of migrant women in the Thai construction sector, International Labour Organization, Bangkok, 2016, at p.19.

[4] Napier-Moore and Sheill, High rise, low pay, p.20

[5] OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation, HR/PUB/14/1, 2014

[7] GAATW research in the ILO’s Work in Freedom Programme project in South Asia and the Middle East (unpublished).

[8] See Committee on the Elimination of Discrimination against Women, General Recommendation No. 26 on women migrant workers, CEDAW/C/2009/WP.1/R, 5 December 2008, para.19; OHCHR, The Economic, Social and Cultural Rights of Migrants in an Irregular Situation; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants: Labour exploitation of migrants, A/HRC/26/35, 3 April 2014, para.48; V. Mantouvalou, ‘Am I Free Now?’ Overseas Domestic Workers in Slavery, Journal of Law and Society, 42(3), 329–357, September 2015; H. Crawley, F. Düvell, K. Jones, S. McMahon, N. Sigona, Destination Europe? Understanding the dynamics and drivers of Mediterranean migration in 2015, Unravelling the Mediterranean Migration Crisis (MEDMIG), Final Report November 2016.

[9] Global Migration Group, Statement on the Human Rights of Migrants in Irregular Situation, Geneva, 30 September 2010; Global Migration Group, Exploitation and abuse of international migrants, particularly those in an irregular situation: a human rights approach, 2013

[10] Discriminatory attitudes to citizens/nationals migrating, which may be informed by legislation to prevent migration, may also obtain in countries of origin.

[11] Committee on Economic, Social and Cultural Rights, Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights, E/C.12/2017/1, 13 March 2017; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General Comment No. 2 on the rights of migrant workers in an irregular situation and members of their families, CMW/C/GC/2, 28 August 2013; Global Migration Group, International Migration and Human Rights, 2008; Global Migration Group, Statement on the Human Rights of Migrants in Irregular Situation.

[12] Human Rights Council, Report of the Working Group on Arbitrary Detention, A/HRC/13/30, 18 January 2010, para.58; Report of the UN Secretary-General, In Safety and Dignity: Addressing large movements of refugees and migrants, A/70/59, 21 April 2016, paras.37, 56; Special Representative of the Secretary-General for International Migration and Secretary-General for the Intergovernmental Conference, Ms. Louise Arbour, Statement to the Latin American and Caribbean Expert Meeting on International Migration Preparatory to the Global Compact for Safe, Orderly and Regular Migration, 30-31 August 2017, Santiago; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/7/12, 25 February 2008; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/65/222, 3 August 2010; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, A/HRC/20/24, 2 April 2012.

[13] General Assembly, Measures to ensure the human rights and dignity of all migrant workers, Resolution 30/3449 (1975); Committee on Migrant Workers , General Comment No. 2, para.4; Report of the Special Rapporteur on migrants, A/65/222, paras.28-30; General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/71/40767, 20 July 2016, paras.19, 31-34, 59, 60; Special Representative of the Secretary-General for International Migration, Statement to the Latin American and Caribbean Preparatory Meeting, Santiago.

[14] Committee on Economic, Social and Cultural Rights, General Comment No. 23 on the Right to just and favourable conditions of work (article 7 of the International Covenant on Economic, Social and Cultural Rights), E/C.12/GC/23, 8 March 2016, para.54; Committee on Migrant Workers, General Comment No. 2, paras.63, 64, 74, 77; CMW, Concluding observations on the initial report of Turkey, CMW/C/TUR/CO/1, 31 May 2016, paras.58(c),(d); ILO Labour Inspection Convention, 1947 (No. 81), Article 3(2); ILO Labour Inspection (Agriculture) Convention, 1969 (No. 129), Article 6(3); ILO Committee of Experts, 2006 General Survey on the labour inspection instruments, paras.78 and 161; ILO Committee of Experts, Promoting fair migration: General Survey concerning the migrant workers instruments, ILC.105/III(1B), 2016, paras.480-482; OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders, A/69/CRP. 1, 23 July 2014, Guideline 10.11

[15] See references at note 13, and United Nations Alliance of Civilizations (UNAOC) and Panos Europe Institute (IPE), Media-Friendly Glossary on Migration (August 2014); Human Rights Watch, Guidelines for Describing Migrants, 24 June 2014; PICUM, Why ‘Undocumented’ or ‘Irregular’ - Terminology 'Words Matter' Campaign, June 2014; Define American, #WordsMatter factsheet and media/journalist pledge campaign – see Human Rights Council, Report on the compendium of principles, good practices and policies on safe, orderly and regular migration  in line with international human rights law, A/HRC/36/42, 4 September 2017, p.23.

[16] Protocol to the Forced Labour Convention, 1930, Article 2(c)(i); Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.5. See also, S. Molland, Safe Migration, Dilettante Brokers and the Appropriation of Legality: Lao-Thai “Trafficking” in the Context of Regulating Labour Migration. Pacific Affairs, 85(1), 117–136 (2012); Mekong Migration Network, Safe from the Start: The roles of countries of origin in protecting migrants, MMN July 2017; Humanitarian Organisation for Migration Economics (HOME) and Transient Workers Count Too (TWC2), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Shadow Report for Singapore, October 2017, available at http://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/SGP/INT_CEDAW_NGO_SGP_29089_E.pdf

[17] General Assembly, Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/71/385, 14 September 2016, paras.29-33; Report of the Special Rapporteur on migrants, A/HRC/26/35, para.49; SDG indicator 10.7.1 addresses recruitment costs, which the World Bank has found can be exorbitant: World Bank Group, Migration and Development Brief 28, October 2017; Global Alliance Against Traffic in Women, Beyond Borders: Exploring Links between Trafficking and Labour, GAATW Working Papers Series 2010; Southern Poverty Law Center, Close to Slavery: Guestworker Programs in the United States, SPLC 2013 edition; Amnesty International, Abusive Labour Migration Policies: Submission to the UN Committee on Migrant Workers’ Day of General Discussion on Workplace Exploitation and Workplace Protection, 7 April 2014, AI Index: IOR 42/002/2014; Mantouvalou, ‘Am I Free Now?’; D. Demetriou, ‘Tied Visas’ and Inadequate Labour Protections: A formula for abuse and exploitation of migrant domestic workers in the United Kingdom, Anti-Trafficking Review, 5: 69-88, 2015; L. Palumbo and A. Sciurba, Vulnerability to Forced Labour and Trafficking: The case of Romanian women in the agricultural sector in Sicily, Anti-Trafficking Review, 5: 89-108, 2015; HOME and TWC2, CEDAW Shadow Report for Singapore.

[18] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.21; Ban Ying et al., Joint NGO Submission to the CEDAW Committee prior to the General Discussion on “Access to Justice” on the Situation of Domestic Workers1 who Work for Diplomats, February 2013, Ban Ying (Berlin), BliNN (Amsterdam), CCEM (Paris) Kalayaan (London), Lefö (Vienna) Migrants Rights Centre Ireland (Dublin) and PAG-ASA (Brussels).

[19] International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Article 69; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, General comment No. 1 on migrant domestic workers, CMW/C/GC/1, 23 February 2011, paras.51-53; CMW, General comment No. 2, para.16; General Assembly, New York Declaration for Refugees and Migrants, Outcome document of the high-level plenary meeting of the General Assembly on addressing large movements of refugees and migrants, A/71/L.1, 13 September 2016, Annex II para.8(p).

[20] See for example, Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, Concluding observations on the initial report of Peru, CMW/C/PER/CO/1, 13 May 2015, para.57; CMW, Concluding observations on the combined second and third periodic reports of Senegal, CMW/C/SEN/CO/2-3, 20 May 2016, para.61; CMW, Concluding observations: Turkey, CMW/C/TUR/CO/1, para.86; CMW, Concluding observations on the initial report of Honduras, CMW/C/HND/CO/1, 3 October 2016, para.43; Committee on Economic, Social and Cultural Rights, Concluding Observations: Russian Federation, E/C.12/RUS/CO/5, 20 May 2011, para. 17(a).

[21] Amnesty International, Italy: Exploited Labour – Migrant Workers in Italy’s Agricultural Sector, AI Index: EUR 30/020/2012.

[22] In accordance with international human rights and labour law incluidng: International Covenant on Economic, Social and Cultural Rights Articles 6 to 8; Committee on Economic, Social and Cultural Rights, General Comments 18 and 23; ILO Declaration on Fundamental Principles and Rights at Work (1998) and ILO Decent Work Agenda and relevant standards.

[23] This is SDG target 8.8

[24] Declaration concerning the aims and purposes of the International Labour Organisation (Declaration of Philadelphia), 1944, Article 1(a)

[25] B. Pattanaik, Global Alliance Against Traffic in Women (GAATW), Presentation for Panel 3: Appropriate Identification, protection, and assistance to migrants and trafficking victims, at the Global Compact for Safe, Orderly and Regular Migration thematic consultation on smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims, 5 September 2017, available at https://refugeesmigrants.un.org/sites/default/files/ts5_bandana_pattanaik.pdf.

[26] On labour policies putting migrants’ rights at risk see, Committee on Economic, Social and Cultural Rights, General comment No. 23, para.78; Focus on Labour Exploitation, Statement on the impact of immigration control measures on vulnerability to exploitation to the fifth thematic consultation on the global compact for safe, orderly and regular migration on smuggling of migrants, trafficking in persons and contemporary forms of slavery, including appropriate identification, protection and assistance to migrants and trafficking victims, FLEX 2017, available at https://refugeesmigrants.un.org/sites/default/files/ts5_flex.pdf; Mantouvalou, ‘Am I Free Now?’; V. Mantouvalou, The right to work: Whose work, what work?, in K. Murray (ed), Fair and Free: Labour, liberty and human rights, The Fabian Society 2017, pp.62-67.

[27] International Covenant on Economic, Social and Cultural Rights, Articles 6, 7 and 8 set out the interdependent elements of the right to work. See also the ILO Decent Work Agenda, in Declaration on Social Justice for a Fair Globalization, adopted by the International Labour Conference at its 99th Session, Geneva, 10 June 2008; Committee on Economic, Social and Cultural Rights, General Comment No. 18 (2005) on the right to work, E/C.12/GC/18, 6 February 2006; Committee on Economic, Social and Cultural Rights, General comment No. 23, on migrants specifically see paras.5, 11, 47(e),(f), 54, 56, 57, 73, 78; see also, General Assembly, Transforming our world: 2030 Agenda for Sustainable Development, A/RES/70/1, SDG Target 8.8

[28] 2030 Agenda for Sustainable Development, A/RES/70/1, paras.3, 9 and 27 and Goal 8.

[29] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Article 25; Committee on Economic, Social and Cultural Rights, General comment No. 23, para.11; ILO Convention No. 143, Migrant Workers (Supplementary Provisions) Convention, para.14(b).

[30] Committee on Economic, Social and Cultural Right, General Comment No. 23; APWLD, What is a Living Wage and why do need one?, Briefing, 13 March 2017, available at http://apwld.org/wp-content/uploads/2017/03/2017_Living_Wage_briefer.pdf

[31] International Covenant on Economic, Social and Cultural Rights, Article 8; Declaration of Philadelphia, Article 1(b); ILO Declaration on Fundamental Principles and Rights at Work (1998); ILO Forced Labour (Supplementary Measures) Recommendation, 2014 (No. 203), Article 3(b); General Assembly, Protection of migrants,  A/RES/68/179, 28 January 2014, para.4(i); Report of the Special Rapporteur on freedom of peaceful assembly and of association, A/71/385; Report of the Special Rapporteur on migrants, A/HRC/26/35, paras.19, 45; E. Marks and A. Olsen, The Role of Trade Unions in Reducing Migrant Workers’ Vulnerability to Forced Labour and Human Trafficking in the Greater Mekong Subregion, Anti-Trafficking Review, issue 5, 2015, pp. 111–128. In working to realise SDG target 8.8 (Protect labour rights and promote safe and secure working environments for all workers, including migrant workers, in particular women migrants, and those in precarious employment), states are asked to measure and report specifically on the level of compliance on freedom of association and collective bargaining (SDG indicator 8.8.2), disaggregated by sex and migrant status.

[32] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, ILO Geneva, 2017, para.3; Mantouvalou, The right to work: Whose work, what work?

[33] All-Party Parliamentary Group on Migration, Brexit: beyond the highly skilled – the needs of other economic stakeholders, APPG (UK) September 2017

[34] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, para.8

[35] Report of the Special Rapporteur on migrants, A/68/283, para.91; Report of the Special Rapporteur on  migrants, A/HRC/26/35, paras.16, 67, 70; Human Rights Council, Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, A/HRC/35/25, 28 April 2017, paras.21, 27, 44; GAATW, Beyond Borders.

[36] See for example, Tavoyan Women’s Union, Our lives are not for sale: Tavoyan women speak out against the Dawei Special Economic Zone project, December 2014, available at http://womenofburma.org/wp-content/uploads/2015/02/Our-Lives-Not-for-Sale_English.pdf; H. Crawley, Why Jobs in Special Economic Zones Won’t Solve the Problems Facing the World’s Refugees, The Conversation, 6 April 2017, available at https://theconversation.com/why-jobs-in-special-economic-zones-wont-solve-the-problems-facing-the-worlds-refugees-75249; International Commission of Jurists, Special Economic Zones in Myanmar and the State Duty to Protect Human Rights, February 2017; C. Thame, SEZs and Value Extraction from the Mekong: A Case Study on the Control and Exploitation of Land and Labour in Cambodia and Myanmar’s Special Economic Zones, Focus on the Global South, July 2017.

[37] Secretary-General's Address to the General Assembly, 19 September 2017, available at https://www.un.org/sg/en/content/sg/statement/2017-09-19/secretary-generals-address-general-assembly

[38] GAATW, Beyond Borders.

[39] A. Szörényi, Expelling Slavery from the Nation: Representations of labour exploitation in Australia’s supply chain, Anti-Trafficking Review, 7: 79-96, 2016.

[40] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.13.

[41] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.15.

[42] Committee on Economic, Social and Cultural Right, General Comment No. 23, paras.4, 5, 26, 47(d), 54, 56, 59, 62, 64; Beijing Platform for Action, adopted at the Fourth World Conference on Women, 4-15 September 1995, A/CONF.177/20 and A/CONF.177/20/Add.1 (1995), paras.153, 158, 160, 164, 250; Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.14; Commission on the Status of Women, Women’s economic empowerment in the changing world of work: Report of the Secretary-General, E/CN.6/2017/3, 30 December 2016, generally and at para.29 on informal work numbers.

[43] The Women’s Major Group describe how the unpaid domestic and care work performed by women equals 60 per cent of the value produced in the world, commenting that “there is not enough money in the world to pay for the value generated by the work of women.” Women’s Major Group, Women’s “8 Red Flags” following the conclusion of the Open Working Group on Sustainable Development Goals (SDGs), Women’s Major Group Final Statement - 21 July 2014 (red flag 4). Unpaid care and domestic work has been valued at between 10 to 39 per cent of GDP globally: Report of the Secretary-General, E/CN.6/2017/3, paras.25, 26.

[44] Commission on the Status of Women, 58^th Session (2014), Agreed Conclusions: Challenges and achievements in the implementation of the millennium development goals for women and girls, para.42(gg)

[45] Global Alliance Against Traffic in Women, Female Temporary Circular Migration and Rights’ Protection in the Strawberry Sector in Huelva, Spain, GAATW 2009.

[46] GAATW, Female Temporary Circular Migration and Rights’ Protection in the Strawberry Sector in Huelva, Spain; Napier-Moore and Sheill, High rise, low pay; K. Wee, Recruitment Costs Brief: Indonesia, Transient Workers Count Too (TWC2), June 2016. This discrimination can lead to further human rights abuses, see for example: UN-ACT, Human Trafficking Vulnerabilities in Asia: A Study on Forced Marriage between Cambodia and China. Bangkok: UNDP 2016.

[47] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.18; Human Rights Watch, A Job or Your Rights: Continued Sex Discrimination in Mexico’s Maquiladora Sector, HRW 1998; Napier-Moore and Sheill, High rise, low pay; Report of the Special Rapporteur on the human rights of migrants, A/HRC/26/35, paras.54, 94.

[48] Global Alliance Against Traffic in Women, Collateral Damage: The Impact of Anti-Trafficking Measures on Human Rights around the World, GAATW 2007, in particular the chapters on Nepal and Nigeria; ILO and GAATW, No easy exit: Migration bans affecting women from Nepal, ILO, Geneva, 2015; Napier-Moore and Sheill, High rise, low pay, p.20; R. Napier-Moore, Protected or put in harm’s way? Bans and restrictions on women’s labour migration in ASEAN countries, International Labour Organization and UN Women, Bangkok, 2017.

[49] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.19

[50] GAATW, Beyond Borders

[51] ILO Private Employment Agencies Convention, 1997 (No. 181), Article 7; Protocol to the Forced Labour Convention, Article 8(a).

[52] GAATW research in the ILO’s Work in Freedom Programme project in South Asia and the Middle East (unpublished).

[53] Maria Asis, Scalabrini Migration Center, Philippines: Pre-Departure Protection Policies in the Philippines, presentation at Safe from the Start: Panel Discussion on Migrants’ Protection in Countries of Origin, 23 September 2017, SEA Junction, Bangkok.

[54] GAATW, Female Temporary Circular Migration and Rights’ Protection in the Strawberry Sector in Huelva, Spain, p.30

[55] See discussion in section 2 of this paper

[56] The migrants who can be found in such precarious labour may be in an irregular situation, but they may also be in a regular situation on a range of different visa options and temporary labour programmes, not all of which are defined as work visas. In some contexts, the migrants are international students working casually and part- time in low-paid service jobs alongside their studies on student visas, or working holiday makers on tourist visas – see, A. Szörényi, Expelling Slavery from the Nation.

[57] Protocol to the Forced Labour Convention, Article 2(d).

[58] Based on lessons learned from GAATW’s research in the ILO’s Work in Freedom Programme project in South Asia and the Middle East (unpublished). See ILO, Policy Brief on Practices and Regulations of Recruitment to Domestic Work, 2017; ILO, Policy Brief on Practices and Regulations of Recruitment to Garment Work, 2017.

[59] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, para.9; ILO, General principles and operational guidelines for fair recruitment, Geneva: ILO, 2016; Verité, Fair Hiring Toolkit, 2011.

[60] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.19; Report of the Special Rapporteur on migrants, A/HRC/26/35, paras.38-39; Mantouvalou, ‘Am I Free Now?’. It is worth noting that restrictions on the movement of migrant workers which can be detrimental to the work and employers as well as to the migrants, see Napier-Moore and Sheill, High rise, low pay, p.21

[61] Committee on Economic, Social and Cultural Rights, General Comment No. 23, para.54; Committee on Migrant Workers, General Comment No. 2, para.63; CMW, Concluding observations: Turkey, CMW/C/TUR/CO/1, paras.58(c),(d); OHCHR, Principles and practical guidance on the protection of the human rights of migrants in vulnerable situations within large and/or mixed movements, on the basis of existing legal norms, A/HRC/34/CRP.1, 23 February 2017, para.95; ILO Labour Inspection Convention (No. 81), Article 3(2); ILO Labour Inspection (Agriculture) Convention (No. 129), Article 6(3); ILO Committee of Experts, 2006 General Survey on the labour inspection instruments, paras.78, 161; ILO Committee of Experts, Promoting fair migration, ILC.105/III(1B), 2016, paras.480-482; European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 16 on Safeguarding Irregularly Present Migrants from Discrimination, adopted on 16 March 2016, Council of Europe, Strasbourg, CRI(2016)16, Recommendations 2, 3, 11, 15, 29, 30

[62] GAATW, Collateral Damage; GAATW, Beyond Borders

[63] International Labour Conference, Resolution concerning fair and effective labour migration governance, 106th Session, para.10; 2030 Agenda for Sustainable Development, A/RES/70/1, SDG targets 1.3 and 10.4; Committee on Economic, Social and Cultural Rights, Concluding Observations: Russian Federation, E/C.12/RUS/CO/6, 16 October 2017, para.37.

[64] K. Long and R. Sabates-Wheeler, Migration, Forced Displacement and Social Protection. GSDRC Rapid Literature Review, Birmingham, UK: University of Birmingham, 2017; J. Hagen-Zanker, E. Mosler Vidal and G. Sturge, Social protection, migration and the 2030 Agenda for Sustainable Development, ODI Briefing.

[65] ILO, Bilateral Agreements and Memoranda of Understanding on Migration of Low Skilled Workers: A Review, 2015; Mekong Migration Network, Safe from the Start.

[66] OHCHR, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, UN 2011, HR/PUB/11/04, specifically Principle 15.

[67] General Assembly, Report of the Special Rapporteur on the human rights of migrants, A/70/310, 11 August 2015, para.42.

^[68] R. Napier-Moore, Protected or put in harm’s way?

[69] GAATW, Beyond Borders

[70] OHCHR, Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, 20 May 2002, on identification see Guideline 2; GAATW, Beyond Borders

[71] Protocol to the Forced Labour Convention, Article 4; Forced Labour Recommendation (No. 203), Articles 5(2) and 12; International Covenant on Civil and Political Rights, Article 2(3); International Convention on the Elimination of All Forms of Racial Discrimination, Article 6; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 14; Declaration on the Elimination of Violence against Women, Article 4(d); Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, Article 6(6); Recommended Principles and Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1, Principle 17, Guideline 9; General Assembly, Report of the Special Rapporteur on trafficking in persons, especially women and children, A/69/269, 6 August 2014, Annex: Basic principles on the right to an effective remedy for victims of trafficking in persons; Report of the Special Rapporteur on migrants, A/HRC/26/35, para.59.

[72] Committee on the Elimination of Discrimination against Women, General Recommendation No. 26, para.24(j); Committee on Migrant Workers, General comment No. 1, paras.62-64; Report of the Special Rapporteur on migrants: A/71/40767, para.98.