The high stakes of being a migrant worker
by Mariana Magalhães
Although the 1951 Refugee Convention identifies freedom of movement as an essential right for refugees looking for employment, several of the ratifying countries purposefully restrict refugee mobility. Embedding better policies in national legislations could lead to stronger worldwide protection of workers.
Nowadays we live in a world that revolves around work: we make plans and schedules to accommodate our jobs, we value thriving in the workplace more than we praise having morals and values. At the same time, we are witnessing an ever-increasing globalization, where the constant interchange of manpower between countries knows no boundaries. However, not everyone seems to be given the same opportunity to prosper at work, as we watch several times our migrant workforce being marginalized by society.
The term “migrant worker” is often used to describe people who move to another country in search of employment, but it can also be used in situations where the reasons underlying the migration are different. Whilst these differences may seem that they make it easy to distinguish between refugees and people who flee for economic reasons other than their basic needs, this difference does not materialize when it comes to the employment realities they confront, since in both cases migrants often experience a shattering illusion that they would have higher paying jobs, better working conditions, and overall, a better life. The truth is migration comes with a myriad of challenges faced by migrant workers, refugees, and asylum seekers – from exploitative working conditions and discrimination to uncertain legal statuses and social isolation, these vulnerable populations grapple with numerous adversities.
Firstly, access to work may be prohibited or restricted by law, meaning, if they manage to find a job, it’s likely to be in the informal economy. As its name suggests, this parallel system allows employers to set aside the fulfillment of certain obligations to which all workers should be entitled, such as, observing workplace health and safety laws, paying employees the legal minimum wage, adhering to limits of daily and weekly working hours, or even ensuring the access to social security provisions, as established by national and European law, like Labour Codes or International Labour Organization (ILO) conventions.
The lack of access to healthcare, pension schemes, and other social benefits also contributes to financial insecurity. Moreover, the absence of formal work contracts leaves the workers at the mercy of unpredictable market forces. Without legal recognition, informal workers are unable to assert their rights and may endure unsafe working environments without recourse.
Besides the poor working conditions, the informal economy is closely tangled with the subject of human trafficking, as a form of exacerbating the vulnerabilities of workers. Traffickers often exploit the desperation of individuals seeking employment opportunities in the informal sector, luring them into situations of forced labor and modern-day slavery. These victims, often migrants, find themselves trapped in exploitative working conditions, where they are coerced to work for little to no pay, subjected to abuse, and denied basic human rights.
The clandestine nature of the informal economy provides a fertile ground for traffickers to hide their illicit activities, making it challenging for authorities to identify and rescue victims. One particularly striking example of these activities is reportedly taking place in the Portuguese district of Beja, where episodes of people being held captive and forced to work in the agriculture sector are occasionally reported. However, the authorities are unable to identify these people because they are essentially undocumented immigrants who don’t even have a registry about entering the country.
To address these pressing issues and uphold human dignity, nations must endorse comprehensive legislation and policies, connecting labor, anti-discrimination, and migrant protection laws. The multifactorial causes highlight how challenging it is to construct a cohesive regime for labor regulation that simultaneously protects human rights. Many people who are forcefully relocated are only loosely covered by current international protection and human rights standards, which also differ whether we refer to migrants, refugees, and other categories of forcefully displaced persons. For instance, a refugee whose status is recognized under the provisions of the 1951 Refugee Convention can benefit from certain labour rights spelled out in Articles 17 to 19 (access to employment), Articles 15 and 24 (labour rights), and Article 15 (right of association through trade unions) of this Convention, while other forcibly displaced persons don’t have the same protection through any international instrument ratified specifically to protect their labour rights.
In this regard, it’s important to uphold the principle of equal treatment between national workers and migrant workers as the foundation of all legislation regarding this matter. Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) contemplates this exact principle, by reinforcing the idea that States parties are under the obligation of ensuring equal access to decent work for all persons, including migrant workers. The Migration for Employment Convention (Revised) of 1949 and the Migrant Workers (Supplementary Provisions) Convention of 1975 also explicitly prohibit discrimination based on nationality and relate to refugees and other forcibly displaced persons.
However, today’s reality that does not reflect these ideals – although the 1951 Refugee Convention identifies freedom of movement as an essential right for refugees looking for employment, several of the ratifying countries purposefully restrict refugee mobility. Since national laws are easier to impose on employers than international diplomas, enhancing these ideas in the sense of being better embedded in national legislation of the states could lead to stronger worldwide protection of workers. This could be accomplished, on the one hand, by intervening in our current labour legislation frameworks, namely through bolstering labour inspection mechanisms and entities to monitor working conditions in the informal economy, which should prevent exploitative practices and protect vulnerable workers.
Additionally, the implementation of policies that encourage the formalization of informal economy work – for example, by offering these “informal employers” more attractive conditions and incentives to make their businesses legitimate, implying that their workforce is also legitimate –, could open up doors for workers to transition into the formal sector with legal protections, social benefits, and access to justice. On the other hand, international cooperation and the creation of solid and protective migration policies could help in addressing the underlying causes of these issues, since having a certain level of stability and financial assurance upon arrival in a destination country should lessen the need to find employment in the informal economy, where the exploitative working conditions begin.
So why are national governments so sceptic of embracing more people in their workforce?