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Leun, JP van der (2017) Labor exploitation of migrant workers in the Netherlands. Draft version to be published in A.A. Aronowitz (2017) Human Trafficking. Santa Barbara: ABC-CLIO, 176-182.
Labor exploitation of migrant workers in the Netherlands
In the Netherlands, labor exploitation was brought under Criminal Law in 2005, the current section 273f, in accordance with the ‘Palermo Protocol’ of 2001 and the European legal and policy framework to combat human trafficking (including the 2011/36/EU Directive on trafficking in human beings and the EU Strategy towards the Eradication of Trafficking in Human Beings (2012-2016). Since the formal criminalization, attention for exploitation outside the sex industry Labor inspectorates increased investigations against illegal employment. Fines for employers were raised significantly. This increased attention resulted in an increase in the number of detected victims of trafficking in the Netherlands (from 424 in 2005, to 1437 in 2013, with a peak in 2012 of 1711 ‘registered victims’) (see the reports of the Dutch National Rapporteur at http://www.dutchrapporteur.nl/reports/).
The majority of victims are registered after identification by the police. A small minority of these known cases involve victims of trafficking outside the sex industry (178 of 1437 victims in 2013).
There are no reliable estimates of the ‘real number’ of victims, but it is clear that the actual number of victims is likely to be much higher than these registrations suggest. Many people who are exploited will not easily approach the authorities. The later holds in particular for unauthorized migrant workers who might fear expulsion from the country once in contact with the authorities. This makes them often overlooked and particularly vulnerable to exploitation.
Baking shrimp chips in the Hague
One of the first major cases in the Netherlands involving labor exploitation occurred in 2009.
It is generally seen as a breakthrough in the combat against trafficking outside the sex industry. The case first came to light when people in the neighborhood heard noises in the house and noticed numerous people coming in and out of the house – indications that seemed to point to a business.
Neighbors reported their suspicions to the police. An investigation was started, in which different agencies cooperated and shared information. The Dutch Inspectorate SZW (the organization tasked with ensuring safe working conditions and protecting the socio-economic security of workers in the Netherlands) and the police detected a criminal network involved in exploiting illegal workers from Indonesia in the Hague. When the labor inspectorate arrived together with the police, eleven workers were found in a single home, making products such as shrimp chips and chili paste for an Indonesian store, which belonged to the owner of the house. Migrant workers who resided in the country without a residence permit had to work excessive hours (10 to 15 hours per day) for a small salary (€25 to €30 per day), and deductions were made for a mattress on the floor. Circumstances were unhygienic and unhealthy. The workers were apprehended by the Immigration Police. During the interviews, suspicion arose that they had been exploited. The owner of the house, his wife and an assistant were arrested.
When the case went to court much later, the owner of the house was found guilty of human trafficking, jointly committed with others, and sentenced to four years imprisonment. This conviction for human
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trafficking was seen by many as a breakthrough, as in previous years and in similar cases, judges often did not see them as cases of trafficking.
Policy challenges
Gradually, an integrated approach has been developed in the Netherlands based on the so- called “barrier model”. This preventive model for tackling organized crime - which has been adapted for preventing trafficking in persons - is based on establishing barriers at each step that human traffickers have to take in order to execute their criminal activities. For each step, such as entry and recruitment, accommodation, identity, employment and finance, the model indicates organizations or agents that might be able to raise thresholds or barriers for those involved in trafficking, either as a perpetrator or as a facilitator (Aronowitz, et. al. 2010). Sharing information and combining a criminal law with an administrative law-based approach are pivotal in this integrated approach. The government installed not only a National Rapporteur on Trafficking in Human Beings and Sexual Violence Against Children but also a special Task Force on Human Trafficking to promote and coordinate the combat against human trafficking.
Despite having made important steps towards a more effective and coordinated approach, there are still serious challenges as well which result in many cases going unreported and unpunished.
An important and often neglected reason is that apart from combating human trafficking, there is also the policy realm of migration control (based on the rights of States to curb illegal or unauthorized residence and labor). On the one hand, this may lead to police officers or other law enforcement officials not recognizing potential labor exploitation, because they primarily think along the lines of:
“unauthorized or illegal migrants should not be working here, this person must be expelled from the country”. And on the other hand, migration control considerations also cause governments to be reluctant to extend employment protections to irregular workers. This also hampers their access to fundamental rights to which they should have access (van der Leun & Van Schijndel 2015).
Secondly, both the general public and law enforcement officers still tend to think that exploitation in the sex industry is more important than other forms of exploitation and this, in turn, may hamper the identification of victims. Despite attempts to raise awareness among the public at large, as well as among labor inspectors, police officers, prosecutors and judges, this still holds. Figures on sentences imposed do not distinguish between different types of trafficking, so there is no clear answer to the question whether this translates into lower sentences. There is wide consensus however, that trafficking for labor exploitation implies a lower likelihood of being detected and recognized. In the case where a victim of trafficking in persons is also a suspect of a crime, for instance because he or she has used false documents to enter the country or work, the prosecutor may decide not to investigate or prosecute this crime further, and the court may decide not to apply any punishment or measure on the basis of the so-called “non-punishment principle”. Again, however, this means that victims need to be recognized as such, which is problematic for unauthorized migrants.
3 Where to go from here?
In many countries, unauthorized workers contribute to the economy in an ‘invisible’ way.
They live an ‘underground’ existence and they work largely outside the protection of labor-related enforcement agencies or unions. They also lack working permits and do not pay taxes. Increasing controls have pushed them even further underground and criminal networks have stepped in with shady complex cross-border ‘job posting’ arrangements. Recognizing this, important steps to combat labor exploitation have been made over the last decade. There is more awareness and increasing cooperation in order to detect cases of exploitation. Yet, migration control sometimes hampers the fight against human trafficking and, paradoxically, strict controls even appear to encourage rather than discourage trafficking in human beings.
These fundamental barriers could only really be solved by (a) providing more opportunities for temporary labor in a legal and regulated manner and (b) by attempting to bring unauthorized workers out of the shadows and by encouraging them to assist enforcement agencies to investigate and prosecute people who really benefit: the traffickers, “gangmasters” and mala fide employment agencies.
If workers fear deportation, the latter remains unlikely to happen. Labor exploitation not only arises out of the will of migrants to look for a job elsewhere or of criminals to exploit workers. It is also the consequence of the contradiction between increasingly restrictive admission and control policies with respect to workers in the lower segments of the labor market in combination with persisting demand for cheap and flexible labor. This message tends to be forgotten, because in the political discourse so much emphasis is placed on criminal networks and ‘evil’ traffickers. In practice, though, government agencies end up punishing lower-level migrant workers.
Thinking of rights
The outcome of these processes described above is that in practice, victims of labor exploitation are currently not provided the same services as victims of sex trafficking in the Netherlands, as in many other countries. They have the same right to shelter and other forms of victim support, and additionally the right to a temporary residence status, but they are less likely to be able to exercise their rights. In a highly publicized case of labor exploitation on a asparagus farm in the south of the Netherlands some years ago, potential victims were seen as unauthorized workers. They were immediately put on a bus and returned to their home country instead of recognized as potential victims that needed protection. In other cases, workers are offered shelter and support and treated as passive victims whereas what they really want is being recognized as workers, receiving monetary compensation for unpaid work, and safe return to their home country. In sum, a broader view focusing on the interests and rights of those who are exploited in our labor markets is needed.
Aronowitz, Alexis, Theuermann, Gerda and Tyurykanova, Elena. 2010. Analysing the Business Model of Trafficking in Human Beings to Better Prevent the Crime. OSCE: Vienna.
http://www.osce.org/files/documents/c/f/69028.pdf
4 EU Directive on trafficking in human beings:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF
EU Strategy towards the Eradication of Trafficking in Human Beings (2012-2016).
http://ec.europa.eu/home-affairs/doc_centre/crime/docs/trafficking_in_human_beings_eradication- 2012_2016_en.pdf
National Rapporteur on Trafficking in Human Beings and Sexual Violence Against Children. See the National Rapporteur’s Reports at http://www.dutchrapporteur.nl/reports/.
Leun, J.P. van der, Schijndel & A. van (2015), Emerging from the shadows or pushed into the dark?
The relation between the combat against Trafficking in Human Beings and Migration Control , International Journal of Law, Crime and Justice. [Online first. Doi:10.1016/j.ijlcj.2015.04.001]
http://www.sciencedirect.com/science/journal/aip/17560616 Bio
Joanne van der Leun (1963) is professor of Criminology at Leiden Law School and Scientific Director of the Institute for Criminal Law and Criminology. Her research interest lie in the field of crime, migration and policy. She is member of the Advisory Committee of Immigration Affairs of the Ministry of Security and Justice, the Netherlands.
