Why did you undertake the study?Our motivation for the study goes back to personal experience in a Brussels shelter for human trafficking victims. Through our volunteering in the shelter, we got to know better several of the victims staying there. In informal conversations on their hopes and fears for the future, we learned that for many of them, it was not clear whether the investigation into their case would continue. This was of great concern to them. Dismissal of a case usually means withdrawal of victim status and its associated rights including a work and residence permit. We wanted to know: what kind of avenues for access to protection and remedy do such persons have. These are persons that have clearly been exploited and who may have been initially identified as a human trafficking victim but who over the course of the investigation lost their victim status.
What were some your main findings?We found that in terms of access to protection there are not really any formal structures in place other than those available under the human trafficking procedure. With regard to remedy on the other hand we found several avenues in both countries. These include claiming compensation (such as back wages or damages) in criminal proceedings (other than human trafficking) or launching proceedings in civil or labour courts. We also examined state-operated compensation mechanisms for victims of violent crimes, for workplace accidents or insolvency of the employer. However, we found that there are numerous barriers preventing effective access to these avenues in practice. The support and expertise of specialised NGOs and trade unions in making use of them is indispensable.
In the study, you examine in particular the role of labour inspectors in providing access to protection and remedy. Why are they important actors in this context?As labour inspectors carry out unannounced workplace inspections and are competent to interview workers, they are ideally placed to detect victims. Situations of labour exploitation are often not evident at first sight and whether or not a victim is detected may depend on labour inspectors’ capacity to recognize the signs indicating a human trafficking situation. Both countries have specialised labour inspection units which have been trained to detect victims of human trafficking. We also found that the inspection report and the quality of information it contains (e.g. about the particular working and living conditions a potential victim was found in), can have a significant impact on a potential victim’s access to protection and remedy as it constitutes important evidence in a case.
In both countries, labour inspectors also play an important role in providing access to remedy such as in the recuperation of back wages or social security contributions. For instance, in Belgium, labour inspectors can retroactively formalise an employment relationship for the duration a person worked for an employer, thus opening access to parts of the social security system.
However, in both countries, there is a risk that immigration concerns overshadow the right to remedy of workers in an irregular situation. In Belgium, labour inspectors have a formal duty to report such workers to immigration authorities, whereas in the Netherlands joint inspections with specialised police units competent on trafficking and immigration takes place. Workers then receive deportation orders, without having the chance of claiming remedy for violations suffered (e.g. any back wages).