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People Trafficking: Workers and Families Legal responses in New Zealand and Internationally
Author: David Ryken
Publish Date: September 14, 2006
INTERNATIONAL BAR ASSOCIATION
People Trafficking : Workers and Families
Legal responses in New Zealand and Internationally
1. Trafficking in workers
Western or industrialised nations continue to operate systems that regulate or impede the free flow of labour from the Third World. The huge pressures to survive in many labour-rich countries (such as Bangladesh, Thailand, Pakistan and others) create enormous incentives to third parties to arrange for such labour to be brought into countries in which there is a labour shortage but where there are no immigration policies to allow that labour to be imported. This market gap allows or invites unscrupulous agents to exploit this transfer of labour.
With threats against family members back home, the often initially unsuspecting worker finds himself or herself working in agriculture or manufacturing for an hourly rate much lower than anticipated along with an unpaid “contract” amount that needs to be paid back to the agents, with interest accruing. Such people often simply put their heads down and allow themselves to become “enslaved” in the job. Many do not understand whether their status is legal or illegal. They will not normally want to draw attention to their plight for fear of repercussions and removal. This scenario is repeatedly played out in hundreds of thousands of cases in New Zealand, Australia, Canada, the U.S. and Europe, and other western or advanced nations and is by now quite familiar.
In some states, the process continues unabated without much impediment. The host country carries out a certain amount of “removal” of unauthorised workers to at least give the appearance that the problem is being addressed. Often however, an overview of the situation suggests that the state is, by acquiescence, complicit in the process itself given the end result – a cheap labour force that then drives the economy. In New Zealand it is well-known that unlawful labour has in the past provided the backbone of agricultural labour in some of our orchard regions (kiwifruit and apple-picking for example). There is clear evidence that the construction industry has also been involved in “trafficked” labour and from time to time there is anecdotal evidence that workers in the garment industry, manufacturing, and the hospitality industry are also involved. The same pattern is found in other advanced countries all over the world.
Sometimes those “trafficked” are initially quite willing, and know or become aware they are working without authorisation, but are willing to take the risk (because of poverty back home). The “trafficked” in lower paid jobs however often become enslaved though some manage to redeem themselves and become residents and citizens, sometimes through relationship applications, or other immigration processes (but see discussions below concerning the imposition of immigration penalties on this group).
The transfer of humans for exploitation from country to country often involves the legitimate use of immigration processes (except for illegal border crossings or boat arrivals), but for illegitimate purposes. This may also occur within families (such as the business owner who sponsors family members, who begin working at exploitative rates and are too frightened to take action). Any discussion of human trafficking that examines the total misuse of immigration systems must however therefore look at the transfer of individuals from country to country not necessarily for the purposes of sex exploitation or organ donors, but for many other purposes equally abhorrent, including coerced labour.
2. Exploitation of Women for Marriage
Arranged marriages where the woman is “traded” principally for her labour and child-rearing is undoubtedly a form of trafficking. In such arrangements, principally involving African, Middle Eastern and Asian cultures, there may in fact, where love does not develop in the relationship, be very little that differentiates between the trafficked sex-slave and the “arranged” bride. Where this occurs trans-nationally the woman may be unable to escape and to return home because of what awaits her (ostracisation, or in countries which practice honour killings, possible death).
Eventually, where such women marry into westernised countries, over time they may acquire the opportunity to emancipate themselves through legal processes (though there is in many jurisdictions a twilight zone during which the trafficked “partner” is powerless whilst her immigration status is being processed). This twilight zone (discussed below) may allow the exploitation to continue or postpone the empowerment stage. Immigration processing times, where they last for years (as they often do in New Zealand), may exacerbate the problem.
3. Trafficking in General
Trafficking is defined by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children 2000 as:
… the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
Often the initial transfer from country of origin to country of destination is done willingly. Usually the individual has a different view of what lies at the other end: a loving husband or a $1,000 a week job. They do not however get what they bargained for.
Trafficking may be a form of exploitation which is not significantly different to exploitation that occurs internally within the country of origin. The coercive factor, particularly at the beginning of the exploitation, however may be quite minimal and arise once the individual is in situ where they suddenly find out they are basically indentured labour and powerless to complain (for fear of deportation (removal)).
Whereas uplifting people from villages and transferring them to slave-like situations within Third World countries is a problem that concerns the internal development of those counties, the transfer of such workers or “exploited” persons into First World countries becomes a problem for the First World country not only because of the misuse of the immigration entry processes but also because of what the exploitation then represents on the new territory, an internal affront to the developed nation’s sense of fair play and concepts of human rights.
Arguably, whilst poverty continues, people will be willing either internally or internationally to subject themselves (or their family members) to exploitive circumstances.
One of the causes of the abuse however is the failure of westernised nations to fill the lower-skilled labour market through ordinary lawful immigration processes or policies. This occurs often because such nations do not want such labour to have rights of permanent entry and consequently there always remains a strong inference that lower paid workers from Third World countries will become non-compliant immigrants who will become overstayers or even fraudulent asylum seekers (bogging down the processing systems). Perhaps countries who are not members of the Refugee Convention such as Singapore have an advantage in this regard.
4. New Zealand’s Governmental Response to Trafficking
A range of responses over the last several years has included legislative reform, an action plan on trafficking in persons (early 2005), prosecutorial work and cooperation with NGOs providing victim support. In 2003 prostitution was decriminalised which may have also reduced sex-worker “trafficking”.
It is of concern however that there have been recent assertions by politicians that “trafficking” does not exist into New Zealand. Trafficking involving sexual servitude by women and children may now be less insignificant but work-based exploitation, and the exploitation of marriage partners, certainly exists. Although listed as a “tier-one” country in the US State Department Trafficking in Persons report, 2006 (see www.state.gov/g/tip), as any immigration law practitioner will soon become aware, we have our fair share of cases involving clients who have been exploited, who have came into the country on visitor’s visas, student visas, and sometimes fake passports etc and who then are subjected to threats of violence against their relatives back home if they do not work in the brothels or in the orchards and pay back the extortionist fees demanded. Women (and sometimes men) who are exploited through the arranged marriage system come to the attention of the Family courts, though that may sometimes take several years to develop (and often depends on the individual obtaining first the status to remain and the empowerment to reject the exploitation).
Certainly in the late 1990s sex trafficking into New Zealand had occurred often involving Thai and Burmese women using the Thai visa-free arrangements (which as a result were suspended). In 1999 the New Zealand Human Rights Commission, in conjunction with a number of support groups, set up a safe house programme and assisted a number of women to escape the sex trade and return to Thailand. As far back as 1993 it was estimated by the Ministry of Women’s Affairs that up to 70 women had been victims of trafficking and sex exploitation. Police statements (which may have been exaggerated) mentioned figures of up to 500. There have been no recent media claims of such numbers (see www.hrc.co.nz).
Sigma Huda the United Nations Special Rapporteur on Human Trafficking on a visit in December 2005 to New Zealand asserted that the problem of trafficking in New Zealand may be wider than sometimes thought, pointing to mail-order brides, migrant workers, foreign fishermen and arranged marriages. Her comments were not part of an official report (Ms Huda has relatives who live in New Zealand). It may be that assertions that we do not have trafficking arise because the speaker only has the sex industry in mind. Which might reflect an inner thought process that labour-market trafficking is not a big problem and that what we do is just remove (deport) the workers.
One of the problems that the system overall in New Zealand presents when dealing with trafficked persons (sex industry, workers and marriage partners) is that the problem is treated as an immigration problem rather than as a victims-of-crime problem. There is no coordinated mechanism for example allowing victims to remain in the country on valid permits where they are witnesses in a prosecution case or in a civil case to recover money (see however below, discussion of New Zealand’s special immigration category involving victims of domestic violence). In the case of illegal workers there is no or little effort taken to determine whether such persons have been trafficked before they are removed.
The lack of success in identifying labour trafficking is discussed in the UN Office on Drugs and Crime (UNODC) report, April 2006 Trafficking in Persons: Global Patterns, at p33, following; and p65 underreporting of forced labour.
One of the main problems is that centralised reporting in many countries is just non-existent. Hence all that is available is anecdotal evidence. The New Zealand’s Minister of Justice, Mr Burton’s, comments (footnote 1) would have us believe that because evidence is anecdotal, therefore trafficking is non-existent. The reason it is anecdotal however is because information is neither gathered nor analysed in relation to labour-trafficking. See UNODC report supra page 49 concerning this wider approach to the definition of human trafficking.
Where workers who have already become overstayers escape from the exploitive circumstances in which they have found themselves the Minister of Immigration (or Associate Minister) on a case by case basis can and has intervened and issued work permits in order to empower the person to pursue legitimate legal action (eg, employment action in sweat-shop cases, family cases or civil cases). Currently the ability to empower such a person lies with the Minister of Immigration (or Associate Minister of Immigration) under section 130 or section 35A of the Immigration Act 1987. There is no written rule or policy that can be used. These types of issues simply remain within the broad brush of the Minister’s discretion. As long as the Minister continues to understand the need to empower such persons, the system will continue to operate quite well. Any rule that allows permits to the victims of such abuse may in fact encourage false accusations, or, shudder to think, claims in which the abuse occurs in order to obtain the immigration advantage. For the system to have integrity therefore there needs to be a carefully imposed limit on the exercise of any discretion allowing overstayers an immigration benefit where they take action against traffickers. This must be counter-balanced against the risk of false evidence being promulgated that harms innocent accused persons.
Allowing the victim to stay during a legal process does not of course deal with the problem arising out of threats to the family back home, though it is noted that in at least one jurisdiction (the US), there is a mechanism allowing close family members entry pending a legal process. This needs to be carefully examined if victims of trafficking are to be properly empowered. Again however the exercise of such a discretion needs to be exercised in such a way so as to not encourage abusive claims where the immigrant is pure and simply an opportunist and has not been trafficked. The challenge is that often would-be immigrants start out as opportunists but later find themselves in a coerced situation leading to years of enslavement.
A key weapon in the fight against all trafficking however has to be the prosecution of agents and traffickers. In New Zealand the recent increased funding of a dedicated team of prosecution investigators in the Department of Labour (which in New Zealand also administers immigration), is a step in the right direction. Immigration officials are also well- placed to analyse which “agents” are filing abusive refugee claims from particular countries and to recognise situations where worker-trafficking may have occurred. Unfortunately however the pre-occupation is with the removal of the unlawful worker.
In New Zealand at least, responses to the problem of trafficking in workers could be seen as follows:
One area in which New Zealand does not do too well is regularising the immigration status of trafficked persons who have become overstayers. As mentioned above this can be done through Ministerial intervention and possibly needs to be through that office where there is no other right to remain in the country. Where however a partnership with a New Zealand resident and or citizen has been established the reluctance to allow the immigrant to regularise their stay at the local office level is in many cases an insurmountable hurdle requiring careful and persistent advocacy and often again Ministerial intervention. There seems to be a lack of education on the part of case officers and a belief that all “overstaying” must be punished.
Oftentimes the trafficked person never intended to break immigration rules. An inability by immigration officers to perceive the needs of those who have been victimised seems to be a given, though of course occasionally one encounters a case officer with a streak of humanity! Clearly education is needed in this area and case officers need to feel themselves empowered to exercise their discretion, rather than, as in most bureaucratic systems, to apply rules in a fixed manner (even where the exercise of discretion is itself permitted).
5. Victims of Domestic Violence
Any discussion of New Zealand’s overall response to human trafficking would not be complete without a brief mention of our “Domestic Violence” category. Both a residence and a temporary permit category this assists the victim of violence who because of the breakdown in a relationship with a New Zealand resident or citizen, will be ostracised in their home country (the “virgin-only” societies mainly in South Asia and the Middle East).
In practice there are considerable difficulties with the category as it operates, arising from the need to prove (on the balance of probabilities) that violence has occurred. Lawyers (the writer’s firm for example) have found an attitude has also developed in the minds of some police officers that any domestic violence complainant who has no immigrant status must be laying a complaint in order to further their claim to residence and that the complaint is therefore unlikely to be true. One police officer basically said that because the woman had no status she would not investigate the crime as it could not (for that reason) be credible. There were no other credibility features. The case was eventually lost and after a long battle with the Minister’s office the woman finally was forced to leave.
Undoubtedly, as with all immigration policies, there will be those that abuse the system. Nevertheless success of the Domestic Violence category will come down to cooperation between law enforcement and immigration authorities and the victims. Currently greater coordination is needed between the New Zealand Police and Immigration New Zealand. All that needs to be established is that the violence occurred on the balance of probabilities, something that the police do not seem to be able to grasp. A conviction is not needed. The police of course do not see it as their role to establish, for immigration purposes, whether violence occurred. The category potentially could achieve great good if it alleviates potential harm and misery by addressing the “dumped-bride” syndrome. Nevertheless further work is needed to clarify how the facts of the case are best established if the police are going to refuse to investigate (which has happened in more than one case in which the writer’s firm has been involved).
It is important to note that in appropriate cases the Residence Review Board has the power to recommend an exception, as does also the Minister of Immigration have the power to make an exception. Nevertheless, when faced with a stubborn junior police officer the case simply comes unstuck. Clearly training and perhaps even a specialised team of officers is needed.
6. Conclusion – New Zealand
The precise number of workers and spouses who enter New Zealand and end up coerced into circumstances that they did not foresee is unknown. Whether by filing false refugee claims, or lying about the nature of the entry (a film crew for a Bolliwood movie for example), or through other means, the individual is trapped not only because of a fear of harm to themselves, but often out of fear as to what will happen to others (their vulnerable family at home) as a result of the threats made by the middlemen and “snake-heads”. To combat this fully target states will have to screen visitors more and more in order to test the bona fides of those that seek entry. Visa free entry and easy travel from the third world is now almost gone, as a result of this abuse. The writer expects that Brazil will soon lose visa free status inward bound to New Zealand as it is clear worker trafficking is now underway from that source.
Combatting organised crime involved in the wrongful transfer of persons seems to be an important issue also. Immigration and refugee processes, however, could become tighter and more efficient. The refugee “vehicle” has been a popular one in New Zealand until recently because of long processing times. Often the trafficked person does not even know a refugee case has been filed, or if he (or she) does know, they are not aware of what is involved). Recently swifter processing times may have reduced the wrongful use of refugee processes, as well as an increase in agent-prosecution. For New Zealand, but this may well apply to other jurisdictions, the following steps will all count towards reducing the attractiveness of trafficking (of all types).
The focus on labour trafficking and the recommendation in the US 2006 Trafficking in People “TIP” report needs consideration and application in New Zealand (see pages 22-25).
(i) There needs to be pro-active identification by the government of the victims of trafficking (rather than just removal of overstayers).
(ii) Once identified, trafficked persons should be afforded temporary care as a victim of a serious crime. This should include counselling and legal advice.
7. Other Jurisdictions
The following discussion will focus primarily on immigration policy responses in other jurisdictions, though of course responses within law enforcement and the investigation of organised human trafficking is substantial and varied. Perhaps the best overall introduction to a comparative study is the US annual (June) report on Trafficking In Persons already discussed above.
Focussing on its responses to labour trafficking, the US has of course been much in the media over the last year in the struggle to respond to the problem of undocumented mainly Hispanic labour.
The central focus in law enforcement in the US is the Trafficking Victims Protection Act (TVPA) enacted in October 2000. The US response to the trafficking problem is however far more sophisticated and well-developed than in many other countries. The TVPA in particular reverses the approach still evident in New Zealand, for example, to illegal migrants. Victims of trafficking in the US have an opportunity to receive a specially created T-visa, but they are required to assist in the investigation or prosecution of acts of trafficking. Important too is the work carried out by NGOs in relation to the empowerment of the victims of trafficking and inter-country cooperation in prevention and prosecution. The US also clearly leads the world in the struggle to monitor and report on the phenomenon through the annual TIP report produced by the specially designated Trafficking Office.
Human Rights Watch in 2003 (11 June) criticised the TIP as lacking in specifics and giving credit where it was not due.
The Chicago Tribune (Cam Simpson, 6 June 2006) highlighted information in this year’s report on the possible use of tax-payer funds in furthering trafficking involving privatised US military support operations in Iraq. The report of course reported on the counter-measures taken involving third country national workers from Nepal, India, Pakistan, Bangladesh, Sri Lanka and the Philippines brought to work on the military bases. The Tribune also pointed out that workers contracted for military bases were only part of the whole, suggesting governmental complicity in trafficking, by contractors paid by the State Department or other agencies. Clearly if the US is serious about leading the charge against trafficking it must get its own house in order. The example given by the Tribune in the contracting arena was the contract with a Kuwaiti construction company to build a new US Embassy using unwilling Nepalese workers currently in Kuwait. Allegations denied by the firm were however confirmed by a Nepalese Foreign Ministry Official.
There remains no specialised immigration status available for trafficking victims and the US TIP report criticises shelter capacity as being limited. In 2005 there were investigations but only 8 prosecutions of sexual exploitation and one case of forced labour trafficking resulting in 22 convictions.
The first prosecution under the Immigration and Refugee Protection Act (IRPA) anti-trafficking provision began in March 2006. In 2005 there were six trafficking convictions. The IRPA allows visas to enable trafficking victims to remain in Canada on a temporary basis. Anecdotal evidence suggests that some victims of trafficking were arrested and deported.
France seems to be well down the track in providing support for trafficking victims with accommodation in 44 shelters and 3 to 9 months’ temporary residence for those who file a complaint or testify against their traffickers. In October 2005 the Ministry of Interior issued a circular to broaden the issue of permits to victims, especially if there is reason to believe they face retribution or hardship if repatriated. It will be interesting to discover whether this will extend to the victims of forced labour. In 2005 France reported it had dismantled 41 trafficking networks and had prosecuted and convicted a total of 43 in 2004 (prosecution figures for 2005 not yet available).
Dutch Courts convicted 136 traffickers in 2004. There is a registration and then permit system for the victims of trafficking (B-9 temporary residence status). The Dutch, as they often do, appear to be leading the world by also providing funded training and reintegration programs to help trafficking victims find employment. The writer has been unable to find information about rehabilitation programs elsewhere (presumably mainly for trafficked sex-workers).
Courts convicted 137 traffickers in 2004. Since August 2005 there have been a dozen labour trafficking prosecutions that the previous law would not have allowed. Trafficked victims access counselling centres and are provided with shelter, legal counsel and interpreters. Witnesses are entitled to financial support for basic living and basic health care.
In 2005 there were 150 convictions of traffickers. Witnesses are eligible for short-term legal residence otherwise they are repatriated within 40 days.
Five prosecutions of traffickers are underway. Victims have access to three types of visas, Bridging Visas, Criminal Justice Stay Visas and Witness Protection Visas (temporary and permanent). The Witness Protection Visas arise if the victim provides a significant contribution to a criminal investigation or prosecution. These visas will give access to benefits including shelter, counselling and food and living allowances. The temporary categories however may mean that victims are asked to participate in a criminal prosecution without assurances of their immigration case at the end of the case and potential repatriation and retribution from the trafficker or his associates.
Much headway has been made both internationally and in individual countries in the struggle to find a response to the problems of trafficking. Legislation and victim support has improved responses, primarily in the area of sex and child-sex trafficking, particularly over the last five years but increasing in a number of destination countries in the last two years. Prosecutions are on the rise and support for victims is clearly becoming available although erratic. In a number of countries the support includes visa status, though often temporary. It will be interesting to note whether other countries will follow the US lead in allowing close family members entry in order to insulate witnesses who fear retribution back home.
The true dimensions of the problem involving forced-labour trafficking is unknown. One gets the clear and distinct impression that a number of governments (perhaps the US is the main culprit) are complicit in their inaction. New Zealand should be included. Workers are repatriated because there is no intention of prosecuting the traffickers or the employers who have exploited the workers at rates often far below the minimum usage. This in turn means that the misery involved in forced labour is simply perpetuated. The forced labour component to trafficking is, one might say, so poorly understood that governmental agencies have fallen into the trap of turning a blind eye and Ministers deny that it even exists (note 1 above).
Prosecution authorities need to focus on labour traffickers and the victims must be empowered to remain in the target countries, particularly where they continue to be employable or where they establish partnerships. Wherever immigration policies allow a benefit, obviously some will abuse the system. A coordinated response is needed which can be provided by specialised immigration and law enforcement personnel, but requires inter-departmental coordination and a clear focus on addressing the problem. Simply “removing” or “deporting” those who have been trafficked and who have been found working simply makes the state complicit in the trafficking.
Removal of the victims and leaving the “traffickers” out of the equation only amounts to a penalty to the worker, who at the time of removal may not have yet earned any money for themselves or their families to repay the debt incurred against the traffickers. For all we know they do not escape the servitude in which they have found themselves. In New Zealand, if the reality television programme “Borderline” is anything to go by, the attitude taken by immigration officers is that overstayers or orchard-workers who are caught are arrested and are to be summarily despatched (though they may be asked a few questions about their employers). There is often little thought given to whether the workers have been trafficked or whether a greater and more serious crime should be investigated. There is certainly no governmental focus group (as in the Netherlands which has a National Rapporteur on Trafficking in Human Beings – see UNODC report April 2006, supra, page 42). If nations are not to be found complicit in the exploitation of workers a coordinated, researched and firm response is needed to work against those who trade in human misery.
The international community as a whole needs to extend the work begun in the field of sex-worker trafficking to coerced labour trafficking, if we are to ever be free of what clearly remains a modern version of the slave trade, except in a different guise.
Hon Mark Burton, Minister of Justice responded to the US State Department report by releasing a statement (6 June 2006) which asserts there is no trafficking at all in New Zealand, and that assertions suggesting otherwise are based on anecdotal information and a difference in definition. That workers are “trafficked” into New Zealand and continue to be “trafficked” cannot be doubted. The justice system mostly does not encounter the trafficked workers because once discovered by immigration authorities they are whisked out of the country.
New Zealand Herald, 21 December 2005, Julie Middleton “UN expert warns NZ over human trafficking problem”.