Health and social protection of undocumented workers or those in an irregular situation
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 21 June 2023 (17th sitting) (see Doc. 15784, report of the Committee on Social Affairs, Health and
Sustainable Development, rapporteur: Ms Ada Marra; and Doc. 15794, opinion of the Committee on Migration, Refugees and
Displaced Persons, rapporteur: Ms Arusyak Julhakyan). Text adopted by the Assembly on
21 June 2023 (17th sitting).See also Recommendation 2255 (2023).
1. Europe is home to about 4-5 million
undocumented persons. However, this figure may be a gross underestimation
because reliable data are lacking. Many such persons de facto participate in the labour
market as “invisible workers”, including as migrant seasonal workers
and migrant domestic workers, but remain very fragile socio-economically
– with poor or no access to socio-economic rights. Their vulnerability
was highlighted during the Covid-19 pandemic, when this category
of workers was exposed to a double hazard: high socio-economic precarity
and haphazard access, if any, to basic healthcare.
2. By accepting the marginalisation of undocumented workers,
member States tolerate inequality of treatment, discrimination and
vulnerability, which carry the potential for abuse and exploitation
of persons. Such a situation also breeds precarity, trafficking
in human beings and the risk of crime; harms safety at work; fuels
the underground economy; reduces State revenue from social contributions;
and undermines fair competition. Entire sectors of the national
and international economy are based on an economic model that violates
the fundamental rights of workers in general and more pronouncedly
for people without residence permits. We cannot intervene effectively
in the protection of undocumented workers without changing the economic
reasoning – lowering production costs by mistreating workers to
increase the profit of a few – that leads to this situation.
3. The Parliamentary Assembly notes that the problem of labour
exploitation affects both migration and labour law. The tightening
by member States of the legal channels for third-country nationals
to come and work in Europe exacerbates the precarity of the labour
and residence rights of persons who have sometimes been living in
our States for many years. The Assembly recalls that asylum and
migration policies themselves sometimes create situations of illegality
for migrants. One of the main reasons for the abuse and exploitation of
undocumented migrants in particular and workers in general is a
labour market without sufficient controls, a situation further exacerbated
in the case of migrant domestic workers, for whom inspections are
difficult, another being the dehumanisation of migrants, particularly
in certain political discourse.
4. The Assembly strongly supports dialogue between the key stakeholders
(the State authorities, employers, associations and trade unions)
as a way of developing programmes to restore rights to invisible workers
in national labour markets and society in general. It considers
that the “offence of solidarity”, whether aimed at civil society
organisations or private individuals in their efforts to help these
vulnerable people on their arrival and during their stay in our
countries, must be abolished where it still exists.
5. In this context, the Assembly refers to its Resolution 1568
(2007) and Recommendation 1807 (2007) calling for regularisation
programmes to be set up for irregular migrants. It also recalls
its Resolution 1922 (2013) “Trafficking of migrant workers for forced
labour” and its Resolution 2323 (2020) “Concerted action against
human trafficking and the smuggling of migrants”. It notes that
some European countries have taken measures aimed at improving the
situation of undocumented workers or those in an irregular situation.
Partial regularisation programmes or other administrative arrangements
that have been put in place have enabled better access of such workers
to health and social welfare programmes or, at least temporarily,
extended the health coverage for these vulnerable workers, sometimes
without going through the regularisation process, in particular
since the Covid-19 crisis. Nonetheless, the phenomenon of exploitation
in economic sectors persists, especially for undocumented workers,
and further bold human rights-based measures are necessary to consolidate
access to socio-economic rights for all across the Council of Europe
member States, in line with the standards set out in the European
Social Charter (ETS No. 35) and the conventions of the International Labour
Organization (ILO), as well as recommendations put forward by the
European Commission against Racism and Intolerance (ECRI) in 2016.
6. The Assembly notes that invisible workers are at high risk
of exploitation by employers who do not declare them or only partially
declare them, pay them inadequately low wages and often do not offer
decent working conditions. These workers do not have the means to
defend themselves against abuses in several areas (notably at work,
regarding housing and accessing basic medical care), because they
feel that recourse to the justice system would put them at risk
of deportation and/or employer retaliation. The violation of fundamental
rights, including social rights, of invisible workers must stop
and States can achieve that by changing their policies in several
ways.
7. The Assembly is concerned that many member States’ regulatory
frameworks are too strict or are not transparent regarding the conditions
to be met, and that they make access to regularisation procedures
for invisible workers excessively difficult, burdensome, opaque
or unpredictable. In addition, overly complex, costly and slow administrative
procedures often delay the issuance or prolongation of residence
and work permits. This not only blocks the regularisation of the
invisible workers’ status but also throws thousands of workers with
temporary permits into an irregular situation when their permits
are not renewed on time.
8. The Assembly also deplores the restriction of the scope of
application of the European Social Charter (that is, the exclusion
of persons from countries that have not ratified it, and of those
not lawfully resident or working regularly on the territory of the
party concerned), as set out in the appendix to the Charter. The Assembly
shares the view that this limitation is incompatible with the nature
of the Charter as a human rights treaty. This anomaly should be
corrected to bring the Charter into line with the state of development
of international human rights law.
9. In light of the above considerations, the Assembly recommends
to member States the following good practices, whether in the context
of ad hoc programmes of regularisation or permanent mechanisms aimed
at the better integration of invisible workers:
9.1 information on official procedures
to apply for national residence and work permits should be available
in many languages to ensure it is accessible and understandable,
and, to this end, should rely on civil society (trade unions, non-governmental
organisations and associations);
9.2 for workers with temporary contracts, a change of employer
should not affect residence status;
9.3 the application should preferably be made by the undocumented
worker himself or herself, without intermediaries who could blackmail
him or her;
9.4 residence and work permits should be directly granted
to all migrants in an irregular situation who co-operate with the
police to report abuses;
9.5 for any victim of criminal labour exploitation, trafficking
in human beings and other violent crimes, who would like to remain
in the country, effective access to free legal assistance and to
protection mechanisms should be guaranteed, expulsion procedures
should be suspended, and access to specific permits facilitated,
independently of their co-operation with the authorities and their
involvement in judicial proceedings;
9.6 there should be a possibility of appeal to an independent
body in the event of a negative response by the administrative decision-making
body or of a decision by an authorised third party not to submit the
application for regularisation to the decision-making body;
9.7 admissibility criteria such as a specific number of years
of residence in the country (reasonable duration) should be made
as clear as possible and the family situation of applicants should
be taken into account;
9.8 application and procedural fees should be as low as possible
or be waived entirely in view of the extremely low incomes of undocumented
migrants;
9.9 support should be put in place for associations that assist
applicants throughout their regularisation process;
9.10 the number and type of documents to be produced by applicants
should be reasonable and take into account the discreet nature of
undocumented migrants’ lives;
9.11 once undocumented persons have had their situation regularised,
measures must be put in place to support them (for example, language
courses, help finding a new job);
9.12 access to healthcare must be ensured for all undocumented
workers regardless of the stage reached in their regularisation
process.
10. The Assembly notes that access to justice, which is a key
element in the protection of undocumented or irregular workers,
is not sufficiently guaranteed by member States. States should be
encouraged to devise procedures that do not put the various courts
in contact with the migration authorities, which constitutes the main
subjective and objective obstacle to undocumented workers exercising
their rights.
11. In order to eliminate the worst forms of exploitation of invisible
workers, the Assembly urges member States to:
11.1 sign and ratify the European Convention on the Legal Status
of Migrant Workers (ETS No. 93);
11.2 fully implement the Council of Europe Convention on Action
against Trafficking in Human Beings (CETS No. 197) and the Committee
of Ministers Recommendation CM/Rec(2022)21 on preventing and combating
trafficking in human beings for the purpose of labour exploitation;
11.3 enhance corporate social responsibility based on the United
Nations Guiding Principles on Business and Human Rights, and the
Committee of Ministers Recommendation CM/Rec(2016)3 on human rights
and business;
11.4 better protect victims of human trafficking for sexual
or labour exploitation purposes by granting them temporary residence
permits as soon as the abuses committed are reported to a competent
judicial or civil authority (for example, labour inspectorate) and
for the duration of the legal procedure.
