Interview with Adriano Silvestri / Foundation Focus, December 2015

‘Risks of severe forms of labour exploitation are much higher in the unregulated and uncontrolled areas of the labour market’

Head of the Asylum, Migration and Borders Sector at the EU Agency for Fundamental Rights (FRA), Adriano Silvestri, discusses FRA’s remit in informing the policy debate on the situation of third-country migrants in the EU and highlights what the Agency is doing to help Member States strengthen fundamental rights protection.

What is FRA’s role in informing the policy debate on migrants in the EU?

FRA provides independent fundamental rights expertise to EU institutions, bodies and agencies, as well as to Member States when implementing EU law. FRA’s work in the area of asylum, migration and borders is ongoing, and the Agency regularly publishes the results of its research on many aspects of the rights of migrants and asylum seekers.

Based on extensive research in 2011, the Agency has since published three reports on the rights of migrants in an irregular situation, and more recently on the fundamental rights situation at the EU’s external borders. The reports contain Opinions that are addressed to the EU and its Member States and offer advice based on the provisions of the Charter of Fundamental Rights of the European Union.

What can Member States do to prevent severe labour exploitation across the EU?

In June 2015, FRA presented its research findings on severe forms of labour exploitation in the EU. The report highlights risk factors increasing the probability of exploitation and suggests to policymakers ways of countering these risks in terms of prevention, effective monitoring of the situation of foreign workers and granting victims of severe labour exploitation access to justice.

Drawing on this research, FRA has put forward a number of proposals to enhance victims’ protection. Several of these seek to combat the impunity currently enjoyed by many employers engaging in criminal forms of exploitation. Another is a suggestion to improve consumers’ understanding of whether the goods and services they purchase may have been produced under conditions of labour exploitation – for example, through the creation of a ‘fair work’ label that provides reliable information about the quality of working conditions.

What is FRA working on in the area of migration following the many recent tragedies involving migrants entering the EU?

One of FRA’s key roles is to raise awareness among practitioners. For example, its Handbook on European law relating to asylum, borders and immigration, produced together with the European Court of Human Rights, provides an easy-to-use overview of fundamental rights safeguards included in EU law and in the European Convention on Human Rights.

It is also supporting its sister agencies, such as the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and the European Asylum Support Office (EASO), in developing training and guidance for Member State border guards and other practitioners.

The Agency’s ongoing work of providing advice and Opinions is helping to ensure the implementation of fundamental rights safeguards. Its paper Criminalisation of migrants in an irregular situation and of persons engaging with them suggests changes to EU law that would forbid Member States from imposing penalties on refugees who enter without authorisation if they come directly from a territory where their life or freedom was threatened. Punishment should also be excluded for those who provide humanitarian assistance to migrants in an irregular situation.

Children are particularly at risk of abuse and trafficking. What steps can be taken to improve the situation?

In October 2015, FRA published a report exploring the key features of guardianship systems put in place for all children in need of protection, including child victims and those at risk of becoming victims of human trafficking or other forms of exploitation.

No EU Member State has developed a separate guardianship system exclusively for child victims of trafficking. In principle, the guardianship of child victims of trafficking falls under the general guardianship provisions set forth in civil and/or family law, irrespective of the migration or residence status of the child victim, even in Member States that have separate guardianship systems for unaccompanied children.

How can the EU strengthen fundamental rights protection in relation to mobility and migration of workers?

In the paper Legal entry channels to the EU for persons in need of international protection, FRA highlights a number of mobility schemes that could be explored to allow migrant workers and refugees to safely access the EU without resorting to smugglers or degrading working conditions. The risks of severe forms of labour exploitation are much higher in the unregulated and uncontrolled areas of the labour market. FRA’s report on severe labour exploitation emphasises that households acting as employers are in a grey zone as they are not always regarded – and often don't regard themselves – as fully fledged employers who have to meet all labour law regulations. As FRA’s research shows, the area of domestic work is one where labour exploitation is frequent and, in fact, sometimes particularly severe.

What new research is FRA currently undertaking to shed light on the situation of migrants in Europe?

A study is in progress on the social inclusion and democratic participation of migrants and their descendants in Member States. The findings will be used as the basis for developing fundamental rights indicators for use throughout the EU.

Field research is underway for the second European Union Minorities and Discrimination Survey (EU-MIDIS), which is collecting experiences of discrimination in different areas (labour market, education, housing, health and other services), as well as criminal victimisation, social inclusion and participation. The survey will show the progress made since FRA’s first EU-MIDIS survey in 2008.

FRA is also currently working on the fundamental rights impact of collecting, storing and using the biometrics data collected in the EU’s three large border management IT systems, Eurodac, SIS II (Schengen Information System) and VIS (Visa Information System).
Planning is underway for the second phase of fieldwork on severe forms of labour exploitation, in which victims and potential victims will be interviewed.

In addition to FRA, a number of other EU Agencies are working in areas related to migration issues. These include, but are not limited to, FrontexEASO, the EU’s law enforcement agency (Europol), the European Maritime Safety Agency (EMSA) and the EU’s Judicial Cooperation Unit (Eurojust).
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