26 April 1993

Doc. 6817

1403-22/4/93-2-E

REPORT

on clandestine migration: traffickers and

employers of clandestine migrants

(Rapporteur: Mr PAHTAS,

Greece, PA SO K)


Summary

      Since 1983 there has been a dramatic increase in the annual number of migrants into Europe and North America, and forecasts for the years to come remain high. Most of these migrants — fleeing poverty, the lack of economic prospects or attacks on human rights and minority rights — very often enter the host countries clandestinely, with the help of illegal networks and traffickers who provide them with false papers. Moreover, many asylum-seekers with a job "go underground".

      These clandestine migrants are exploited by employers who profit from this cheap workforce, thus distorting the labour market in the host countries and increasing anxiety about the influx of foreigners.

      While short-term restrictive measures aimed at combating the trafficking and employment of clandestine migrants are widely implemented in the member states of the Council of Europe, these measures nonetheless remain incomplete. The Assembly recommends that employers be penalised and that bi- and multilateral co-operation be set up to monitor the situation and share information. In the medium and long term job and training opportunities should be offered for fixed durations, and investment should be increased in emigration countries. Consideration should also be given to drafting a convention to combat all types of clandestine migration and signing bilateral or multilateral readmission agreements for illegal migrants by the state of origin or the state of transit. The legalisation of clandestine migrants should also be facilitated, since for most of them forced repatriation would constitute inhuman treatment.

I. Draft recommendation

1.       In order to control the migratory flows from east to west and from south to north caused by social, economic and demographic differences and which have frequently fuelled racial and political tension and conflicts, the member states have taken various restrictive measures which are now proving inadequate.

2.       Clandestine immigration is largely due to the growing demand in Europe for unskilled, poorly paid labour, and can neither resolve employment problems in western Europe nor stimulate economic growth in the less developed countries. It also results in a major drain on the human resources of those countries.

3.       Faced with the current restrictions and difficulties in entering western Europe, increasing numbers of would-be immigrants are resorting to "traffickers" and organised networks. Others enter legally and then go underground. In parallel with these irregular immigration methods, there has been an explosion in the numbers of asylum-seekers, a considerable number of whom do not meet the criteria laid down in the 1951 Convention relating to the Status of Refugees. Of these, some are nevertheless in situations justifying the granting of refugee status and others must be protected against forcible return.

4.       Traffickers and organised networks are generally well-established both in countries of origin and receiving countries; they put migrants in touch with employers offering clandestine work.

5.       Employers thus save a large proportion of the cost of declared labour, since the clandestine migrant is not in a position to contest the proffered wage. This wage is very often lower than the legal wage, for long and irregular hours of work. The employment of clandestine migrants results in economic distortions which jeopardise the national economy as a whole.

6.       The victims of unscrupulous traffickers are not always aware of their illegal migrant status or of the strict entry conditions in force in the host countries. Most clandestine immigrants and workers are subject to inhuman and degrading treatment and exploitation, which constitutes a flagrant violation of human rights. These restrictions on their freedom amount to a modern form of "disguised slavery".

7.       The trafficking and employment of clandestine migrants are often linked to other forms of international organised crime.

8.       The Assembly has also noted that this situation is used as a pretext to stir up racism and xenophobia.

9.       Accordingly, the Assembly recommends that the Committee of Ministers:

i.       examine ways of tightening entry controls, particularly by drawing up bilateral and multilateral agreements which provide for exchanges of information between states on flows of clandestine immigrants and the entry methods used;

ii.       invite member states:

      a.       to set up a system of bilateral or multilateral agreements for the repatriation and readmission of clandestine migrants;

      b.       to set up information programmes for would-be immigrants, explaining the rules and conditions governing entry to and residence in the host country, job opportunities, housing, the social services as well as the risks of illegal immigration;

      c.       to promote the legalisation of illegal immigrants, taking account inter alia of existing links with the host country;

      d.       to consider the possibility of offering fixed-term training and job contracts;

iii.       a.       increase co-operation with the countries of central and eastern Europe with the aim of improving their prospects of social and economic development;

      b.       examine ways of setting up development and investment programmes in countries particularly affected by this phenomenon, along the lines of Resolution 981 (1992) on the new north-south relationship;

iv.       draw up a convention designed to combat clandestine immigration in all its forms, with provision for penalties for traffickers and employers of illegal immigrants, and drawing upon the provisions of Resolution 1983/30 of the United Nations Economic and Social Council on the suppression of the traffic in persons and of the exploitation of the prostitution of others and Resolution 1991/35 on the suppression of the traffic in persons.

II. Explanatory memorandum

by Mr PAHTAS1

I.       Introduction

1.       Political liberalisation in eastern and central Europe, including relaxation of national emigration rules, has led to massive east-west migratory movements. These movements have been accentuated by high levels of unemployment, sharp rises in consumer prices and a weakening of the social security arrangements in eastern and central European states as they struggle towards the market economy. Ethno-political tensions and conflicts have further fuelled these movements. Parallel to these east-west flows, there are the long-standing south-north movements, as part of which large numbers of developing country nationals seek to migrate to western Europe in order to escape the economic, social and political difficulties they face at home.

2.       The response by Council of Europe member states to these developments has consisted largely of holding consultations aimed at harmonising national migration policies. The principal result of these initiatives has been the introduction (particularly among European Community states) of a series of mainly restrictive measures regarding access to national territory, visa regulations, and the issuance of residence and work permits2.

3.       In spite of the new restrictions, however, prospective eastern and central European, and developing country migrants continue to view western Europe as a highly desirable destination, offering a viable alternative to the economic and social pressures and ethno-political conflicts and uncertainties prevailing at home.

4.       This desire to migrate to western European countries, in spite of the presence of restrictions, is further enhanced by the demand in western Europe for low paid and flexible unskilled workers to meet labour needs that are increasingly difficult to satisfy with local workers. Because these job opportunities are often found in the informal sector, and usually require few qualifications, they are highly attractive to prospective clandestine migrants, but are often turned down by nationals and legally settled immigrants, in spite of prevailing unemployment.

5.       The presence of these opportunities and the persistence of economic and political hardships and uncertainty in out-migration countries often lead the prospective migrant to seek methods of bypassing existing restrictions, in an attempt to gain entry into western Europe. As a result, it is not uncommon for those desiring to migrate to come under the sway of "traffickers", who, through established illegal networks, are able to organise clandestine entry into a target state. It is also quite common for the prospective migrant to enter a country by a recognised method, and then to "go underground" so as to be able to remain in the host country longer than officially permitted and/or for purposes other than those approved at the time of entry. This method of irregular migration has increased alongside a dramatic Europe-wide rise in asylum-seeking.

6.       In the period 1970-77 the average annual number of asylum applications lodged in Europe amounted to 18 000, and in North America to about 6 000, that is three times less than the European rate.

7.       By the end of the seventies, the number of applications increased further in Europe, attaining a record level of nearly 160 000 in 1980. This critical situation evolved owing to intercontinental movements of asylum-seekers, who arrived in Europe by irregular or illegal means.

8.       Since 1983, a dramatic increase in the annual number of asylum applications has been registered in Europe and in North America, climbing from 100 000 in 1983 to 550 000 in 1990. It is estimated that this number will reach 1 000 000 by the end of 1992. When applying these figures in a statistical graph, an upward trend is indicated for the period from 1970 to 1991.

9.       International anxiety boomed. Countries started analysing the factors behind these phenomena, as well as the conditions which favour the continuous expansion of the influx of asylum-seekers in Europe and in North America.

10.       Reports indicate that the prospects for mass migration from the Third World countries to Europe and to North America continue to be high, owing to:

a.       Uncertainty about the political situation and social change.

b.       The repercussions of the Gulf war and the effects of internal political struggles.

c.       The complexity of economic development policies which hamper self-sustained growth in many regions.

11.       Among the asylum-seekers in Europe, the biggest group consists of persons of European origin, for example, former Yugoslavia. However, Africa, Asia (Turks), the Middle East (Iraqis) and to a lesser extent Latin America, also count for a substantial number. Non-Europeans make up for a little less than half the annual number of asylum-seekers.

12.       According to status determination statistics, only a small portion of the above mentioned asylum-seekers fulfil the refugee criteria. The majority of asylum-seekers are fleeing poverty and absence of meaningful economic prospects. As far as eastern Europe is concerned, it is estimated that large population movements will occur in the future as a result of minority problems and serious social and economic difficulties.

13.       The national legislation of most western European states provides for convention status. A form of de facto refugee status on special humanitarian grounds is also practised.

14.       On the basis of statistical information up to 1990, some 70% of asylum-seekers' requests were rejected, 15% were granted humanitarian refuge and 15% proved successful following an appeal.

15.       Owing to a mass of abusive or clearly unjustified requests, regularly submitted from the beginning of 1991, most countries are tending nowadays to introduce restrictive admission policies.

The dimensions of the problem

16.       The end of the Cold War created a spirit favourable to international co-operation and the exchange of ideas. This has been demonstrated in the historic signature of the Charter of Paris on Disarmament and Peace in Europe.

17.       However, this enthusiasm soon gave place to negative views, owing to fears about the arrival of illegal workers in western Europe.

18.       The unwillingness of employers to pay decent salaries generates labour strikes by native workers. Hence, imported cheap labour is seen as a way to obtain high profits. Therein lies a major weakness of the system, which explains much of the projected rise in entries of clandestine migrants in the years to come.

19.       The arrival of illegal immigrants cannot solve western Europe's labour problems or the collapsing economies of several less developed countries. We must help suffering people to help themselves. Exporting the problems of countries in economic despair, and hence creating disorder in Europe, is no solution for anyone.

20.       The dangers of clandestine migration and the resultant difficulties for both the migrant and the receiving state are numerous and serious. It could also strain relations between sending and receiving states. The rights of the clandestine migrant, the mechanisms for protecting the regular migrant worker and the genuine asylum-seeker, and sectors of the economies of both the host and sending states are all put at risk by clandestine migration and its attendant evils.

21.       Against this background, a motion for a recommendation was tabled in the Parliamentary Assembly on 6 February 1992 for possible adoption by the Council of Europe of an international instrument on the trafficking and employment of clandestine migrants3. The overall aim of this initiative is to evolve and promote viable and responsible strategies for solving the problems created by trafficking and employment of clandestine migrants. This report is submitted in pursuance of that motion. In order to assemble the information necessary to properly carry out the relevant analysis, a questionnaire was sent to each of the twenty-seven Council of Europe member states. This report takes full account of the twenty replies so far received4, in an attempt to help formulate appropriate recommendations.

II.       Clandestine migration

22.       Central western Europe seems to be a pole of attraction for aliens. A comparative table of non-EEC residents and employees shows that in this area there is a high concentration of Turks, Algerians, Moroccans, ex-Yugoslavs and east Europeans. Their relative percentages vary from 10% to 25% in relation to the total, embracing all ethnic groups.

23.       Day after day, the countries of western Europe are faced with immigration currents originating from eastern and central Europe and the Third World. Czech, Slovak and Polish officials estimate that in the near future their territories will be used as take-off points by illegal immigrants from the Asian republics of ex-USSR (for example, Tajikistan).

24.       The Hungarian authorities have already announced strict measures — including deportation — against one hundred thousand ex-Soviets and Romanians "who work and stay illegally in the country".

25.       Following consultations, the mayors of Vienna, Prague and Budapest agreed to harden their attitude towards illegal migration. Austria has tripled its border monitoring units. Belgium has reported a doubling of the rate of requests for residence permits from Poles and Romanians, compared to the previous year.

26.       In Denmark, the local authorities have asked the Red Cross to help them deal with asylum claimants. Italy announced an alert in order to bar the Albanian boat people and proceeded to massive "repatriations" (deportation) of Albanians by plane and rail (20 000 approximately were sent back to Albania).

27.       Finland, Norway and Sweden, having predicted massive arrivals of Russians via the Baltic states, have organised new types of border controls and set up "Admission Centres" inside the country with strict circulation measures.

28.       In France, the mass media express worries about "the escalating intrusion of foreign workers who stay illegally in the country and bring their families gradually to join them in France".

29.       Moscow officials appear to have asked European trade unions confidentially whether the latter were ready to receive, as from January 1992, some 3 million migrants from the ex-Soviet Union, "in order to help solve Russian food supply problems".

30.       Because of the very nature of clandestine movements it is difficult to make a precise estimate of the total number of irregular migrants in Council of Europe member states. It is safe to say, however, that it is substantial; recent ILO estimates, for example, place the number at 2,6 million, and according to survey findings, the number is increasing in most member countries5.

Push factors

31.       The factors that bring a clandestine migrant to his or her decision to leave home are often interlinked. Economic deprivation, suppression of human and minority rights, demographic pressures, environmental degradation and lack of social security in the home state are among the more significant factors that lead the clandestine migrant to seek new opportunities or a new safe haven. The movement may be by choice or under compulsion, depending on the circumstances.

32.       In the years ahead, these factors are likely to contribute further to the build up of a huge potential for emigration, and, in the absence of regular channels of entry, would certainly encourage clandestine migration to western Europe. Some of the future scenarios are already predictable. The population doubling time in the neighbouring countries of the southern and eastern Mediterranean region, for example, is about twenty-eight years. The region's population increased three times faster than in industrial Europe during 1960-70; the increase will be seventeen times faster in the 1990s. Africa's population will grow from 612 million in 1990 to nearly 1,6 thousand million by 2025. The southern and eastern Mediterranean region's labour force, which increased by 7,4 million during 1960-70, will grow by 22,4 million in the 1990s. Africa alone will need an additional 100 million jobs in the decade just to maintain present levels of employment.

33.       The demographic profile for eastern and central Europe may be less disturbing, but in the short to medium term the unemployment situation will serve as a powerful push factor. According to one estimate, unemployment might reach 14 million or 21% of the working population of eastern and central Europe and 30-40 million in the Commonwealth of Independent States (CIS) by 1994. In eastern Europe, and especially in the Balkan states and CIS, the matrix of economic and unemployment-related push factors will be reinforced by ethno-political conflicts. There are indicators that a growing number of people will be inclined to migrate, by whatever means necessary, in the face of these tensions and political uncertainties.

34.       The replies to the survey questionnaire confirm these migratory trends and regional sources of pressures by indicating that eastern Europe, the Middle East and North Africa provide Council of Europe member states with a large proportion of their clandestine migrants.

Pull factors

35.       During the guest workers programme of the 1960 and early 1970s, labour migration was encouraged and even facilitated by west European governments. This is no longer the case. There is still demand for foreign workers, but it now comes, aside from highly specialised jobs, largely from the informal or less organised sectors in western Europe. The low skill content and seasonality of many of the latter jobs which are often also strenuous and/or monotonous make it difficult to find nationals to fill them. The alternative is to turn to a clandestine migrant labour force. In the late 1980s, despite continuing bans on labour recruitment in western Europe, several southern countries witnessed a large inflow of workers, mostly irregular, from across the Mediterranean, since jobs in certain low-wage sectors and occupations could not be filled otherwise. If these activities, some of which are socially undesirable, cannot be upgraded, one can expect a pattern of demand which would encourage further irregular immigration.

36.       It is significant, as the survey findings indicate, that the present clandestine migrant labour force in Europe is mostly made up of persons between the ages of eighteen and forty employed in agriculture, construction and services, where labour inspection remains inadequate and largely ineffective. These employment opportunities do not generally lend themselves to an increase in recognised methods of recruitment. Many employers who are using irregular labour would be reluctant to employ legally registered immigrants. Clandestine migrants, for their part, often fear that the registration or regularisation, even when possible, would lead to loss of a job as the majority of them rely on work in the informal economy. The reluctance of these employers to use open methods of recruitment, the non-availability of local workers and regular migrants for these jobs and the fear of the clandestine migrants of losing jobs in the informal economy — all these continue to create a vicious spiral of increased clandestine employment.

37.       Another powerful motivating factor for the clandestine migrants is the presence of a tradition of migratory flows from his or her community to a given state. If there is a large and receptive group in place in the target state, then "networking" can occur and the transition process for the migrant becomes less complicated.

38.       In the past, irregular migration was largely linked to international flows of labour, but since the late 1970s, it has also converged with the inflow of asylum-seekers. Many of the asylum-seekers have taken advantage of the delay in processing their applications to find informal sector employment. When rejected or even before rejection many asylum-seekers, equipped with such employment, have gone underground and swelled the ranks of clandestine workers. The two flows have thus converged.

39.       There is also convincing evidence that imposition of immigration restrictions by western European states (mainly EEC countries) has tended to increase the pressure of both regular and clandestine migrants on neighbouring states, including Hungary, Poland, the Czech Republic and the Slovak Republic, both as final destinations and as transit points. In general, restrictions have little effect on sending country push factors or on the potential flow of migrants, who would pursue whatever avenues are available although the destination may change. Tightening of immigration restrictions by a group of European countries may divert the flow, but it would not stop: a consideration which underscores (a) the importance of adopting co-ordinated action by all Council of Europe member states and (b) reducing the migratory pressure in the countries of origin.

Traffickers and trafficking

40.       Although rejected or non-eligible asylum-seekers and "overstayers" — bearers of tourist visas or fixed term work permits who remain in a host country beyond the agreed-upon date — are commonly found among clandestine migrants, survey responses indicate that the trafficker plays a significant role in the introduction and settlement of the clandestine migrant into the target state. The Greek reply, for example, indicates that traffickers were involved in the entry into Greece of as many as 70% of all clandestine migrants. With the help of organised networks, traffickers are alleged to provide transit and false documents to aliens seeking illegal entry into Council of Europe member states.

41.       Information obtained in regard to illegal entry routes, shows an 80% dispersion via eastern Europe and the Balkans (Istanbul), a 2% dispersion via the Gibraltar region (from Maghreb) and an 8% dispersion via the Northern Sea.

42.       Illegal entry schemes involve the following practices:

a.       Forged documents,

b.       Counterfeit money (100 United States dollar bills and 20 United States dollar bills, printed in the Middle East and Istanbul),

c.       Stolen travel documents,

d.       Falsified entry visas,

e.       Fake marriages,

f.       False work contracts with multinational firms and shipping companies,

g.       False studies at universities and colleges,

h.       Visits of relatives often followed by requests for family reunion,

i.       Theoretical health visits (medical check ups, operations, etc.),

j.       Various medium-term temporary work schemes (for example, seasonal employment, cultural tours, au pair visits, etc.).

43.       The illegal entries are often linked with criminal activity, since the same networks which run the illegal immigration and employment operations are also involved in drug sales, arms sales, gambling centres, pornography and prostitution, child "adoptions", human organ sales, forged and stolen document sales and currency counterfeiting.

44.       The same is true of both freelance operators (for example, the Indian "Singh" in Saida Lerbouou, the Maltese "Tony" in Naples (Italy), the Turkish "Mohammed" in Istanbul (Turkey), the Moroccan "Hassan" in Casablanca) and well-organised teams using tourist bureaux, shipping companies, fruit export companies, or "camping" operations, as cover.

45.       They possess means of transport (lorries, small buses, small vessels, speed boats) high frequency communication (VHF, walkie-talkies, C.B.) and an army of agents. In this sense, they represent an adversary difficult to trace, to control and to arrest for any well organised police or other force.

46.       Hence the need of collective action by the member states.

47.       Southern Europe is particularly vulnerable owing to its vast coastal areas. Information obtained shows that trafficking is organised in Istanbul, Beirut, Saida, Latakia, Alexandria, Koweit, Addis Ababa, Asmara, Moscow, Sofia, Belgrade, Tirana, Skopje and Tripoli. Transfers are usually small-scale (20-50 persons), conducted by a group leader (a victim himself who pays less for the "transport cost") and effected by air, bus, train or foot up to a take-off point. The networks run special sea transport from the take-off points to the coasts of southern Europe.

48.       Ships flying the Honduran, Panamanian, Liberian, Maltese, Lebanese or Syrian flag, with an international crew, no cabins, no passenger facilities, no life saving equipment and unsuitable for travel (for example, small tankers or cargo vessels in a near-wreck condition) reach the coasts by night and deposit their "passengers" (by rubber boats and often thrown into the sea), who are told that they have reached western Europe.

49.       However, recent reports from elsewhere show that the networks have already inaugurated other, easier, crossings (by foot). The Nordic states are also vulnerable to inflows from eastern Europe.

50.       Hundreds of Romanians have been tricked out of their life savings by ruthless fraudsters, who cruelly promised them that they could start a new life in the west. The fraud came to light when a trickle, then a flood of "refugees" turned up in the Baltic republic of Estonia, clutching what they believed were work permits and visas entitling them to emigrate to Finland. In fact, the documents were day visas to a town in Estonia, entitling them to nothing more than a free entry to its museums and art galleries.

51.       The victims, who spent up to 1 000 United States dollars each on the useless visas were unable to read Estonian and were desperate enough to believe the promises. They gathered their belongings and headed by train through Moscow for the Finnish frontier. Told by the customs officials that the passes were useless, the Romanians protested outside Finland's Embassy in Tallinn. The Finnish Government refused to budge and announced that Finland's borders were closed. For the Estonian authorities, the Romanians were victims of an international network.

52.       At least 600 Romanians were turned back from Vyborg on the Finnish border, and sent home via Moscow. Many had arrived in Estonia with just the clothes they stood up in. Their return tickets had to be paid for by the Red Cross and the Estonian Government. The majority of them had been made homeless by floods which devastated large parts of Romania.

53.       Traffickers' methods have been observed to range from the simple (arranging for clandestine migrants to walk across unguarded borders and be picked up by handlers) to the cynically dangerous. Illustrative of the latter are the well documented cases of many drowned or missing North African clandestine migrants as they strive to cross the Strait of Gibraltar in tiny boats or are forced to swim the last few hundred metres to the shore. It is also quite common for traffickers to exploit seasonal migrant labour agreements, arranging for a fixed-term worker to become an "overstayer".

54.       A few days before Christmas, public opinion was shocked by the drowning of 29 Iraqi Catholics in the Aegean. Their tiny boat sink in rough conditions. The only survivor, rescued by a Greek patrol boat, reported that a Turkish illegal network operating from the Turkish coast facing Chios Island had deliberately abandoned its victims in the middle of nowhere after taking all their money, jewels and papers.

55.       Police reports in several countries show a common scenario. Asians, Africans or east Europeans, once they have decided to seek a better life, gather in front of western European consulates in their countries of origin, begging for a visa. When they realise that a visa to enter a western European country is not easy to obtain through normal procedures, they try the "parallel" way.

56.       Tourist operators undertake to obtain the visa in exchange for considerable sums of money. The visa is often forged but this seems to be irrelevant to people willing to obtain any visa at any cost. The majority do not have enough money. Therefore they look for a "deal". Tourist operators contact networks to organise the "deals".

57.       The networks conclude verbal agreements with their victims. They will arrange for them to cross the borders on certain conditions, namely:

a.       payment of an "overall transport cost" (1 500-2 500 United States dollars for itineraries from Asia and Africa to Europe and 1 000-2 000 German marks for itineraries from eastern to central west Europe);

b.       guarantee of "no return" (their passports, identity cards and other documents are taken away and sold on the illegal document market, often as "advance payment" for the above "transport costs");

c.       sponsorship by a representative of the network, inside the country of destination;

d.       obligatory employment in the destination country on terms dictated by the network (1-2 years and fixed "pocket money");

e.       occupation in sectors selected by the network with no right to complain (for example, prostitution for girls, farm labour for men);

f.       oath of silence, which, if broken, generates police arrest and deportation and, occasionally, death from "traffic accidents".

Employers

58.       The gains made by employers of clandestine migrants are clear. Above all, they save a large percentage of the costs of recognised labour. The clandestine migrant is rarely in a position to question the wage offered him or her by a prospective employer. As a result, the employer can easily offer a wage below the legal or recognised minimum, while the hours of work could be long and irregular and the physical environment far from satisfactory.

59.       More broadly, the employer is spared the range of social charges involved in employing conventional, salaried labour. The possibility of avoiding these charges (which can increase employer costs by as much as 50% over wages) are a great incentive to employers to seek clandestine migrants.

60.       In the more specific case of employers who face competition from developing country producers, engaging clandestine migrant labour allows them to approximate the labour costs of their developing country counterparts, which in turn, allows them to survive, often with the help of high tariff protection.

III.       Costs

61.       In cases where the receiving country is undergoing a period of economic expansion and there are labour shortages that cannot be met through regular channels, some irregular migration to satisfy the excess labour demand might become almost inevitable. This is not so if both the receiving and sending countries are experiencing labour surpluses in the same sectors and occupations. Clandestine migration, in that case, implies a transfer of unemployment, and a related transfer of costs that cannot be in the same sectors and occupations beneficial to the receiving country.

62.       When clandestine emigration takes place on a large scale it can have a demoralizing influence on the remaining labour force at home and its demonstration effect may encourage further clandestine outflows. At the societal level, it could weaken general respect for law. Although only a relatively small proportion of clandestine migrants in western Europe would seem to be highly skilled, empirical evidence suggests that clandestine migration of unskilled workers often fuels clandestine skill migration. This could lead to "brain or skill drain", with the result that the scarce human capital of eastern and central Europe and of developing countries might be lost to the receiving countries, where it is likely to be "de-skilled" in its search for a job. It is worth mentioning that in the survey replies "brain drain" was the most commonly cited negative effect of clandestine migration on the sending countries.

63.       Equally important is the effect of clandestine migration on the economy of the receiving countries. An upward mobility of their workers might be sustained by the inflow of clandestine workers; but this would depress the wages and relative benefits at the lower end of the countries' labour force. The inflow of low-skill, irregular migrations from eastern and central Europe or the developing countries could, for example, intensify competition with the less skilled workers especially in southern Europe although, for the reasons already mentioned, large-scale job displacement is less likely.

64.       The larger economic picture is even more troubling. Although the low wages paid to clandestine migrants could lead to a short-term increase in profits and productivity in certain industries, there is sound evidence that this wage distortion impedes the introduction of new and innovative technologies necessary for the healthy development of industries and competitive efficiency of the national economy. As the Austrian reply clearly points out, the economic distortions that may occur as a result could be of serious consequence. With clandestine migrant labour, a "sunset" or declining industry can survive or may even appear to be healthy, but in reality it exists on shaky ground, and involves an inefficient use of the available national resources. Further, as employers come to rely more and more on sources of cheap, flexible and exploitable labour, it has a distorting effect on labour markets of the receiving countries. Labour market distortions often go hand-in-hand with distortions in trade as the industries dependent on clandestine immigrant labour often also try to survive through trade protectionism, often at the cost of consumers. Employers using clandestine migrants could thus enjoy an unfair, differential advantage over non-users through labour exploitation.

65.       Other social costs implicit in the use of clandestine migrant labour are no less serious. The clandestine migrant worker is, by definition, a societal marginal, often unable to seek regulatory protection. The vulnerability to exploitation, mistreatment and extortion of the clandestine migrant worker further contributes to his marginalisation, often leading, as both the Turkish and Greek replies indicate, to a spiralling of crimes and violence involving the clandestine.

66.       Large-scale employment of clandestine labour could weaken the business ethics of European business and lower its image outside. In addition, the social fabric of the receiving state can be placed under heavy strain if the presence of clandestine migrants undermines the position of local migrant communities and legitimate asylum-seekers. Their presence, in fact, is often used by certain political parties to stir up xenophobic tensions. As the Belgian response to the survey underlines, the fall-out of this nature could become increasingly serious as acts of xenophobia-related violence increase across Europe.

67.       Clandestine migration, if allowed to continue unabated, will impede the process of integration of regular immigrants. And, since irregular migration reflects a lack of control on the part of the receiving state, it enhances the anxiety over inflows of foreigners, making the development of a sound and balanced migration policy more difficult.

IV.       Existing measures

68.       There already exist a range of international instruments relevant to the issue of the trafficking and employment of clandestine migration. The ILO, the United Nations General Assembly, and the Council of Europe itself have aggressively pursued measures relating to the protection of the regular migrant worker, which, given an overlap of considerations, must be acknowledged in the formulation of strategies for dealing with the trafficking and employment of clandestine migrants. These include: United Nations General Assembly Resolution 42/140, addressing the rights and dignity of migrant workers; United Nations General Assembly Resolution 42/140, addressing the human rights of those who are not nationals in their country of residence; ILO Recommendation on the rights of migrant workers 151 III (33); and Council of Europe Recommendation 1125 (1990) on the new immigration countries.

69.       ILO Convention No. 143 pays special attention to the flow and activities of the clandestine migrant. The convention calls for serious preventive and punitive measures (fines; prison terms; bearing the costs of repatriating clandestine migrants in their employ or "care") to be aimed at both employers and traffickers of clandestine migrants. The convention also encourages an effective strengthening of measures designed to control clandestine entry into states.

70.       The observations and recommendations made in the final communique of the Berlin Conference (30-31 October 1991), and relevant provisions of the Council of Europe Resolution 78 (44) on clandestine migration and the illegal employment of foreign workers are consistent with the restrictive recommendations of ILO Convention No. 143.

71.       Survey returns seem to indicate a general agreement with this approach, and a related consistency of measures already adopted or being contemplated. A hard line is taken with traffickers, who face a range of punishments that usually include fines and prison sentences — often, as is the case in Switzerland, in combination with one another. Employers of clandestine migrants face fines, and in some cases prison terms in responding states. Measures to reduce the flow of clandestine migrants at borders generally take two forms in respondent states: tightening of surveillance with improved technology at standard points of entry6, and an increase in the patrolling of otherwise unsupervised borders. Survey returns indicate that in inter-state co-operation among Council of Europe member states the emphasis is usually on forming relationships with geographical neighbours. There are, however, notable exceptions, including Germany's participation in information exchange with Canada, the United States and Australia.

72.       The survey returns indicate that the restrictive measures described in both the final communiqué of the Berlin Conference, and Council of Europe Resolution (78) 44 are taking hold, although there is scope for improvement.

73.       However, survey returns also reveal a noteworthy lack of consistency in policy concerning the repatriation of clandestine migrants, with no discernible policy pattern among respondent states. There appear to be few agreements between responding Council of Europe member states and major source countries concerning repatriation of clandestine migrants. Where they exist, as in the case of Poland, the agreement limits itself to stipulating the obligation of the sending country to take back any irregular migrants originating from, or transiting through that country. Italy is one of the new notable exceptions, supporting as it does the clandestine migrant's country of origin during the repatriation process7.

74.       An effective approach to the problem of the trafficking and employment of clandestine migrants must contain progressive, "pressure-relieving" and educational measures, as well as the already popular and established punitive and preventive ones.

75.       Clear recognition was made of this fact in the final communiqué of the Council of Europe Vienna Ministerial Conference on Migration (24-25 January 1991). The Vienna Conference's emphasis on medium and long-term solutions to the clandestine migrant problem is significant. The call for exchange of accurate information between potential sending and receiving countries, provision of controlled temporary employment and training for sending country nationals in receiving countries, and promotion of transfrontier employment are all necessary components of any comprehensive and forward-looking programme.

The trafficking and employment of clandestine migrants as a form of slavery

76.       Although the existence of slavery in our days may be questioned, slavery may appear in many forms. Soljhenytzin's "Gulag Archipelago" shows convincingly enough that forced labour is akin to slavery.

77.       Yet there is another type of modern slavery, to which we must draw attention, namely, the case of illegal immigrants suffering "slave practices" imposed by cruel employers.

78.       It may sound absurd to talk about "volunteer slavery", when it is expected — at least in our century — that people have sufficient notion of their rights and that they are aware of and practise elementary principles of freedom.

79.       Economic conditions prevailing in the Third World and eastern Europe offer little ground for misunderstanding. They may be so bad that people, in moments of despair, have no choice but to negotiate short-term or medium-term restrictions of their freedom in search of "hot cash", offered to them indirectly (bonuses to their families).

80.       Furthermore, should they be frustrated in their search for a solution to their problem of survival, they will be ready to pay for tickets to allow them to reach their immediate employment destination. The employment is of course illegal, as is their entry to the country of destination.

81.       In economic migration, a wide range of schemes are practised. They usually have the same characteristics, namely a negotiated voluntary limitation of freedom to act, in exchange for a promised dream of a better life, free of misery and poverty. This kind of agreement may be considered as slavery.

82.       Arguments for this can be drawn from "first-hand" experiences, described by the German author Günter Wallraf in his book, "Ganz Unten". The book makes no exaggeration about treatment of illegal economic migrants by employers in western Europe.

83.       Slavery comes under the title "Traffic in persons". The United Nations has shown major concern through resolutions passed by the Economic and Social Council. The latter, with Resolution 1991/35, dated 31 May 1991, recalls the implementation of Resolution 1983/30 on the suppression of the traffic in persons and of the exploitation of the prostitution of others.

84.       These resolutions do not mention specifically the types of disguised slavery which may occur. In practice, a wide variety can be listed, while some cases may be understood as a combination of two or more forms (for example, forced labour, prostitution, pornography).

85.       The following may be considered as practised forms of disguised slavery:

      —fo       rced labour of clandestine migrants,—

      —st       reet begging by minor and adult foreigners,—

      —dr       ug selling by aliens (on the basis of a racket),—

      —po       rnography in general (aliens' participation in production, performance and dealing),—

      —fo       reign female, male and child prostitution,—

      —ev       eryday crime by clandestine migrants (for example, pickpocketing on the basis of a racket),—

      —se       lling alien babies (the usual euphemism is "illegal child adoptions"),—

      —se       lling clandestine migrants' human organs (for example, blood selling),—

      —me       dical experiments on clandestine migrants (for example, foreigners "rented" to medical units which use them for experiments),—

      —fo       reign identity dealing (that is the bargain involving a person's theoretical death in exchange for his identity which will be used by criminals, in order to "wipe out" their traces).86

86.       The United Nations resolutions on human rights, as well as the recent ECOSOC resolutions, provide grounds for extensive scepticism as to their effectiveness. Disguised slavery is a by-product of illegal economic migration. Therefore, full awareness is needed in order to combat phenomena which exhibit cynically the decadence of human rights.

87.        Punitive and preventive measures are essential, particularly with respect to treatment of traffickers, but they are not sufficient. A balance must always be sought between the day-to-day prevention of trafficking and entry, and the medium and long-term objective of reducing the root causes of migration.

V.       Recommendations

88.       Any proposals for combating the trafficking and employment of clandestine migrants must take into account the breadth and complexity of the factors involved. There are, needless to say, no easy or one dimensional solutions. Programmes must be vigilant in striking a balance between the economic and social interests and obligations of the sending and receiving countries, the human dignity and rights of the clandestine migrants; between an emphasis on controlling admissions to a country, and the reality of international labour flows (both recognised and clandestine), including their deep-seated causes.

89.       Survey returns indicate that restrictive, short-term strategies for combating the trafficking and employment of clandestine migrants are largely in place among Council of Europe member states (most such measures are listed below). Although these measures are essential and, wherever necessary, should be strengthened, they are nonetheless partial8. They must be complemented by medium and long-term programmes.

90.       Where short-term programmes are largely restrictive, programmes for the medium and long-term must address themselves more to a reduction in out migration pressures by providing outlets, or relief points for migratory pressures in sending countries.

91.       Medium and long-term programmes must be aimed at addressing development-related root causes of trafficking and employment of clandestine migrants: the economic deprivation, environmental degradation, and demographic pressure faced by prospective migrants. As part of these programmes, sending countries, for their part, should reduce the demand for clandestine labour through positive measures. The strength of medium and long-term strategy is two-fold: it serves to diminish "push factors", by providing opportunities for potential clandestine migrants in their home countries, as it weakens "pull factors" by eventually narrowing the economic and social disparities between sending and receiving countries.

92.       Alongside these measures, attention must also be given to removal of the repressive political factors by strengthening democracy and basic human rights in the migrant sending countries.

Short term

93.       Short-terms strategies include:

a.       Employer sanctions and control: temporary closure for employment of clandestine migrants; bearing the costs of repatriation of illicit employees; additional fines; prison terms. More effective ways of monitoring and control.

b.       Trafficker sanctions: fines, prison terms, confiscation of the means of transport used.

c.       Entry control: continued strengthening of border-securing infrastructure; introduction of relevant technologies at affected frontiers and conventional points of entry.

d.       Bi- and multilateral co-operation on control and information: interstate exchange of relevant information concerning flows and entry methods of clandestine migrants. Dissemination of information in the sending countries on the risks involved in clandestine migration.

e.       Asylum application processing: streamlining of methods of processing asylum-seekers, with the aim of curbing the tendency and capacity of asylum-seekers to "go clandestine" during or immediately following the processing of applications. Special attention must be paid to safeguard the legitimate rights of asylum-seekers.

f.       Repatriation: development of an equitable and humane process for the repatriation of apprehended clandestine migration; mutual co-operation and assistance between sending and receiving states.

g.       Information programmes: continuing information flows to potential migrants on rules and conditions governing entry and residence in the target country, job opportunities, housing and social services and other essential conditions of work and life.

h.       Information campaigns to fight against xenophobia.

Medium to long term

94.       Medium to long-term strategies include:

a.       Arrangements for fixed-term employment and training opportunities, without involving long-term or permanent migration, including temporary employment, seasonal and frontier opportunities, employment-linked training and project-tied work and trade-related labour mobility. Advantage could be taken of these programmes to provide "relief points" for emigration pressures in sending countries and to explore, where appropriate, the possibility of regularising some of the clandestine migrants in a controlled, orderly fashion.

b.       Initiatives linked to development and democracy: improved market access for labour-intensive industries in migrant-producing countries; joint ventures and increased flows of foreign investment; and strategic use of development aid. Reducing the demand for clandestine immigrant labour in receiving states through upgrading of socially undesirable jobs and industrial restructuring; and provision of adjustment assistance as part of anticipatory adjustment programmes.

c.       Increased assistance to promote democratic values and institutions and in support of protection of human and minority rights in the sending countries.

Initiatives related to the safeguarding of human rights

95.       The trafficking and employment of clandestine migrants is thought to be a form of international organised crime. In certain cases and under specific circumstances, it constitutes a form of slavery, namely, disguised slavery. Hence, the following measures should be envisaged:

a.       Elaboration of a convention in order to combat clandestine migration in all its forms;

b.       Signature of bilateral or multilateral agreements for the readmission of clandestine migrants by the state of origin or by the state of transit;

c.       Legalisation of clandestine migrants should also be facilitated, taking in account, inter alia, links with the host country (time spent in the host country, marriage, children ...) and bearing in mind that very often the links with the country of origin are broken and that hence forced repatriation becomes unrealisable as inhuman treatment.

Recent discussions on the topic

96.       Ministers of Council of Europe member states responsible for migration met in Budapest on 15 and 16 February 1993 in the framework of regular meetings inaugurated by the so called "Berlin Group".

97.       The Budapest meeting was very fruitful. The ministers first of all adopted a recommendation calling for collective action to prevent the mass movement of illegal migrants from east to west.

98.       Having been informed that the strongest pressure in terms of illegal immigration nowadays comes from the former Yugoslavia, the ministers decided to adopt measures concerning the repatriation of "economic refugees", the readmission of illegal migrants by the state of departure and economic assistance to those countries which, owing to their poverty, are major sources of illegal immigration.

99.       The ministers further decided to penalise the "traffic in persons", that is the activities of the organised networks which run illegal immigration and employment schemes and also that the member states should benefit from mutual assistance. In this context, confiscation of means of transport used was seen as a very effective tool.

100.       The ministers considered that it would be necessary to promote the creation of special units and forces to combat the activities of the illegal immigration and employment networks.

101.       Finally, the ministers decided that in order to carry out these action successfully, it would be necessary to encourage the exchange of information, to impose new strict control measures at the borders, and to set up new types of border patrols.

102.       In addition to the initiatives taken by the "Berlin Group", which also deals with these questions in depth and with a long term perspective, the "Vienna Group" discussions are continuing.

APPENDIX I

Survey replies received

Austria

Belgium

Cyprus

Czech and Slovak Federal Republics

Denmark

Finland

France

Germany

Greece

Italy

Liechtenstein

Netherlands

Norway

Poland

Portugal

San Marino

Sweden

Switzerland

Turkey

United Kingdom

Reporting committee: Committee on Migration, Refugees and Demography.

Budgetary implications for the Assembly: none.

Reference to committee: Doc. 6566 and Reference No. 1771 of 11 March 1992.

Draft recommendation unanimously adopted by the committee on 15 April 1993.

Members of the committee: MM. Flückiger (Chairman), Cucó, Gassner (Vice-Chairmen), Mrs Aguiar, Mrs Arnold, Mrs Astgeirsdottir, MM. Attard Montalto, Biefnot, Billing, Böhm, Brennan, Brito, Eisma, Fava, Fiorini, Foschi (Alternate: Visibelli), Fuhrmann (Alternate: Mrs Hawlicek), Galanos, Galley, Ghesquière, Gotzev, Grussenmeyer (Alternate: Worms), Mrs Hacklin, Mr de Hoop Scheffer (Alternate: Aarts), Sir John Hunt, MM. Iwinski, Karcsay, Kiliç, Kiratlioglu, Lord Kirkhill (Alternate: Mr Atkinson), Mr Konen, Mrs Mascher, Mr Pahtas, Mrs Persson, Mrs Robert, MM. Sarafopoulos, Siwek, Skaug, Stoilov, Miss Szelényi, Mr Vázquez.

N.B.       The names of those members present at the meeting are printed in italics.

Secretaries to the committee: Mr Newman and Ms Nollinger.


1 1 1. The Rapporteur was assisted by Mr Bimal Ghosh, consultant.

2 2 2. As discussed below, measures of this type have a direct effect on the various migration flows to neighbouring states within Europe (see paragraph 39).

3 1Council of Europe Parliamentary Assembly Doc. 6566.

4 2See Appendix I for list of survey replies received.

5 1Survey returns show that over the last four years there has been an enormous increase in the number of irregular migrants in Council of Europe member states. Notable jumps include a 67% increase in Denmark, an 800% increase in Germany, and a 36% increase in Great Britain.

6 1The United Kingdom and the Netherlands detailed especially impressive use of technologies.

7 2A number of bilateral agreements signed between various states in western Europe and those in central Europe provide for fixed and short-term employment and/or training facilities, but these are not directly linked to repatriation of clandestine migrants.

8 1It is worth making a brief reference to the attempt by the United States to implement a largely preventive and punitive measure to counter the employment of clandestine migrants. After six years on the books, the United States Immigration Reform and Control Act does not seem to have a significant effect. It has even been said that the primary impact of the act, which prevented United States employers from hiring clandestine migrants, has been to generate a booming trade in forged United States identity documents.