Migrants and Forced Labour: A Labour Law Response

'Migrants and Forced Labour: A Labour Law Response' in A Bogg, C Costello, A Davies, J Prassl (eds) The Autonomy of Labour Law (Hart Publishing 2015)

Posted: 27 Jun 2015

See all articles by Cathryn Costello

Cathryn Costello

University College Dublin (UCD); University of Oxford - Faculty of Law; University of Oxford - Refugee Studies Centre; Hertie School

Date Written: February 1, 2015

Abstract

In this chapter I illustrate, that immigration law, the immigration process and labour market structures may interact to create vulnerability to forced labour, drawing on empirical studies in the UK. Section II begins with some reflection on labour law’s autonomy. Section III seeks to clarify ‘forced labour’. I examine in turn the binary between ‘free’ and ‘unfree’ labour in political economy, and the notion of a continuum from free labour to the ultimate form of unfreedom, slavery. While both the binary and continuum approaches are illuminating, neither approach entirely befits the legal task of identifying the human rights violation that is forced labour. The distinct legal labels of ‘slavery’, ‘servitude’ and ‘forced labour’ are legal concepts embodying distinctive institutional forms of work relation. This part also explores how prohibitions on trafficking, in contrast, introduce a distinctive, potentially distortive focus on migration control and criminalization into this field. In light of the preceding discussion, Section IV examines how the migration process and immigration law create fertile conditions for forced labour. Some features of immigration law, such as precarious and irregular migration status are liable to increase dependency in work relations, which can induce domination. However, this part also considers how those with secure migration status, namely EU citizens in the UK, are also vulnerable to forced labour. In light of this analysis, Section V then critiques the current legal responses to forced labour. These responses should be of concern to labour lawyers, as they obscure general labour rights concerns, and the regulatory conditions that are fertile for forced labour. The UK exemplifies the tendency to obscure labour law concerns, with a Bill on ‘modern slavery’ going through Parliament at the time of writing, proposing life sentences for those convicted of human trafficking, slavery, forced labour and domestic servitude. The criminal approach focuses on the outcome (the forced labour itself), rather than understanding the laws, practices and regulatory gaps that set up the vulnerability to forced labour. Accordingly, I contrast this criminal law approach with the labour law approach, taking into account the 2014 Protocol to the ILO Convention on Forced Labour. A third approach focuses on human rights law. As currently interpreted, the human rights approach is parasitic on the criminal law approach. I argue that a more progressive (ie orthodox labour law) interpretation of human rights law on forced labour is appropriate and necessary. A labour law approach should ideally entail three main elements, which are briefly sketched here. First, it should insulate labour rights from migration status. Secondly, it should regulate labour intermediaries. Thirdly, it should develop better collective and institutional protections for labour rights. Evidently this is not labour law as we find it in the UK today. However, the evidence of extreme labour exploitation and forced labour demands an urgent revisitation of the norms and institutions of labour law.

Keywords: Forced Labour, Migrant Workers, Labour regulation, human trafficking

Suggested Citation

Costello, Cathryn and Costello, Cathryn, Migrants and Forced Labour: A Labour Law Response (February 1, 2015). 'Migrants and Forced Labour: A Labour Law Response' in A Bogg, C Costello, A Davies, J Prassl (eds) The Autonomy of Labour Law (Hart Publishing 2015), Available at SSRN: https://ssrn.com/abstract=2622488

Cathryn Costello (Contact Author)

University College Dublin (UCD) ( email )

Belfield
Belfield, Dublin 4 4
Ireland

HOME PAGE: http://https://people.ucd.ie/cathryn.costello

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

University of Oxford - Refugee Studies Centre ( email )

Oxford Department of International Development
32 Mansfield Road
Oxford, OX13TB
United Kingdom

Hertie School ( email )

Berlin, 30123
Germany

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