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employees to claim rights, or those employed via a letterbox company. In Germany, for
instance, labour court proceedings resulted in a judgment for compensation, but claimants
were not paid because the employers disappeared, were insolvent or just did not pay the
amount claimed (FRA, 2018).
If it comes to legal charges against the employer, significant challenges are faced by
irregularly staying migrants or those whose illegal work activity resulted in the loss of their
residency. Often, they have to leave the country before charges can be pursued. If they
succeed in progressing legal charges, there are language barriers, costs of court cases,
missing evidence (employment contracts, timesheets) or a lack of information about the
case by the respective authority (FRA, 2019).
While enforcement authorities inform workers of their rights during inspections, NGOs and
the social partners are playing an essential role in providing advice and support with legal
procedures, such as claiming unpaid wages or exercising other rights after the detection
of cases. For example, the German trade union, Ver.di, provides legal advice to workers in
an irregular situation, as does the UNDOK centre for migrant workers in an irregular
situation, run by the Austrian Confederation of Trade Unions (OGB) (ILO, 2018). Another
example is the ‘Arbeit und Leben’ counselling service of the German Trade Union
Confederation (DGB), which supports workers in claiming outstanding remuneration by
establishing direct contact with the employer, sending written assertions or filing lawsuits
with the relevant labour court (EMN, 2017). It was also noted that this support also
depends highly the availability of support services, which are often only available in urban
areas.
8.2 Granting protection for victims of labour exploitation
Victims of trafficking in human beings can be granted residence permits under Directive
2004/81/EC. Authorities must inform those concerned of their rights and they are
permitted a ‘reflection period’ during which they may not be expelled, have access to
accommodation and treatment, translation and free legal aid, if provided for in national
law. The authorities need to evaluate the possible presence of the victim in the
investigation, the victim’s clear intention to cooperate and whether they have stopped
working with the suspected offender. Third-country national victims of trafficking in human
beings or who have been the subject of an action to facilitate illegal immigration, and who
cooperate with the competent authorities can receive a residence permit in some countries
(Austria, Croatia, France, Germany, Greece, Ireland, Luxembourg, Spain and Sweden),
usually on humanitarian grounds.
Whilst the above-mentioned Directive allows for the ‘reflection period’ for victims of
trafficking, some Member States seem to provide this also to victims of other forms of
labour exploitation. For example, as soon as Dutch Inspectorate SZW has the slightest
indication of labour exploitation, the third-country national is regarded as a victim and
offered a reflection period, in which they can recover and carefully consider whether to
cooperate with the prosecution. This reflection period is important in providing early
protection for victims and is also in the interest of the investigation of the police as the
victim remains available to the police.
This approach is similar in Sweden, where the Swedish Gender Equality Agency and
Swedish trade unions provide assistance to the third-country nationals. The Swedish
Gender Equality Agency uses risk indicators to assess the presence of human trafficking
and exploitation. Affected workers have to clearly state that they are victims of human
trafficking or labour exploitation. If it finds victims of labour exploitation or trafficking, it
supports them when reporting to the police (victims are provided a 30-day ‘reflection
period’, during which they can decide whether to cooperate with the police and avail of six
months’ temporary residence) and informs them about voluntary return.
There is however a risk that irregular third-country nationals who are exploited are not
seen as potential victims of labour exploitation but primarily as irregularly staying
migrants, often resulting in return proceedings. Consequently, employer-targeted
detection and deterrence measures that do not consider the specific situation of migrants