Protecting migrant workers includes protecting the right to change employers

Throughout 2022, IHRB is marking ten years of the Dhaka Principles for Migration with Dignity with guest commentaries from representatives of business, trade unions, civil society organisations, and the UN system that reflect on the continuing importance of each of the twelve individual Principles. These experts are exploring challenges relating to each Principle in turn and discussing how faster progress can be made.

Reflecting on Dhaka Principle 10: Freedom to change employment is respected, and safe, timely return is guaranteed.

Protecting the rights of migrant workers presents multiple challenges throughout the labour migration journey. IOM works to ensure that approaches to protection cover all stages of the labour migration process— from recruitment and deployment, to employment, all the way to return and reintegration or onward migration.

Migrants face many vulnerabilities when their work contracts expire, including those associated with the related right to remain in the country legally.  Dhaka Principle 10 affirms that freedom to change employment is respected, and safe, timely return is guaranteed – both upon contract completion and in exceptional situations – and provides guidance to businesses on the return stage of migration.

While some workers choose to return home, others extend or renew employment contracts, change employers, or migrate to other countries.  Dhaka Principle 10 establishes that business enterprises, either employers or recruiters, should not prevent migrant workers from seeking employment or from changing employment in the host country by placing restrictions that go beyond any found in national law.

The labour migration journey is also considered by IOM’s IRIS Standard, a set of global principles that define ethical recruitment. One principle is the prohibition of charging any recruitment fees and costs to migrant workers, whereby labour recruiters must demonstrate that the fees and costs, including the cost of return, are borne by the employer. Furthermore, IOM’s Migrant Worker Guidelines for Employers, developed by the CREST programme, state that businesses should pay all outstanding wages and benefits prior to return.

 Restrictions on the ability to change employers, particularly when the right of migrant workers to remain and work in a country is tied to a specific employer, result in power imbalances that risk exposing migrant workers to worse employment conditions and contribute to unethical recruitment.

While the Dhaka Principles refer to the responsibility of private actors to respect the rights of migrant workers, States bear the responsibility to protect migrants in their jurisdictions. The Global Compact for Migration is the first intergovernmentally negotiated agreement on a common approach to managing international migration, aiming to facilitate safe, orderly and regular migration while reducing the incidence and negative impacts of irregular migration. Objective 6 of the GCM includes facilitating fair and ethical recruitment processes that allow migrants to change employers and modify the conditions or length of their stay with minimal administrative burden, while promoting greater opportunities for decent work and respect for international human rights and labour law. The International Migration Review Forum held this year highlighted the importance of accelerating the implementation of the GCM, including committing to providing migrant workers with access to information pertaining to their rights, such as information on recruitment, entry and exit requirements, and access to justice, among others.

Restrictions on the ability to change employers, particularly when the right of migrant workers to remain and work in a country is tied to a specific employer, result in power imbalances that risk exposing migrant workers to worse employment conditions and contribute to unethical recruitment. Labour recruiters commonly deceive migrant workers about contract terms and conditions and increase recruitment fees, among other recruitment-related abuses, knowing that workers will have limited options but to complete their contracts.

When migrant workers do experience abuse and exploitation, immigration status is among the most significant barriers to reporting to relevant authorities, due to potential negative consequences of filing complaints, such as detention and deportation. With a lack of or limited labour mobility options, migrant workers are likely to accept exploitative working conditions in order to retain jobs which permit them to legally reside in the country of employment. In cases where migrants refuse to work in such conditions and leave their employers without authorisation, they risk becoming undocumented, and more vulnerable to further exploitation and lack of recourse.

The right to change employers is a critical element in ensuring access to remedy for migrants. In many jurisdictions, victims of trafficking are granted temporary residence permits to allow exit from exploitative situations without penalization, regularization of status and seeking new employment, if desired. Such permits also serve to allow individuals who experience abuse to remain in country to participate in investigations and potential prosecutions, and to access necessary and available support systems. Some governments have extended such protections to victims of forced labour and exploitation, more broadly. IOM’s Montreal Recommendations on Recruitment  include providing a means for migrant workers to participate in all stages of the inspection and enforcement process safely and meaningfully through the extension of migrant residency and work permits.

Labour mobility pathways have been recognized as important solutions to facilitate regular migration. Supporting an increase in such pathways can mitigate adverse impacts associated with unscrupulous intermediaries and use of irregular channels which lead to exploitation, abuse and even the deaths of migrants.

To reduce the vulnerability of migrants to exploitation associated with single-employer work permits, States should consider measures that allow workers, especially those in low-wage sectors, to legally change employers in countries of destination. It should be noted that in many jurisdictions, the right to change employers comes with certain conditions, including which categories of migrant workers may or may not apply for a new work permit. Another condition includes requiring the worker to provide evidence that the employer was not in compliance with contractual obligations, often to a severe extent. Where migrant workers are permitted to change employers more freely, they may nevertheless face numerous obstacles to doing so, including lengthy administrative processes that do not allow them to work while awaiting new permits or short time limits to find employment.  The potential costs make changing jobs less realistic or present risks associated with working while unauthorized. To address these challenges, States can consider establishing sector-based work permits, which link a worker to a sector rather than an individual employer.

When migrant workers do experience abuse and exploitation, immigration status is among the most significant barriers to reporting to relevant authorities, due to potential negative consequences of filing complaints, such as detention and deportation. With a lack of or limited labour mobility options, migrant workers are likely to accept exploitative working conditions in order to retain jobs which permit them to legally reside in the country of employment.

Labour mobility pathways have been recognized as important solutions to facilitate regular migration. Supporting an increase in such pathways can mitigate adverse impacts associated with unscrupulous intermediaries and use of irregular channels which lead to exploitation, abuse and even the deaths of migrants. However, they need to be embedded within rights-based policies and supported by ethical recruitment practices. The right to change employers should be established in bilateral labour migration agreements, as key tools to regulate labour mobility between countries.

Whichever course of action is taken, migration costs for employment need to be considered. The Employer Pays Principle is increasingly being adopted by private sector actors and advocated for in regulations among countries of employment.   The Employer Pays Principle helps ensure that migrant workers do not pay for their jobs, including costs relating to their return home. Governments and private sector actors that have embraced this Principle should be applauded, however, much remains to be done in terms of better protection of migrant workers.

In the end, it is imperative that all relevant actors work together to enhance the ability of migrants to change employment as a key component to addressing power imbalances between employers and workers, which currently leave so many exposed to indecent working conditions, exploitation, and risks of forced labour. Dhaka Principle 10 is an important reminder of this critical aspect of the work still ahead to guarantee respect for migrant worker rights around the world.

Diana Mrowka is Project Officer, IRIS Secretariat from the International Organization for Migration (IOM). Diana leads the development and implementation of a global government capacity building programme to promote ethical recruitment and better protection of migrant workers.  She has over a decade of experience in research, advocacy, and stakeholder engagement in the areas of counter-trafficking, safe migration and migrant workers’ rights with international and local civil society organisations in several regions.