Europa-Universität Viadrina, Frankfurt-Oder
Migration Law
9-11 May 2011
Prof. Ryszard Piotrowicz
Law School, Aberystwyth University
Introduction
This course deals with one of the most compelling and problematic political and legal
dilemmas confronting contemporary societies: the obligations of States towards
foreigners, and the rights of these foreigners, when they seek to leave their own
country for another. As such it complements the course on refugees and internally
displaced persons. Generally, foreigners have no right to remain in other countries.
However, this course deals with migration generally, rather than the specific regime
that governs the rights and treatment of those fleeing persecution.
This is a dynamic area of law, with clear historical foundations but evolving in the
light of contemporary challenges. It addresses not only the international law regime
dealing specifically with migration but also pertinent aspects of human rights law, EU
law and indeed international criminal law relating to trafficking and smuggling of
human beings. Most recently, significant challenges gave arisen because of the
political changes in North Africa, the Middle East and Ivory Coast.
Course Format
Four classes – each of three hours. The course is intended to be very interactive,
allowing substantial opportunity to contribute and discuss your own ideas. The classes
will be divided into three parts: the first 60-90 minutes will be a lecture, which
explains and discusses the basic legal issues and relevant law for each topic. Of
course you can ask questions during and after the lecture. After that you will be given
a case study (a problem scenario dealing with the issues covered in the lecture). You
are expected to consider and discuss the issues arising. This will be for 30-45 minutes.
In the remaining time we shall discuss the issues raised in the case study.
General Reading
International Organization for Migration:
http://www.iom.int/jahia/jsp/index.jsp
World Migration Report 2010
http://www.iom.int/jahia/Jahia/world-migration-report-2010
International Council on Human Rights Policy, Irregular Migration, Migrant
Smuggling and Human Rights: Towards Coherence (2010)
http://www.ichrp.org/files/reports/56/122_report_en.pdf
R Cholewiński, R Perruchoud and E MacDonald (eds), International Migration Law.
Developing Paradigms and Key Challenges (TMC Asser Press, 2007)
B Bogusz, R Cholewiński, A Cygan and E Szyszczak (eds), Irregular Migration and
Human rights: Theoretical, European and International Perspectives (Martinus
Nijhoff Publishers, 2004)
A Aleinikoff and V Chetail (eds), Migration and International Legal Norms (TMC
Asser Press, 2003)
A Edwards and C Ferstman (eds), Human Security and Non-Citizens. Law, Policy and
International Affairs (Cambridge University Press, 2010)
R Perruchoud and K Tömölová (eds), Compendium of International Migration Law
Instruments (TMC Asser Press, 2007)
2
Class One: Introduction, Basic Concepts and Overview of
International Migration Law
This class looks at concepts underpinning the international system of migration. In
particular it addresses who is entitled to enter and live and work in particular
countries, and why some may be excluded. This is based on the notion of citizenship
(often referred to as nationality).
For an informative overview of some major migratory movements, see National
Geographic, the Genographic Project: Globe of Human History:
https://genographic.nationalgeographic.com/genographic/lan/en/globe.html#
Reading
A Aleinikoff, “International Legal Norms and Migration: A Report”, in: Aleinikoff
and Chetail, pp 1-27
D Martin, “The Authority and Responsibility of States”, in: Aleinikoff and Chetail,
pp 31-45
D Weissbrodt, “The protection of Non-Citizens in International Human Rights Law”,
in: Cholewiński et al, pp221-235
P Oberoi, “Empowering Migrants: Human Security, Human rights and Policy”, in:
Edwards and Ferstman, pp227-272
E Lester, “Socio-economic Rights, Human Security and Survival Migrants: Whose
Rights? Whose Security?”, in: Edwards and Ferstman, pp314-356
Satvinder Juss, “Free Movement and the World Order”, (2004) vol.16 International
Journal of Refugee Law, pp289-335
E Guild, “Who Is an Irregular Migrant?”, in: Bogusz et al, pp3-28
The following concepts are essential background for the course and we will address
them here:
 Migration
 Citizenship
 Nationality
 Right of entry
 Right to deport
 Sovereignty
 Human rights
 Refugees
 Statelessness
3
International Covenant on Civil and Political Rights 1966
Art 12
1. Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security,
public order (ordre public), public health or morals or the rights and freedoms
of others, and are consistent with the other rights recognized in the present
Covenant
4. No one shall be arbitrarily deprived of the right to enter his own country.
See also, UN Human Rights Committee, General Comment No.27 (1999):
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6c76e1b8ee1710e380256824005a10a9?O
pendocument
Questions
1. To what extent is State sovereignty limited by human rights?
2. Should there be a right to migrate? If yes, who should enjoy this right? What
restrictions might apply to the right?
3. What are the risks attached to migration?
4. What kind of situations cause people to move to other countries?
5. What measures might/should destination countries take to address the causes
of migration?
6. Should States be entitled to close their borders to migrants?
Consider the following pictures, taken on the Italian island of Lampedusa. What legal
issues might arise?
http://www.guardian.co.uk/world/gallery/2008/jul/04/2#/?picture=335492156&index
=11
Read the following article, on the situation in March 2011:
http://english.aljazeera.net/news/europe/2011/03/2011330145231780261.html#
4
Class Two: The Global Legal Regime
On one level, there is no difference between migrant workers and any other foreigners
in a State, in the sense that the State has obligations towards all those under its
jurisdiction. Aliens may not generally be discriminated against except in particular
situations where having the citizenship of the State is crucial (for instance, the right to
vote and, sometimes, to right to work, or to work in particular occupations.
Migrant workers are however in a different situation. They may be working legally
but they may be doing so in breach of the conditions of their entry to the State. In
either case they are vulnerable to exploitation. While international law does not
approve individuals working in a foreign country in breach of the law of that country,
it nevertheless provides for certain rights for all migrant workers.
Reading
L Bosniak, “Human Rights, State Sovereignty and the Protection of Undocumented
Migrants Under the International Migrant Workers Convention”, in: Bogusz et al, Ch.
15
V Leary, “Labor Migration”, in; Aleinikoff and Chetail, Ch. 13.
R Cholewiński, “The Rights of Migrant Workers”, in: Cholewiński et al, Ch. 15
R Cholewiński, “Labour Migration Management and the Rights of Migrant Workers”,
in: Edwards and Ferstman (eds), pp273-313
NGO dealing with the rights of migrants:
http://www.december18.net/
Information Kit on the UN Convention on Migrants’ Rights (2005):
http://unesdoc.unesco.org/images/0014/001435/143557e.pdf
ILO Convention No. 97 concerning Migration for Employment 1949
ILO Convention No. 143 concerning Migrations in Abusive Conditions and the
Promotion of Equality of Opportunity and Treatment of Migrant Workers 1975
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families 1990
 In force July 2003
 44 parties (April 2011) – mostly source States
-
applies to both regular (documented) migrants and irregular (undocumented)
migrants (Art 5)
Art 1.1: “The term “migrant worker” refers to a person who is to be engaged, is
engaged or has been engaged in a remunerated activity in a State of which he or she is
not a national.”
Art 3: limitations in scope of the convention: not all workers are covered
Part III: human rights of all migrant workers and members of their families – includes
rights recognised in other human rights instruments
5
Part IV – additional rights for documented/ regular migrants
International Federation of Human Rights (FIDH) v France, Complaint No. 14/2003
http://www.equalrightstrust.org/ertdocumentbank/FIDH%20v.%20France.pdf
http://www.coe.int/t/dghl/monitoring/socialcharter/complaints/CC14Merits_en.pdf
(full text)
Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of 17 September
2003, Series A No 18
http://www.corteidh.or.cr/docs/opiniones/seriea_18_ing.pdf
- once migrants take up work they acquire rights by virtue of being workers,
irrespective of their status, which may be irregular
ILO Declaration on Fundamental Principles and Rights at Work 1998
- declares certain fundamental principles irrespective of whether States have
ratified relevant instruments:
o Freedom of association and the effective recognition of the right to
collective bargaining
o Elimination of all forms of forced or compulsory labour
o Effective abolition of child labour
o Elimination of discrimination in respect of employment and occupation
Questions
1. What are the main “push” factors in that cause people to become migrant
workers? Where do migrant workers in your country come from? What kind
of work do they do?
2. Why, till now, have receiving countries not ratified the Migrant Workers
Convention?
3. What are the main threats faced by migrant workers?
4. Why are “regular”, or “documented”, migrant workers accorded more rights
than “irregular” workers?
5. What should Italy do with the foreigners on Lampedusa?
Case Study
Ina comes from Slaka. She has found work in Germany through an employment
agency in her home Slaka, which is outside Europe. She works for a man who sends
her to work in various vineyards in Baden-Wurttemberg. In her work she is paid only
70% of what her male colleagues earn. She is obliged to work six days per week,
twelve hours per day, and she has to live in shared accommodation with other workers
from the same country.
When Ina complained to her boss about the conditions she was told that she had no
choice; that she had already broken the law by working in Germany without a permit.
Ina’s boss also hinted that he has some colleagues who can “help to maintain
discipline” in the work force if necessary.
6
Ina is scared because she feels she has been threatened. She also feels exploited. You
are a legal adviser in a local community law clinic. Ina visits you and explains the
above facts; and requests your advice.
In broad terms of international law (ie, excluding German or EU law), what would
you advise Ina?
7
Class Three: Trafficking in Human Beings
No one shall be held in slavery or servitude; slavery and the slave trade shall be
prohibited in all their forms.
(Universal Declaration of Human Rights, Article 4)
Trafficking in human beings (THB) involves the forced or deceptive movement of
persons across national frontiers so that they may be employed, usually illegally, in
another country, in conditions which are exploitative of the worker and which allow
the individual little or no personal liberty. This is very often, but not only, in the sex
trade.
In recent years, in particular since 2000, there have been major developments at the
international and regional levels to address THB, from several perspectives: criminal
law, human rights law and migration law.
European Union, Fight against Trafficking in Human Beings
http://ec.europa.eu/anti-trafficking/
UNODC, Global Report on Trafficking in Human Beings
http://www.unodc.org/unodc/en/human-trafficking/global-report-on-trafficking-inpersons.html
UNODC, Human Trafficking and Migrant Smuggling
http://www.unodc.org/unodc/en/human-trafficking/index.html?ref=menuside
Council of Europe, Action against Trafficking in Human Beings
http://www.coe.int/t/dghl/monitoring/trafficking/default_en.asp
US Department of State. Office to Monitor and Combat Trafficking in Persons:
http://www.state.gov/g/tip/
Anti-Slavery: http://www.antislavery.org/
Reading
A Edwards, “Traffic in Human Beings: At the Intersection of Criminal Justice,
Human Rights, Asylum/Migration and Labor”, (2007) 36 Denver Journal of
International Law and Policy 9-53.
R Piotrowicz., “Trafficking of Human Beings and their Human Rights in the
Migration Context”, in: Cholewiński et al, Ch.16
R Piotrowicz, “The Legal Nature of Trafficking in Human Beings”, (2009) 4
Intercultural Human Rights Law Review 175-203
R Piotrowicz, “Human Security and Trafficking of Human Beings: the Myth and the
Reality”, in: Edwards and Ferstman (eds), pp404-418
R Piotrowicz, “Trafficking and Slavery as Human Rights Violations”, (2010) 84
Australian Law Journal 812-815
8
I. Introduction
Is there too much law?
Examples of trafficking in human beings (THB)
 Prostitution
 Sweat shops
 Domestic labour
 Forced marriage
 Agricultural labour
 Sport (eg camel jockeys)
 Adoption
 Organ transplants
 Begging
II. Concepts
 THB
 Deception, coercion, violence
 Exploitative end purpose: slavery, forced labour
 Violation of victim’s rights
 May involve illegal crossing of border
Principal legal issues
 Human rights of those trafficked or smuggled
 Criminal law (international and national)
 Immigration law
 Employment law
 Laws on prostitution
THB as a human rights issue
 Council of Europe Convention on Action Against Trafficking in Human
Beings (2005; entered into force 1 February 2008; 34 parties in April 2011)
 Law of international protection (Refugees Convention (1951) and EU
Qualification Directive (2004)
 Soft law
 Rantsev v Cyprus and Russia, Application no. 25965/04, European Court of
Human Rights, Judgment of 7 January 2010
http://www.bailii.org/eu/cases/ECHR/2010/22.html
 Opinion No.6/2010 of the European Commission’s Group of Experts On the
Decision of the European Court of Human Rights in the Case of Rantsev v.
Cyprus and Russia
http://ec.europa.eu/anti-trafficking/entity.action?id=53ac0b47-25ca-4d389403-856337d66ee1
- Then click on ‘Group of Experts’
9
THB and Smuggling of Human Beings Distinguished
UN Convention Against Transnational Organised Crime 2000
 Entered into force 29 September 2003
Protocol to Prevent, Suppress and Punish Trafficking in Persons, in Particular
Women and Children (Palermo Protocol)
 Entered into force 25 December 2003
 143 parties (April 2011)
Article 3
(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of
power or of a position of vulnerability or of the giving or receiving of
payments or benefits to achieve the consent of a person having control over
another person, for the purpose of exploitation. Exploitation shall include, at a
minimum, the exploitation of the prostitution of others or other forms of
sexual exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs…
Three elements:
 the act
 the method
 the motivation


Consent of victim not relevant where any of above methods are
employed
Where victim is a minor (under 18) it is THB even if none of above
methods are used
Limitations
 Deals only with transnational THB
 Focus primarily on prevention of crime rather than protection of human rights
 Limited measures addressing rights of victims
 Article 6 – limited obligations of assistance to victims
The Wider International Law Regime
Treaties
 Convention Concerning Slavery (1926)
 ILO Convention No.29 on Forced Labour (1930)
 Geneva Convention Relative to the Protection of Civilian Persons in Time of
War (1949) plus Additional Protocols I and II (1977)
 Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others (1949)
 Convention on the Elimination of Discrimination Against Women (1979)
10






Convention in the Rights of the Child (1989)
ILO Worst Forms of Child Labour Convention (1989)
Convention on the Protection of the Rights of All Migrant Workers and Their
Families (1990)
Optional Protocol to the Convention on the Rights of the Child on the Sale of
Children, Child Prostitution and Child Pornography (2000)
o in force January 2002
o 142 parties (April 2011)
o national and transnational trafficking
o protection of rights of child victims/witnesses during criminal
proceedings
SAARC Convention on Preventing and Combating Trafficking in Women and
Children for Prostitution (2002)
Council of Europe Convention on Action Against Trafficking in Human
Beings (2005)
o In force February 2008; 34 parties (April 2011)
o Stresses victims’ rights and protection of victims equally with action to
combat THB
o Same definition as Palermo Protocol
o Obligation to promote “a Human Rights-based approach”
o Minimum standards set for provision of assistance to victims to
promote physical, psychological and social recovery
Soft Law
 UN High Commissioner for Human Rights: Recommended Principles and
Guidelines on Human Rights and Human Trafficking (2002)
o Human rights of victims of THB to be at the centre of all anti-THB
efforts
o States’ obligations to act against THB and help victims
o Anti-THB measures must not adversely affect rights of individuals,
especially victims of THB, migrants, IDPs and refugees
 EU/IOM: Brussels Declaration on Preventing and Combating Trafficking in
Human Beings (2002)
 UNHCR: Guidelines on application of Refugees Convention to victims of
THB (2006)
 ASEAN: Declaration Against Trafficking in Persons Particularly Women and
Children (2004)
o Policies on coordination of anti-THB measures
o Limited acknowledgment of human rights of victims
 Council of Europe initiatives
 OSCE
o Action Plan to Combat Trafficking in Human Beings, July 2003
 National Referral Mechanisms
Stability Pact for South Eastern Europe
The Stability Pact was replaced in 2008 by the Regional Cooperation Council
http://www.rcc.int/
11
European Union Regime
 TEU, Art 29
 EC Treaty (Art.63)
 Tampere Conclusions (No.23) (1999)
 Laeken Conclusions (No.42) (2001)
 Seville Conclusions (No.28) (2002)
 Charter of Fundamental Rights of the European Union, Article 5
o Prohibition of slavery, servitude, forced or compulsory labour and
THB
 Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued
to third-country nationals who are victims of trafficking in human beings or
who have been the subject of an action to facilitate illegal immigration, who
cooperate with the competent authorities
o Creates common European minimum standards
o Concrete obligations of States
o Links assistance/protection to cooperation
o Residence permit limited by duration of criminal proceedings
o Inadequate social provision
 Council Framework Decision 2002/629/JHA of 19 July 2002 on Combating
Trafficking in Human Beings
o Legally binding
o Minimum standards
o Adopts definition of THB similar to Palermo protocol
o Liability of legal persons – not only people
o Very limited measures on victim assistance


Council Framework Decision 2004/68/JHA of 22 December 2003 on
combating the sexual exploitation of children and child pornography
EU Action Plan on best practices, standards and procedures for combating and
preventing trafficking in human beings, December 2005
Other EU measures and initiatives
 EU strategy: see ‘Trafficking in Women. The misery behind the fantasy: from
poverty to sex slavery’
http://ec.europa.eu/justice_home/news/8mars_en.htm




Proposal for a Comprehensive Plan to Combat Illegal Immigration and
Trafficking of Human Beings in the European Union, 14 June 2002 (2002/C
142/02)
Council Conclusions of 8 May 2003 (2003/C 137/01)
European Commission, Communication on the Development of a Common
Policy on Illegal Immigration, Smuggling and Trafficking of Human Beings,
External Borders and the Return of Illegal Residents, 3 June 2003, COM
(2003) 323 final
European Commission, Communication to the European Parliament and the
Council, Fighting trafficking in human beings – an integrated approach and
proposals for an action plan, 18.10.2005, COM (2005) 514 final
12
International Protection Regime
Victims of THB have no special entitlement to remain in the destination State.
Under the law of international protection, destination States may have an obligation to
permit victims of THB to remain on their territory.



Victims of THB in a foreign country frequently wish to return to their home
country once they are no longer under the control of their traffickers;
destination States generally want them to return
Some victims may fear returning because of danger or threats to which they
might be exposed at home
o Risk of retrafficking
o Shame/embarrassment
o Ostracism
o Victimisation by national authorities
Some victims may have given evidence against their traffickers
The principle of non-refoulement obliges States not to return anyone to a territory
where they will be killed or at risk of a serious breach of their basic human rights


Applies to threats posed by the State, or by non-state actors where the State is
unable or unwilling to offer effective protection
Refugees Convention, Art 33 – non-refoulement
Convention Relating to the Status of Refugees 1951
Article 1A
For the purposes of the present Convention, the term ‘refugee’ apply to
any person who…(2)…owing to a well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the
protection of that country…
Council Directive 2004/83/EC of 29 April 2004 (“Qualification Directive”) - on
minimum standards for the qualification and status of third country nationals
and stateless persons as refugees or as persons who otherwise need international
protection
o Article 6 Persecution can be by
o the State
o parties or organizations controlling the State or a substantial
part of its territory
o non-state actors, where the State or those in control are unable
or unwilling to provide protection against persecution or
serious harm
13
o Article 15: Entitlement to subsidiary protection based on following
threats:
o Death penalty or execution
o Torture or inhuman or degrading treatment or punishment in
the country of origin
o Serious and individual threat to a civilian’s life or person by
reason of indiscriminate violence in situations of armed conflict
Where a victim of THB can show a reasonable likelihood that her basic human rights
are at serious risk should she be repatriated, the State of destination may have to
permit her to remain, although the general view is that repatriation is the preferable
option.
Possible entitlement of victims of THB to international protection:
o Palermo Protocol (2000), Article 7(1), 14(1)
o UN High Commissioner for Human Rights: Recommended Principles on
Human Rights and Human Trafficking (2002), Principle 11
o EU/IOM: Brussels Declaration on Preventing and Combating Trafficking in
Human Beings (2002), Point 13
o United Nations High Commissioner for Refugees: Guidelines on International
Protection – Membership of a Particular Social Group (2002), Point 12
o United Nations High Commissioner for Refugees: Guidelines on International
Protection – Gender-Related Persecution (2002), Point 18
o United Nations High Commissioner for Refugees: Guidelines on International
Protection – Application of Article 1A(2) of the 1951 Convention and/or its
1967 Protocol on the Status of Refugees to Victims of Trafficking (2006)
o Council of Europe Convention on Action Against Trafficking in Human
Beings (2005), Article 16(2), 40(1)
Statelessness Issues
International Criminal Law
UNCTOC
Art 15 – obligation to establish jurisdiction with regard to certain offences:
o Participation in organised criminal group
o Laundering of proceeds of crime
o Corruption
o Obstruction of justice
Art 16 – extradition arrangements
Art 18 – mutual legal assistance obligation
THB Protocol
Art 2 – purposes
o Prevent and combat THB, especially of women and children
o Protect and assist victims of THB
o Promote cooperation amongst states to meet these objectives
14
Art 5 – obligation to criminalise THB (including attempting or participating as an
accomplice, organising or directing others to do so
Art 9 – obligation to establish comprehensive policies and programmes “to prevent
and combat” THB
Convention on the Rights of the Child, Optional Protocol on the Sale of
Children, Child Prostitution and Child Pornography
Art 3 – obligation to criminalise
The link with slavery
Prosecutor v Kumarac, Kovac and Vukovic, Trial Chamber, Judgment, Case nNo. IT96-23-T and 23/1, especially par.542
Hadijatou Mani Koraou v Niger, ECOWAS Court of Justice, Judgment No.
ECW/CCJ/JUD/06/08
ICC Statute
War crimes – Art 8
- distinction between International Armed Conflicts (IACs) and Non-International
Armed Conflicts (NIACs)
IACs
Art 8.b.viii - deportation of population
Art 8.b.xxi - outrages upon personal dignity
Art 8.b.xxii – rape, sexual slavery, enforced prostitution
NIACs
Art 8.c.vi – rape, sexual slavery, enforced prostitution
Crimes against humanity – Art 7
- must be widespread or systematic attack against the civilian population
- no distinction between IACs and NIACs; does not have to be during armed conflict
Art 7.1.c – enslavement
Art 7.1.d – deportation or forcible transfer
Art 7.1.g – rape, sexual slavery, enforced prostitution
Art 7.2.c – “Enslavement” means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such power in the
course of the trafficking in persons, in particular women and children…
Questions
1. What is the difference between smuggling and trafficking of human beings? Give
examples to illustrate this.
2. Is THB a breach of human rights, or a crime, or both? Give examples to illustrate
your view.
15
Case studies
A case of modern day slavery
in the suburbs
By Chris Summers
BBC News
A pensioner has been convicted of trafficking and exploiting an African woman
she used as a slave. While it was the first prosecution of its kind, could there be
many more cases behind the UK's front doors?
An innocuous bungalow in a leafy London suburb might not be an obvious location
for "modern-day slavery". But that is what 47-year-old Mwanamisi Mruke suffered at
the hands of Saeeda Khan. The 68-year-old hired Mrs Mruke in her native Tanzania
in 2006 after she was made redundant from the hospital in Dar es Salaam run by Khan
and her late husband.
Khan arranged a domestic service visa and promised to pay her 120,000 shillings
(£21) a month into her Tanzanian bank account and £10 a month pocket money in
London. Mrs Mruke, desperate to fund her daughter Zakia's college education, agreed.
But when she got to London, Khan took her passport away, forced her to sleep on the
kitchen floor and gave her two slices of bread a day for food. Her clothes were kept in
a garden shed. Between 0600 and midnight each day, Mrs Mruke was expected to be
at the beck and call of Khan, who would ring a bell when she or her two grown-up,
disabled children wanted something.
“They have such disregard for these people that they don't think they are doing
anything wrong. They think they are worth less than an animal”
Detective Inspector Kevin Hyland Metropolitan Police
Sometimes she would even be woken during the night to take Khan's son out for a
walk. Mrs Mruke did not get a single day off in four years. Trapped in the house in
Harrow, north-west London and terrified by veiled threats made by Khan, Mrs Mruke
was cowed into submission. Khan, who watched television in her native Urdu,
deliberately did not teach Mrs Mruke any English and conversed with her in Swahili.
After a while, the pittance she was being paid dried up completely. Khan refused to
let her return home after the deaths of her mother and father or for her daughter's
wedding in 2009.
Caroline Haughey, prosecuting, told Southwark Crown Court: "From the moment of
her arrival in England Mwanamisi was made to sleep, work and live in conditions that
fall by any understanding into that of slavery."
16
Eventually, in February 2010, during a visit by Mrs Mruke to her local GP, the doctor
and an interpreter - Rhoda Mwanga - became concerned about her living conditions
and her interaction with Khan. Mrs Mwanga contacted a charity, Kalayaan, which
looks out for people trafficked into domestic servitude. It in turn rang the police. Ten
days later, police officers, accompanied by Mrs Mwanga and staff from Kalayaan,
visited Khan's home and took Mrs Mruke to a place of refuge.
Mrs Mwanga told the court: "When we were in the kitchen, Mwanamisi said 'that's
where I sleep' and pointed at the floor."
Khan was arrested and later charged with trafficking a person for exploitation. During
the investigation police found a sinister letter, written in Swahili and by someone in
Tanzania, which warned Mrs Mruke not to complain about her treatment. The letter
said: "While you're still working with the woman and her children you must obey her
all the time and you must do your work with love and show your love to the children."
The letter warned her that her life might be in danger if she spoke out, adding: "We
are asking you to stay quiet in that place and to continue with work peacefully. Your
blessing will be in Heaven, not here."
Her daughter, Zakia Ali Hassan, speaking by videolink via a Swahili interpreter, told
the court how happy her mother was when she was rescued from Khan's clutches. She
added: "I would have loved for my mother to be there [at my wedding] but I had no
choice."
Because Mrs Mruke has been unable to return to Tanzania since being rescued, Judge
Geoffrey Rivlin allowed the videolink to be kept open for a few minutes to allow
mother and daughter to see and speak to each other.
On Wednesday Khan was given a nine-month prison sentence, suspended for two
years, and was ordered to pay £25,000 in compensation to Mrs Mruke and £15,000 in
costs.
Speaking after the conviction, Ms Mruke said: "I didn't have any time for myself at
all. I worked for very long hours - sometimes I didn't sleep. I used to do all the
housework, cook, cleaning, inside and out. "She didn't attack me physically. It was
just the words and the way she was treating me."
Det Insp Kevin Hyland, who headed the investigation, said it was the first time
someone had been prosecuted for trafficking a "slave" for domestic servitude. He said
the Metropolitan Police were currently investigating another 15 cases of trafficking
for forced labour, and had worked with forces in Surrey, Sussex, Hertfordshire and
the West Midlands on similar cases. Mr Hyland said: "We are seeing more of this but
we are putting it down to improvements in our intelligence-gathering. We have
introduced a new system of direct reporting which allows charities and NGOs to
notify us directly."
Mr Hyland said the cases under investigation involved individuals from Saudi Arabia,
India, Bangladesh, Tanzania, Uganda and Vietnam. "In some of these cases their
culture is a class system and people can be treated as a commodity," he said. "They
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have such disregard for these people that they don't think they are doing anything
wrong. They think they are worth less than an animal."
Mr Hyland said anyone employing a domestic servant in the UK on more than a very
temporary basis has to pay them at least minimum wage and treat them according to
UK laws. About Mrs Mruke, he added: "She may want to go back to Tanzania,
because she has a family there. But if she can't go back for fear of reprisals I'm sure
that would be looked upon positively by the UK Border Agency."
A spokeswoman for Kalayaan said: "Law enforcement has typically struggled to
identify trafficking for domestic servitude because domestic work itself is lawful and
need not be exploitative. "We are therefore encouraged that a case has finally come to
the court under the Asylum and Immigration (Treatment of Claimants) Act that was
passed nearly seven years ago."
Chris.Summers-INTERNET@bbc.co.uk
***********************************************
A, aged 16, has been brought from Slaka to Germany by a distant male relative on the
pretext that she could have an extended holiday. Three months later she walked into a
police station, in a distressed condition. She appeared malnourished and her face
showed signs of bruising. She could not speak German but after a few hours the
police managed to find an interpreter.
Ms A told the police that, after her arrival in Berlin, the man made it clear that she
would be working for him and that he intended to force her into prostitution. She gave
evidence that the man had already bought her the clothes she was to wear while
working as a prostitute. He had also told her where she was going to work,
confiscated her passport and threatened her with violence if she attempted to escape.
He had also said that if she returned to Slaka, other members of his gang would “take
revenge” on her. The evidence gathered by the police when they arrested the man
supports Ms A’s statement. Ms A has said that she is afraid to return to Slaka.
Has Ms A been trafficked?
What, if any, are Germany’s obligations towards Ms A?
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Class Four: Smuggling of Human Beings
Smuggling of human beings (SHB) is closely related to THB. Indeed, sometimes it
may be very difficult to say for sure whether someone has in fact been smuggled or
trafficked. They are nevertheless different, and the law treats them differently. The
essential difference is that smuggling involves an element of consent on the part of the
person being smuggled. This is not the case with THB, where the victim does not
consent. The person may appear to have given consent, but where an objective
scrutiny of the circumstances and conditions of the individual demonstrate that the
elements of THB are met, then that consent is negated and we can say that the person
has in fact been trafficked.
Reading
Compared to THB, there is relatively little published with regard to SHB. However,
much of the literature on THB also refers to SHB and compares it with THB.
International Council on Human Rights Policy, Irregular Migration, Migrant
Smuggling and Human Rights: Towards Coherence (2010)
http://www.ichrp.org/files/reports/56/122_report_en.pdf
R Piotrowicz, 'The smuggling of migrants: Vienna vilifies villains and vindicates
victims', (2001) 75 Australian Law Journal 155-160
Smuggling of human beings (SHB)
 Payment to secure illegal crossing of border
 Political motivation
 Not necessarily exploitation
 Illegal border crossing
 Violation of integrity of state frontiers
Protocol against the Smuggling of Migrants by Land, Sea and Air
 Entered into force 28 January 2004
 108 parties (10 January 2008), including Germany (14 June 2006)
 Obligation to criminalise smuggling
 Special regime on smuggling by sea
Article 3
(a) “Smuggling of migrants” shall mean the procurement, in order to obtain,
directly or indirectly, a financial or other material benefit, of the illegal entry
of a person into a State Party of which the person is not a national or a
permanent resident…
Article 5 – migrants not to be prosecuted for having been smuggled
Art 6 – obligation to criminalize
 SHB
 Organization of false travel or identity documents for those to be smuggled
 Enabling person without entitlement to remain in the State
 Attempting to commit, contributing to or participating in any of above acts
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Article 16 – obligation to take measures to preserve and protect rights of victims
Questions
1. What human rights, if any, are breached when someone is smuggled from one State
to another?
2. Are people who have been smuggled really victims? Is the smuggling protocol right
to treat them as victims?
3. Is it immoral to accept money to smuggle consenting adults across international
frontiers?
Case study
1. Fadzilla agrees to pay a man in her homeland, Bangladesh, $10,000 to smuggle her
into Germany. $3000 is paid in advance, with the remainder, $7000, to be paid by her
family once she is in Germany. Fadzilla is brought by a complicated overland route to
Europe, and is smuggled across the Schengen border at the Belarus-Poland frontier.
On her arrival in Frankfurt-Oder Fadzilla is met by friends who give her
accommodation and help her to find illegal work making clothes. The clothing factory
is raided by police and Fadzilla is arrested. What legal issues arise?
2. One year later, a deal is made under which Fadzilla’s sister Fatima will come to
Germany. She is brought by the same route. You work for an NGO which assists
stranded foreigners in Germany. You are told about this by Fatima. This is the rest of
her story:
On arrival in Frankfurt-Oder, the man who brought her on the last stage of the
journey said that she must start to pay the remaining $7000 herself,
immediately. He took her passport (which anyway contains no Schengen visa,
and which she has never seen again) and informed her that he had sold her to a
bar owner. She was taken by force to the bar, where she was locked in a small
upstairs room. One hour later, the bar owner came into the room. He told her
that he had bought her for 3000 Euros, and she must work to pay off the debt.
He then raped her. Later the same day, men began to visit her in the room and
she was forced to have sex with them. When she refused, she was beaten.
What is your advice to Fatima?
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