Labour Trafficking and Exploitation in Rural Andalusia

Abstract

This chapter presents the preliminary results of a research project, called “Research on the Vulnerability of Human Rights in Andalusian Rural Areas: Migration, Labour Treatment, and Other Forms of Exploitation for the Strengthening of Andalusian Development Agents”. In the mentioned research, we analyse the trafficking in persons for the purpose of labour exploitation (labour trafficking) and labour exploitation in the rural context of Andalusia. For this, the research focuses on three (3) provinces of Andalusia in which the fieldwork is carried out in rural areas of the provinces of Almeria, Seville and Huelva. For that purpose, this study will be structured in four sections: first, the realisation of a conceptual introduction on “labour trafficking”, its connection with contemporary forms of slavery and exposure of the factors that favour the development of this phenomenon in the Andalusian context; second, presentation of the partial data that allow us to make a localised diagnosis through the contextual approach of labour exploitation and labour trafficking in Andalusia; third, analysis of the results; and fourth, conclusions on the confrontation with the labour treatment in Spain.

1. Introduction

The internationally accepted definition of human trafficking [HT] or trafficking in persons is recent (established in 2000), wide (it does not bind the behaviours which define it) and complex (it involves a process made up of three stages: an action that has coercive, violent or fraudulent means that ultimately results in exploitation¹). Based on this, HT is observed to be an action which involves the movement of persons (transfer, reception, accommodation, etc.) by coercive, violent or fraudulent means, with the intention of directly or indirectly exploiting them [1]. The movement generally occurs within a migratory context, either regular or irregular. This can lead to confusion with other legal categories, such as illegal migration, trafficking in persons or international asylum.²

As previously mentioned, the definition of HT provided by the Palermo Protocol contains three base elements: an action, the means and a purpose of exploitation. These elements are all interrelated. Therefore, we start with a definition of HT that does not describe one solitary act with a specific result but rather an entire process of capture, transport and control, which can be organised in multiple ways and involve a range of different actions and results ([2], p. 11). In its entirety, the definition specifies that the process begins with a specific action of a trafficker who utilises deceptive means to take advantage of a situation of vulnerability originated in a context of personal insecurity. These two initial actions ultimately determine the process of exploitation. The human being is reified, and their rights to not be enslaved are violated, as well as their rights against inhuman and degrading treatment. This reinforces the threatening situation to a person’s security and generates vulnerability.

For an integral approach to HT, it is necessary to understand the systemic factors as well as the actions which lead to their causes. These are generally related to poverty, discrimination against women and the political and institutional inability to protect victims and persecute traffickers [1, 3]. Thus, when discussing HT, it is important to take into consideration the complexity and the multidimensional nature of this phenomenon. When confronting this issue, it is also essential to start from a multidisciplinary perspective, which extends beyond the migratory problem or unlawful activity that entails the practice of a crime or a violation of rights. It is also important not to discount the fact that this involves a violation of rights that is legitimised by a lack of conscience, sociocultural behaviour and lucrative economical transactions for exploitation.

From the basis of the concept of HT, we will analyse human trafficking for labour exploitation (labour trafficking) and labour exploitation in rural Andalusia. This will be from the context of human mobility in three provinces of the region (Seville, Huelva and Almeria). We will present a conceptual and contextual framework that enables the possibility of the existence of HT in Andalusia. As well, we will propose that to eradicate this social scourge; there is a necessity for the proactive participation of different social actors. Their assistance will aid in tackling the inter-sectorial and multidimensional challenge that entails human trafficking.

2. Conceptual framework about human trafficking for labour exploitation (labour trafficking)

One of the criticisms to the Palermo Protocol is that it does not define terms such as “exploitation”. It does not specify what “labour trafficking” is or that it is a means in itself. The protocol alludes to “slavery, servitude and forced labour” as being the main manifestations of this type of trafficking [1]. The above-mentioned behaviours point to the current internationally recognised legal concepts that let us prosecute the labour trafficking crime. Based on this, this study considers labour trafficking to be the capture of people with the purpose to subject them to forced labour or services, servitude or a contemporary version of slavery, by means of coercion, trickery, force, abuse of power or state of vulnerability³.

In practice, the distinction between the concepts of forced work, slavery and practices similar to slavery and servitude is subtle and not very helpful with respect to human rights protection [4] §282. Based on these considerations, five characteristics should be taken into account to determine whether a case is to be considered as labour exploitation:

• First: Threat of physical, sexual or emotional violence. For example, in the instance of emotional violence, this could include blackmail, reproaches and/or insults.

• Second: Restriction of victim’s movements to a limited zone or imprisonment in their workplace [4]§ 116–120.

• Third: Servitude due to debts or servile work [5]§ 145, retention of salary or refusal of payment.

• Fourth: Seizure of passports and identity documents, so that the worker cannot leave or confirm their identity and situation [4] § 93⁴.

• Fifth: Threat of report to authorities [6] § 281.

To evaluate the existence of labour trafficking, it is helpful to consider that an apparent “voluntary offer” of a worker or victim can derive from manipulation and not be based on an informed decision. Likewise, it is possible that the exploited person is recruited willingly and that the coercive actions to maintain a person in a state of restraint or exploitation arise afterwards.

Presently, this is one of the most common forms of labour trafficking⁵. It is therefore important to name the most common types of crimes and violations of human rights which can be sourced from the Palermo Protocol. In the European context, these are included in the three most severe forms of labour exploitation: slavery, servitude and forced or compulsory work⁶. In national legislations, labour exploitation is considered to be an independent crime⁷. A person is sanctioned for illegally directly or indirectly obtaining unjustifiable benefits of an economic nature or otherwise; making use of other’s labour; subjecting workers to practices that are offensive to their dignity, for example, dangerous or unhealthy conditions; where there is an evident disproportion between the amount of work completed by workers and the amount they are paid; or when the salary is below the legal minimum.

In the mentioned cases, the four types of labour trafficking are described: forced labour, exhausting work day, degrading work conditions and servitude due to debt. In the first type, forced labour occurs when a person is coerced into exploitative work conditions, where they lack the ability to leave the workplace either due to debts, threats or physical or psychological violence. The second, the exhausting work day, refers to a draining job which extends beyond working overtime. This ultimately places the physical integrity of a worker at risk as the interval between shifts is not sufficient for the worker to rest and regain their energy. In many cases, the weekly break is not even observed, which prevents the worker from maintaining a social or family life. The third type, servitude due to debt, refers to allegedly illegal debts acquired from transport, food, rent and work tool expenses. Through this exploitative artifice, all these different items are charged in an excessive manner and discounted from the worker’s salary, who thus remains burdened by a fraudulent debt. This conduct, similar to slavery, is also understood to be a form of aggravated forced labour which involves the following four elements: (i) that “the work is voluntarily accepted, (ii) that the value of the work is insufficient to settle the debt, (iii) that the duration of the work is unlimited and (iv) that the nature of the service is indefinite” (IACHR: Trabalhadores da Fazenda Brasil Verde vs. Brasil, 2016, § 231)⁸. This only concerns the types of debt that are uncertain, lack a time limit and eventually become unpayable. The fourth type, the degrading conditions⁹, is defined as a set of irregular contraptions that offends their dignity and characterises the precariousness of the living conditions workers are subjected to. This includes precarious accommodation, lack of medical assistance, deplorable food, lack of basic sanitation and drinking water¹⁰, violence and mistreatment, as well as other aspects which curtail the worker’s freedom such as retention of pay, geographical isolation and retention of identity documents¹¹. Therefore, we begin from “the interconnectedness of the practices of exploitation, namely, the overlapping of questions of citizenship, migratory status, precarious work conditions and/or lack of protection at the workplace” [10]. Nonetheless, as we said before, we do not consider them to be practices of similar nature, though they can overlap and establish negative synergy [1]. Studies regarding labour trafficking address five common assumptions of this crime [11]. The first is that labour trafficking does not occur in a large scale. This is an incorrect assumption, though labour trafficking is overshadowed by other types of HT, such as sexual trafficking and exploitation¹². The second is the lack of realisation that labour trafficking may derive from a frustrated migratory process. It can be observed that there is no official data certifying how many people involved in the context of human migration have possibly been dragged into labour trafficking, either victims of trafficking, asylum seekers, illegal migration or forced displacement. The third is the lack of leadership from states regarding this type of trafficking. This generates underreporting and subsequently renders the victims of labour trafficking invisible. The fourth is the lack of an “organised group”¹³ and the “fraudulent and/or coercive means”. In the majority of cases, the worker is indirectly contracted by an agency, to which they have been referred by family members or directly by the employer [12]. The fifth refers to the second constitutional element of HT, the means. In this instance, there may be no direct threat of violence or coercion. Nevertheless, servitude, seizure of documents, intimidation and constant threats are used which restrict the freedom and autonomy of an individual.

“The above-mentioned specific knowledge concerning the crime’s true nature substantiates that (i) the crime does exist and in a significant portion of the labour market; (ii) it is not necessarily part of illegal migration, including (a) entry in a country through legal channels, (b) victims may work legally or reside legally but work illegally and (c) victims may also be nationals; (iii) women, men and boys can be victims; (iv) perpetrators are individuals as well as criminal groups; and (v) generally more subtle means are deployed than in women trafficking for sexual exploitation. These findings provide a true appreciation of the crime and provoke, from this perspective, an examination of current national legislation and adjudication, as follows” [11].

In Spain, the penal laws on labour trafficking also pose problems in other legal fields, such as labour¹⁴, migration and human rights.¹⁵ As regards to the exploitation of immigrants, their irregular situation constitutes an important risk factor for Spain.¹⁶ In the case of Spain, the main economic sectors where labour trafficking prevails are agriculture, forestry, fishing, hospitality and domestic work [18].

This negative synergy exists all around the world. Nevertheless, it is more complex within the EU. The EU citizenship allows its residents to move freely within its member-states [13]. Subsequently, it does not have border controls for its workers, who enjoy standards of labour and social protection—which are based on human rights. The starting premise is that immigration to the UE is restricted, with the aim of protecting the area of free movement. This clashes with the paradox of labour markets which demand more unskilled workers, to work in areas (e.g. rural) where the local workforce is not willing to go.

Though there may seem to be an apparent difficulty, the EU has up-to-date tools to proactively confront the problem of labour trafficking. For this to be effective at a domestic level, regional and national tools must be harmonised for a coordinated action that defends the rights to dignified work. Criminal investigations can be facilitated, for example, by transnational cooperation between the joint investigation teams of the security corps and forces of member states. They can also be assisted by the EU by virtue of Europol, the European police agency.¹⁷ This can also encompass (a) monetary investigations regarding legal entities which allow criminal earnings to be confiscated [19]¹⁸ and (b) actions which are directed to criminal organisations [20]. The combined efforts of the prosecutors and Eurojust [21] provide an effective means of combat. Both could possibly make use of Europe-wide arrest warrants that allow judiciary authorities to execute warrants issued by other member states against alleged traffickers¹⁹. Lastly, the UE measures should also be judged. A large assistance and protection body exists for victims, though it cannot be considered entirely satisfactory. It appears that it prefers to carry out a criminal investigation rather than providing effective protection for victims²⁰. Both reasons indicate that it is necessary to come to a uniform interpretation of the definition.

3. Participative and collaborative methodology

This study used a plan to gather data from key public and private actors and exploited workers, in conjunction with fieldwork. Through a contextual approach, a localised diagnostic study was produced, with the objective of discovering labour exploitation and labour trafficking in Andalusia. It also aimed to emphasise the importance of development agents²¹. To prepare for this diagnostic study, a work programme was designed. This programme aimed to compile, organise and analyse the information given by stakeholders capable of detecting and giving access to justice and assistance to victims of labour trafficking. This programme also utilised information from other sources, such as academic studies and non-governmental research.

3.1 Stages of the investigation

The investigation was planned to be conducted between May 2017 and September 2019. The investigation was divided into four stages and utilised the following methods:

1. The first stage was an office investigation which revised all available documents for the three provinces of the region. It also examined the specific types of HT which aimed to exploit workers. The information reviewed was sourced from governmental bodies: trafficking unit (General Office of Prosecution); Security Forces and Corps, Department of Migratory Policies/Labour, Women’s Institute; and non-governmental organisations from Seville, Huelva and Almeria.

2. The second stage consisted of 13 semi-structured interviews. They were carried out with the assistance of civil workers who had an understanding of the topic of HT for sexual exploitation but knew little of the topic of labour trafficking. In this stage, youth workshops were also conducted across the three provinces. During the workshops, formative and summative questionnaires were completed by 436 youths from five institutions²² that participated in these workshops.

3. The third stage was a non-participative observation. It consisted of 4 workshops with 11 women who had migrated to the province of Almeria.

4. The fourth stage comprised of workshops with youth from the three provinces.

In this chapter we focused on the third stage. In this step, it is being concurrently implemented and looks to characterise and explore scenarios of labour trafficking in rural Andalusia. This will facilitate:

1. The characterisation of scenarios that are auspicious to human trafficking with the intent of labour exploitation

2. Information of victims which could be interviewed in this investigation

3. Work with key development agents to amplify awareness and understanding of labour trafficking and exploitation in the rural contexts of Andalusia

For this, 2 workshops have already been conducted in Almeria, where 15 migrant women participated in 4 sessions. Similarly, 4 workshops were run in Huelva, where 10 women participated. No workshops with potential HT victims were able to be organised within the province of Seville as there was no possibility to access the selected agricultural farms²³.

The information was sourced in the first stage between September 2017 and August 2018. However, preparatory work occurred in the previous months, including gathering of bibliography, legislation and news regarding the matter. In this stage, various institutions were contacted, and meetings took place to coordinate and identify interviewees. The second and third stages were carried out between March and October of 2018.

4. Preliminary fieldwork results: workshops with migrant women

Two techniques were utilised for the first and second stages. Firstly, a questionnaire was developed for institutions and civil organisations who are in contact with the phenomenon of labour trafficking. The questionnaire aimed to evaluate this issue and to obtain information about specific cases identified. In particular, the behaviour and characteristics are most common to them, as well as the services offered and the needs detected. This questionnaire was complemented with semi-structured interviews with key actors who work in different fields to combat trafficking. The interviews’ main objective was to evaluate how much certain institutions know about this phenomenon. It also aimed to comprehend the various perceptions exhibited by the participants involved in this process. Thus, public service institutions were contacted, including police, judiciary and workplace inspection institutions and non-government institutions such as unions, migrant associations and civilian organisations.

In the third stage, workshops in the provinces of Huelva and Almeria were conducted with potential victims of labour trafficking or other forms of exploitation. The objective was to determine whether the migrant population working in the agricultural fields of Almeria was susceptible to becoming victims of labour trafficking. For these sessions, two approaches were used. On one part, a lawyer of MZC²⁴ Almeria, accompanied by an intern student, carried out personal interviews with each of the participants. Utilising the labour trafficking indicators dictated by the International Labour Organization (2009)²⁵, she extracted information regarding the indicators of oppression, exploitation, resilience and vulnerability.

At the same time, as the personal interviews, a psychologist from the Almeria organisation, and an intern student, conducted group sessions with different activities. These included language classes, different migration projects and the expectations and reality of living in Spain. These sessions had some limitations, with the main one being language. None of the participants spoke Spanish. Therefore, we had to contact Moroccan interpreters which sometimes hindered the intervention. The second limitation that we discovered was that the women did not trust their colleagues. Hence, we were able to obtain more precise information from the personal fieldwork with the participants. This could then be contrasted to, or complemented with, the information obtained in the group sessions.

We conducted a total of 9 sessions and interviewed 11 women. According to the workshops’ results, we make two observations which allow us to interpret the indicators of labour trafficking and/or labour exploitation. Figure 1 illustrates these indicators. Firstly, it can be confirmed that the profile of victims of labour trafficking are women, usually in an irregular administrative situation, or that have their permit nearly expired, married or separated, with dependent children.

Figure 1.

Labour exploitation indicators in rural Andalusia. Based on the indicators of labour trafficking and offered by the International Labour Organisation [http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@declaration/documents/publication/wcms_105023.pdf] and the workshops held with women workers, the authors have elaborated this diagram. ANAPEC Maroc, Moroccan institution that seeks to promote employment and skills.

Secondly, it is noted that there is a possible initial irregularity within the hiring process. This is because the women (a) are not given a written contract; (b) are not aware of how many hours they will work, how many they will be given for rest, how they will be paid (per hour/daily/weekly/monthly) or the agreed rate for their completed work; (c) are not informed of the destination where they will be working²⁶; and (d) denounce that their employer does not meet their obligation to provide adequate accommodation. The women confirmed that they lived in overcrowded conditions, without any running water, electricity or waste management facilities (unhealthy conditions and lack of hygiene). Similarly, the sector fails to give their workers access to medical services. Many of the women have no doctor to go to. The majority of the women suffer from verbal and physical abuse from their supervisors. There have also been reports of sexual abuse from the people in charge.²⁷ Similarly, two relevant clues can be added. Firstly, women have been fired before the end of their work contract as “there was no more work”, or they have left the workplace due to conditions they considered to be exploitative. Secondly, there is a confirmed transit of seasonal workers from Huelva to Almeria. Nonetheless, it is not known how the idea that work can be found in Almeria disseminates. It is not known either how this transfer of workforce between the two regions is organised. It is believed that the majority occurs through private taxis. In this sense, it is necessary to further investigate how the information of work in Almeria circulates and this phenomenon of using private taxis, as they are very expensive.

We cannot present the results of the study without commenting on the obstacles we encountered during the investigation. These, in turn, have undoubtedly affected the results of the study. It is essential to mention certain aspects as they must be taken into consideration during the final evaluation of the study. These are related to the very topic of analysis and the circumstances of development of the project.

The main methodological limitation of the study originates from the understanding and use of term “human trafficking”. This confusion of terminology is due to the legal Spanish definition of the term as well as operational issues. The term trafficking in persons was used in the Spanish legal framework (until 2015) to describe a situation of human trafficking, according to the definition of international legal instruments. This will be further analysed in a future stage of this study. For the purpose of this publication, the internationally accepted definitions of “human trafficking” and “trafficking in persons” were utilised, as defined in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children and in Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime of 2000, respectively. Throughout the study, we were able to verify that both mass media and many people who participated in workshops or had been interviewed as representatives of the institutions fighting against HT did not seem to have internalised these concepts. This is an important restriction when delineating the limit between both concepts. It also limits the demarcation of aspects that identify and characterise labour trafficking.

On the other hand, the fact that this phenomenon has not been seriously considered by institutions or society in general makes extracting further information regarding the issue and its characteristics even more difficult. This is in spite of the fact that there exists an increasing concern about the issue from an international point of view. In the first place, it has been difficult to identify professionals who are active in this field and have a significant understanding of the phenomenon. Secondly, it has been challenging to interview an equivalent number of professionals from state-run institutions and society in general. A large percentage of the total number of organisations contacted for this study was reluctant to participate. This was due to the fact that many lacked specific information on the topic, did not know about any concrete cases or had a complete dearth of knowledge of the topic. Considering that this study deals with organisations who are in the field of immigration or fighting against HT, the fact that they are not connecting the violation of dignified work and the necessary interaction with the bodies of work inspection highlight the invisibility of the phenomenon. It also highlights the practical difficulties for identifying and understanding the real situation of labour trafficking in Spain.

Lastly, as HT is an incredibly complex problem about which there is little knowledge²⁸, we have found it challenging to collect a significant amount of information in a short time frame. Correspondingly, we have not been able to delve into the obtained results and analyse the findings with as much detail and amplitude as possible. The gathering and sorting of information planned for the future will aid us in progressing with the study, further boosting the results and assisting in the evaluation of the proposal. As a consequence of all of this, this study should be considered as exploratory in nature and, most of all, as a step forward in the path of identifying the current situation of labour trafficking in Andalusia.

5. Final reflections: challenges regarding the research topic and the path to knowledge

Taking into account that the problem of labour trafficking has been minimally investigated, this study is merely of an exploratory nature. It has a clear disposition to approach the phenomenon of labour trafficking and exploitation in rural Andalusia. By means of systematising, integrating and analysing available data, this study contributes to lay the basis of understanding from the perspective of the Andalusian reality. In general terms, the exploratory nature of this study has permitted the elaboration of a state of this matter, starting from existing theoretical and conceptual elements, as well as the recounts and experiences of the interviewed persons, workshop participants and questionnaire respondents.

Additionally, we emphasise at least four obstacles encountered during the development of this investigation. First, the information on labour traffic available from the public administration and society in general is very limited. In this sense, the special attention which has traditionally been applied to human trafficking for the purpose of sexual exploitation can be one of the main reasons as to why there is a lack of acknowledgement and documentation on the topic of labour trafficking. From this, we observe a second limitation, constant scarcity of information, education and training regarding this type of human trafficking. Third, the institutions that are supposedly responsible for the prevention and suppression of this type of trafficking are still in the process of acquiring the abilities required to tackle in future the complexity of such a crime and all its manifestations; this is because it has recently been criminalised in the Spanish context (2015). In this sense, we observe that one of the most noticeable voids is the lack of mainstreaming of issues relating to labour trafficking. This has led institutions, such as the Attorney General of Spain and the security corps and forces, to have limited competences for investigating and prosecuting this crime.

Acknowledgments

The authors are grateful for the support of the Andalusian Agency for International Development Cooperation for the subsidy granted to support this project. The grant has made possible the realisation of this study which is part of the project “Investigación sobre la vulneración de los derechos humanos en zonas rurales andaluzas: migración, trata laboural, y otras formas de explotación, para el fortalecimiento de los agentes andaluces de desarrollo” Ref.: 0I008/2016. Subsidised by the “Agencia Andaluza de Cooperación Internacional al Desarrollo” (AACID), 2017–2019, in which the authors are the principal investigators.