The paradox of “legality”: Temporary migrant worker programs and vulnerability to trafficking

Introduction Human trafficking is often mistakenly associated exclusively with undocumented migratory status (Thomas, this volume). It is now widely recognized that migrant workers’ undocumented status creates significant vulnerability to exploitation that may amount to trafficking. “Illegal” workers are often reluctant to report crimes committed against them out of fear of being deported. The risk of deportation makes them potentially vulnerable to exploitation by almost anyone who knows about their status, as they can threaten to turn them in to the authorities. Moreover, undocumented migrant workers are particularly vulnerable to being exploited by their employers, who can force them to provide additional labor or work in substandard conditions (Anderson and Rogaly 2005). To bolster undocumented workers’ willingness to report abuse, a central component of anti-trafficking regimes that experts advocate for is the non-criminalization of crimes that trafficked persons may have committed in the course of being trafficked, including violations of immigration laws (Gallagher 2010: 284). Yet, while undocumented status is a source of great vulnerability, neither international law nor most national jurisdictions set this as a requisite component of trafficking. In fact the definition of trafficking in Art. 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000 (Trafficking Protocol) (UN 2000b) does not include reference to legal status (documented or undocumented), or even border-crossing, as a component of trafficking; the same is the case with the US Trafficking Victims Protection Act of 2000 (TVPA) (US Congress 2000). Under Art. 3 of the Trafficking Protocol, trafficking is comprised of three components: (1) a particular action - “the recruitment, transportation, transfer, harbouring or receipt of persons”; (2) certain means for carrying out the action - “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”; and (3) the end purpose of exploitation. The protocol defines exploitation sweepingly to 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”.