Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) - Sweden (Ratification: 1982)

Article 1 of the Convention. Basic human rights of all migrant workers. The Committee notes the Government’s explanations regarding the human rights laid down in the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms which has been incorporated into Swedish Law. The Committee understands that the Government reached a framework agreement in June 2012 extending state subsidized health care to undocumented immigrants. With regard to posted workers, the Committee also refers to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee requests the Government to provide information on how effect is given in practice to Article 1 of the Convention, with respect to all migrant workers, independent of their migrant status and type of residence and work permit, and include information on any relevant jurisprudence in this regard. Please also provide further information on the framework agreement extending access to subsidized health care to undocumented migrant workers.

Articles 2 to 4. Measures to prevent and address irregular migration. The Committee notes that certain industries, especially those where abuse of labour rules has proven to occur, are subject to more stringent control before the Swedish Migration Board can issue a work permit to nationals from countries outside the European Union (EU) (third-country nationals) and the European Economic Area (EEA). The Committee notes the special regulations applying to employers who wish to recruit berry pickers from countries outside the EU and for the cleaning, hotel and restaurants, construction, trade, agriculture and forestry, automobile repair, and services sectors. Companies must demonstrate that they can guarantee wages, have previously paid salaries and taken out insurance, and have given the trade union concerned the opportunity to express its opinion about the terms of employment. The Committee also notes the role given to trade unions in monitoring employment on sites covered by collective agreements; in workplaces not covered by collective agreements unions may require that employment contracts be signed. The Committee further notes the information regarding the role of the National Rapporteur on Trafficking in Human Beings. It also notes the annual report of the National Rapporteur on Trafficking in Human Beings for Sexual Exploitation and Other Purposes of 2011, which refers to particular situations of abuse, including trafficking, against berry pickers from Thailand and Bulgaria and the related prosecutions initiated and sanctions imposed. The Committee welcomes the measures taken to exchange information and to cooperate with other States regarding irregular migration, including trafficking in persons, such as the Baltic Sea Task Force on Organised Crime (BSTF), and the efforts by the Government to improve coordination of anti-trafficking efforts at the level of the EU. The Committee requests the Government to provide information on the impact of the abovementioned measures in reducing the employment of migrant workers in abusive conditions, including information on the number and nationality of workers employed in an irregular situation in the sectors concerned, and the nature of the infringements noted. Please include specific information on any abuses of labour rules detected by the competent authorities in companies not covered by collective agreements.

Articles 5 and 6. Penal, civil and administrative sanctions and prosecution of traffickers for labour purposes. The Committee notes with interest the amendments to the Chapter 4, section 1 of the Penal Code, which entered into force on 1 July 2010, to strengthen the protection in criminal law against trafficking, including the abolishment of the requirement of double criminality to enable Swedish courts to sentence those guilty of trafficking in persons committed abroad. The Committee further notes Chapter 20, sections 5a, 8, 9 and 12 of the Foreigners Act imposing sanctions, including fines and imprisonment of up to six years, on persons employing intentionally or through negligence a foreigner without a work permit or for migrant smuggling, and Chapter 4, section 1a of the Penal Code imposing sanctions, including imprisonment of up to ten years for trafficking in persons. The Government also indicates that new sanctions will be introduced through the implementation of the Directive 2009/52/EC of the European Parliament and the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (Sanctions Directive). The Committee requests the Government to provide information on the progress made in transposing the Sanctions Directive, and information on the number and nature of the infringements detected or reported, investigations conducted, persons prosecuted, and sanctions imposed.

Article 9(1). Equality of treatment with respect to rights arising out of past employment. The Committee notes the Government’s indication that one of the proposed amendments regarding the implementation of the Sanctions Directive would be that third-country nationals who have been working in Sweden without the required work permit would have a statutory right to outstanding remuneration from the employer for work already performed. The Committee asks the Government to provide information on the progress made regarding the adoption of any legislative amendments relating to equal treatment of migrant workers in an irregular situation in respect of outstanding remuneration and any other benefits. Please also provide information on any cases detected by the inspection authorities or claims brought by irregular migrant workers regarding non payment or underpayment of wages, and the outcome of these cases for the workers.

Article 9(3). Costs of expulsion. The Committee notes that pursuant to Chapter 19, section 1 of the Foreigners Act, a foreigner who is expelled is liable to pay the cost of his or her own journey to the place to which he or she is required to travel through the action of the authority. The Committee refers to paragraph 310 of the 1999 General Survey on migrant workers and requests the Government to clarify whether Chapter 19, section 1 of the Foreigners Act is meant to cover all migrant workers who are in an irregular situation, including those who are in an irregular situation for reasons that cannot be attributed to them.

Articles 10 and 12. National policy on equality of opportunity and treatment. The Committee notes with interest Chapter 6, section 5a of the Foreigners Act providing that asylum seekers who have been denied asylum, can be granted a work permit if he or she has found employment and has been working for at least six months. The Committee notes that the new Discrimination Act (2008:567) entered into force on 1 January 2009 superseding seven different Acts on discrimination. The Act aims to address direct and indirect discrimination and to promote equal rights and opportunities regardless of sex, transgender identity or expression, ethnicity, religion or other belief, disability, sexual orientation or age, but omitting the ground of “nationality or citizenship”. At the same time the Ombudsman for Discrimination was established to supervise the legislation. The Committee asks the Government to indicate whether consideration is being given to including nationality in the list of prohibited grounds of the Discrimination Act, and how inequalities in the labour market on the basis of nationality are being addressed in practice. In this regard, the Committee also asks the Government to provide information on the measures taken under the integration policy, and in particular any positive impact they may have had in achieving the objective of equality of opportunity and treatment between nationals and migrant workers lawfully in the country with respect to the matters set out in Articles 10 and 12 of the Convention. Please also provide information on any cases brought by migrant workers before the Ombudsman for Discrimination and the courts, and their outcome.

Article 14. Free choice of employment and restrictions. The Committee notes that pursuant to the Foreigner’s Act a work permit may be granted for the duration of the offered employment or a maximum of two years, and that for this period, the work permit shall be linked to a particular employer and refer to a particular kind of work (Chapter 6, sections 1 and 2); after the aggregated period of two years, the work permit shall only be linked to a particular occupation; however, the foreign worker who wishes to change occupations must reapply for a new permit (Chapter 6, sections 2 and 2a). The Committee further notes that a permanent residence permit may be granted to a foreigner who for the past five years has had a temporary residence permit for work for an aggregate period of four years (Chapter 5, section 5). Noting the Government’s indication that an employer who wishes to recruit a third-country national has to respect the community preference within the EU and the EEA, the Committee requests the Government to clarify whether this rule also applies in the case a third-country national who is already in Sweden and applying for a new work permit because he or she is changing occupations.

Parts III to V of the report form. Enforcement and practical application. The Committee notes the information provided by the Government regarding the responsibilities of the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Employment, the Swedish National Police, the Swedish Prosecution Authority and the Swedish National Council for Crime Prevention in enforcing the relevant legislation and giving effect to the provisions Convention. The Committee requests the Government to continue to provide information on the activities of the abovementioned bodies entrusted with the supervision of the application of the relevant legislation giving effect to the Convention, and their impact, as well as any other information, including studies and surveys, which may enable the Committee to gain a general appreciation of the application of the Convention over time. Please also provide copies, and if possible, a summary, of judicial or administrative decisions concerning the application of the Convention, including the migration courts and the Supreme Migration Court.