Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

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

Article 1 of the Convention. Basic human rights. The Committee previously noted that a framework agreement was reached, in June 2012, extending state subsidized health care to undocumented immigrants. It requested the Government to provide further information on its implementation. While regretting the lack of information provided by the Government, in its report, the Committee welcomes the adoption, in 2013, of Act (2013:407) on healthcare for certain foreigners residing in Sweden without proper documentation, which gives undocumented migrants the right to subsidized health care for “care that cannot be deferred”. Referring to its previous comments on posted workers, the Committee notes with interest the amendments introduced, in 2017, in the Foreign Posting of Employees Act (1999:678) by Ordinance (2017:319) regarding the protection of the rights of posted workers. It notes, more particularly, that sections 10 and 11 of the Act now require foreign employers to (1) report to the Swedish Work Environment Authority (SWEA) when they post workers to Sweden and (2) appoint a contact person in Sweden, who shall be able to provide documents to agencies and employees’ organizations that show that the requirements of the Act have been fulfilled. In addition, sections 14 and 24 provide for financial penalties as well as compensations in the event of non-compliance. Referring to its 2020 direct request on the application of the Labour Inspection Convention, 1947 (No. 81) by Sweden, the Committee further notes that a Department for Joint Authority Control has been established within the SWEA to control the registry of posting of foreign workers. The Committee requests the Government to continue to provide information on the measures adopted in order to ensure full respect for the basic human rights of all migrant workers, irrespective of their legal status. It requests the Government to provide information on the activities of the Swedish Work Environment Authority to enforce the rights of foreign workers in an irregular situation, including on any assessment of their access to subsidized health care, as well as of the Department for Joint Authority Control, regarding registry and protection of posted workers. The Committee further requests the Government to provide statistical information, disaggregated by sex, nationality and sector of activity, on the number of migrant and posted workers, whether in a regular or irregular situation.

Articles 2–4. Measures to prevent and address irregular migration. The Committee previously noted that special regulations and more stringent control apply to certain industries where abuse of labour rules has proven to occur (i.e. berry picking, cleaning, hotel and restaurants, construction, trade, agriculture and forestry, automobile repair, and services sectors), before the Swedish Migration Board can issue a work permit to third-country nationals, that is, from countries outside the European Union (EU) and the European Economic Area (EEA). It requested the Government to provide information on the impact of these measures in reducing the employment of migrant workers in abusive conditions. The Committee notes the Government’s indication that, in 2018, the Police Authority has been granted increased powers to carry out workplace inspections to ensure that employers do not rely on employees who do not have the right to stay or work in Sweden, in industries where it has been assessed that there is a particular risk for such employment. It further notes that the Foreigners Act was amended in July 2021 (Prop. 2020/21:191) so that residence permits granted to, amongst others, persons in need of protection and other migrant workers, as a general rule will now be temporary. A permanent residence permit can be granted at the earliest after the foreigner has had a temporary residence permit for at least three years and only if the applicant is able to prove his or her financial independence and that there is no doubt that a permanent residence permit should be granted taking into consideration his or her «expected way of life». The Government adds that the possibility of being granted a permanent residence permit at the first decision has probably been a factor that has contributed to Sweden being considered a country that is more attractive for asylum seekers compared with other countries in the European Union. The Committee takes note of this information. It regrets the repeated lack of information provided by the Government on the potential impact that the measures already implemented may have had in reducing the employment of migrant workers in abusive conditions. The Committee notes that, in its 2018 report, the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) highlighted that it is not uncommon for third-country nationals to be asked to pay fees to agencies which provide them with temporary work and residence permits in Sweden as such agencies, while being regulated by the Private Placement Act (1993:440), do not require a licence to operate and there is no public sector supervision of their work. Furthermore, the GRETA expressed concern about (1) the implications of the decision to transfer the mandate for anti-trafficking actions to the Gender Equality Agency, in 2018, since the primacy focus of the agency would be trafficking for the purpose of sexual exploitation; as well as (2) the fact that the actions plan against trafficking adopted in 2016 focused on sexual exploitation. In that regard, the Committee notes that the GRETA specifically recommended that the Government should ensure that action against trafficking in persons is comprehensive and addresses all victims of trafficking for all forms of exploitation, taking into account the particular vulnerability of irregular migrants and asylum seekers (GRETA 2018(8), 8 June 2018, para. 32, 37, 74). The Committee therefore requests the Government to provide information on: (i) the measures taken to detect, prevent and address trafficking in persons for forced labour purposes, in particular of migrants in an irregular situation and asylum seekers; and (ii) any evaluation undertaken regarding the impact of the measures implemented so far in reducing the employment of migrant workers in abusive conditions. It also asks the Government to provide statistical information on the number of workplaces inspections carried out and of migrant workers in an irregular situation or illegally employed identified, as well as on the nature of the infringements detected.

Articles 5 and 6. Penal, civil and administrative sanctions and prosecution of traffickers for labour purposes. The Committee previously noted that both the Foreigners Act (Chapter 20, sections 5a, 8, 9 and 12) and the Penal Code (Chapter 4, section 1(a)) criminalize trafficking in persons or employing intentionally or through negligence a foreigner without a work permit, and provide for sanctions of imprisonment and a fine. It requested the Government to provide information regarding the new sanctions that would be introduced through the implementation of Directive 2009/52/EC of the European Parliament and the Council of the EU of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals (Sanctions Directive). The Committee notes that, in 2018, the Penal Code was amended (Prop. 2017/18:123) to introduce a new criminal provision on human exploitation (Chapter 4, section 1(b)) in order to strengthen protection against exploitation of persons for work or begging, in cases not covered by the definition of trafficking. Under aggravated circumstances, the person found guilty is sentenced by imprisonment from two to twenty years. In this regard, the Committee asks the Government to refer to its 2021 comments made under the Convention on Forced Labour, 1930 (No.29) and the Protocol of 2014 to the Forced Labour Convention, 1930. The Committee welcomes this information. It however notes with regret the lack of information provided by the Government on the application of the provisions of the Foreigners Act and the Penal Code in practice and the number of prosecutions carried out and sanctions imposed. In that regard, it notes that, in its 2018 report, the GRETA was concerned that the number of prosecutions for trafficking remained low and the number of convictions is even lower. Moreover, the GRETA highlighted that most of the investigated cases have concerned trafficking for the purpose of sexual exploitation, as it is more difficult to start legal proceedings in cases of trafficking for forced labour purposes (GRETA 2018(8), 8 June 2018, para. 193). The Committee requests once again the Government to provide information on the application of sections 1(a) and 1(b) of Chapter 4 of the Penal Code and sections 5a, 8, 9 and 12 of the Foreigners Act, criminalizing trafficking in persons and human exploitation for forced labour purposes, including on the number of infringements detected or reported, investigations conducted, persons prosecuted, and of administrative, civil and penal sanctions imposed. It also asks the Government to provide information on any measures taken or envisaged to strengthen the capacity of prosecution and law enforcement authorities, in particular regarding trafficking in persons and human exploitation for forced labour purposes. The Committee asks the Government to provide information on any evaluation made regarding the transposition and implementation of the Sanctions Directive in the country

Article 9(1). Equality of treatment of migrant workers in an irregular situation with respect to rights arising out of past employment. The Committee previously noted 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. In the absence of information provided, the Committee once again 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 arising out of past employment. It further asks the Government to provide information on any cases detected by the Swedish Work Environment Authority or claims brought by migrant workers in an irregular situation regarding non-payment or underpayment of wages, and their outcomes.

Article 9(3). Costs of expulsion. The Committee previously noted 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 wishes to underline that, according to Article 9(3) of the Convention, in case of expulsion of the worker or his or her family, “the cost shall not be borne by them”. The Committee draws the Government’s attention to paragraph 310 of the 1999 General Survey according to which a “clear distinction should be made between: (1) the case where the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her (such as, redundancy before the expected end of contract), in which case the cost of his or her return as well as the return of family members, including transport costs, should not fall upon the migrant; and (2) the case where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, in which case, only the costs of expulsion may not fall upon the migrant”. In the absence of information from the Government in this regard, the Committee again asks the Government to clarify whether Chapter 19, section 1 of the Foreigners Act covers 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 previously noted that the Discrimination Act (2008:567) prohibits direct and indirect discrimination at work and promotes equal rights and opportunities regardless of a number of grounds, including ethnicity. Pursuant to the Act, ethnicity means national or ethnic origin, skin colour or other similar circumstances (Chapter 1, section 5). The Committee observes that no information was provided by the Government regarding the nature and impact of the measures taken to achieve the objective of equality of opportunity and treatment between nationals and migrant workers lawfully in the country. The Committee once again asks the Government to provide information on the measures taken to achieve 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, as well as on their impact. It further asks the Government to provide information on the number, nature and outcome of any cases of discrimination against migrant workers dealt with by the labour inspectorate, the Equality Ombudsman, the courts as well as any other competent authorities, in particular in the framework of the Discrimination Act.

Article 14. Free choice of employment and restrictions. The Committee previously noted that an employer who wishes to recruit a third-country national has to respect the community preference within the EU and the EEA and requested clarifications regarding the implementation of this rule. Since no information was provided in this regard, the Committee once again asks the Government to clarify whether this rule of preference 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.

Enforcement and practical application. The Committee previously noted 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 giving effect to the provisions Convention. In light of the absence of information in this regard, the Committee again asks the Government to provide information on: (i) the activities of the above-mentioned bodies entrusted with the supervision of the application of the relevant legislation giving effect to the Convention, and their impact; and (ii) any other information, including studies and surveys, which may enable the Committee to gain a general appreciation of the application of the Convention. It also asks the Government to provide information on any judicial or administrative decisions handed down concerning the application of the Convention, including by the migration courts and the Supreme Migration Court.