Greener pastures by hook or by crook

  • Looking at immigration/emigration laws amidst a surge of people trying to leave the country

By Sumudu Chamara

Videos of long queues in front of the Immigration and Emigration Department have been widely shared on social media platforms, and the most common opinion expressed by those who comment on such posts is that the people have become desperate to leave the country due to the exacerbating economic situation. However, in addition to the thousands of people trying to get visas or passports to leave the country the right way, there is a segment of our society that has prioritised leaving the country as early as possible, over leaving the country in a safer and legitimate manner.

Recently, the Police warned the public of agents who facilitate illegal migration in a context where Sri Lankans migrating to other countries through the sea route has become more frequent in the recent past.

Police Spokesman Senior Superintendent of Police (SSP) Nihal Thalduwa told The Morning on Wednesday (13) that these so-called agents charge massive amounts of money from those planning to leave the country illegally, and give hopes of better living conditions and a future in foreign countries. Explaining that in reality foreign countries do not offer opportunities promised by agents to illegal migrants, he further said that what happens instead is deportation and penalisation. 

The Police, according to SSP Thalduwa, are carrying out investigations to learn more about the reasons that lead people to migrate illegally. He added that this rise in illegal migration is being reported despite certain programmes having reduced the number of people trying to leave the country illegally.

This warning comes in a context where the Police arrested a group of 65 persons who were staying in a hotel in Trincomalee with the intention of leaving the country via the sea route. Among the arrestees were 63 men, one woman, and a four-year-old child.

The issue of people leaving the country by way of illegal methods is not a new trend, and in recent memory, a large number of such incidents have been reported from around the country. However, more often than not, the actions taken with regard to these undocumented migrants were limited to legal action, and no action has been taken to look into the socioeconomic issues that led to them leaving the country by taking a massive risk.

Laws, policies to deal with undocumented migrants

According to Attorney-at-Law Lakshan Dias, who is experienced in dealing with migration and immigration-related matters, the legal situation pertaining to dealing with undocumented migrants who return after being caught trying to leave the country is unclear, and the legal situation in this regard, in many countries, even those identified as developed countries, is the same.

He said that there are no adequate legal and policy provisions in that connection, and that most of the time, action with regard to such undocumented migrants is limited to legal action. He added that as far as he is aware, there are no legal provisions in Sri Lanka in that regard, and that the State does not have a direct legal responsibility to rehabilitate them or address their concerns.

When questioned about the management of undocumented migrants who return to Sri Lanka after being caught by the authorities, he explained: “Only one thing happens in Sri Lanka; that is, if a person is found to have attempted to leave the country in ways that violate the provisions of the Immigrants and Emigrants Act, a case is filed against them in a magistrate’s court. If a suspect of such a case is a mere passenger, usually the court fines and releases them on bail, but if that is an organiser of a racket that sends people abroad illegally, they usually have to wait for some time in the custody, and later, a high court would fine or sentence them.”

Speaking on how border protection policies in the world work, he added: “In a context where even countries like Australia have started returning undocumented migrants and do not fulfil their external obligations, what can we expect from a third world country like Sri Lanka? Even developed countries sometimes do not fulfil their obligations with regard to undocumented migrants. One of the best examples is the way the US dealt with Haitian migrants recently, which attracted widespread attention.” Recently, the US commenced the mass deportation of Haitian migrants who were staying under the Del Rio International Bridge in Texas near the US-Mexico border. While a large number of Haitian nationals have already been sent back to their home country and more flights for the same purpose are expected, the US authorities are trying to stop more migrants from entering the country.  

Adding that the matter of borders is a much broader issue which has a multitude of aspects, Dias said that no country is perfect with regard to handling border-related issues. “Regardless of how developed a country is, no country has proper legal provisions when it comes to dealing with people who get caught for trying to leave the country in illegal ways. Once they are released, nobody asks what happened to them and nobody looks after them. There is an unclear area in the law as far as the legal provisions to deal with those who have returned after getting caught for trying to leave the country illegally, are concerned. There is no scheme to deal with their issues or rehabilitate them, and I don’t think that countries like Sri Lanka have the monetary resources required to implement such programmes. Even in developed countries, what happens most of the time is fining such persons.”


Human trafficking and migrant workers 

However, trafficking is not limited to those trying to leave the country in illegal ways. According to migration experts, even those who go abroad in legitimate ways may face issues including being victims of human trafficking if they do so without finding an employment opportunity in a legally approved manner.

According to a report issued by the International Organisation for Migration (IMO) Sri Lanka, titled “Unscrupulous Recruitment Practices and its Impact on External and Internal Human Trafficking”, which analysed a number of complaints, reports, and communications from victims of human trafficking, as well as civil society organisations’ submissions and media reports on different types of exploitation faced by migrant workers, there are several key elements that provide an indication of the issues to be addressed in the short to medium term.

Among them are: poverty and economic hardship that creates an environment conducive to traffickers as prospective migrants are predisposed to accept offers at face value and may avoid carrying out common sense safety checks or the independent verification of information; migration through a Licensed Foreign Employment Agency (LFEA) and registration with the Sri Lanka Bureau of Foreign Employment (SLBFE) does not appear to guarantee or ensure freedom from exploitation or human trafficking, although this may reduce vulnerabilities of migrants to a certain extent; undocumented or unregistered migrant workers are far more vulnerable to exploitation of all kinds and the lack of awareness of the importance of registration is a key reason for avoiding registration; the inability to communicate with migrant workers is the single-most significant factor in enabling an abuser to continue abusive or exploitative practices – even a family member in employment in the same country cannot ensure access to the worker if the employer cum abuser is unwilling to provide access; and there is no responsibility on the LFEA in question for ensuring safe working conditions or the safe return of a migrant worker who has been recruited through that agency.

The report also said that case studies have indicated that once the migrant worker has returned, there is an unwillingness to pursue legal action against the abuser or the LFEA or sub-agent or local contact, and that there are a few instances of the trafficking of migrant workers into Sri Lanka, as it is also a receiving country now. “The number of migrant workers in the hospitality and construction sectors are increasing and better information being given to such workers at the port of entry, as well as online, may alert such workers to the dangers of being exploited in irregular migration such as on visit or tourist visa,” it added.

It further said that unscrupulous recruitment increases the likelihood of human trafficking, and that unethical and unscrupulous recruitment practices in the country of origin, as indicated by the case studies and complaints, include: the failure to provide correct information of employer details, the nature of the work, the working conditions, the number of persons in the household in which they are to be employed; false or incorrect documentation, with or often without, the knowledge of the migrant worker; the use of visit visas to facilitate migration, rather than the required work permits and entry visas and other requirements of the receiving country; sexual exploitation, including demands for sexual favours, in order to facilitate migration; the failure to ensure that the promised or contracted salary will be paid; and the failure to ensure that the migrant worker will be met on arrival or that travel to the place of employment is provided or facilitated.

The types of exploitation resulting from unscrupulous recruitment practices, according to IMO Sri Lanka, include: the failure to ensure that work in excess of the contracted hours or the type of work is additionally paid for (no overtime or extra pay for domestic workers); the transfer of employment or the change of the place of work without consent; the retaining of travel documents by the employer; the prevention of communication with outside entities including one’s family; the change of the type of work without consent (housework changed to babysitting or caregiving for patients); the lack of medical and health benefits and treatment; physical, mental, sexual abuse and injury; harassment, bullying, coercion, and mental trauma; the denial of meals, rest, privacy, and the freedom of movement; and the non-payment of wages.

As short-term measures, IMO Sri Lanka recommends several steps, including: urgently increasing community awareness of the unscrupulous recruitment methods adopted by traffickers and criminals; awareness building to include training programmes for key local government and grassroots-level leaders as well as civil society organisations, religious organisations, school principals and teachers, voluntary organisations, and public health officials; developing material to utilise social media effectively to create awareness amongst young people and youth organisations to identify and report unscrupulous recruitment and possible trafficking victims; the establishment of a public hotline to report human trafficking attempts or to assist victims of trafficking, in addition to the hotlines currently in existence; conducting training and awareness building for border officials and consular officers in overseas diplomatic missions to recognise and detect trafficking victims and the existence of human trafficking indicators, especially due to the possibility that economic need will compel migrant workers to accept unsafe and dangerous migration opportunities; strengthening communities to develop strategies to provide livelihood options and income support for those who have suffered the loss of employment and incomes, including repatriated migrant workers, in order to reduce vulnerabilities and exposure to the risks of human trafficking and re-victimisation; and establishing a mechanism to contact and communicate with former employers who have treated migrant workers fairly, and for migrant workers who have left voluntarily due to the Covid-19 pandemic, to explore the possibilities of re-migration.

As medium-term measures, IMO Sri Lanka recommended: ensuring that vulnerable groups such as low-skilled, domestic, and sex workers, refugee and migrant populations, and children in low-income communities, are included in economic recovery programmes, as they are now particularly marginalised by the pandemic and in many cases are unable to access health services and income replacement programmes; extending all protection and assistance programmes in receiving countries to trafficking survivors, irregular migrants, and migrant workers whose registration with the SLBFE has expired due to being stranded in pandemic conditions; recognising the right of all migrant workers to the assistance of the State, irrespective of their migrant status, and ensuring the right to consular assistance; providing adequate return and reintegration services and immediate protection support for victims identified abroad; granting all migrant workers in Sri Lanka, regardless of their legal status, access to national healthcare and other services as an effective containment response to the Covid-19 situation; not reporting to the law enforcement or immigration authorities, undocumented or irregular workers that seek healthcare services, as the fear of deportation may prevent them from seeking healthcare or social services assistance during the pandemic; and encouraging informal enterprises to formalise, thus providing better protection to informal sector workers, so that the possibility of employing irregular migrants in the private sector is progressively reduced.

Although The Morning attempted to contact SSP Thalduwa, the Immigration and Emigration Department, and the SLBFE to find out more about the matter, they were not reachable for comment.

There is no debate about the manner that the prevailing economic situation has affected people’s lives, and it is quite normal for the people to seek greener pastures in other countries as soon as possible. However, while respecting a person’s right to have a better life, if the method they choose to attain it is not legitimate, the results of their actions will be counterproductive.

To address this situation, policy-level decisions as well as awareness-raising mechanisms are of great importance, and simultaneously, the reasons why people resort to illegal migrating methods should also be addressed without depending solely on legal action.