Because Justice for One in Five is Hardly Justice at All

September 19, 2014
Category: Our work

Because Justice for One in Five is Hardly Justice at All

 

On a recent trip to Japan, I asked the head of the country’s largest migrant advocacy network how many foreign workers with claims against their employers actually seek compensation. Despite widespread reports of rampant exploitation of low-skilled migrant workers, his answer was bleak: just one in five. I have since asked the same question to advocates in Singapore and Hong Kong, and the numbers there were not much better.

Like their counterparts in the native population, migrant workers bring relatively few claims against abusive or exploitive employers, simply because speaking up can get them fired. However for foreign workers, the stakes are even higher. Losing a job often means losing legal residency, which ensures a forced return home. The reason: in most Asian countries, as well as in many other parts of the world, a worker’s visa is tied to his or her employer. Even if one has the skills, experience and/or network to find another job immediately, most jurisdictions make it very difficult to change jobs without first going home to apply for a new visa.  While more highly paid workers can absorb this cost, the low-skilled workers who make up the vast majority of migrant labor can rarely afford the added expense, and would simply fall even deeper into debt. Keeping a job then becomes their highest priority, and many remain silent, even in the face of incredibly harsh treatment.

The minority who eventually do come forward and seek legal aid are often either already near the end of their work visa, or else their experiences were so horrific that potential deportation seems better than staying in place. Sadly, even when they have a solid case against an employer, victims face another stark choice: either obtain a visa allowing them to stay and seek justice, but without the authorization to work, or return home and almost certainly give up their claim. With cases running up to two years or more, there is no real choice. Most simply give up, go home, and lose out on tens of thousands of dollars in lost wages and/or compensation for abuse.

Given all of these barriers to aid, it is no wonder that just one in five workers with legal claims attempt to pursue them. While structural legal issues such as visa restrictions must be addressed in the long term, increasing access to justice for those who have been exploited can begin by enabling clients to continue their case after going home. Although there is nothing stopping a client from simply maintaining phone and e-mail contact with a foreign lawyer abroad, language and cultural barriers, along with job hunting at home, all inevitably work against maintaining contact necessary for the lawyer to continue the case in the client’s absence.

These lawyers can address this problem by finding one or more partners in the client’s home jurisdiction to act as a go-between. This frees the client of the need to directly keep contact with their lawyer in the host country, enabling the client to go about his or her business without interruption or the need to travel. Meanwhile, the local partner is either personally accessible to the client or is just a phone call away, and can keep them apprised of the lawsuit, while collecting testimony and/or evidence as needed.

Finding appropriate partners abroad of course is the major challenge. Depending on the client’s profile, international networks of pro bono or public interest lawyers do exist. For example, refugee lawyers generally have access to global advocacy networks that deliver legal aid to many countries. Although the sheer number of refugees worldwide far outstrips the capacity of such networks, an international legal infrastructure is at least in place. The same is true for those lucky enough to be a part of a labor union; certain global maritime unions have lawyers in many countries who are available to take action at a moment’s notice.

Sadly, most victims of exploitation and human trafficking will not fit within the profiles described above. In fact, no such network exists for migrant workers as a group, and the results are obvious. Going home may mean going without, as victims either fail to bring a claim, or else lose whatever aid they do have once they leave the jurisdiction.

Justice Without Borders is working to change this situation. The strategy of network building and logistical support for our partners that we pursue is something that international law firms and large corporations have long since implemented. Our challenge is to build international networks of pro bono aid so that transnational litigation can take place at low cost and with minimal disruption the client’s life. As we identify viable legal claims available to returnees, and as we connect them to aid providers in host and home countries who will pursue such claims, we intend to increase the number of people who can successfully access the legal remedies they are due. While long-term immigration reform is needed to cut the strings that tie employees’ legal residency to a single employer, we can take immediate action to ensure that those who decide to come forward can have their day in court, even if that court is thousands of miles away. The alternative is the status quo, and frankly one in five is hardly justice at all.