Trafficking for the purpose of labour exploitation is another example in which the differentiation between the two crimes is not always straightforward, as the case in Box 7 demonstrates.
Labour exploitation during the smuggling process
Numerous studies describe situations where migrants are forced to work in transit countries in order to pay for continuation of their smuggling journeys. The Guardian reports a case where two teenage boys were forced to work for two months on a farm in Libya in order to pay smugglers. A 2017 report by Save the Children Italy describes the plight of a migrant girl, who had to work for five months in a brothel in Tripoli in order to pay for her smuggling trip to Italy. The girl's aunt, who arranged the trip, asked the smuggler to involve her in prostition to fund the journey.
These types of cases involve the smuggling of migrants as well as circumstances of exploitation. In such situations, persons may fall into categories of "smuggled migrant" and "victim of trafficking" concurrently, or may transition from being "smuggled" to being "trafficked" in the transit country, before being "smuggled" again upon leaving that place of transit and exploitation. The indeterminacy between whether a person is a smuggled migrant or a victim of trafficking, and the implications of these labels, are further explained by McAdam (2015).
Victims of trafficking for labour exploitation may be found in, inter alia, casinos, restaurants and farms, construction sites and factories, begging and selling wares on the streets, or domestic servitude in private residences. When children are used in the forced labour context, they may have been instructed to impersonate someone else, use fraudulent documents and be brought to another country to provide cheap labour. They are often subject to abuse, starvation and inhumane conditions. Conversely, in the context of smuggling, migrants may have consented to pay the smugglers an agreed fee upon arrival in the destination country. In order to pay back the debt to the smuggler, the migrant might have consented to work for a pre-arranged period of time in a pre-determined place. The key question in such situations is whether the arrangement turns into "debt bondage" or "forced labour". If the migrant works reasonable hours, in line with the standards of the labour market, for a fair price, paying reasonable amounts towards the smuggling fee, the arrangement is likely to be a voluntary contract. However, if the smuggler charges a very high rate of interest or continues to impose fines or increase the amount owed through other exploitative means, then the situation is likely one of trafficking. This conclusion will be supported if, for instance, migrants are not allowed to leave after the agreed fee has been paid or if their freedom is restricted (such as through obligatory curfews or the withholding of travel or identification documents).
Construction industry - Belgium
Between 2008 and 2010, in Charleroi (Belgium) an important case was investigated. It concerned the smuggling and trafficking of Chinese nationals brought to renovate Chinese restaurants and adjacent properties. The main Chinese defendant and his daughter were sentenced for SOM and TIP.
Many inspections were carried out in close succession by the police and the inspection services, spread over different regions including Ostend, Ghent and Tournai. During one of these inspections in Ostend, the police noted that one of the interested parties had already appeared during a negative inspection in Charleroi. They got in touch with the federal police in Charleroi and learnt that a judicial investigation against this person was in progress. The labor prosecutor in Charleroi asked for the Ostend file to be transferred and to centralize all the relevant files concerning the interested party in Charleroi. He then asked the police and inspection services to carry out extra multidisciplinary inspections on other building sites of the companies of the interested party, who was to become the main defendant in this case.
During checks made by the police and inspection services, 15 Chinese victims were intercepted, the majority of whom were there illegally. It emerged from the Social Inspectorate's reports that the main defendant had a man of straw at the head of his construction company. Together they had set up a construction firm. This man of straw of Belgian nationality also had the necessary papers to have access to the contracting profession. The main defendant recruited clients in Chinese circles through advertisements published in a well-known Chinese newspaper. Afterwards, his clients expressed their extreme discontent concerning the services provided. The main defendant used poor quality Chinese materials which he imported and which didn't meet EU standards. Some subcontractors even refused to use them during the works. According to the evidence collected during the financial investigation, it also emerged that the main defendant was cheating by establishing false invoices and investing his criminal proceeds in real estate in Italy. Some of the victims put a great deal of trust in the main defendant. They came from the same region in China and spoke the same dialect. The main defendant took advantage of this and managed to manipulate them and keep a grip on them. All the victims' wages were undeclared and paid in cash. Their living and work conditions were inhuman. They lived on the building site in precarious conditions. There wasn't a bathroom or heating, even in winter. The building site didn't meet any of the compulsory safety standards. They weren't provided with any basic safety equipment, such safety shoes or protective clothing.
Several of the victims had to work to reimburse their debts. At the end of their journey, a person who was accompanying them dropped them off at the building site, where they received orders to perform all the tasks they were given. One of the victims stated that they had to pay EUR 18,000 for their journey. This amount was borrowed in full beforehand from moneylenders at a 10 % interest rate. They sent the money they earned to their family in China to reimburse the moneylenders. They had flown from China to France and had had their passport confiscated when they arrived. They were then transported from France to Belgium and ended up at a building site. They were offered board and lodging and started to work two days later. They had no idea for whom they were working. They did their work and were paid accordingly. Over a period of six months, they worked on three different building sites. They weren't able to give a name or say where they worked. They had been working on the last building site for a month for EUR 2 an hour. They worked twelve hours a day, seven days a week. They felt they had been completely hoodwinked because in China, they were told it was possible to earn EUR 10 an hour in Europe. They weren't interested in the status of victim of human trafficking, even after having received the brochure for victims and explanations translated by a Chinese interpreter. The victim received an order to leave the territory and was taken to the station.
The majority of victims made relevant statements, but some of them refused to accept the status of victim of human trafficking because they still had blind faith in the Chinese main defendant. As for the victims who expressed an interest, they were taken care of and given the status of victim of human trafficking.
MYRIA, Trafficking and Smuggling of Human Beings - Tightening the Links, 2015 Annual Report.