Keywords

Introduction

In February 2019 one of Sweden’s leading investigative television programmes, Uppdrag granskning, presented revelations about employees at one of Sweden’s largest nail salon chains, who testified to slave-like working conditions involving long working days, six days a week, with no overtime pay or vacation. The company had a collective agreement with the union and paid salaries accordingly, but the employees were forced to pay back large parts of their salary every month. When the programme aired, two of the employees had already contacted Handels—the Commercial Employees’ Union. After contacting the union, the employees were informed by their employer that they had been suspended from work, and they experienced pressure and threats from the employer. The union entered into negotiations with the company but since no settlement was reached, the union sued the company in the Labour Court for almost SEK 4 million. Following court-led negotiations, the parties arrived at a settlement by the end of 2019, which was affirmed by the court, whereby the company agreed to pay SEK 185,000 and 135,000, respectively to the two workers in salary, holiday pay and financial damages (AD 54/19).

Simultaneously, the Swedish Migration Agency reported the case to the Police as human trafficking, after having received an email from one of the employees who expressed fears about losing her work permit after being suspended from work as a result of the negotiations with the union. Remarkably, the case went all the way from a police report to a criminal investigation and then a criminal court hearing. This is unusual because most Swedish police investigations focused on human trafficking for forced labour do not result in prosecution (Schoultz and Muhire, 2023).

In May 2022, the court acquitted the nail salon owner of human trafficking and human exploitation,Footnote 1 but he was convicted of fraud for tricking the two workers into paying USD 25,000 to get a job in Sweden. Part of the sum was stated to be the debt that the two employees were forced to pay back from their salary. The employer was sentenced to a conditional sentence combined with a day fine (80 days at 260 SEK per day) and was forced to pay damages of SEK 120,000 to one victim and USD 5,000 to the other, plus interest (Case nr: B 6903-18). The case of the nail salon raises the question of access to both justice and social rights. The union and the Migration Agency transformed the employees’ experienced injury to legal cases, both civil and criminal. In line with Cappelletti and Garth’s (1978) description of ‘barriers to accessing justice’ (costs of litigation, time and party capability), two factors are most likely to have been of decisive importance in this case. First, by receiving support from the union, the employees did not risk having to pay the costs of litigation. Second, but no less important, was the union’s competence in recognising and pursuing the claim and their experience of the judicial system. In the end, two of the employees at this company, who were possibly not alone in working under these conditions, received financial compensation: in the civil case for lost salary, and in the criminal case for the injury they had suffered. While in many ways the victims received justice, their human trafficking case was dismissed, and by extension their claims as trafficking victims. In practice, the temporary right to remain in Sweden (which is linked to the criminal investigation and the court hearing) ends after the trial, regardless of the outcome.Footnote 2 In other words, the victim’s access to social rights in these cases is first and foremost conditioned by the right to stay in Sweden.

Victims of trafficking and labour exploitation (especially non-citizens) are particularly vulnerable as a result of their marginalised position: related to the language barrier, limited awareness of rights, where to seek help, potential dependency and/or indebtedness to the employer, and lack of viable alternatives (Ollus, 2016). The fact that undocumented migrants are ‘deportable’ creates an exceedingly precarious situation (De Genova, 2004; Sager and Öberg, 2017; Selberg, 2016). People’s capacity to seek assistance and justice are linked to the realisation of social rights, including health, housing and employment opportunities (Curran and Noone, 2008).

Engaging with the notion of victimisation as an interactional process, this chapter examines how victims of human trafficking and other forms of labour exploitation can seek help and gain access to social rights and justice, taking its point of departure in the role of professionals (government agents, social services, unions and NGOs) as facilitators. When referring to victims, we include victims of all forms of human trafficking and other forms of labour exploitation, regardless of whether they are formally identified as victims. Labour exploitation can be conceptualised as existing along a continuum, ranging from trafficking for forced labour to less severe forms of exploitation and violations of labour law (Andrees, 2008; Ollus, 2016; Skrivankova, 2010). This chapter will examine how access to justice and to social rights for victims of human trafficking and other forms of labour exploitation is closely linked to the victim identification process, the gendered nature of assistance provided by state agencies and NGOs and the overall migration regime.

International and National Legal Frameworks and Policies

The EU has established a minimum standard regarding the rights, support and protection of crime victims (Directive 2012/29/EU: 2), highlighting the importance of ‘appropriate support to facilitate […] recovery’ and provide victims ‘with sufficient access to justice’. The directive emphasises that particularly vulnerable populations, such as victims of human trafficking and individuals who were victimised outside their home country, should be offered specialist support and legal protection.

Sweden introduced its anti-trafficking legislation in 2002, shortly after signing the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000) (hereafter referred to as the Palermo Protocol). While the Palermo Protocol provides the definition of a crime that includes a broad spectrum of different forms of exploitation, the initial focus of the Swedish anti-trafficking law focused exclusively on the prohibition of sexual forms of trafficking. Amendments to include trafficking for other purposes (including, but not limited to, forms of labour exploitation) were introduced in 2004 (CC 4:1a). This brought the Swedish anti-trafficking commitments into line with the country’s international obligations. The other two specialist treaties that bind Sweden to prohibit all forms of trafficking and protect victims are the Council of Europe Convention on Action against Trafficking in Persons (2005) and EU Directive 2011/36/EU.

Human trafficking is a human-induced crime of intentional nature (Janoff-Bulman, 1985), which involves the perpetrator(s) using a variety of means to profit from exploiting the labour or services of vulnerable individuals.Footnote 3 The forms of labour and services covered by the Swedish Criminal Code (CC) include exploitation for ‘sexual purposes, the removal of organs, military service, forced labour or other activities in a situation that places that person in distress’ (CC 4:1a). The threshold for what constitutes human trafficking is high, limiting the application of victim status to groups who have suffered a major degree of harm (including violence and deprivation of freedom) (see for example Åström, 2014).

Sweden has received continuous criticism from the Council of Europe’s Group of Experts on Action against Trafficking in Human Beings (GRETA) for its limited efforts to address human trafficking for the purpose of labour exploitation and trafficking for forced begging and forced criminality (GRETA, 2014, 2018). In 2018, Sweden introduced the human exploitation provision (CC 4:1b) as a subsidiary to the human trafficking legislation. This provision covers forced labour and begging, and also labour under manifestly unreasonable conditionsFootnote 4 (CC 4:1b).

Being identified as a victim of human trafficking or human exploitation should entitle individuals to immediate protection and assistance by social services, as well as grant access to healthcare and assistance by specialised municipal and regional coordinators.Footnote 5 For short-term assistance, victims who lack a residence and work permit in Sweden should be granted a 30-day reflection period in accordance with the Aliens Act (5:15), which allows victims to temporarily remain in Sweden. During this period, they are entitled to different victim assistance rights such as healthcare, social services and injured party counsel (Social Services Act, 2001:453). The permit to stay may be prolonged for a 6-month period or longer if it is necessary for a criminal investigation or main hearing to be carried out and if the victim is willing to cooperate with the authorities and has broken all ties with the persons who are suspected of the offences at issue (Aliens Act, 5:15).

The Swedish National Referral Mechanism divides the support and protection into 6 steps: identification, emergency protection (e.g. the 30-day reflection period, secure accommodation, emergency healthcare), initial support (e.g. injured party counsel if a police report has been filed), long-term support (which involves the temporary residence permit of at least 6 months during the criminal investigation and trial, and support offered by the social services), legal proceedings (before and during trial) and safe return (Gender Equality Agency, 2019). When it comes to social rights, there is a big difference between labour migrants from within and outside of the EU. While all victims of human trafficking in Sweden legally have the same right to receive assistance irrespective of their immigration status (CoE Convention), in practice some victim groups are at a disadvantage, particularly those among asylum seekers and persons in detention centres (GRETA, 2018). Moreover, while the unconditional free movement of EU citizens within EU states is limited to three months, EU workers or self-employed EU citizens have the right to reside longer and have access to social rights (Directive 2004/38/EC). In practice, however, EU citizens may not be granted these rights if they are precariously employed (Schweyher, 2021).

State of the Art: Victim Identification and Access to Rights

Previous research illuminates various reasons for the failure to identify and provide access to rights for victims of human trafficking and labour exploitation. Farrell et al. (2014) identify three major barriers to the identification and investigation of human trafficking: an uncertain legal environment, institutional and attitudinal barriers. These barriers have also been mirrored in other studies focused on the identification (Smiragina-Ingelström, 2020). Åström (2014) has noted that the Swedish legislation is based on international instruments whose primary purpose is to protect national security (i.e. the Palermo Protocol), which thus deprioritises the needs and interests of the victims (see also Gallagher, 2010, 2015; Gallagher and Skrivankova, 2016). Åström concluded that few victims of human trafficking in Sweden are formally identified, and that those who are identified mainly fall within the sex trafficking category. Consequently, exploited migrant men are typically seen as illegal migrants rather than victims (Åström, 2014). A similar pattern has also been observed outside Scandinavia (Smiragina-Ingelström, 2020).

Moreover, international scholarship has drawn attention to the low number of prosecutions for human trafficking on a global scale, despite the availability of resources and the attention focused on the multifaceted nature and complexities of this crime (Doyle et al., 2019; Doyle et al., 2019; Gallagher, 2010, 2015; Gallagher and Skrivankova, 2016; Farrell et al., 2014; Matos et al. 2019; Matte Guilmain and Hanley 2021; McDonald, 2014). Previous research has noted challenges associated with the identification, investigation and prosecution of human trafficking. For example, a failure on the part of the police to identify victims (Farrell et al., 2019, 2014; Farrell et al., 2010).

Moreover, the priorities of state actors and NGOs are different; while the approach of the former is to prosecute, the latter focus on victims’ human rights (Skilbrei, 2012). From the perspective of international law, these two lines of action should be compatible in the effort to combat human trafficking, but they may be in conflict (Skilbrei, 2012). On the other hand, NGOs that assist victims of labour exploitation ‘tend to have a lower threshold for defining trafficking than do the police and courts’ (Skilbrei, 2012, p. 216), which may manifest itself in cases reported to the police by civil society actors leading to no charges being brought (see Bjelland, 2016). Spanger and Hvalkof (2020) have argued that the primacy of migration law and criminal law discourses lead authorities to prioritise the question of the workers’ migrant status over the issue of their potential exploitation.

Conceptual Framework: Victimisation as Interactional Process and Access to Justice

This chapter follows a constructivist stance (Strobl, 2004), whereby victimisation is understood as an interactional process (Holstein and Miller, 1990) via which victim status is obtained. Victim status is assigned collectively (by the victim, the victimiser and society as a whole) by means of social interaction and interpretations of victimhood (ibid.). This impacts how and who receives a legitimate victim status (and who does not), while also impacting the availability of social and legal redress, which is based on how harmful the victimisation is perceived to be. Seeking and gaining access to assistance and justice relies on this interactional process and is dependent on victim identification. While the assignment of victim status may be rejected by others when the victim’s personal characteristics do not align with the social construction of victimhood (Strobl, 2010, p. 6), victims may also themselves reject the status of a victim (Van Dijk 2009; Fohring 2018) and by extension decline post-trafficking assistance (Brunovskis and Surtees, 2008).

The most marginalised victims tend to have the least power and knowledge to deal with the aftermath of victimisation which is central to the issue of accountability for victims of crime (Goodey, 2008). Thus, the interactional process of victimisation is also linked to the individual’s access to justice, which is understood here as the presence of equal opportunities for all to demand their rights (Cappelletti and Garth, 1978). Rights are temporal and fluid, however (see Galanter, 2010, p. 124), and access to justice is highly dependent on the identification and recognition of victim status as well as on having permission to stay in the country.

Since there is no established system for assigning a person the status of a victim of trafficking and human exploitation in Sweden until a criminal investigation has been initiated, actors such as the police, immigration officers, labour inspectors and trade union representatives all participate in a process of legal categorisation that differentiates between ‘trafficking victims’, ‘exploited workers’ and ‘illegal migrants’ (see Strauss, 2016, p. 152). Depending on the categorisation, the individual will be recognised either as a victim with certain legal protections and social rights or as a deportable migrant (Plambech, 2014).

Methods

The data employed in this chapter have been drawn from two different research projects and are based on a combination of different sources: participant observations, semi-structured interviews and a documentary analysis of international and national legal and policy frameworks and court judgements and settlements.

The first project investigated the post-trafficking needs and help-seeking behaviour of trafficked victims.Footnote 6 The data were collected between October 2021 and April 2022. The provision of services was observed across two sites, specifically at one shelter and one police station. This was complemented with observations of the locations in Sweden in which victims were detected by the police (specifically areas where victims were exploited for the purpose of begging). A total of fourteen interviews were conducted in Sweden: with one female victim of human trafficking, nine representatives of governmental bodies (four police officers, one prosecutor, two representatives from the National Coordination Office Against Prostitution and Trafficking in Human Beings at the Gender Equality Agency and two regional coordinators), as well as four representatives of NGOs involved in direct service provision to victims of human trafficking.

The second project used semi-structured interviews with practitioners from government agencies, trade unions and non-governmental agencies to investigate access to justice among victims of labour exploitation.Footnote 7 The interviews, 27 in total, were conducted between May 2021 and June 2022, some in person but the majority via video calls. During this period, weFootnote 8 also visited three unions/semi-union organisationsFootnote 9 (SAC—the Central Organisation of the Workers of Sweden, the Trade Union Centre for Undocumented Migrant Workers and Husby Arbetarcentrum), which resulted in several informal conversations with representatives and observations made during meetings with migrant workers. In addition, for the purpose of this chapter we also present several illustrative examples from legal cases and settlements that were mentioned in the interviews.

A limitation of these data sets is the absence of the perspective of the victims themselves. While the first data set includes one interview with a female victim of human trafficking, self-descriptions of the experiences of those who have been victimised are lacking. This chapter instead takes its point of departure in victimisation as an interactional process and examines how victims of human trafficking and other forms of labour exploitation can seek help and gain access to social rights and justice focusing on the role of professionals (social services, unions and NGOs) as facilitators.

Victim Identification by State Institutions

Being identified as a victim, and thus accessing certain state-guaranteed rights, not only requires active self-advocacy by the victim but also active victim identification by state institutions (Strobl, 2004). Nordic scholars have demonstrated that most anti-trafficking efforts have been focused on women who are trafficked into prostitution (Heber, 2018; Skilbrei, 2012; Åström, 2014), and recent statistics from the Gender Equality Agency (2022) show that most of the victims of human trafficking identified by state institutions are women who have been exploited for sexual purposes. Reasons for this focus are related to the political and social context within which human trafficking is being problematised as a social issue in Sweden. Prostitution and trafficking in human beings ‘receive particular attention in the Swedish strategy for the elimination of men’s violence against women’,Footnote 10 thus establishing the female victim as the primary concern and equating the practice of prostitution with human trafficking (see, for example, Heber, 2018).

GRETA’s (2014, 2018) criticism of Sweden’s passive role in looking for victims of non-sexual forms of trafficking was confirmed in our interviews with state institutions. For example, when asked about the forms of exploitation the police have come across, one officer from a human trafficking unit responded:

Not organs, military service. Haven’t looked for it and haven’t found it. Mainly sexual exploitation… working against and actively looking for. (Police)

Importantly, when the human trafficking police unit was formed at the beginning of 2000s, trafficking was legally framed from the perspective of sexual exploitation. Today, the police continue to identify many cases of sex trafficking, but also work more proactively with a focus on forced begging and labour exploitation (GRETA, 2018).

Bearing this in mind, the image of the ideal victim of human trafficking is constructed through social interactions and understandings of the way the victim role should be performed (Holstein and Miller, 1990; Strobl, 2010). Referring to victims whose characteristics do not correspond to the social constructions of the ideal victim, one of the regional coordinators explained:

[They are] not ideal victims of crime, especially not when trafficked for other reasons than sexual, so the social services don’t want to deal with them, they can’t relate to their experience as being victimising. […] not everyone feels or understands that they are victims. (Regional coordinator)

Another problem with the identification of victims of labour exploitation involves the conditions under which the Swedish authorities meet potential victims. The Swedish Work Environment Authority, the Swedish Tax Agency, the Police Authority, and the regional coordinators when applicable, participate in joint workplace inspections. While interviewees from these authorities described the exploitive working and living conditions, they encounter during multi-agency workplace inspections, they identify few victims. One regional coordinator, explained:

Then it’s a difficult situation to storm into a building or restaurant when the employer is standing five metres away and you’re terrified because you might know you’re being exploited but you’re still afraid of losing your job or you’re afraid of the employer being threatening, you’re afraid of being thrown out of the country. It’s all these things that make you maybe not dare to talk about your situation there and then at an inspection. (Regional coordinator)

During these inspections, exploited migrant workers risk being identified as offenders (in breach of immigration law) rather than victims of crime, since it is usually the Border Police who participate in the inspections, and their primary task, as one police officer explained, is ‘to make sure that those who are going to be in the country are going to be in the country and those who have a deportation order are going to be deported, that's their primary mission’.

The nature of the identification process highlights the way that victim status is acquired through social interaction and influenced by the overall understanding of the event by the various social actors involved (Holstein and Miller, 1990). As described earlier, for victims of trafficking and human exploitation, there are legal rights allowing them to stay in Sweden for short periods. A 30-day reflection period is provided for recovery and to decide whether cooperating with the criminal investigation is in the victim’s interest. A 6-month residence permit can be offered if a criminal investigation is initiated, and the victim needs to stay in the country. In practice, however, these rights have been confused:

Sometimes it has been the case that the police would like to open a criminal investigation in order to apply for a reflection period and then the whole thing falls apart a bit. Because the idea is that the victim should not have to talk to the police during the reflection period. (Regional coordinator)

Until recently, only the police or the prosecutor could apply to the Migration Agency for a reflection period, which has been criticised by GRETA (2014, 2018). In August 2022, municipal social welfare committees were given the authority to formally identify victims and apply for a reflection period (Aliens Act, 5:15). The previous system has in practice created a conditionality, whereby participation in the criminal process is perceived as granting access to assistance, which research has identified as having a harmful effect on victims (Skilbrei, 2012).

Moreover, the extensive assistance associated with the 6-month temporary residence period is not guaranteed. For example, victims’ access to state-run accommodation can be discontinued directly upon the completion of court proceedings. One regional coordinator described an instance in which a formally identified male victim of human trafficking was offered accommodation via the social welfare committee. However, upon returning to this temporary accommodation following the final court day, the victim was informed that he was no longer eligible for accommodation as the court process had now been completed. The victim was later spotted by the regional coordinator on the street, picking through garbage bins.

Further, these gaps are not only found in relation to labour exploitation, identification is also problematic in other forms of trafficking. One female victim of sex trafficking—Esther (name changed), recollected never having been asked about her needs when she was interviewed by the authorities and having felt obliged to provide information to the police about her victimisation in order to obtain protection: ‘The help they offered—give me some information, help us get these people and we will give you protection and documentation to stay’. Esther remembered her interviews as ‘terrible […] destroying me more than saving’ and said:

[I received] lots of questions! Had to tell [them] everything! [...] detailed descriptions of exploitation. I had to talk about things I had forced myself to forget [...] Interviews went on for hours, sometimes until I broke down. (Esther)

Esther remembered being offered psychological assistance but recalled that the police did not have time to wait for the evaluation. The police officers working in the human trafficking unit confirmed the use of lengthy interviews and could recall instances in which victims had become emotional.Footnote 11 But they also mentioned the problems associated with establishing trust, which is key to a successful investigation. However, according to the police, there is a ‘threshold of establishing trust—being on the case right away’, which explains the sense of urgency associated with wanting to interview the victims as soon as possible. There is an evident gap in terms of successful victim identification and, by extension, access to social rights, which is grounded both in the exclusionary practices of the migration regime and the priorities associated with criminal investigations and the support offered to victims. Moreover, studies have shown that providing support to victims contributes to their willingness to participate in police investigations (McSherry and Cullen, 2007).

Mobilising Rights Through NGOs

NGOs are often the primary points of entry for accessing social rights among victims of human trafficking and various forms of labour exploitation, since these organisations provide victims with the opportunity to seek assistance in confidence and without being bound by (perceived) obligations to participate in the criminal justice process or fearing deportation. One NGO representative explained the process and different categories of ‘clients’ (potential victims of labour exploitation). The first category comprised victims who were already being assisted by a government institution and who were referred to NGOs for additional support:

As far as labour exploitation specifically is concerned, there are mainly two categories of clients: […] individuals who have […] made a police report so that they have contact with the formal support and protection systems and have usually been granted a temporary residence permit to participate in a criminal investigation, and then it is usually the regional coordinators who get in touch, and then it may be that there is a need for additional support; then they have injured party counsel, the legal pieces are usually in place then. But then it’s more about the regional coordinators feeling that I don’t have the resources or time to support this particular individual to the extent that I see would be needed. (NGO)

The second category involves victims who have not yet been formally identified or assisted and/or who would like to explore the possibilities available to them:

[…] it’s those who come directly who may not have thought in terms of exploitation, but either heard about us themselves or been referred by someone else with whom they’ve had contact. It’s very much about exploratory conversations, trying to figure out—well, what is your situation here? And being able to talk to the criminal lawyer [associated with the NGO] at a very early stage, before they have even decided whether they want to make a report [to the police]. Just to get information about how—yes, but what does the legislation look like, what rights come with being identified as a victim of crime and so on, and to be able to decide about how they want to proceed. (NGO)

When it comes to gender, masculine stereotypes have been identified as an obstacle to identification and by extension to the successful provision of assistance to male victims (Rosenberg, 2010), since victim identification is reliant on an interactional process, in which factors such as ‘[t]he assumed breadwinner role and socially ascribed masculine qualities of strength and control contradict the victim status’ (Smiragina-Ingelström, 2020, p. 29). Gender also plays a crucial role in terms of victim needs and service availability. For example, the forms and quality of support and the provision of housing are often based on the sex of the victim (Surtees, 2008a, 2008b; Rosenberg, 2010; Hebert, 2016). Sweden is no exception to this trend.

While the direct service providers who were interviewed explicitly stated that victims of trafficking in Sweden are of varying gender and sexuality, and while assistance has been both offered and received by a range of victim categories, the Swedish approach to assistance is framed along gendered lines, with post-trafficking care being tailored primarily towards female victims of sexual exploitation. As one police officer put it, it is ‘very difficult to place men in safehouses […], the assistance system is only made up for women’.

As a rule, female victims are placed in specialised accommodation for victims of violence against women and/or human trafficking. Specialised shelters for male victims of human trafficking are currently unavailable in Sweden, so they are typically placed in temporary accommodation associated with homelessness and substance abuse. The police explained that when they identified male victims, they ‘had to place [them in] accommodation for the homeless’. This was also confirmed by one respondent from the Gender Equality Agency and by NGO representatives.

One NGO representative expressed that this trend can be explained by the fact that male victims do not require the same level of security as female victims, because they are not subjected to the same level of violence or threats of violence as female victims of sexual exploitation:

Those who are exposed to labour exploitation are not under threat to the extent that you might need sheltered accommodation with a very high degree of security. […] they are threatened in such a way that they should not remain in their workplace, but there is no one looking for them in that way. And then they can be in these hostels that are still protected but not in the way that it might be when you’re a victim of violence in a close relationship. (NGO)

Another essential element of post-trafficking assistance involves psychological support. This is one of the central elements in post-trafficking recovery included in all relevant international legal frameworks and by extension also in Swedish policies (Gender Equality Agency, 2019). Aside from psychological care in a more conventional clinical context, some victims are also offered alternative avenues to emotional recovery. For example, female victims provided with assistance in Sweden are offered a variety of paths to emotional recovery, such as for example art therapy (painting and theatre) and support groups where women can share their past experiences, learn about the experiences of others, and build trust without being judged.

When it comes to the recovery of male victims of trafficking or labour exploitation in Sweden, this form of emotional support is lacking. Similarly, Swedish scholarship on the provision of care to individuals who have suffered emotional trauma has shown that most art therapy is tailored to women and is less likely to be offered to or sought by men (Lindblad, 2021).

A few direct service providers who have encountered male victims in their line of work (regional coordinators and NGOs) expressed that help-seeking is more challenging for male victims due to the lack of available services, a lack of knowledge about these services and self-misidentification. However, most of the participants in this study, and especially those working in law enforcement, have found that asking for help is equally difficult for men and women. This could perhaps also be attributed to the different contexts in which victims seek help: in a care setting or at a police station.

From an access to justice perspective, NGOs play a crucial role for victims by strengthening them and providing knowledge about their rights (see Goodey, 2008), while at the same time also providing them with support and assistance. Still, the support and assistance offered to victims of human trafficking and other forms of labour exploitation seems to be gendered, with less support today being provided to male victims.

Unions—A Gateway to Justice

One area of civil society that plays a significant role in the mobilisation of the rights of victims of labour exploitation in Sweden is the trade unions. Historically, there has been a reluctance to organise undocumented migrants in the large well-established Swedish blue-collar workers’ unions (Moksnes, 2016; Selberg and Gunneflo, 2010; Neergaard, 2015). Recently, however, some trade unions and semi-union organisations in Sweden have developed strategies to mobilise the rights of migrant workers, including the adoption of immediate legal practices, everyday negotiations with employers and the pursuit of court litigation.

The Stockholm division of the SAC, a small independent anarcho-syndicalist union, decided in 2020 to take on cases involving non-members, if they joined the union. This is not the first time that the SAC has organised migrant workers (Mešić, 2017). The most recent initiative seems to have affected both the number of members and the methods employed. The union helps to develop migrant workers’ awareness of their (labour) rights, provides a platform for collective rights claiming actions, offers individual legal aid to migrant workers and takes direct legal action. Over the last couple of years, the union has developed its experience and skills, and has formulated new strategies to reach migrant workers and claim their rights, although a large part of this work constitutes a traditional area of labour union activity. The rights claiming conducted in relation to migrant workers is largely achieved through negotiations with employers under the threat of ‘going to court’.

As regards the costs of litigation, being represented by a trade union opens up the possibility of litigating in the Labour Court. Thus, the unions play an important role from an access to justice perspective. Without membership and representation by a union, the migrant worker must sue the employer in a district court and assume the financial risk involved in this process. The Union Centre for the UndocumentedFootnote 12 has on occasion obtained state-funded legal aid to cover the costs of the civil litigation process for undocumented migrants. Still, the representatives of the unions and semi-union organisations understand the risks involved for the migrant workers when turning to the union. For migrants who lack permanent residence, mobilising rights may in practice lead to them being deported and losing their livelihood. One union representative pointed out that the migrants risk becoming homeless:

When we contacted the employer, from the union, the employees were fired, they also lived with the employer, so they were evicted immediately. And that was problematic; here they were really in a vulnerable situation, without income, without housing. (Union)

This example illustrates the close links and dependencies between different economic and social rights. Further, one union representative explained how labour rights are also linked to the right to health:

There is a case of a man who works in a construction company who had a stroke. It turns out that the employer has not paid taxes, so he [the worker] has not been insured or registered here. Got huge hospital bills, not insured, not in Poland, not in Sweden, ends up on the street. He has become paralysed in Sweden. So that’s the kind of situation it can lead to in these extremes. (Union)

Although unions can provide access to justice for some by providing knowledge, competence and financial guarantees when litigating in court (see Cappelletti and Garth, 1978; Goodey, 2008), there are huge barriers to exploited migrant workers accessing their social rights in Swedish society. This is especially true as a result of the nature of the migration regime and the precariousness of the migration status faced by many temporary foreign workers, which produce a well-founded fear that the loss of employment could result in the loss of work permits, in deportation and in being unable to support themselves and their families (Lewis et al., 2014; Ollus, 2016; Doyle et al., 2019).

Concluding Remarks

This chapter has explored how in instances of labour exploitation and human trafficking in Sweden, access to justice and social rights are closely linked to the migration regime, the process of victim identification and the gendered nature of assistance programmes. Regardless of the form of exploitation and the level of harms endured, victims require some form of assistance, but often experience difficulties gaining access to social rights and justice. Following an interactional approach, this study has confirmed the interactional nature of being ascribed victim status (Holstein and Miller, 1990), with access to social rights and justice being informed by the perceptions about victimhood in exploitative work that exist among the various social actors involved in the identification process. The interactional dynamics surrounding victimhood render the victims of labour exploitation (especially non-EU third-country nationals) secondary addressees of Swedish anti-trafficking efforts. This is evidenced in the lack of available services for these victim groups and the fact that help-seeking is an unlikely behaviour among these groups. This study has shown that NGOs and unions, as well as state agents to some extent, serve as facilitators in the process of seeking access to justice and social rights. While state agents (such as the police and prosecutors) are the ‘gatekeepers’ in relation to the provision of support (Segrave and Powell, 2015)—both as a result of their role in the identification process and their ability to grant the right to a temporary residence permit, union representatives serve as the gatekeepers in relation to the pursuit of justice, especially for non-EU migrant workers who are being exploited in the labour sector. NGOs have been found to play a crucial role in the mobilisation of social rights, offering confidentiality and more options in the help-seeking process, as opposed to the difficult-to-navigate government agencies, with whom cooperation is often perceived to be an obligation and is accompanied by fears of deportation. Victims’ limited access to social rights may be seen as an effect of the logic of the migration regime and the principles of inclusion and exclusion associated with the welfare state. Finally, gender has been identified as a significant factor in accessing social rights, since most post-trafficking assistance programmes (including, but not limited to accommodation and emotional recovery) are tailored primarily to the needs of female victims of sexual exploitation. While female victims of sex trafficking have access to a variety of avenues to recovery, assistance to victims of labour exploitation (and particularly those who are men) is typically limited to the provision of temporary housing and legal support.