Emerging from the shadows or pushed into the dark? The relation between the combat against trafficking in human beings and migration control

Abstract

Human trafficking implies exploitation often by coercion; human smuggling is usually associated with voluntary law-breaking activities, a dichotomy of which the consequences the present article addresses from an interdisciplinary angle. Based on an (international) legal analysis we first point out that attempts to combat labour exploitation (trafficking) and irregular entry, stay and employment (smuggling) of migrants have been seriously intensified recently and that both approaches have developed relatively separately. Secondly, we show how different the position of irregular migrants is in these two domains. Whereas a victim of human trafficking can appeal for legal protection, a smuggled irregular migrant (worker) overall has little rights because of the formal absence of the exploitation element, and is most likely to be expelled and criminalised. Thirdly, we have conducted a crucial empirical test to investigate whether this dichotomy on paper is also visible in practice. Our empirical analysis based on the Netherlands' criminal investigations data derived from human smuggling cases demonstrates that many elements of exploitation can also be found in these files, which have not been recognized and labelled as such. This does not only point to differential treatment of potential victims of exploitation among irregular migrants, but also suggests that how irregular migrants are seen and treated depends very much on how they enter the system.