COMMITTEE ON THE RIGHTS OF MIGRANT WORKERS CONSIDERS REPORT OF ARGENTINA

The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has considered the initial report of Argentina’s implementation of the provisions of the International Convention on the Protection of All Migrant Workers and Members of their Families.

Presenting the report, Raul Pelaez, Deputy Representative at the Permanent Mission of Argentina to the United Nations Office at Geneva, said that Argentina had a welcoming policy towards migrants. Article 20 of the Constitution established that foreigners had the same civil rights as citizens. This article allowed a nation to be built on the basis of immigration. There were high standards of protection for migrants, whether for education, health, justice or other aspects of civic life. He emphasized that there was now a MERCOSUR declaration that ensured better protection for migrants in the whole region. Argentina decided to take a strong ethical approach towards helping irregular migrants to regularize.

Between the regularization programmes and the admission of new migrants into the country, Argentina had given out 1,092,606 residency permits between January 2004 and August 2011. Mr. Pelaez highlighted that a good migration policy was not based on an economic situation that changed in cycles. Also, Argentina was not planning to make its policies and controls more restrictive because that would force an increasing number of people into marginality and illegality, and would be directly profitable to the terrible phenomenon of human trafficking.

Committee Experts raised questions concerning, among other matters, the demographic policies of Argentina, how Argentina dealt with illegal immigration and how it implemented programmes - such as Patria Grande - that enabled regularisation. They also asked for statistics and details about the policies applied to MERCOSUR nationals and non-MERCOSUR nationals. They inquired about preventive detention and possible cases of collective expulsions, and about the policies towards the migrants in transit. In addition, they asked questions about the obstacles to education and social security faced by migrants.

In concluding remarks, Jose Brillantes, acting as Rapporteur in the absence of Miguel Ibarra Gonzales (who was absent for health reasons), said that the Committee was very pleased with the comprehensive report submitted and with the precise answers provided. The immigration policy of Argentina was very well described and this dialogue was very constructive. He highlighted that it was a dignifying process for the migrant workers because migration was an inalienable right in Argentina. It was also much appreciated that so many details were given about the Argentineans outside of Argentina. The access to all levels of education was also a very positive point. The Committee also noted with satisfaction that all the international human rights treaties had been ratified, as well as the Optional Protocols, except for the one concerning the International Covenant on Economic, Social and Cultural Rights.

The delegation of Argentina included representatives from the National Office for Migration, the Minister for Foreign Affairs, the Ministry for International Commerce and Religion and the Permanent Mission of Argentina at the United Nations Office at Geneva.

The next public meeting of the Committee will take place in the afternoon of September 13, when it will examine the initial report of Chile.

Report of Argentina

The initial report of Argentina noted that in the national system, two areas of human rights have been established within the Executive, one initially under the Ministry of the Interior and currently under the Ministry of Justice, Security and Human Rights, and the other in the Ministry of Foreign Relations, International Trade and Religion. This initial organizational scheme has lately received substantial contributions that have enriched and diversified the possibilities for adequately safeguarding the full force of human rights in the country, including the rights of migrants.

The report also noted that the issue of migration has been on the MERCOSUR agenda since that regional bloc's inception in 1991, when the Treaty of Asuncion was concluded. It further noted the participation in MERCOSUR: the Argentine Republic, the Federative Republic of Brazil, the Republic of Paraguay and the Eastern Republic of Uruguay as Member States, and the Plurinational State of Bolivia, the Republic of Chile, the Republic of Colombia, the Republic of Ecuador, the Republic of Peru and the Bolivarian Republic of Venezuela as associate members.

The report emphasized that there was no differentiation with respect to the civil rights enjoyed by Argentine nationals and foreigners residing in Argentine territory. A range of remedies designed to resolve situations involving the violation of a fundamental right were available to all of the inhabitants of the Argentine Republic, whether migrant workers or Argentineans. In Argentina, the right to migrate implied a positive attitude towards migration and put an end to viewing migration as a phenomenon related to delinquency and insecurity. Migration was no longer seen in a negative light but regarded as a contribution to the country's development.

Concerning trafficking, the Argentine Government considered it crucial that information campaigns designed to raise society's awareness of the importance of preventing and combating human trafficking should reach the population as a whole. Various channels and fora were used to that end.

Argentina has adopted for migrants the same guarantees that are enjoyed by Argentine citizens, namely, the prohibition of arbitrary or unlawful interference with privacy, home, correspondence and other communications and the prohibition of arbitrary deprivation of property. Also, the preventive detention of foreigners before their expulsion has been made illegal. The Act on migration promoted the social integration of foreigners on an equal footing with nationals and punished all forms of discrimination, racism and xenophobia, and adopted the standards set out in the International Labour Organization conventions. The Argentine Republic has adopted domestic safeguards in order to ensure that all immigrants, regardless of whether they are documented, enjoy equal access to education.

The report also highlighted that Argentina has programmes for returning Argentineans, such as the Volver a Trabajar (Return to Work) Programme.

Presentation of the Report

RAUL PELAEZ, Deputy Permanent Representative of the Permanent Mission of Argentina to the United Nations Office in Geneva, presented the report. He said that Argentina had a welcoming policy towards migrants. Article 20 established that the foreigners had the same civil rights as citizens. This had allowed a nation to be built on the basis of immigration. Yet there had been interruptions in the application of the Constitution in the twentieth century. This led to having pockets of illegal immigrants and health and education were not very accessible for them. Despite a return of democracy, Argentina had to wait for the laws to be applied again. Now there were high standards of protection for migrants, whether for education, health, justice or other aspects of civic life. He emphasized that there was now a MERCOSUR declaration that ensured better protection for migrants in the whole region.

He continued by saying that migration was a human right and migrants were a positive contribution for receiver states. The MERCOSUR Declaration was intended to ensure this. Argentina signed the agreement and established its new migratory law without demanding reciprocity, despite the economic crisis in the beginning of the 2000s. Argentina decided to take a strong ethical approach towards helping irregular migrants to regularize. About 11,000 illegal immigrants were regularized within a year and only about 500 were rejected.

Argentina cooperated with many groups to improve their programmes for immigrants. Between 2004 and 2011, Argentina had given out approximately one million residencies. In August 2011 alone, 25,000 persons were given their residency. Poverty had been reduced in Argentina, as well as unemployment, and the state believed that migration was a positive influence on economic growth.

The international financial crisis of 2008 had been affecting different countries such as Argentina. The flow of migrants towards Argentina had increased in that time, but there was a slowing down in South American migration.

The national constitution had a set of standards for migrant protection that were some of the most advanced in the world. The rights acquired by foreigners were not affected by the fact that they were foreigners, concerning their work situation, for example.

The South American Convention on social insurance needed to be implemented and respected in order to ensure the migrants better protection. Argentina could not deal with two groups of migrants, the regular and the irregular ones. All irregular migrants were encouraged to regularize their situation within 30 days, and the employer of an illegal immigrant was fined.

In conclusion, Mr. Pelaez said that it would be hard to convince the States to adopt broader standards, but that better communication and education for migrants was a reasonable goal. The economic crisis had become an excuse to legitimize restrictive discourses, yet this should not be tolerated. The Argentineans outside the country were more numerous than immigrants within Argentina, and that was why the state was sensitized to all these issues.

SEBASTIAN ROSALES, First Secretary of the Permanent Mission of Argentina to the United Nations Office at Geneva, then focused more on human rights issues. Within 26 years, Argentina had acceded to almost all the human rights instruments of the United Nations system and of the regional organization. The commitment of Argentina to migrants had been very active, such as at the Human Rights Council (HRC). Regionally, the Patria Grande programme was significant. It had two parts: the first allowed for the regularization of 13 000 persons coming from inside the MERCOSUR area, and the second part helped the regularization of persons coming from outside the MERCOSUR area.

Questions by Experts

One Expert welcomed the submission of Argentina’s report. He said that the Principal Rapporteur for Argentina, Mr. Gonzalez, was not present but the Committee would try to ask as many relevant questions as possible. He noticed that Argentina had more Argentineans abroad than migrants within its borders, but the questions asked would be for Argentina as a receiving country.

He also commented that the law of migration in Argentina could be a model for many other countries. It dealt with entrance, departure, legal and illegal issues of stay, including taxes, and more. Yet the expert regretted that Argentina had not yet ratified ILO Convention 143. Argentina had probably addressed the concerns of some of the NGOs already, but the expert expressed the wish that Argentina stay in constant communication with these groups that represent migrants. The expert also asked about the demographic policies of Argentina and expressed the wish to have more details. The presentation had covered many aspects, but he wanted to know more about if there was a policy to establish links and to maintain rapport with more than one million Argentineans living abroad. Lastly he welcomed regularization programmes such as Patria Grande. He asked how migrants or prospective migrants who are not from MERCOSUR countries, say from Senegal, qualified for migration.
Another Expert commented that this review was more of a dialog. He highlighted that a basic element in this discussion was due process, and non-discrimination against immigrants. The principle of reparation was also crucial. It did not need to be material reparation, but the authorization to stay in the country, for example. Argentina in this context was at the forefront, and since the nineteenth century Argentina had been open to the world, despite the ups and downs. Yet the issue of preferential treatment for members of state parties to MERCOSUR was a problem. He commented that there should be a type of safeguard. The case of Reyes Aguilera vs the Nation was illustrative of this issue. Some immigrants in transit who were drug traffickers, for example, were not registered as foreigners, and that could be a problem. He asked what Argentina was doing about this.

Another Committee member highlighted that it was necessary to lose the fear of regularization. She commented that it was very good there was coordination with countries such as Chile and with the Inter-American Court for Human Rights. She asked whether the treaties were at the same level as the conventions concerning their application. She expressed her concern regarding the national identity document for children who wanted to go to school. Was it possible to go to school without that document? Were the teachers and schools aware of these issues? She also expressed concern about the self-employed. To get into a country normally you needed a contract and then you got your residency.

An Expert asked questions about social security and the right to work. He wanted to have more information about forced labour in Argentina and how the state dealt with it. Concerning social security, he underlined that it was a crucial right. Social insurance could be financed from the general budget. Finally he inquired about the right to vote for Argentineans abroad.

Another Committee member commended Argentina for its regulations towards immigrants. He asked about the programmes for migrant workers. Argentina had a set of irregular workers – are there programmes for irregular migrants to become regularized? How many irregular migrants were in Argentina today?

An Expert commented that the report covered the question but the statistics were not precise enough. There were almost no references to case law either. She asked about the regularization for migrant workers from MERCOSUR – it looked like nationality was enough of a criterion not to be irregular. Since the implementation of the Patria Grande programme, did Argentina believe it had reached its goals in matters of immigration? She asked which issues had appeared in this implementation. On another subject, she said that the care for victims of trafficking was very important. How efficient had these programmes been? Then she went on to collective expulsion. It was prohibited by law and by the Convention. But were there really no collective expulsions? If they had taken place, what were the reasons for them? Concerning migrant workers’ children at their birth, what was the percentage of registration? Are there special campaigns to encourage the registration of births of children? Were there structures responsible for informing the candidates for departure, and was their work efficient? Generally, were migrants satisfied with the structures?

A Committee member wondered about the process of drafting the report. Were all actors involved? The migration issue was a cross-cutting issue. She asked if in Argentina, there was a specific system for migration statistics. She asked if Argentina had established measures to make it easier to transfer funds from different countries for the migrants.

The Chairperson noticed that the report said that regularization had not led to an increased criminality. He asked whether Argentina usually saw a link between regularization and criminality. He also asked the delegation how applicability was ensured. He also mentioned an incident this year in Buenos Aires, when three illegal immigrants were killed, and wanted to hear more about it.

Response by the Delegation

FERNANDO MANZANARES, member of the Argentinean delegation, commented that in 1910, 70 per cent of the population had been born in Europe. The population grew a lot less than expected. About 50 per cent of the population lived in Buenos Aires. Argentina had an enormous territory that could be populated. Argentina’s population pyramid was similar to Europe. He ensured that Argentina would keep seeking immigration for demographics. He commented that the immigration issue was very close to the population, as most people were immigrants. Only 18 per cent of immigrants came from outside MERCOSUR. There were about 3,000 Senegalese in Argentina today. Argentina said that those who wished to enter were supposed to register. This caused a problem for the Senegalese, among others. Moreover, Senegal had no embassy in Argentina, only in Brazil. This issue should be discussed with that ambassador.

With regard to Dominican citizens, especially women, prostitution was a big problem. The delegate commented that there was a bilateral dialogue with the Dominican Republic underway.

About residency permits, he specified that if a person was given a work permit for a year and a residency permit for a year, and the person abandoned their job, the residency permit would still stay valid for the rest of the year. He also answered a question about the irregular migrants. They were asked to regularize their situation quickly, and sometimes they were given an extension. If then they did not regularize, they would be expelled, but they had to be warned in advance. They were also allowed to appeal. He added that there were no collective expulsions in Argentina. Article 17 said that if the person had Argentinean family they were given a new opportunity to regularize.

Concerning statistics, he admitted that some parameters needed to be adjusted.

Some 1.6 million people have been regularized in the past seven years. Those who did not do it had economic reasons. There were 450,000 people enrolled in the programme for irregular migrants. Those who did not regularize through this programme often went back to their country of origin. The programme was very successful overall. He also answered the question about the public park where the eviction of migrants took place. Foreigners and Argentineans were living there. It was a housing problem not an immigration problem. It was true that the attitude of the police was seen as xenophobic. But the Director of Migration and his team went to meet these people afterwards and helped them regularize.

About illegal workers, especially Bolivian citizens involved in textiles, the delegate answered that punishment was handed down to employers.

PAULO CAVALERI, adviser at the Permanent Mission in Geneva, commented that amendments at a constitutional level always respected international human rights instruments, such as the Inter-American Declaration of Human Rights and the Universal Declaration of Human Rights. All Argentineans abroad enjoyed all the rights given to them by these treaties. If an Argentinean was imprisoned abroad, the Consular official had to meet with the detainee and collect information about the charges, the trial, medical conditions and more. If the detainee had a lawyer, the details about the lawyer had to be collected. There were about 1.3 million Argentineans abroad. As regards customs, there was an agreement with the Ministry of Public Income to facilitate these measures. The Consulate should give information to the citizens who asked for them.

Argentina had programmes that allowed keeping in touch with Argentinean professionals abroad, such as scientists, and they also proposed to those Argentineans that they continue their research in Argentina.

He also commented that there had been meetings in Europe of several Argentinean embassy representatives in the region in order to consider the issues brought to them by the associations of Argentinean nationals. The participation of Argentineans abroad in elections has been possible for some years now. But they needed to be on the consular list.

Another member of the delegation said that the provisions of the Convention had become obligations and thus could be brought up in court. She quickly gave some examples of rulings that had been given since 2007 but they were not so numerous because often it was enough to invoke the Argentinean Constitution, which talked about medical assistance, for example. A workshop was held recently for civil servants about the importance of human mobility, and this was in the presence of a representative of the United Nations High Commissioner for Refugees.

Concerning the writing of the report for this Committee, general practice was to ask the various non-governmental organizations for comments, but often they chose to publish a parallel report, as for this session.

On the subject of trafficking, the delegation said there were new programmes. Recently, several new laws were ratified on that subject. A former law criminalized the trafficking of human beings and it differentiated between persons over 18 and those under 18. For over 18s there needed to be an element of coercion. The issue of consent was not taken into account anymore. Now the victims were allowed to have access to legal information free of charge in a language they understood. The identity and intimacy of victims were protected. There was also voluntary assistance to help them return home. The Ministry of Justice and Human Rights centralized all information on the victims of trafficking. The information came from the police, the gendarmerie and the naval and coastguard officers. Resolution 100 of August 2008 stated that all problems linked to investigating crimes of trafficking were to be given to the special prosecutor on the issue. A work plan had been established, and there was a civil and criminal follow-up for victims. Even the Office of Tourism worked on the issue to prevent sexual tourism.

There had been the adoption of a law in the Senate recently changing the law of 2008, eliminating the issue of consent by the victim in terms of responsibility. It also increased the sentence for persons guilty of the crime. Specific bodies had been established to do the follow-up. There was coordination of the different state authorities, which was a comment of civil society. The search warrants since the passing of the law amounted to 878, the number of persons detained for trafficking amounted to 876; 348 minors had been involved and 2,290 victims saved. In 2011, the majority of victims were adults of Argentine nationality, and kidnapped mainly for labour exploitation; others were kidnapped for sexual exploitation.

On the subject of labour rights, the delegation mentioned that they were recognized independently from the migration status. According to human rights treaties, labour rights were part of the main human rights. Moreover, regardless of their migratory status, the migrants should have access to education, including the children of migrants in irregular situations. The irregular migrant worker was not punished; it was the employer who was forbidden from hiring and the rights of the migrants were not affected. The punishment for the employer was a fine of up to 20 times the minimum salary.

Among the requirements for universal child benefits, there was a minimal residency of three years, and the minor had to be Argentinean. Children up to four years of age had to comply with the obligatory vaccination plan. The holder of the benefit had to show a proof of compliance.

Schools should guarantee that migrant children without documentation had access to all levels of education. Concerning education and health, reproductive health information was given to various agencies in the country that were in contact with migrants, such as the Population Fund for the United Nations, the Centre for Community Basis and the Centre for Child Integration. Concerning broader awareness-raising for migrants on various subjects, there were training programmes for migrants in suburbs. One programme was called “Argentina, land of immigrants” and it went around several provinces; it dealt, for example, with the right not to be discriminated against.

Concerning capacity building at the state level, there were several trainings for the civil servants working on the subject of migration. Recently the first virtual course for MERCOSUR civil servants took place. Also, in 2011 a manual was launched for a new management of migration.

MERCOSUR agreed on a social security plan that ensured rights to social security for workers who had worked in one of the state parties and contributed to the social security system. They had the same rights as the citizens of the country they stayed in. Disability benefits were also provided. A document was created on how to work in MERCOSUR countries, including mobility information, the social security arrangements, the residency agreements, who the migrant workers should refer to, and more. There was also a chapter on human trafficking with specific alerts. Each country had a specific chapter on child labour. For the States not party to MERGOSUR, Argentina had started signing bilateral agreements with states Argentineans tended to go to.

Questions by the Experts

A Committee member thanked the delegation for the extensive answers. He asked how in practice the workers and family members of MERCOSUR citizens were informed.

Concerning the access to health services, he noted that the right to health services is normally allowed for all according to the law. But it sounded like there were specific conditions for irregular migrants to have access to health services. Concerning the African, and most particularly the Senegalese migrants, they often asked for refugee status but it was rejected; he asked for more details about this. What was done by Argentina to find a solution for these migrants? Regarding corruption, Argentina was ranked 118. What effect did this have on the rights of migrants? What was the situation of migrant women being domestic workers? Often migrants of neighbouring countries were victims of xenophobia. Did the delegation have any example of case law on this?

Another Expert said that there seemed to be progress to free the movement of persons in MERCOSUR. Was there some type of movement similar to what occurs within the European Union and Schengen area? Regarding punishment for employers, what did you mean by “alojamiento oneroso”?

An Expert asked if there were irregular migrants from outside the region who were detained in a centre different to the centre where MERCOSUR irregular migrants were held. He also asked if the delegation had studied the report by the Special Rapporteur on Trafficking, as she had several relevant comments and recommendations.

Another Committee member asked if dual nationality was allowed, and if yes what was the regime. Were there conditions that stifled some liberties? He also asked if the Argentineans abroad could benefit from pensions if they came back from abroad after 20 years for example.

An Expert congratulated the delegation for the great work they did. He asked for more information and statistics on migrants who transit through Argentina. How many Argentineans were part of this transit?

Responses by the delegation

Regarding the possibility of voting abroad, the delegation answered that Argentineans abroad can vote for Senators and deputies from the area where they last lived in Argentina.

Concerning domestic workers, there was a special regime in Argentina. The job areas concerned were nurses, gardeners and more, if they worked more than six hours a week. There was a will to regularize irregular domestic workers and a special programme was created.

Concerning discrimination, there were various programmes aimed at increasing information about national and international law, and at giving victims free access to legal aid. There was coordination with various agencies, for example, one taking care of refugees.

Argentina understood that the crime of trafficking could not be combated unilaterally. Argentina had broadened the training on trafficking, and now there was a convention with the Labour Ministry to combat trafficking.

The delegation also talked about the access to health. There was no limitation of access for a foreigner, regardless of immigration status, except for receiving a transplant. Foreigners could get onto the list for a transplant, but they needed to be permanent residents.

The ambassador of Senegal to Brazil had been contacted and he would soon be given the mandate to also be a representative to Argentina.

To create a type of Schengen area there first needed to be a joint authority at the border control. It was ready for Uruguay and now it was underway for Chile.

There were no limitations concerning trade unions and anyone could join them.
Argentina had almost no seasonal workers.

Concerning access to nationality, Argentineans did not lose their nationality if they took another nationality. If somebody was born in Argentina, they were automatically Argentinean.
There were no specific centres for people awaiting deportation.

Concluding observations

JOSE BRILLANTES, acting as Rapporteur in the absence of MIGUEL IBARRA GONZALES for health reasons, said that the Committee was very pleased with the comprehensive report submitted and with the precise answers provided. The immigration policy of Argentina was very well described and this dialogue was very constructive. He highlighted that it was a dignifying process for the migrant workers because migration was an inalienable right in Argentina. It was also much appreciated that so many details were given about the Argentineans outside of Argentina. The access to all levels of education was also a very positive point. The Committee noted with satisfaction that all the international human rights treaties had been ratified, as well as the Optional Protocols, except for the one to the International Covenant on Economic, Social and Cultural Rights. The report was of such high quality that it could be considered as a model presentation for other countries about to present their report. The Experts appreciated the details about the DNI, the situation of migrants expulsed from the park in Buenos Aires, the limited accessibility of regularization despite the programmes, the links with the Argentineans abroad and the programmes for victims of trafficking. The Committee will continue to study these questions. He thanked the delegation for being open and transparent.

The Chairman of the Committee, ABDELHAMID EL JAMRI thanked the delegation for the quality of the replies. Sometimes the human rights of migrants were drowned by other human rights issues, so the Committee encouraged the delegation to keep this issue on top of their list. It was not only a good migration policy that was necessary, but also a positive evolution. Some elements needed deeper and continued work; the Convention was a minimum standard that countries must observe. He thanked the Experts and also the non-governmental organizations, who had contributed a considerable amount of information.


For use of the information media; not an official record

CMW11/009E