COMMITTEE ON THE RIGHTS OF MIGRANT WORKERS HOLDS DAY OF GENERAL DISCUSSION ON MIGRANT WORKERS IN IRREGULAR STATUS
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families held a Day of General Discussion on "Migrant workers in irregular status and their family members."
This day had four objectives: to facilitate the work of the Committee in its recommendations to States parties; to clarify the scope of the Convention on the Protection of All Migrant Workers and Members of their Families; to assist the Committee to adopt a General Comment on migrant workers in irregular status; and to pay more attention to the situation of migrant workers.
Presentations were made by Craig Mokhiber, Chief, Development, Economic and Social Issues Branch, of the High Commissioner for Human Rights, Ryszard Cholewinski of the International Labour Organisation, Ahmadou Tall, Committee member, and Vincent Chetail of the Institute of International Studies and Development in Geneva. The discussion was then divided into two panels, respectively on the challenges in the protection of migrant workers in irregular status and their family members and on the protection of the rights of undocumented migrant workers and their family members in practice.
The speakers who made presentations during the morning in particular stressed that instead of criminalizing undocumented migrant workers, as seemed to be the general trend, the best integration was to allow them to participate in the society in which they lived. While the standards of protection were not lacking, the main challenge was their implementation. They must therefore continue efforts for the ratification of the Convention and advocate for the rights of migrant workers moving from theory to practice.
In the afternoon the meeting was divided into three workshops to reflect on the opportunities that could strengthen the protection of the rights of undocumented migrant workers and their families. The first group focused specifically on "the criminalization of undocumented migrant workers and members of their families and their vulnerability to exploitation, abuse and arbitrary detention", the second was focused on "protection and restrictions on economic and social rights of migrant workers in irregular status and their family members" and the third dealt with the "international cooperation for the protection of the rights of undocumented migrant workers and members their families”.
The next public meeting of the Committee on Migrant Workers will take place on Friday, 23 September 2011, to adopt its concluding observations on the reports of Argentina, Chile and Guatemala and to close the session.
Migrant Workers in Irregular Status and Their Family Members
Introduction and Presentations
ABDELHAMID EL JAMRI, the Committee Chairperson, opened the Day of General Discussion by noting that the subject was particularly topical. He argued that migrant workers in irregular status played a key role in the development of many countries, when entire economic sectors relied on them. He also drew attention to the war situations that led people to flee their country. He concluded his introduction by stating that one of the purposes of this discussion was to help the Committee to adopt a draft general comment on the situation of migrant workers.
CRAIG MOKHIBER, Chief, Development, Economic and Social Issues Branch,
Office of the High Commissioner for Human Rights, expressed concern about the clandestine nature of irregular migrants and asked States to review whether their laws and regulations conformed to human rights standards. Irregular migrants should not be deprived of their humanity. Approximately 10 to 15 per cent of the 214 million international migrants - tens of millions of individuals – who had entered countries legally and illegally, had suffered discrimination and exploitation and been prevented from receiving adequate health care, while working in degrading and dangerous jobs. Public officials, police and landlords often implied that working with migrants was a risk. Detention of migrants could be for long periods or for even undetermined amounts of time. Mr. Mokhiber said the Office of the High Commissioner for Human Rights (OHCHR) had determined that detention did not stop migrants, but instead created a hostile environment. Migrants’ rights were of great concern for OHCHR and they were making thematic priorities in the current biennium to ensure the realization of human rights for migrants, and also to make the international community more responsive to the right of migrants, particularly economic, social and cultural rights, so that they were better able to contribute to society economically. Xenophobia and detention for irregular migrant workers existed because of the lack of coherence: there was a need for a better framework based on international standards. He called on more countries to ratify the important treaty.
RYSZARD CHOLEWINSKI, of the International Labour Organization, said irregular migrants and their families were the topic at the centre of the discussion, which went to the heart of many international labour standards adopted over the years by the International Labour Organization (ILO), most recently the Domestic Workers Convention of June 2011. It applied to all migrants, regardless of their immigration status or nationality. The ILO played a key role in the work of the Committee on Migrant Workers and had assisted in the MESCA draft, which become the text for discussion for the open-ended working group. Migrant workers in an irregular situation were entitled to equal treatment for themselves and their families in respect to their rights to employment, social security and other benefits. Mechanisms ensured that international labour standards and human rights, as they pertained to international labour migration for the protection of migrant workers, also included those of irregular migrant workers.
AHMADADOU TALL, of the Committee on the Rights of Migrant Workers, said that host countries were more apt to expel undocumented workers instead of helping with their human rights, and that there was a need to protect and promote non-nationals, who are without legal authorization. Migrant workers were extremely vulnerable and they and members of their families required protection. Human rights problems were more serious for irregular migrants workers, who were exposed to exploitation, but should have equal rights simply because they were human beings - no distinction should be made because of their status. He said that States that abused migrant workers should be sanctioned.
VINCENT CHETAIL of the Geneva University Institute of International Studies, said that there were essential elements of common rights that were in more general treaties. The right of migrants to leave at any time and return to their own country was essential and was already covered in human rights treaties. Those principles included essential human rights such as a person’s right to a life free of enforced slavery or torture. Those who were detained should not be held together with those who have committed crimes, such as murder or rape. In cases of expulsion migrants should had the right to settle any wages or liabilities. Moving on to specific rights not covered under the human rights treaties, but mostly covered in Article 21, it was unlawful to destroy documents of the migrant. Only the right to property specifically covered the transfer of migrants’ earnings and savings.
First panel: the challenges in the protection of migrant workers in irregular status and their family members
CHRISTIAN GUILLERMET, Deputy Ambassador of Costa Rica, thanked the Committee for having invited his country to participate and said that he believed migration was one of the great challenges in the global world today. He wanted to share the concerns of his country on this subject. Every day there was enormous movement of persons who faced barriers and obstacles. However there were also certain impositions that migrants posed, in particular irregular immigrants who could not be expelled, economics problems, and social aspects, as well as on the political front. In a democratic society States needed to apply human rights standards. They had a legal framework already in place that advocated, applied and implemented human rights treaties which were placed above their own constitution. Human rights law was applied at the domestic level. Costa Rica was a developing country and could not accept migrants when they were invisible. Costa Rica was a transit country for migrants, not just because of the protocols, and they had already adopted most of the human rights treaties and 27 recommendations, in addition to the International Labour Organization Conventions. These were all challenges which were part of being in a developing country. Mr. Guillermet asked how to protect or sustain those migrants when they are not visible and how to make sure that his country’s concerns were heard at this committee.
PAOLU CAVALERI, Counsellor at the Permanent Mission of Argentina, said that for the past 20 to 30 years Argentina had grey areas on the issue of migrants. Mr. Cavaleri had read reports on the political consequences of 9/11 and had never seen issues of migrant workers in the areas of security; he believed that this had affected the rights of migrants. Argentina was a country of immigrants, during the crisis from 2002-03 migrant workers were considered to be the problem. The right to migrate guaranteed family unification, and access to health and education without regard to a person’s migration status. Most of the migrants were a reflection of a job market that nationals could not fill, and they required rights. Migrants’ rights must be implemented, not based on national security concerns, but based on human rights concerns and human development.
PATRICK TARAN, Senior Migration Specialist from Global Migration Policy Associates, said that to address migration and ensure that migrants were treated as human beings people must understand what irregular migration was about, and what was at stake. The big question was whether irregular migration was a consequence of political inability to reckon with globalisation, or if much of it was a result of obtaining a cheap, docile and flexible labour force. It was a time of rapidly growing international labour mobility but not one of regulated, legal cross border access to labour markets. Despite the crisis, there was not a large reduction in the demand for cheap or for highly-skilled labour. Rather, the long-term trend was towards even stronger demand. And this with a continuing high supply, resulting from what may be the biggest failure of globalisation, its inability to create jobs where youthful and growing populations live.
The figures for 2010 showed 214 million people living outside their countries of birth or citizenship, and 105 million among them – most of the adults of working age - were economically active. The International Labour Organization estimated that 10 to 20 per cent of all migrants were irregular. In the European Union the numbers were estimated to lie between six and 12 per cent. It was crucial to see that global numbers would significantly grow in the next decade and beyond. Russia for example was losing one million workers a year in its labour market. Germany would lose five million in the next ten years. Also, many countries saw their fertility rates drop, and what that meant was that these countries would soon see the working age population start to decline. It would seem more pertinent than ever to link migration regulation with changing labour market evolution and labour force demographics. However it was not what was happening in many countries. Irregular migration offered possibilities to push costs and benefits down as well as to impede worker association and demand for collective bargaining. Adding to the constraints of restricting legal access to regulated labour markets was the tendency to impose immigration control measures on workplaces, measures that de facto acted as worker control more than employer control measures.
The attractiveness of employing migrants, particularly those in irregular situations, coincided with broader trends of deregulation and dichotomisation of labour markets. Migrant workers were often vectors for deregulation, all the more when in irregular situations. There was a triple challenge to be faced: first, very large and powerful economic pressures that resisted regularisation of migrant labour mobility and the consequent higher and less competitive costs and socially protected workers. Secondly, political attitudes and interest that made foreigners acceptable and accepted scapegoats for rampant structural and social problems faced by countries worldwide; problems accentuated by features of globalization and generalized economic and employment crises. Thirdly, predominance of discourse and policy values that treated migrants as commoditized factors of production and/or criminalized security threats rather than working human beings with rights and dignity who contributed to development, well-being and community wherever they were, in whatever status.
Migrants were human beings, they required recognition as such and were a concern of governance wherever they were. As with other marginalized populations, migrants required specific and explicit protection in law, under the rule of law. It was not possible to expect that decent treatment would happen outside of law, and certainly not in the labour market, where incentives to exploit may be more powerful than exhortations to do good practice. Mr. Taran highlighted that specific attention was needed at all levels of government to provision of essential services and protection to migrants in irregular situations, including preventative as well as curative health care, schooling, labour inspection and social protection.
ABDELHAMID EL JAMRI, the Committee Chairperson, commented that States themselves had a stake in acknowledging the rights of irregular migrants because the percentage of irregular migrants could amount to 10 per cent in a country. Not recognising them could have massive repercussions, such as health repercussions for example if those migrants were denied health services. The same was true for education – if a certain percentage of the population was denied education, it could have bad consequences for society as a whole.
Second panel: the protection of labour rights of irregular migrants and their family members in practice
MICHELE LEVOY, of the Platform for International Cooperation on Undocumented Migrants, noted that there were nearly four million undocumented workers in Europe. Although there was now a harmonised policy in Europe, they were denied the right to work and had to be in the informal work area which caused several issues. In many European Union countries there were still inefficient appeal procedures for irregular workers. Three crucial rights were the right to equality in front of tribunals, the right to remuneration even for extra hours and the right to participation in trade unions, irrespective of status. The Fundamental Rights Agency was going to publish an in-depth report on those three rights.
In many European Union Member States laws guaranteed equal remuneration but laws could be unclear and interpreted in different ways, which also led to complicated situations. For many irregular workers it was almost impossible to ask for holiday pay, or to ask for pay for extra hours because the employers were threatening to report them to the police. How did non-governmental organizations or trade unions intervene? And how were irregular migrants empowered? There were some cooperation procedures between non-governmental organizations, trade unions, communities and the state. There were two Supreme Court rulings reaffirming the rights of irregular workers, in Spain in 2002 and in Greece in 2007.
With regard to the legislation concerning health services, in Sweden irregular workers had access to health services but had to pay a very high price. In Germany there was only emergency care for irregular workers. What was the impact of not providing access to certain services? There were actually increased costs for the state because emergency care was very expensive. Also, waiting until there was an emergency gave time for there to be a public health risk. Through a strong lobby in Italy, a law about criminalizing those who provided help to irregular migrants in need for health services was blocked. The European Union was urged to allow health professionals to perform their medical and ethical role.
The third area was concerning children. The right to access education for undocumented children was crucial. In most countries in the European Union, school was compulsory between the ages of six and sixteen. Yet there were many practical obstacles for children because they still had to show documentation to register in school. It was especially difficult for pre-school aged children and students over 16 still attending school. A meeting of the Committee of Migration was to be held in Strasbourg at the end of the month, about the rights of education and health for irregular migrants.
With regard to protection from gender-based violence, Ms. Levoy commented that the status of many irregular migrant women depended on their male partner or employer and when those women were victims of violence, they rarely dared to bring a complaint to the police. This was another issue that should be dealt with. There was a need to address the administrative barriers that stop migrants, especially children. Also, there should be a halt to the criminalisation of persons helping irregular migrants.
CLAIRE COURTEILLE, from the International Trade Union Confederation, said that the freedom to associate with and to join a union was essential and was enshrined in the Universal Declaration of Human Rights. Although those rights were in the framework, often they were not implemented: irregular workers were not allowed by their employers to organize a union and would be threatened with losing their jobs. Irregular migrants had the right to equal treatment. The advantage was that they were cheaper. Unions needed to defend those irregular workers and extend collective agreement so that they were actually covered. Irregular migrants were also free to bargain collectively, both in law and in practice, to end the exploitation. The exploiting employers should be penalised. Too often the employer was not held accountable, and this perpetuated impunity. Unfortunately there was no cross-border agency to deal specifically with the issue, and Ms. Courteille called for this vacuum to be filled. From the point of view of trade unions, labour market shortages had to be taken into consideration, as well as specific categories of workers such as migration domestic workers. There should be transparent regulation policies that ensured the same conditions for local and irregular migrant workers.
COLIN RAJAN, of Migrants Rights International, thanked the persons participating in the meeting for raising all these questions, especially on migrant and unaccompanied, asylum-seeking children.
CLAIRE COURTEILLE, of the International Trade Union Confederation, mentioned that concerning the International Labour Organization Convention on migrant workers, the chief contribution of the Convention was that it recognized domestic work as real work, so those workers were finally allowed insurance.
During a brief discussion, the representative of a non-governmental organization stressed the importance that the Committee adopt a draft general comment on domestic workers. Another pointed out that one of the benefits of the regulation was to allow migrants to pay their taxes and contributions to fund health insurance. Ms. Courteille noted the critical role of recruitment agencies that promote de facto situations of exploitation, and said those agencies should be monitored more closely. She also referred to the International Labour Organization Convention on domestic workers, and said it had a great advantage to recognize those workers’ rights.
In the afternoon, the Committee held three workshops: on the criminalization of migrant workers in an irregular situation and members of their families, and their vulnerability to exploitation, abuse and arbitrary detention; on the protection and restriction of economic and social rights of migrant workers in an irregular situation and members of their families; and on the international cooperation on the protection of the rights of migrant workers in an irregular situation and members of their families.
Workshop on the criminalization of migrant workers in an irregular situation and members of their families, and their vulnerability to exploitation, abuse and arbitrary detention
MARIETTE GRANGE, Rapporteur for the first workshop, presented a short summary of what had been discussed. It was important to include various ministries in stopping this criminalization. It was important to make a call for ratification of the Convention and there should be a greater exchange of information between governments on that topic. Japan said that it was important to look at how regularization was done: it needed to be transparent and public. But if a negative answer came in the problem was that it meant expulsion. The Netherlands said that the workshop heard a set of good practices: cooperation of civil society was very important: if civil society was mobilized to avoid the criminalization of irregular migrants it was effective. Moreover there was a need to divide labour laws from migration policies. At the same time as criminalization there was a growing support from society in the European Union, for example, some good practice by the police was noticed. It was important to flag it and to show people who this criminalization really benefited. When discussing detention during the workshop, there was a strong affirmation that detention was a failure of migration policy. Ideally there should be no detention at all. Ms. Grange reaffirmed the importance of law and of creating good tools for the policy makers. Also, there was an intervention by a representative of Indonesia: Indonesia had a series of good practices such as hot-lines, and shelters had been created there, and Indonesian communities in destination countries had been mobilized to help other migrants.
Workshop on the protection and restriction of economic and social rights of migrant workers in an irregular situation and members of their families
PAULO PACE, Rapporteur for the second workshop, summarized the discussions of her group, which she said had been very dense. Protection was at the core of all human rights of migrants and their families, and to also to put a human face on irregular migrants. The group had discussed what the rights at the international level were and said that they looked at specific regions, and also added that when we go into protection, we will have a real challenge. They looked at the European Convention, which she said applied to everyone, the majority of rights in the Convention were to do with political and social rights, and each individual could challenge a specific prevention in the European Convention. They also discussed the right of health and that if irregular migrants could not access health in their own country, then they should be able to stay on in the host country. She mentioned that they had spoken about a case concerning Belgium and Greece, in regard to the right to housing, and in particular, human living conditions. Some irregular immigrants could not challenge prohibition of the right to education and this should be available for all children, as well as free education for children. They also looked at the European Social Charter and at some of the recommendations to interpretation. The International Labour Organization reminded them to look at the Convention in the form of trade unions, which recognized not only the basic right to health, but also went beyond emergency medical care. Different States could get help in interpreting the right to social security and education, as well as to formalize the right to housing, which is interlinked to education and health. National constitutions often recognized those rights, but the issue was of entitlement, which could complicate things. Obstacles that hindered irregular migrants included, for example, a lack of information in an unfamiliar language or the fear of being expelled. The group discussed best practices, and looked at monitoring and jurisprudence, the monitoring of detentions, and found that broader ratification and immigration control should not be linked to the enjoyment of social rights for irregular migrants and their families. She stated that in Switzerland, there was access to illness insurance for migrants, but most of these people could not take it out because it was too expensive for them. Migrants there did have access to a tribunal, but may lose their job if they came forward, would have to leave the country while the case was pending and even if they did win their case, they would have lost their job and had to leave the country anyway.
Workshop on the international cooperation on the protection of the rights of migrant workers in an irregular situation and members of their families.
JOHN BINGHAM, Rapporteur for the third workshop, said that six governments participated in the workshop. Three main subjects were discussed: cooperation for ratification of the Convention, broader international cooperation for the implementation of the Convention (even with non-state parties), and formulation of various recommendations.
Regarding ratification, the group emphasized that the Convention was not ratified anymore by countries of origin. Concern about countries in the North and West was voiced - what were the real obstacles for ratification: the nature of migration? Was it the content of the Convention or politics? What might be the effect of the increasing number of ratifications? When would ratification speed up, once 60 states had ratified perhaps? What was going to be a motor and an incentive for the Northern countries to sign and ratify?
With regard to the second subject, participants discussed cooperation at different levels. Mr. Bingham remarked that the subject of irregular migration was not taboo anymore, it had moved to being a main subject in government programs and had changed a lot since the first days of the Global Forum. Regional cooperation was discussed with references to processes such as the Abu Dhabi process. At a bilateral level, readmission agreements were discussed, for example how to better use certain frameworks such as recruitment agencies. Application into national laws was raised. The participants also talked about the increasing importance of courts, such as the European Court of Human Rights.
Overview of discussions on the three workshops the afternoon
In the discussion that followed the reports of the workshops, one participant recalled that an international campaign for the ratification in 1998 had helped to quadruple the number of States parties, leading to the entry into force of the Convention in 2003. Another speaker suggested that courts were used to extend the ratification. On the issue of regulation, an expert warned against putting forward a law in this respect, that is not listed in the Convention. A strong caution was expressed by one of the government participants not to use cooperation as a way to limit or skirt international obligations, as governments needed to be careful with overly technical aspects of legislation. A speaker expressed regret that they did not return to the important issue of the visibility or invisibility of migrants referred to in the morning.
Conclusion of the Day of General Discussion
ABDELHAMID EL JAMRI, Committee Chairperson, thanked everyone for participating. He also told the assembly that he had once met with a country delegate in New York and the latter had said that his country was surely not going to ratify the Convention because it was going to give rights to these irregular workers. Yet in the conversation it came out that in the delegate’s country, irregular workers had the right to access health services and education for the children for example, which showed for one that many States actually respected the Convention without having ratified it, and secondly that there was a wide misunderstanding of what the Convention was really about. Therefore this was an encouraging example that there was a good chance to make more States ratify the Convention; it was just crucial to promote a better knowledge of it.
Some basic principles must be respected, he said: the institution of rights, capacity building of those responsible for enforcement, and better information rights, which meant education programs on the rights of migrant workers.
Today’s general discussion was very efficient and the Chairperson expressed the wish to see a strong participation on these subjects in the next meetings. There would be a report about today’s meeting. One of the important points that had come out of the meeting was that the partnership with civil society was getting stronger and that it was crucial for the promotion and progress on those issues. The Committee was also delighted to see that the trade unions took a growing interest in the topic of migration.
For use of the information media; not an official record
CMW11/012E