COMMITTEE ON PROTECTION OF RIGHTS OF MIGRANT WORKERS CONSIDERS INITIAL REPORT OF EL SALVADOR

The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has considered the initial report of El Salvador on its implementation of the provisions of the International Convention on the Protection of All Migrant Workers and Members of Their Families.

Presenting the report, Byron Fernando Larios Lopez, Permanent Representative of El Salvador to the United Nations Office at Geneva, said that, according to the 2007 census, El Salvador had a population of 5,744,113 million. There were some 2.3 million Salvadorans who lived outside of the country, 1.8 million of them in the United States, and there were also 37,820 foreigners living in El Salvador. As the fundamental guiding principle, El Salvador recognized international migration as a positive good, owing to the diverse social, economic and cultural contributions that migrants brought with them. El Salvador was committed to upholding the human rights of migrants, which was a crosscutting task involving all arms of Government. Moreover, El Salvador did not criminalize irregular migrants. Instead, it believed in working with other countries in regional and international processes to promote dialogue and to work together for a better understanding and regulation of international migration, paying attention to the needs of promoting the links between migration and human rights.

Among advances in the areas of Salvadorans residing abroad, in 2004, the Office of the Deputy Foreign Minister for Salvadorans Abroad had been created to formulate, apply and coordinate public policies for Salvadorans living abroad, to defend their rights, to safeguard their interests, to promote opportunities for them and to strengthen their national identity, in conformity with the Government Plan for a Secure Country. Among other measures to ensure respect for the rights of migrants in the country, as of July 2008, the Centre for Comprehensive Support for Migrants filled a gap in protections for migrants who were in the process of repatriation by ensuring that foreigners were housed. Medical services and psychological care, as well as consular support, were all provided.

Experts raised questions concerning the issue of the draft law on aliens and migration, and the likelihood it would be adopted any time soon; the status of temporary workers; a lack of ability for Salvadorans abroad to vote; facilities and social services provided through the consular offices; how the best rights of the child were taken into account in expulsions of unaccompanied minors; access to school for children of migrants; remittances; repatriation bonds for employees sent overseas to ensure payment for transport; and coordination of migration concerns in the Government.

Also in the delegation were representatives of the Ministry of Foreign Affairs, the National Police and the Directorate-General for Migration and Foreigners, as well as staff from the Permanent Mission of El Salvador to the United Nations Office at Geneva.

When the Committee next reconvenes in public, on Wednesday, 26 November at 3 p.m., it will have a meeting with the European Parliament’s Parliamentary Committee on Migration.

Report of El Salvador

The initial report of El Salvador (CMW/C/SLV/1) says El Salvador has a Migration Act dating from 1959, enacted to establish control of migration, which contains provisions on the entry and departure of persons into and from the national territory. There is currently a draft migration and aliens act which is intended to replace the 1959 Act in its entirety in order to incorporate the relevant provisions both of the Constitution and of the migration instruments ratified by El Salvador. The Directorate-General for Migration and Aliens has been created to deal with these matters. El Salvador also has an Aliens Act dating from 1863, which was amended in 1986 to bring it into line with the Constitution and other, secondary, laws. The Aliens Act will also be replaced by the new migration and aliens act in order to bring together in a single piece of legislation matters affecting migrants and those affecting aliens in general.

With regard to regional and international cooperation, the report notes that El Salvador has taken an active part in the Regional Conference on Migration, which met for the first time in Mexico in 1996. Among activities in that context, arrangements have been established with regard to consular protection and national legislation; a start has been made on the implementation of bilateral and regional agreements on the humane, orderly and safe return by land of the region’s migrants; there is a programme of multilateral cooperation for the assisted return of migrants from outside the region stranded in countries members of the Conference; and projects have been formulated for the reintegration of repatriated migrants in society and the labour market. El Salvador has also participated in the Central American Commission for Migration since its inception, in 1990. The main agreements concluded under the Commission’s auspices include the introduction of the phased and progressive issuance of the single Central American passport in order to harmonize and standardize migration procedures; introduction of free transit through the CA-4 countries from 1 June 2006; strengthening of the common technical migration arrangements and integrated migration controls and the introduction of the single Central American visa; and fulfilment of various plans and commitments acquired under the “Secure Central America” initiative, such as the regional plan to combat organized crime.

Presentation of Report

BYRON FERNANDO LARIOS LOPEZ, Permanent Representative of El Salvador to the United Nations Office at Geneva, introducing the initial report, began with some facts about El Salvador. According to the 2007 census, El Salvador had a population of 5,744,113 million inhabitants. El Salvador, which had borders with Guatemala and Honduras, had always been a migration country. During the period from 1950 to 1970, migration had mostly been occasional and professional; in the 1980s it had been motivated by the armed conflict and violence in the Central American region; and in the 1990s till now it had been largely economic. In total there were some 2.3 million Salvadorans who lived outside of the country, 1.8 million of them – or 90 per cent – in the United States. It was also important to note that, according to the latest census, there were 37,820 foreigners living in El Salvador, coming from the African, American, Asian and European continents.

As the fundamental guiding principle, El Salvador recognized international migration as a positive good, owing to the diverse social, economic and cultural contributions that migrants brought with them, making them a driving force in the development of the country. El Salvador was committed to upholding the human rights of migrants, which was a crosscutting task involving all ministries of Government. Moreover, El Salvador did not criminalize irregular migrants, Mr. Larios Lopez stressed. Instead, El Salvador believed in working with other countries in regional and international processes to promote dialogue and to work together for a better understanding and regulation of international migration, paying attention to the needs of promoting the links between migration and human rights.

Among advances in the areas of Salvadorans residing abroad, Mr. Larios Lopez noted that, in 2004, the Office of the Deputy Foreign Minister for Salvadorans Abroad had been created to formulate, apply and coordinate public policies for Salvadorans living abroad, to defend their rights, to safeguard their interests, to promote opportunities for them and to strengthen their national identity, in conformity with the Government Plan for a Secure Country. The latter plan had the following strategic goals: human rights and legal assistance; migrant stability and family reunification; remittances and local development; social and humanitarian assistance; economic integration; consular services; links to organized communities abroad and political participation; and strengthening of national identity.

To make those effective, in the area of human rights and legal assistance, at the international regional and bilateral level El Salvador was pursuing the adoption of resolutions, agreements and memorandums of understanding, Mr. Larios Lopez said. Examples on the bilateral level were agreements with Mexico and Guatemala for the repatriation of migrants as well as to combat trafficking in persons; and on the regional level there was a Central American agreement with Mexico for the orderly and safe repatriation of Central American migrants from Mexico. El Salvador had made a number of visits to the border areas with Mexico, Guatemala and the United States, to study the situation of migrants at the frontier in terms of the treatment of Salvadorans detained for trying to emigrate without proper documentation, as well as to learn more about the illicit transport of migrants and trafficking in persons.

In the context of consular services, El Salvador had established and strengthened their consular protection offices located in Mexico and in the United States. They had also broadened and improved consular offices in San Francisco, Washington, D.C., Australia, Switzerland and Milan. They had also put in place a video interviewing system for migrants in the United States, and had reduced the time for issuing passports. Another development had been the introduction of a toll free number to vulnerable migrants that needed assistance, Mr. Larios Lopez said.

Since July 2005 the Care Centre for Migrant Workers was set up on the border to take in and provide food, rest and medical and psychological care for Salvadorans deported by land and returning home, in particular those in vulnerable circumstances, such as children, women and the sick. In the period from July 2005 to September 2008, it had assisted some 13,684 persons.

In the area of migratory stability and family reunification, El Salvador was undertaking a number of initiatives, Mr. Larios Lopez said. Examples included a Temporary Protection Status project with the United States; a memorandum of understanding with Guatemala to implement a migratory mechanism to provide temporary protection to migrants and to regularize their situation; the Comprehensive Programme on Regulation and Coordination of Aliens and Immigration with Spain; and the programme with Mexico to regularize the situation of migrants.

Among innovations to meet the health needs of Salvadorans living abroad, a Bi-national Health Week had been organized to improve the health of Latinos living in the United States, in which many non-governmental organizations and government agencies had participated. Approximately 30,000 Salvadorans in the United States and Canada had attended. There had also been two housing fairs for Salvadorans living abroad that had been held with a view to facilitating the home ownership for migrants.

Turning to issues regarding El Salvador as a country of transit for migrants, Mr. Larios Lopez highlighted that the entry of aliens irregularly into the country was not a crime, but an administrative offence that was subject to a fine and exit from the country. The fine could also be paid in the form of community service.

The Law on Migration of 1958 and the Law on Aliens of 1986 were, in addition to the Constitution, the principle legal norms regulating the situation of foreigners in El Salvador. Since El Salvador's ratification of the Convention in 2003, it had become necessary to introduce new legislation to bring El Salvador's laws in line with it. For that reason, a preliminary draft law on migrants and aliens was now being reviewed by the Executive for subsequent submission to the National Assembly, Mr. Larios Lopez explained.

Among other measures to ensure respect for the rights of migrants, Mr. Larios Lopez noted that, as of July 2008, the Centre for Comprehensive Support for Migrants filled a gap in protections for migrants who were in the process of repatriation by ensuring that foreigners were housed. It was administered by the Directorate-General for Migration and Aliens. It had a capacity for 80 persons divided in four areas: for men, women, families and vulnerable groups. Medical services and psychological care, as well as consular support, were all provided.

The Civil National Police, through its border division, was in charge of monitoring all the borders. It was obliged to inform the Directorate-General of all cases that arose and, if necessary, requested repatriation orders.

Other measures included a Care Centre for Salvadoran Migrants, opened in June 2008, which provided assistance in the areas of employment, education, basic medical care, and capacity-building; a National Committee to Combat Trafficking in Persons; the creation, in 2006, of a shelter for victims of trafficking; and a comprehensive strategy to raise awareness on the risks of irregular migration, Mr. Larios Lopez added.

Mr. Larios Lopez concluded by noting that El Salvador had made significant efforts to comply with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Notwithstanding those efforts, the Government was well aware that much work lay ahead, and was committed to further strengthening its regime to protect human rights of migrant workers and members of their families in El Salvador.

Questions by Experts

FRANCISCO ALBA, the Committee Expert acting as Rapporteur for the Report of El Salvador, believed that El Salvador had very much taken its responsibilities in this area seriously, perhaps in part owing to the fact that 20 per cent of its citizens lived abroad and that it was well aware of the problems and considerations involved.

Mr. Alba regretted that the report of El Salvador was overly theoretical and formalistic, without enough emphasis on concrete facts. For example, it was not enough to say that the Constitution guaranteed equal treatment under the law, when everyone knew that that was not a guarantee for how people were necessarily treated.

There was a need to ensure that the entire legal framework was aligned with the Convention, Mr. Alba observed. In that connection, what was happening with the draft law on aliens and migration, and what was the likelihood it would be adopted?

Regarding conditions for migrants in irregular legal situations, Mr. Alba noted that they were not criminalized, but were considered to have committed an administrative infraction. Therefore, migrants who were found at the border in irregular situations could not be sent to the migration centre, as they were not under arrest. Where did they go? Also, what happened to those who had been in the centre for the maximum number of days?

Expulsion was another hazy area, Mr. Alba said. He understood that expulsions were not subject to appeal of any kind through the judiciary. If true, that was in complete contradiction with the Convention and its principles.

Mr. Alba was also unclear about the status of temporary workers, which apparently were only found in the sugar industry. Did that group have a special status and regulations applicable to it?

Regarding voting rights, Mr. Alba said El Salvador had the obligation to consider how its citizens abroad could exercise those rights. As far as he could see they did not consider this to be a constitutional issue and were not treating it as an urgent matter.

PRASAD KARIYAWASAM, the Committee Expert acting as co-Rapporteur for the Report of El Salvador, emphasized the need for a regular rights-based procedure for expulsions. In that connection, did the Government assist Salvadorans living abroad to return home, and what sort of facilities and welfare were they provided with through the consular offices? Also, were the same facilities available to both legal and illegal migrants? According to information received, there had been incidents of non-dignified expulsions.

Mr. Kariyawasam asked specifically about the issue of El Salvadorans who had died in transit to Mexico.

In the expulsion of unaccompanied minors, how did El Salvador ensure that the best interests of the child were taken into account? Moreover, how many such children had been expelled, Mr. Kariyawasam asked?

Also on children, what were the measures taken to ensure that children of migrants were able to freely have access to the school system, without discrimination?

Other Experts then asked questions on a number of issues, including the right to vote; remittances, and laws to facilitate the sending and receiving of remittances from migrants abroad; the situation of migrant minors; repatriation bonds for employees sent overseas to ensure payment for transport; coordination of migration concerns in the Government; and the procedural manual on migration concerns for the national police, and how that had been drawn up – in particular whether it reflected the provisions of the Convention.

Response by Delegation

Responding to questions, with regard to the draft bill on aliens and migration, the delegation said this was a process that had been going on for some time now. The bill was currently being read by the Executive to ensure that it did not conflict with the Convention, and that reading was about half way through at this point. Following the current reading it would go to civil society organizations for review and then to the Procurator's office for comments before it would go to the National Assembly.

The delegation also stressed that there were self-executing provisions of the Convention, which had priority over domestic law, and so some provisions of the Convention were already in force.

The Centre for Comprehensive Migrants, inaugurated in July, was a subject of pride, the delegation said. Previously, migrants awaiting repatriation had sometimes been held in police cells. While there were no centres on the borders yet, El Salvador was a small country, and it took only two to three hours to transport migrants from the border to the new Centre in the capital. The Centre had a capacity for 80 – but that was much larger than the number of those being processed for repatriation. For example, right now, there were only five people in the Centre. The Centre provided food, housing, washing facilities, and telephones. Two or three times a week a doctor from the Ministry of Health visited the centre, and there were similarly contracts for provision of psychologists and psychiatrists. To date, there had been 96 foreign migrants, including 6 family groups and 10 minors, hosted at the Centre. There was also a manual that had been developed to codify proper practice.

On due process concerns, when a foreigner arrived and the National Civil Police requested repatriation, they had a right to hearing, and were informed of their rights and the elements of the offence they had committed. At the hearing, interpreters were provided. Once the hearing was over and a ruling had been handed down, persons could apply for an appeal. The Migration Law provided that right under the section on remedies. That was an administrative appeal. However, there was also a right to make a habeas corpus appeal or to make an amparo claim, the delegation noted.

The time limit for appeals was five days from the time of proceedings, although that could be extended.

Regarding temporary migrant workers, the delegation noted that the Migration Act in force did not mention temporary workers, but mentioned "braseros". What had happened was that El Salvador had used the concept of temporary workers to regularize the situation of a number of migrants, at first following a request from a sugar plantation. However, it was a category that was not just available to sugar cane workers, but all seasonal workers.

Providing information on the Welcome Home Programme, the delegation noted that it had been in place for a couple of years now. From 1999 to 2004, it had been run by the Government, with funds from the United States. From 2004 to 2006, the programme had been transferred to a civil society group, however, operated using Ministry of Social Welfare funds. Today it was wholly operated by the Salvadoran Government. The programme focused chiefly on providing emergency care for Salvadorans returning home in vulnerable circumstances, furnishing them with accommodation, information, urgent medical care; documentation and jobs guidance.

On the right to vote, the delegation noted that with the establishment of the Vice Ministry for Salvadorans Abroad, El Salvador was organizing its contacts with its population living in other countries. Owing to the very large numbers of those living abroad, most of their efforts had been concentrated on providing documents for the 2.3 million Salvadorans living outside the country. Studies had been carried out on the costs of providing full documentation for those living outside the country, only 2 per cent of whom were currently documented. It would cost $33-34 million to provide complete documentation

On the issue of children of migrants, the delegation noted that three major research projects had been identified at the national level with regard to migration, including on women migrants and on the impact on the children who had been left behind in El Salvador when their parents migrated. They were currently seeking funding for those projects from international organizations such as the International Organization for Migration and the United Nations Children's Fund.

The delegation pointed out that the Government was working hard in the social sector to improve the overall living situation of Salvadorans. In February of 2005 the Social Opportunity Programme was created to enable every Salvadoran to have access to a decent life, with their basic needs satisfied. It included a number of sub-programmes, including Health Force, which would strengthen healthcare services, paying particular attention to maternal and infant health; an education programme; a youth plan to give youth access to opportunities and training; a microcredit plan, which would contribute to providing family incomes; and a Social Solidarity Network for families in rural areas to provide health and other services for those in remote areas, as well as to comprehensively improve living conditions for some 100,000 families living in abject poverty.

Given the increasing prices of oil and rising food prices, the President had introduced the Alliance for the Family, which planned to invest $ 54 million for areas such as health, education, telecommunications, maternity leave, and others. Some $ 18.5 million alone was earmarked under this plan each year to provide financial assistance for secondary school students. (Secondary school was not entirely free in El Salvador as there were entry fees, book fees and others.)

The Deputy Ministry for Foreign Affairs for Salvadorans abroad had a humanitarian unit that was responsible for looking after the situation of those who returned with disabilities that had been inflicted abroad, including through liaising with the Government of the country in which they had received their injuries to obtain compensation, the delegation said. Once returned, they were connected into the social system, in part via the Ministry of the Family, and measures were taken to rehabilitate them and reintegrate them into Salvadoran society.

Giving some figures for repatriation of minors, the delegation said that in 2007, 89 minors had been repatriated: 26 from Nicaragua; 20 from Guatemala; and 38 from Honduras. In 2008, 51 minors had been sent back to their countries: 9 from Nicaragua; 8 from Mexico; 13 from Honduras; 13 from Guatemala; 1 from Panama; 4 from the United States; and 3 from Belize.

For those migrants abroad that had lost their jobs and had to repatriate, the delegation said a number of measures were taken. The Government worked with the companies that employed them to indemnify them for costs of return. Once they were back in the country, it was the consular office that continued cases against employers for indemnification, whether for repatriation or for injuries incurred at work. There was a national repatriation fund, administered by the National Migration Office, for Salvadorans coming from Belize. There was also a regional level fund, under the Regional Migration Conference, that provided financial assistance for migrants in difficulty.

All children of migrants in El Salvador received an education regardless of their migratory status. They simply needed to show their birth certificate and their study certificate to be able to be enrolled in school, the delegation said.

For children that requested repatriation, the delegation said the Migration Service had good coordination with the Child Protection Agency and also with neighbouring countries. A psychosocial assessment was first carried out to ensure that the child would not be returning to an abusive situation. A delegation from El Salvador then accompanied the minor back to their country. The Consular Office for Salvador in the country involved then worked with the children to monitor their situation, and coordinated efforts between the Salvadoran Child Protection Agency and the analogous body in the country concerned. Children returned to El Salvador were received by the Department of Humanitarian Management, which took the necessary measures to protect the child in their social and other environments.

Consular protection services were provided to migrants abroad regardless of their migratory status or whether or not they had papers. Their activities were focused on identifying nationality; determining whether migrants rights had been infringed; and providing financial and other protection services. Approximately nine protection Consuls had been established.

Turning to the issue of awareness-raising about irregular migration, the delegation said that such programmes targeted areas where there was a high level of migration. The Ministry of Education had a North Route Programme to inform school age children about the United States. Efforts were also being made in this area in conjunction with the Mexican Government and with civil society.

In response to a query about the status of research projects, the delegation confirmed that a research study on the impact of migration on Salvadoran children was currently under way, by the Directorate-General for Migration and Aliens with assistance from the United Nations Children's Fund, the United Nations Population Fund, the United Nations Development Programme and the International Organization for Migration.

On the issue of remittances, the delegation confirmed the importance of remittances by migrants to families and others back in El Salvador for the Salvadoran economy. In 2007 alone there had been $3.9 billion in recorded remittances, although that was probably just "the tip of the iceberg" as there were many remittances that were not sent through official channels.

Addressing forced returns, the delegation noted that it was in that context that El Salvador had established the Welcome Home Programme. Some indicators and some activities had been put in place, but not everything was totally operational. The Programme would be refined to include other focuses and activities in future.

With regard to repatriations, there were two bilateral agreements – one with Mexico and one with Guatemala. There was also a wider agreement with a number of Central American countries signed in 2006, that set out conditions for repatriation, which had guidelines in a number of areas, including repatriation of children and of women. From 2007 to date there had been 11,720 deportations carried out over land.

Concerning statistics on trafficking in persons, the delegation said statistics in this area had been collected by the Border Division of the National Police since 2004. Up until 2007, 154 cases had been instituted with some 208 victims, and 140 persons detained.

As for the right for migrant workers to join trade unions, the delegation noted that foreign migrant workers had the right to establish and to belong to trade unions according to the law. According to the Constitution, however, members of trade union boards had to be Salvadoran by birth. Meanwhile, El Salvador had become party to two International Labour Organization Conventions dealing with freedom of association for workers (Conventions Nos. 87 and 98). There was a contradiction between the provisions of those Conventions and the Constitution, according to the Human Rights Procurator, which had recommended that foreigners be allowed to have access to higher positions in trade unions.

El Salvador had been taking a number of inter-institutional measures with regard to the provision of pensions and other social security benefits, as set out in the Convention, the delegation added.

Further Questions by Experts

In follow-up questions, among other issues, Experts raised the issue of habeas corpus complaints. As far as he knew, migrants were expelled before the conclusion of habeas corpus procedures, which appeared to be a contradiction to the whole process.

On the population figures for El Salvador, an Expert noted that there was a large discrepancy between the figure cited in the report (6,756,800) and that cited by the delegation yesterday (5,744,113). Was that wholly accountable to migration? Also, did the population figure for El Salvador include those who lived outside the country?

Other questions included estimates of the number of those working in an irregular situation in El Salvador and whether El Salvador had a significant level of transiting migrants.

Response by Delegation

Responding to these issues and others, the delegation, concerning the reservations to the Convention, clarified that El Salvador had not made reservations, but rather had made declarations on ratifying the Convention. There was no restriction on migrant workers transferring their payments to their country of origin, provided that they paid the applicable tax.

With regard to training for migration officials, a number of trainings were carried out by the Human Rights Procurator's Office. Recently, a module on repatriation had been carried out. The Government recognized the need for more systematic trainings.

On freedom of movement between the Central American countries, the delegation clarified that that was freedom for crossing of borders without visas, but that freedom did not cover things such as the right to work. There was still a long way to go with regard to full economic integration such as in the European Union.

It was premature to give estimates of how many persons were in the country in irregular situations. The census recorded that some 37,000 foreigners lived in the country, the delegation said.

Concerning residence permits, all foreigners needed a residence permit to be able to work in the country. Residence permits were all for one year, and each year the foreigner had to reapply for residency in advance of the deadline. If the deadline was exceeded, there was now a grace period of 60 to 90 days for the foreigner to reapply for a different kind of permit.

Turning to transit migration, the delegation noted that the Migration Directorate only took account of transit migration via land. For land travel, the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Palermo Protocol) was applied to cases of irregular transit migration.

In 2006, the National Committee to Combat Trafficking in Persons had been set up. There was also a National Plan of Action to Combat Trafficking in Persons, which included a project to provide training for immigration officers and border police and others who worked in areas related to trafficking, the delegation said.

The delegation clarified that the population figures did not include those who were living outside the country.

Concluding Comments

FRANCISCO ALBA, the Committee Expert acting as Rapporteur for the Report of El Salvador, in some concluding comments, said he welcomed the highly competent and very representative delegation from El Salvador, which was composed of representatives from all of the various arms of Government responsible for migrant issues. It was one indication of how seriously El Salvador was taking its obligations under the Convention. It had been a very fruitful dialogue. El Salvador had taken a number of measures and had been elaborating good practices, in particular in the area of remittances.

Also in concluding comments, PRASAD KARIYAWASAM, the Committee Expert acting as co-Rapporteur for the Report of El Salvador, welcomed the quality of the presentation provided by El Salvador and was pleased with the steps El Salvador had taken to implement the Convention.

ABDELHAMID EL JAMRI, Committee Chairperson, in his final comments, highlighted his satisfaction in particular at the presence on the delegation of representatives from the Police, who often came into contact with migrants. He noted that, despite many positive efforts, more coordination was needed to be taken by the State, in particular to be sure that such action was clearly anchored in human rights, and that it was based on the provisions of the Convention.


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