COMMITTEE ON THE RIGHTS OF MIGRANT WORKERS CONSIDERED THE REPORT OF GUATEMALA

The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has considered the initial report of Guatemala 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, Ruth Del Valle, Head of the Presidential Commission coordinating the Policy of the Executive in matters of Human Rights, said that the report informed the Committee about what had happened in Guatemala between 2004 and 2008 in matters of migration and updated it on what had happened since.

Guatemala was a country of origin, transit, destination and return so this Convention was very important to the government. Every person had a series of rights whose enjoyment should not be dependent on the status of migrant or not. She would make some additional points to the list of issues during the dialogue. Among the main elements of progress was the consular identification card for Guatemalans abroad. The Government had also initiated harmonization of migration legislation, which was an improvement. Other important goals of Guatemala were eliminating sexual exploitation and trafficking, creating a normative framework, and providing protection for victims.

The main challenges identified by the Government included: establishing regulations for access to education and trade unionization, concluding the development of migration policy with all dimensions of migration in Guatemala, improving social security in order to cover all people in Guatemala (currently only eight per cent of Guatemalans had social security); improving legal advice for migrants in centres and improving training of police agents so they did not abuse migrants.

Committee Experts raised questions concerning, among other matters, migrants in transit, the regularization process, human trafficking, expulsion measures, labour conditions for migrant workers, the application of different Conventions from the International Labour Organization, trade unions, shelters for irregular migrants, Guatemalan migrants abroad and their working conditions, the mobile consulates.

In concluding remarks, Ana Cubias Medina, the Committee member acting as the country Rapporteur for Guatemala, said that the Committee saw Guatemala as a very important country for migration because it was concerned by the three aspects – origin, destination and transit. Yet Guatemala needed to improve their structures. As a country of destination, Guatemala had the tools to regularize irregular migrants, but information about it should circulate better. Furthermore, legal mechanisms were lacking to deal with the fact that Guatemala was also a country of transit.

The delegation of Guatemala included representatives from the Presidential Commission coordinating the Policy of the Executive in matters of Human Rights, the Ministry of Labour and Social Welfare, the National Council for Migration and the Permanent Mission of Guatemala to the United Nations in Geneva.

The next public meeting of the Committee will take place on Monday, 19 September 2011, when the Committee will hold a Day of General Discussion on Undocumented Migrant Workers.


Report of Guatemala

The initial report of Guatemala (CMW/C/GTM/1) noted in its introduction that the State recognized that the Convention has not been effectively implemented. This crucial challenge, however, should not overshadow the substantial progress achieved, especially at the legislative and institutional levels, as discussed in detail in this document. Article 46 of the Constitution established the general principle that, in the field of human rights, the treaties and agreements approved and ratified by Guatemala have precedence over domestic law. That should be taken into account when assessing the place of the Convention within the country's legal framework. Subsequent to its ratification, the Convention became part of the domestic body of laws.

Under article 1 of the Constitution, the State of Guatemala was organized to protect the person and the family. Accordingly, under article 4 of the Constitution, in Guatemala all human beings are free and equal in dignity and rights. Regardless of their civil status, men and women have equal opportunities and responsibilities. No person may be subjected to slavery or any other condition detrimental to his or her dignity.

The Migration Act aims at ensuring an effective migration system governing nationals' and foreigners' entry into and departure from the national territory and the foreigners' stay therein. Its provisions were of a public nature and applied to all nationals and foreigners save for other States' representatives and civil servants accredited in the country. Some of its provisions included the following: temporary resident status could be granted to foreigners authorized to stay in the country for two years in order to engage in a lawful activity on a temporary basis. Foreigners in this category may be gainfully employed or invest in the country, provided that the capital stems from legitimate activities.

The Migration Act defined the crimes and other offences that may be committed with regard to migration. The following criminal characterizations are provided: illegal entry of persons; illegal transit of persons, transport of illegal persons, concealment of illegal persons, and employment of illegal persons. The penalties for these offences were increased by one third if the offences affected minors or were committed by civil servants. Moreover, a foreigner's entry into or stay in the country without authorization from the Director General of Migration or without meeting the legal requirements was considered to be an offence.

Presentation of the report of Guatemala

RUTH DEL VALLE, Head of the Presidential Commission coordinating the Policy of the Executive in matters of Human Rights, said that the report informed the Committee about what had happened in Guatemala between 2004 and 2008 in matters of migration and updated it on what had happened since. She thanked the National Council for Migration for participating in the drafting process.

There were direct interviews with various authorities linked to migration, border authorities, the legal aid office, the electoral court, the congress, the national registry, ombudsmen, the Ministry of the Interior, the civil police, the Ministry of Foreign Affairs, the Secretariat of Social Welfare, the Ministry of Education, the Secretariat for Peace and the National Council for Migrants. The institutions looked at the challenges and were aware that some aspects of the Convention were not entirely respected yet.

Guatemala produced a lot of emigrants as well, and 60 per cent of those who tried to enter the United States did so illegally. Some also wanted to go to Mexico and recently to Canada. The Convention had not been signed by recipient countries that were developed, and this affected Guatemala.

Guatemala was a country of origin, transit, destination and return so this Convention was very important to the Government. Every person had a series of rights whose enjoyment should not be dependent on the status of migrant or not. She would make some additional points to the list of issues during the dialogue. Among the main elements of progress was the consular identification card for Guatemalans abroad. The Government had also initiated harmonization of migration legislation, which was an improvement. Other important goals of Guatemala were eliminating sexual exploitation and trafficking, creating a normative framework, and providing protection for victims. Also, a telephone line had been created to receive complaints. A memorandum of understanding with the United States had been signed in order to fight human trafficking.

The main challenges identified by the Government included: establishing regulations to access education and trade unionization, concluding the development of migration policy with all dimensions of migration in Guatemala, improving social security in order to cover all people in Guatemala (right now only eight per cent of Guatemalans had social security); improving legal advice for migrants in centres and improving training of police agents so they do not commit abuse on migrants.

Questions by Experts

ANA CUBIAS MEDINA, the Country Rapporteur for Guatemala, welcomed the draft bill on migration. She also congratulated Guatemala for their tremendous work over the past few years. She inquired about the migrants in transit, the adolescents and trafficking in human beings. There was a new law against sexual exploitation and Guatemala had a national institution dealing with this, as well as a national policy. She asked for more information about The National Council for the Protection of Migrants. Also, what were the specific activities of the army in the migration process? Was there a procedure at the migration office to ensure that the human rights of working migrants were respected before somebody was expelled? There were indeed complaints about labour rights. She asked for more details about the process used to obtain Guatemalan citizenship for the Central American population.

The Committee had received a number of complaints about corruption in the migration office.
Migrants with irregular status did not use the judicial option for review of expulsion orders - why? Was it because it did not exist or did they consider it unnecessary? Did Guatemala have a policy for the protection of human rights for migrants in an irregular situation?

An Expert noted that there were numerous challenges facing Guatemala that included a lack of detail in statistics and shortage of resources and training for state officials and civil servants. She asked what measures had been taken to mitigate these obstacles.

Paragraph 75 of the report said that there were restrictions for a migrant worker to join a trade union, which should not be the case. Regarding the right to organize, one Expert referred to the work of International Labour Organization. Migrant workers were suffering physical harassment in Guatemala. Could irregular migrants be members of trade unions?

The Expert noted that there was very deep-rooted discrimination against the indigenous peoples in Guatemala, including migrants. What measures were taken by Guatemala to fight discrimination?

Another Expert thanked the delegation for participating and for the report. There was a regional immigration group and forum regrouping various countries such as Canada, Mexico, and the Dominican Republic, and he wanted to learn more about it.

How did Guatemala reintegrate Guatemalan migrants who were sent back from Mexico and the United States? Recently 30,000 migrants were sent back from the United States in one year only, a very significant number.

One Expert highlighted that “illegal migrant” was not the right expression to use and that “irregular migrant” was preferable because a human being could not be illegal. Had Guatemala examined in Congress how far the commitment taken with the Convention had been respected? Also, Guatemala recognized all Central Americans as Guatemalans. Could any Central American come to Guatemala and work or were there any conditions? How did it function?
Concerning migrants in transit: according to non governmental organizations, there were centres for refugees but they were more detention centres for irregular migrants than regular centres. Also, the report mentioned that foreigners were being prosecuted because they had committed acts of discrimination against Guatemalans. Was that right or was there a mistake in the report?

How did the mobile consulates work exactly? What were the criteria for establishing them? What were the advantages of these mobile consulates? Concerning the right to vote, the Expert wondered if it was possible for Guatemalans to vote from abroad.

As a state within Central America, did Guatemala have bilateral agreements to seek the protection of migrants and their families? Guatemala had a lot of migrants abroad – were their rights defended?

Every year, at harvest season about 4,000 workers from Guatemala work in rural areas in Canada and often their rights are violated, their living conditions are intolerable, their documents are confiscated and they get expelled. Last year hundreds of these workers demonstrated in the capital, and went to the Canadian embassy to protest against the expulsion measure that they had endured. What measures had been taken by Guatemala to ensure that the rights of Guatemalan migrants were respected in Canada?

Response by the Delegation

The delegation said that normally Guatemala used “regular” and “irregular”, not “legal” and “illegal” to describe migrants. Concerning the expulsion of irregular aliens, the delegation mentioned that they were briefed on their rights and informed of all elements of the procedure. They had the right to free legal assistance if they could not afford to pay.

Regarding trade unions, there were no limitations for regular migrant workers. Concerning cases of abuse, there had indeed been some complaints. The delegation did not have documentation about these cases so it could only talk generally.

Concerning deportation, there was inter-institutional coordination for dealing with Guatemalans who had been deported. So far Guatemala had not managed to negotiate better conditions with the United States. Foreigners deported to Guatemala were taken care of and given food and shelter, and the authorities tried to reach the consulates in Guatemala, which was not always easy because many did not have documentation and sometimes their country did not have consulates in Guatemala. There were often Asians who were deported from Guatemala: sending them back home cost a lot of money, so there was coordination with the International Office of Migration on that issue.

Regarding shelters in Guatemala for migrants, migrants stayed in average four days, there were not that many foreign migrants in those shelters actually.

On the question of trafficking, there needed to be an increase in the budget to strengthen the work done. An alert system was established to find children who disappeared and thus children were found before they were sent to other countries. There were joint activities between Guatemala and Mexico to combat trafficking. Nowadays people were more ready to lodge a complaint than in the past. For victims, there were separate shelters for boys and girls, as well as one for adult victims, as the shelters respected the international guidelines. It was not always easy to identify where the children had come from. Often there were shelters at the border so that children from those areas could be sent there to meet up with their families if they had been identified and reached. A programme to protect unaccompanied migrating children had also been created.

The army helped the police when the police asked for it because they sometimes did not have enough armed personnel. The institutions had been restructured in the past few years. The law still allowed the army to have combined activities with the police because there were not enough police officers, but this was always under the leadership of the police.

The government had started to disseminate information on the international treaties and conventions among civil servants as well as migrants.

About the subject of voting outside of Guatemala, there was a bill before the Congress to discuss that.

There were still weak mechanisms in Guatemala, such as for the recruitment of Guatemalans by other countries like Canada - there was no bilateral agreement and the Guatemalan authorities had not been able to control the situation. Guatemala would like to guarantee the rights of Guatemalans outside its borders. However there was a social security agreement between Guatemala and Mexico, one on human trafficking with Honduras, significant consulate cooperation with Peru, and an agreement with France on regularization, one with Mexico on border crossing points and one with Belize about repatriation.

A technical group within The National Council for Migration shared its work on migration with 34 government institutions and with nine consulates in the United States and the work would soon be shared with civil society. One issue, for example, was the Ministry of Education which did not yet have programmes for migrants abroad.

Concerning the mobile consulates, there were 11 in the United States. They provided better care for Guatemalans, and it was done during the week-end so that migrant workers did not lose a day of work. It was organized by the consulates in the other countries and they would go to cities where there was a certain number of Guatemalans. It was usually conducted in community centres of those cities. They also existed in Mexico and Canada but at a much smaller level. A calendar was established at the beginning of the year for the communities to know when the consulates would be available.

Questions by the Experts

How was the International Convention on the Protection of All Migrant Workers and Members of their Families applied directly by administrative and judicial authorities? There were maybe standards that were not in line with the Convention. Was there any case law with the Convention? What was the purpose of that new law that the delegation mentioned earlier – was it currently being drafted or not yet? Did Guatemala intend to ratify International Labour Organization Convention 143? The self-employed worker had no contract – they came in under their own responsibility – did the Guatemalan legal framework somehow cover them?

How was the border worker form being used between Mexico and Guatemala? What progress had been made in using the bilateral border form?

The Expert wished to have more information on the right to join a union.

How did Guatemala guarantee the right to health and the right to education for irregular migrants? There was a lot of concern about migrants who were in an irregular situation. According to the report it seemed to be very easy to regularize, but then what were the real obstacles to the regularization process? The delegation spoke about a Memorandum of Understanding with Honduras, for example. How long could migrants be detained in shelters? What did the law state? Was it possible to appeal an expulsion order and to use the judicial route?

With regard to the concealment of irregular persons, was it a crime for the person who concealed such persons?

One Expert regretted the lack of statistics, such as the number of unaccompanied migrant children. The few numbers given do not really explain if they concerned trafficked children or not. Would it be possible to have more information about migrant children in transit?

The Committee inquired whether there was any agreement with Canada concerning wages and conditions of employment for Guatemalans in Canada for seasonal work.

Response by the Delegation

Regarding how the Convention was implemented, there had been no judicial procedure taken on the basis of the Convention. The Convention was publicized and distributed among the judges. International legislation prevailed in Guatemala over domestic legislation.

ILO Convention 143 of 1975 was on the agenda for ratification. The delegation remarked that it was a positive step and that the only country in South America that had ratified it was Venezuela.

A National Migration Institute was being created to deal with the objectives of the new law.

Concerning illegal entry, the delegation specified that it was not a crime. However it was illegal for someone to facilitate the illegal entry of someone else because it was often related to human trafficking.

If a foreigner had spent some time in an irregular situation after being regular within Guatemala, there was a fine. The fine could be challenged. Foreigners who received an expulsion order had access to due process and legal aid, but the delegation did not know why most of the time they did not use these recourses.

When there was a complaint for abuse against the police, the problem was that the police was the only authority carrying out the inspections of migrants’ documents so it was difficult to monitor those abuses. The police should respect human rights; it was enshrined in the law. There was a system to prosecute public servants as long as there was a formal complaint against them. The procedure was not complicated and legal help was not required. However, there was no culture of making a complaint among the foreigners in Guatemala, which made it difficult to prosecute the members of the police responsible for the offense.

An identification document was needed to enter a school but nothing else blocked the entry of schools for foreigners.

Unaccompanied children were generally taken to shelters and then there was a search for family members through different authorities. If it was presumed that the child was foreign, the Ministry for Foreign Affairs cooperated in the search. The State looked after the child until the family was found. If the family was not found, the child stayed under the direct protection of the State in one of the shelters or in a foster family before the process of adoption started. There was a special agreement with Mexico, El Salvador and Costa Rica concerning the repatriation of unaccompanied children. The delegation did not have additional statistics on unaccompanied children to those already sent to the Committee.

The offense of making other persons enter illegally could be punished by five to eight years imprisonment. Illegal transport of persons was punished by three to six years. The hiding of foreigners was also punished by three to six years. Hiring a person in an irregular situation was punished by two to five years imprisonment.

Concerning labour issues, there was a specific regulation for the private sector for hiring general managers or other high level positions. This was to protect national employment.

The Ministry of Labour did not have to authorize a foreigner to participate in a trade union, and they were allowed to participate in the leadership as well. A person was allowed to work from fourteen years of age on, but there were limitations to the types of work allowed (no public service for example).

Guatemalans had freedom of movement – they did not need a permit to leave or enter Guatemala. This was mentioned in the report because in some countries, citizens who wanted to re-enter their own country were not always allowed to do so (for example Cuba or even Guatemala before the democratic transition).

Concerning the mobile consulates, Guatemala had introduced free legal aid for Guatemalan emigrants; the Ministry of Foreign Affairs paid for this. Mobile consulates provided various other services to Guatemalans abroad, such as repatriation for health reasons.

Concerning the seasonal workers, a programme had been created with Canada. A consulate opened in Montreal, Canada to monitor it. Guatemala had five per cent of the quota authorized in Canada for non-skilled workers. There were no controls by the Guatemalan Ministry of Labour on the conditions of living and working. The Government was aware that many standards were violated by Canadian landowners. Generally, the monthly salary was around 1,600 Canadian dollars and at the end of employment, the employer had to give a letter to the Guatemalan worker, evaluating the work done. Thus many Guatemalans did not want Canadian authorities to get involved because they feared that if they filed a complaint they would not be given that letter and thus not be allowed to come back the year after. The Canadian labour inspectors needed to do thorough inspections and verify if the labour conditions for Guatemalans were respected. Furthermore, a law was passed in Canada saying that foreign migrant workers were not allowed to continue after four years so that they could not ask for the retirement stipend. That was another challenge for Guatemalans.

Questions by Experts

With regard to the difficulties met in implementing the Convention, an Expert wanted to know what Guatemala was doing to make the Council for Migration more efficient.

ILO Convention 138 had been ratified for the minimum age for work. But what were the rules concerning the compulsory age for school?

Concerning the prohibition of torture, the Government must include in the yearly budget the allocations necessary for the implementation of the Optional Protocol – was that indeed respected?

Concerning the issues faced by the Government to have better statistics, was it possible to receive help from International Organization for Migration?

Guatemala was also a transit country; it was a corridor for many migrants on their route to the United States and Canada. Was there regional coordination to deal with these transit migrants? Were there programs for minor migrants?

With regard to trafficking, Guatemala had a shelter for victims. What was the protocol to take care of these persons?

A migrant worker detained for being in an irregular situation was kept in a shelter and had 10 days to regularize their situation. Was this measure found to be efficient?

Response by the Delegation

The Convention established that one needed to be 16 years of age in order to work. Compulsory schooling was until the age of 14 and school was free of charge. There was a proposal to reform the labour code and the delegation wished the Committee would formulate a recommendation on that subject so that the Parliament took action on that.

Unaccompanied migrant children were not sent anywhere until their nationality and family were identified. Then, if the family could not pay for repatriation, the Guatemalan State paid for it.

Concerning disappearances, the Guatemalan police did not go to other countries to look for Guatemalan migrants. Guatemala would enter into dialogue with the authorities of the other country.

Concluding remarks

ANA CUBIAS MEDINA, Committee member serving as country Rapporteur for Guatemala, congratulated the delegation on answering the questions of the Experts. The Committee saw Guatemala as a very important country for migration because it was concerned by the three aspects – origin, destination and transit. Yet Guatemala needed to improve their structures. As a country of destination, Guatemala had the tools to regularize irregular migrants, but information about it should circulate better. Furthermore, legal mechanisms were lacking to deal with the fact that Guatemala was also a country of transit. Identification and protection of migrant workers under 18 should be improved. Argentina had asked for advice at the Inter-American Court for Human Rights on that subject, and maybe Guatemala should look at the document once it was accessible.

ABDELHAMRI EL JAMRI, Committee Chairperson, encouraged the delegation to continue applying the migration policies discussed. He reminded that a good migration policy was one that could change and adapt to the situations over the years.


For use of the information media; not an official record

CMW11/011E