Protecting migrant workers’ human and labour rights: Ensuring effective redress

Responses in full

1. Chris Nolan, Business for Social Responsibility (BSR), China

 Migrant Worker Grievance, a Private Sector Perspective

From the perspective of working with business in formal sectors – both multi-national companies and employers – on labor migration issues, we do see variance in the type and severity of grievances among migrant workers. The volume and severity of grievances tends to decrease with workers of increasing skill and lower labor intensive industries. However, addressing grievances is a challenge for workers in all industries in which we work – garment/textile, ICT, food and agriculture.

Generally, grievances of workers in lower skill positions in labor intensive industries such as the plantation sector experience more serious and frequent grievances than workers of medium skill in less labor intensive industries. Common grievances include wage deductions by employers without worker consent, contract substitution or change in terms of employment, and lack of access to adequate healthcare when necessary. Very often, these grievances are taken as a given by the workers—the cultural norms are such that violations of their rights are expected and/or not perceived as such.

One commonality we see across formal business sectors, regardless of skill level, is that because migrant workers are often not afforded adequate legal protections in receiving countries a higher onus placed on employer grievance mechanisms that exceed what’s legally required.

Chris Nolan

Business for Social Responsibility

www.bsr.org

To find out more about BSR’s current initiative on ‘Migration Linkages’ click here



 

2. Dr. Titilola Banjoko, AfricaRecruit, UK

Dear Community of Practice Members,

Please find my contributions to the current e-discussion on “Protecting migrant workers' human and labour rights: Ensuring effective redress” below.

 Topic 1: What are common grievances of migrant workers?

 1.    Does this vary for different types of migrant workers?

 The grievances vary with the greater concentration of abuse at the lower end of the job profile, particularly those whose employers: pay cash in hand; abuse the minimum wage; who have their work permits linked to them and act 'under the radar', knowingly recruiting workers without the right to work. This does not necessarily apply to the type.

2.    What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector?

Verbal and physical abuse; refusal to pay the agreed amounts and threatening to report to the authorities the irregular status of the migrant. The most critical way of providing support is by creating greater awareness on rights and the process to address any of the abuses. This could be through massive campaigns in countries of origin and in host countries in diaspora related media, diaspora shopping areas and diaspora communities. Lack of knowledge and fear of the unknown gives power to the abusers rather than the victims.

Laws should always be seen to support the victim i.e. visas delinked from employer and visible enforcement of labour laws no matter how powerful the abuser is. The reliance on documentation as evidence is a challenge for victims. In some cases this is not possible so alternatives should be sought.

Companies and or employees should be given training and education on the rights of migrants and their roles in preventing and reporting any of their small chain suppliers who provide staff to them. Companies should have penalty clauses in their contracts with suppliers. Finally, penalties to businesses must really be a deterrent.

Civil society organisations, such as trade unions, may also require training and an understanding on the growing unnoticed abuses and their role in supporting all staff.

Dr. Titilola BANJOKO



 

3. Flora Ventura, Centro Servizi per Immigrazione, Italy 

 Good morning.

My name is Flora Ventura. I currently live and work in Rome, Italy.

I work at the Centro Servizi per Immigrazione which gives migrants information on how to renew their documents and information on what to do and where to go in case their employers fail to comply with the law.

In Italy the laws and benefits of the Italian domestic helpers are the same with any migrant domestic helper. There are sindacato offices which help migrants and Italians when, for example, the employer fails to pay the worker fairly or when one is fired unjustly, etc.

The irregular migrants do not receive the same privilege. The contributions for their pension, hospitalization are not paid. Some are not well-paid.

Being in this office for 8 years now, I have heard from the many migrants that I encounter everyday that employers do not communicate the exact total of hours that they work, especially in the cases of ‘live-ins’. The exact total hours worked by a live-in domestic helper is 54hrs a week and the exact contribution that the employer must pay for this type is 687 euro every trimester. Most migrants talk and a compromise with the employer to help him/her renew his/her documents. In return s/he agrees that the employer will communicate to the INPS (State Pension Fund) that she's working only for 32.5hrs a week or even less. The minimum is 20hrs a week. This is the picture of most migrants, especially when the residence permit is connected with work contracts. This compromise happens especially when the employers do not have the funds to pay the total contribution for the worker.



4. Vijay Nagaraj, International Council on Human Rights Policy (ICHRP), Switzerland

 Irregular Migration: Key Human Rights Concerns

 [This contribution is based on a recently concluded research project undertaken by the International Council on Human Rights Policy: the full report, summaries in three languages and other documents related to the project are available at http://www.ichrp.org/en/projects/122?theme=7 and for further information please contact kiai@ichrp.org]

Some 214 million individuals are international migrants, about 3 per cent of the world’s population. Globalisation attracts people to economic opportunity but in most receiving countries irregular migrants work in a shadow economy, without effective regulation or protection. They tend to be paid badly, to work in insecure and unsafe conditions, and many face abuse and exploitation. This contribution focuses on highlighting the key human rights concerns, the international legal framework and ways forward will be examined in a subsequent post during Phase 2 of the discussion.

Key findings of the project

 Influenced by counter terrorism, migration policies have increasingly shifted from protection towards law enforcement. These policies have affected virtually all types of migration (family reunification, temporary migration for study, visits for leisure and for business, asylum, permanent and seasonal work permits) and put irregular migrants at greater risk, directly and indirectly, without reducing the pressures and incentives that cause them to travel.

Coercive law enforcement is not effective in the face of determined attempts to cross borders. Without human rights protection it has led to arbitrary applications of law and morally unacceptable harm to migrants. Policies that focus solely on suppressing migration, are not only likely to be operationally unachievable but also prejudice the rights and dignity of migrants.

“Management” approaches to migration also prioritise control and containment rather than view migrants as human beings with rights, entitled to protection. Public communication strategies appear to promote less-rational discussions and tend to emphasise (and exaggerate) costs.  Lack of reliable data, a critical factor, is likely to be used to gather and maintain data without stringent data protection standards or respect for the right of migrants to privacy and other human rights. Prominent examples of such policies include those that require health professionals, police officers or other public officials to report undocumented migrants.

Access to justice concerns center primarily around the lack of will and effective mechanisms to bring those who violate migrant workers’ rights promptly to justice. Migrants who lay complaints are penalized or even subjected to deportation. In terms of regularization, migrants’ lack of legal status is not adequately addressed. There is an urgent need to look at regularisation and the creation of avenues for legal migration that include low- and semi-skilled migrants.

Employment and social policies present another arena of human rights concerns. Temporary labour schemes are most likely to exploit migrants. At the end of temporary contracts, migrant workers are seldom entitled to remain to obtain unpaid wages or redress for violations of their rights. Domestic labour legislation (on maternity protection, wages, occupational safety and health) is not applied to all migrant workers. Migrant workers are unlikely to enjoy decent, safe working conditions, a humane workload and hours, adequate salaries, sufficient leisure time, and annual leave. The right of association is not adequately protected, including the right to form and join trades unions. Inspection and regulation of workplaces is more often designed to detect irregular migrants rather than prosecute abusive employers.

The Gender dimension is also prominent. Women migrant workers are often subject to multiple layers of discrimination. Many domestic workers, mostly women, suffer intimidation and violence, including sexual violence. They are often forced to work without contracts, on low incomes, and lack freedom of movement. Domestic work is not recognised as “work” and often remains outside the scope of any regulation. Male migrants are also likely to be disproportionately singled out for scrutiny at borders and subject to arbitrary ill-treatment or detention, and many work in dangerous conditions. Governments should give attention to this aspect of protection. 

Child migrants are highly vulnerable to abuse. The statelessness of children born to irregular migrants, and lack of access to primary education, health care and essential food and shelter are especially serious matters.  Elderly migrants are also a very vulnerable category and portability of and access to benefits, including old age and disability pensions, are key concerns.

Conclusion

 Economic imbalances and poverty continues to drive migrants towards opportunity, but their conditions of employment – as well as the journeys they make – become more dangerous, more secretive and more subject to criminalisation. The current policy framework is also intellectually flawed because it frames behaviour atomically, in terms of individual responsibility. Yet context is essential. While it is obvious that migrants are individually responsible for the decisions they make – to migrate in search of work, to employ the services of smugglers, to live or not clandestinely – to analyse migration only in these terms is the equivalent of attributing the rise in obesity solely to the moral weakness of individual consumers.



5. Andrew Samuel, Community Development Services, Sri Lanka

Dear Members of the Community

Labour migration can be classified as temporary migration to a country that seeks labour (receiving country) from another country (sending country). In most South Asian countries, including Sri Lanka, labour in various forms - unskilled, semi skilled and skilled labour including domestic labour - is mostly sent to Gulf states and some developed Asian markets. It is a huge remittance generation sector for most sending countries. Up until 2 years ago Sri Lanka sent more female domestic workers than any other male labour category to the Gulf region. Even today the single most labour category that leave for foreign employment is the domestic worker category.

We are aware that domestic work is not an officially recognised form of work in most countries including the Gulf states. This factor alone poses many problems and vulnerabilities to this labour sector such as no paid day off, extended working hours resulting in very limited rest, multiple and multitasking work generally outside of the domestic work mandate, confinement to the employers home with no freedom to attend to one’s personal needs and such confinement often leading to physical, psychological and sexual abuse.

The fundamental reason for such widespread female migrant worker abuse is the lack of legal mechanisms in bilateral labour agreements between sending and receiving countries. What this means is that such agreements have often failed to address the fundamental human rights of the migrant worker. A classic example is that if a grievance leads to litigation the female migrant worker is unable to be present in person in a court of law as she does not have the financial wherewithal.

As such it is imperative that regional and international law permits female migrant workers the necessary legal support to ensure their human rights are met. Following are some recommendations to correct such anomalies:

  • Sending countries should ensure that overseas employment opportunities are not achieved at the expense of compromising the protection and welfare of migrants, especially migrant domestic workers.
  • Migrant domestic workers should be recognised as a migrant and as a worker.
  • Documented and undocumented migrant domestic workers should be treated as per existing international labour and human rights standards, without being subjected to criminalisation.
  • Accurate and realistic information concerning economic and social costs and benefits of overseas employment, including health vulnerabilities should be provided at all stages of migration to facilitate successful integration.
  • Migrant domestic workers should be able to enjoy physical and mental health, reproductive health and sexual health rights at all stages of migration, including the right to marry, bear children and enjoy family life.
  • Migrant domestic workers should enjoy equal rights of all workers including the right to change their place and nature of work during the tenure of their contract.
  • Migrant workers, particularly domestic workers and their children, should have access to education at all stages of migration.
  • Origin or sending countries should facilitate the exercise by migrant domestic workers’ of their right to vote in elections in their home countries.
  • There should be agreement in labour contracts of definite wages, definite hours of work per day, definite types of work in a home, definite paid day off and the opportunity to attend to ones personal needs outside of the place of employment.
  • Legal access to attend to grievances, including full compensation.

Andrew Samuel

Community Development Services

Sri Lanka 



6. Richard Mandelbaum, Committee on Migration and CATA (Comité de Apoyo a los Trabajadores  Agrícolas)

 Dear Members of the Community

I would like to comment on the first part of this three part question for Topic 1: Does this vary for different types of migrant workers - e.g. permanent vs. temporary; regular vs. irregular; blue collar vs. white collar workers? Do prevalent grievances vary across world regions?

We believe that functioning and thorough grievance processes are essential to justice; in other words, the ability to redress grievances is a fundamental aspect of the implementation of rights; without it “rights” granted to migrants and others often amounts to lofty words without connection to reality on the ground in peoples’ lives.

With that in mind, we find disturbing the international trend in the “global North”/ wealthy, industrialized receiving states (all of those terms being somewhat problematic) to increasingly promote the “management” of migration, primarily through temporary worker programs. These programs are fraught with abuses and exploitation, but I will focus on the issue at hand of grievance. As has been mentioned in others’ comments here, these visas are overwhelmingly tied to a single employer and do not allow workers adequate access to legal recourse if a violation of their contract, or of the law, takes place. In other words, migrants often find themselves in a position of having to tolerate abuse or violation of their rights because, despite any process that may be on paper, in reality their only other choice is to voluntarily leave the country, or risk being fired and then deported on an automatic basis.

In the USA for example, access to federal courts is denied to such temporary workers. Therefore the concept of a real grievance procedure becomes impossible. Such visas should either be delinked completely from the employer, or upon lodging a grievance or complaint the worker should automatically be given the right to seek other employment for the remainder of the visa’s time frame. When a migrant worker, who often has gone into serious debt just to arrive in the country of destination, sometimes by having to pay fees to abusive recruiters, faces the prospect of having to go home without the money he/she had been relying on to earn, the option to stay and tolerate the abuse becomes unfortunately, and sadly, more the only choice to make. Even if temporary workers did have the rights outlined above, they would still face the risk of being “blacklisted” from ever being able to acquire such a visa again in the future – therefore these programs need to be replaced with programs that provide an efficient path to permanent residency or status for the worker in order to make real the ability to redress any grievances they may have.

Of course, for undocumented workers (or those with irregular status) the situation can be even worse. Although some municipalities and local governments rightly attempt to delink criminal law enforcement (including violations of workers’ rights) from immigration enforcement, this is becoming less and less possible given the overall trend of increasing criminalization of undocumented workers. By punishing the worker through detention and deportation, the state effectively provides a subsidy to the employer who intentionally or not employs undocumented workers and subsequently breaks the law, be it wage theft, unsafe conditions, or other abuses. Workers in irregular status who have legitimate claims against unscrupulous employers should be given the same opportunity as some other victims of crimes, such as victims of sex trafficking, who are offered visas to remain in country. These programs are also fraught with problems but this would be a positive step in the right direction. It is more in the interest of the state to prosecute an abusive employer than to detain and deport a migrant worker whose only violation is irregular status.

 Richard Mandelbaum

NGO Committee on Migration and CATA (Comité de Apoyo a los Trabajadores Agrícolas)



7. Jacqueline Mogeni, UNDP

 Dear Community of Practice Members,

Topic 1: What are common grievances of migrant workers? (7 – 21 October) 

 1.        Does this vary for different types of migrant workers - e.g. permanent vs. temporary; regular vs. irregular; blue collar vs. white collar workers? Do prevalent grievances vary across world regions?

The grievances vary across world regions and for different cadres of migrant workers. For example, in Kenya most workers have experienced dehumanizing treatment while working abroad, especially in the Middle East. A number of Kenyan workers, both male and female, have been maimed and even lost their lives. The latest being a young lady who was working as a house help and was found dead in her room when she was due to come back to Kenya.

2.       What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector? 

Most workers are denied their right to controlled hours of working, they are overworked, they are denied the freedom of movement in the sense that they are not allowed to have contact with their family or anyone who they may talk to or associate with, their travel documents, such as passports, are confiscated.

3.       Women are increasingly migrating on their own rather that as dependents. What particular grievances are common for female migrant workers?  

Female migrant workers experience sexual abuse, physical abuse and denial of freedom of movement as they work. They are also not allowed to keep in touch with their families back home in Kenya. Since last year we have lost about five women in unclear circumstances. Some have been thrown out of buildings where they work and been maimed. Most have not received the expected support from our government or agencies that processed their migration so increasingly they fight for their rights alone.

Jacqueline Mogeni, UNDP



8. Malu S. Marin, ACHIEVE, Inc., Philippines

Dear Members of the Community,

Topic 1: What are common grievances of migrant workers? (7 – 21 October)

1.       Does this vary for different types of migrant workers - e.g. permanent vs. temporary; regular vs. irregular; blue collar vs. white collar workers? Do prevalent grievances vary across world regions?

The grievances of migrant workers vary, and this is not just a function of legal status or location, but also of their occupations or work categories. However, work classification is often tricky. Domestic work, although often legitimized by work contacts between the employer and employee and by working permits issued by the destination country, is not recognized under labor laws of most destination countries.  Thus, they are technically/legally “not” workers.   

2.       What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector?

Migrant domestic workers often have the worst of the lot, given that there is are still no agreed and binding universal labor standards that govern domestic work. Thus, common grievances comprise of harsh working conditions; non-payment or delayed payment of salaries; no day off (especially in countries in the Middle East); lack of access to health and psychosocial services, including counseling for mental health concerns; lack of access to responsive redress mechanisms; vulnerability to abuses, exploitation, sexual violence and health problems, incl. STIs/HIV.

Malu S. Marin,  

ACHIEVE, Inc.



9. Junko Tadaki, Karin Lucke and Elizabeth Wabunge, OHCHR, Geneva

In her latest report to the Human Rights Council, the UN Special Rapporteur on Contemporary Forms of Slavery, Gulnara Shahinian, examines modern day domestic servitude as a global human rights concern and in this context, also highlights the precarious situations of migrant domestic workers.

In her report, the Special Rapporteur examines various manifestations of domestic servitude and notes that domestic workers are often subject to unfair and exploitative labour practices. Some are paid way below minimum wage standards or not at all, while others are confronted with the arbitrary deduction or withholding of wages. Many domestic workers are expected to live with their employers, yet are only offered substandard or degrading living conditions. Live-in workers might be expected to work 16 – 18 hours a day, be always on call and forego regular rest days and vacations. They frequently face restrictions on their freedom of communication and movement. Physical, emotional and sexual abuse is also common. The UN expert stresses that such practices are in contradiction of several international conventions regulating the working conditions of domestic workers, including child and migrant workers. However, given the ‘private’ nature of domestic work, domestic workers remain invisible to public scrutiny.

The Special Rapporteur specifically draws attention to the situations of migrant domestic workers, who are particularly vulnerable to subjugation to servitude, since they often have a precarious migration status and depend on their employers for their continued stay. She notes, for example that a number of countries in Asia and the Middle East (where the system is known as kafalah) still tie a domestic worker’s visa to a particular family. The domestic worker is only allowed to change visa sponsors without the employers’ consent in exceptional circumstances that are, in practice, hard to invoke. Further, the Special Rapporteur warns that ‘neo-bondage’ may also emerge in the context of migration for domestic work. Migrant domestic workers will often assume a considerable debt towards the employer or the agency organizing her recruitment and transport to cover the cost of the air ticket and recruitment fees. The domestic worker is then expected to work off this debt. In many countries, migrant domestic workers might be blocked from returning to their home country, because employers or recruitment agencies withhold passports or return air tickets.

The vast majority of victims of domestic servitude would not be in this position, if States provided them with adequate protection in line with their obligations under international law. Many States do not afford domestic workers the equal protection of labour law, which invites exploitation, leading, in extreme cases, to domestic servitude. In a number of States, domestic work is excluded from the scope of application of relevant labour laws. At best, parallel regimes are set up that provide lesser standards of protection. It is very common to exclude domestic workers from essential social benefits such as health care, compensation in case of invalidity, pensions or maternity leave and labour rights such as paid vacations, rest days or maximum work hours. In a number of countries, the authorities become involuntary accomplices to exploitation and servitude by allowing, or even requiring, employers to restrict the freedom of movement and residence of migrant domestic workers or systematically failing to enforce relevant prohibitions. In some countries contrary to an official Government decision, migrants systematically had their passports and residency permits taken away from them, causing some to end up in slave-like conditions.

The Special Rapporteur also expresses concerns that a specific protection gap exists with regard to domestic workers employed by diplomats or international civil servants with diplomatic status. She observes that migrant domestic workers employed by diplomats are a particular vulnerable group, as their visa status typically depends on continued employment by the diplomat, and diplomatic immunities and privileges shield diplomats from the enforcement of national legislation. The Special Rapporteur expresses concerns that sending countries have a tendency to hush up credible reports of exploitation committed by their diplomats, rather than to launch criminal investigations.

Noting that domestic work draws in many women and girls with irregular migration status, the Special Rapporteur recognized that women in such situations usually fear reporting exploitation to the authorities, especially where criminal investigations and the enforcement of labour standards are linked to immigration control. The Special Rapporteur notes with concern arranged transnational marriages, also referred to as ‘mail-order brides’. Faced with an unfamiliar partner and socio-cultural context, such women can easily find themselves in a situation of abuse, exploitation, and in extreme cases, domestic and sexual servitude. Their visa status typically depends on the continuation of the arranged marriage for at least a certain number of years.

The Special Rapporteur recommends, amongst other things, the criminalization of all forms of slavery and servitude, in line with States’ international obligations and the equal protection of domestic worker’s labour rights.

Read the report from the Special Rapporteur here: http://www2.ohchr.org/english/issues/slavery/rapporteur/docs/A.HRC.15.20_EN.pdf



10. Olufunke Aluko-Daniels, Coventry University, UK

Dear Members of the Community

My comment will focus on the following:

1.       What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector?

2.       Women are increasingly migrating on their own rather that as dependents. What particular grievances are common for female migrant workers?

One effective means that can be adopted by the host countries to protect migrant workers is to ensure that even when the migrant has an irregular status, their wages must be paid in accordance with labour laws and policies of the host country. This is because most businesses, especially the small ones, take advantage of migrants by paying them far below the minimum wage of the host country and making them work long unending hours. This is usually coupled with threats of reporting them to the Police and other government agencies. Irrespective of the status of a person, it is only fair that if migrants have worked they must be paid what is due to them. Closely related to this is the fact that when migrants are being deported to their home countries, oftentimes they are not allowed or given time to take whatever they have acquired in the host countries. This policy needs to be reviewed.

On the second question, it is generally known that if a male migrant faces exploitative tendency, the female migrant will face it twice. This is because in addition to the economic exploitation, the woman may also be sexually exploited. To this end therefore it is important to pay special attention to the complaint of female migrant workers. In addition to the above, women who work as domestic help in residential homes live under slave like conditions and the psychological fear that they go through is such that they refuse help even when offered. Once I met an Indian woman in her late forties who was brought to attend to a sick elderly woman in the UK. She was so fearful that when I referred her to charities that could take up her case or go to the Police, she simply refused and claimed that wherever she goes, her employers will come after her.

Generally however, there is need for all stakeholders to move beyond the level of academic writing and analysis into a more realistic level which is to focus more on practical steps to protecting the rights of migrant workers.

Olufunke Aluko-Daniels,  

Coventry University, 

United Kingdom

JMDI project [N-055]: 'Migration Aware' - Irregular Migration: Filling the Information Gap



11. Students from the American University, Washington, USA

Exploitation is a fundamental violation of human rights. Not only is it a violation of individual freedoms, but is also an obstacle to the overall development of a society. Migrant workers face myriad of forms of exploitation on the job, including oppressive working conditions and unfair wages and hours. Irregular migrants face additional challenges, including the withholding of crucial documents such as passports, and often get trapped in situations of indebtedness to employers and landlords. Language barriers often inhibit the ability of skilled migrants to successfully convey their credentials, or the ability of irregular migrants to voice abuses. All of these forms of exploitation in turn inhibit positive economic and social development.

Moreover, the discrimination that migrants face, in its multitude of forms, fundamentally hinders development. Racism, sexism, and religious discrimination place migrants at a disadvantage in society. This is often further exacerbated by the media through its biased portrayal of migrants as, among other things, criminals and a burden on society. As a result, migrants face unprecedented challenges integrating culturally and socially, whether in the workplace or within new communities.

With the exploitation and discrimination that migrants face, migrants are often unable to access their full range of fundamental human rights. Migrants in irregular situations often face difficulties in gaining access to services such as education, health care and so forth. Moreover, these migrants face tremendous difficulties in participating in society and often lack access to fair judicial processes.

The spectrum of human rights instruments clearly precludes the exploitation, discrimination and lack of access for migrants of all types. We call on states to remember their commitments to protect all human beings, including all migrants, regardless of their status.

Submitted by students from the American University, Washington, USA.



12. Sam Blay, UNDP Laos

Harry Truman once said that ‘people are not migrants by choice. We depend on (their) misfortune to build up our force of migratory workers’ (Harry S. Truman, 1951, Migratory Labor in American Agriculture, A Report of the President’s Commission on Migratory Labor, Superintendent of Documents, U.S. Government Printing Office)). The term ‘migrant worker’ is commonly associated with an image of the itinerant foreign farm worker, miner or domestic usually engaged in low wage services in an advanced or industrialized economy. What Harry Truman saw as their ‘misfortune’ helps to underscore that imagery which has the potential to predetermine a common suite of complaints and grievances.  But the term, and indeed the world of the ‘migrant worker’ are far more complex.  To analyze the common grievances of migrant workers, it therefore helps to understand the scope and complexity of the term ‘migrant workers’ in the first place.

Who is a migrant worker? There are different categories and classes of migrant workers. Understanding the spectrum of migrant workers is important in any assessment of the common grievances of migrant workers because the nature of the grievances is largely dependent on the category of migrant workers.

It has been suggested that a migrant worker is that migrant ‘who migrates abroad with the main purpose of obtaining a wage-earning job, often of a nature not requiring qualifications, and often for the purpose of sending remittances to relatives in the country of citizenship.’ While this is true to a large extent, it suffers from the Truman ‘misfortune syndrome’ and ignores the fact that not all migrant workers are necessarily engaged in low earning work. More importantly in any approach to assess the grievances of migrant worker to develop remedial strategies, it will appear wrong to exclude a category on the basis that they are engaged in high wage earning work. This is because while the basis of the rights of the migrant worker may certainly be related to low wages, it is easily conceivable that a migrant worker in Saudi Arabia who is paid relatively high wages may nonetheless have a suite of complaints that should legitimately interest any human rights practitioner.  Additionally the definition seems to make the aim or the purpose of traveling abroad an element in defining who might be a migrant worker. While it is correct that a lot of migrant workers do travel abroad with the intention of searching for paid work, it is easily the case that a person could travel abroad without a ‘work intent’ but still end up working.

 Migrant workers: working definition:

A useful definition of the migrant worker is provided by the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Article 2(1) provides that:

‘The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.’

This definition however does not include:

Persons sent or employed by international organizations and agencies or persons sent or employed by a State outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions;(Art. 3 (a))

What is immediately clear is that the convention’s approach is quite broad and thus allows a rights practitioner to legitimately include all classes and categories of migrant workers.

Categories of migrant workers: a brief overview

There are different categories of migrant workers:  As can be seen from earlier contributions to this e-discussion there are documented and undocumented workers. As a rule undocumented workers tend to be engaged in low wage jobs and have a suite of grievances that are shaped by their undocumented status that is frequently exploited by employers.  Of the documented workers, there are two main categories: schemed migrant workers and ‘unschemed’. Schemed migrant workers are those that enter the host country under a structured scheme under a particular agreement or memorandum of understanding between their country and the host country. A good example in this category will be Pilipino or Indonesian migrant workers hosted in the Gulf states, Singapore and Malaysia as domestic servants.  Those in the unschemed category will include for instance miners who leave their homeland to work in South Africa without any formal arrangements between their government and that of the host state.

For the purposes of this discussion, the essence of the brief categorization is simply to indicate that the nature of the entry and recruitment of the migrant worker will have considerable implications for their stay and working conditions in the host country. This in turn will inform the nature of their grievances.

Common Grievances

As noted earlier ‘common grievances’ may vary depending on the category of migrant workers in question. In what follows I briefly summarize the scope of some common grievances. Whenever applicable I will indicate which category the grievances are commonly associated with.

Ill-treatment

 Anectdotal evidence of the ill-treatment of migrant is most common particularly among migrant workers in the ‘domestic services’ industry. The very nature of the domestic conditions in which they work tends to exacerbate their flight because of the secluded nature of the home conditions. This, coupled with the fact the most memorandums of agreement between host states and the sending states tend to give the employers sole control over the visa applications process.  The combined control of the visa status of the migrant worker with the exclusive and private nature of the domestic environment means that for the most part the issue of ill-treatment can continue and remain unreported. They are conditions that easily pave the way for slave-like conditions for the migrant worker. Ill-treatment is a common complaint for both documented and undocumented workers.

Underpayment

The issue of underpayment is particularly common among undocumented migrant workers. Indeed some employers prefer undocumented workers, whom they may see as willing to do more work for less pay and having little or no recourse to the law or employment standards authorities.

Pressure of daily presence’

 Another persistent type of grievance is the ‘pressure of daily presence’ at work.  This is particularly most server among undocumented workers who rightly believe that their services are expendable given the pull of unemployed undocumented workers. The ‘pressure of daily presence’ makes workers reluctant to miss work afraid of losing their positions if they take time off for any reason.

Work Place Safety

For both documented and undocumented, schemed and unschemed workers, work place safety is a persistent source of complaint. For those in the domestic services industry, their rights in the context of the home environment is frequently poorly defined if even defined. Where defined, the issue of safety in the home is hardly ever mentioned.  Where the domestic lives in the same home as the employer, the issue of working hours and breaks are not clearly defined, if ever.  The result is that there are no proper rest periods. This contributes significantly to the lack of safety of the work place.

Medical needs

Most literature on migrant workers hardly touch on the problems of attention to their medical needs. Where the workers are undocumented, in general their medical needs are a significant source of problem particularly in countries that require proper identity documents as a condition for medical treatment.

Stress and a sense of alienation

 Working abroad can be stressful. There is a constant expectation that the worker will and should be able to send remittances regularly home. There are also expectations that the worker should periodically return home and should in any case be able to send money to construct an appropriate dwelling for those less fortunately and were be left behind. Usually most people back in the countries of origin do not appreciate the extent of sacrifices the worker goes through to be able to make the regular remittance home. In the process the migrant workers in almost all categories persistently complain that they feel alienated from their home social system which constantly demonstrates little understanding of the demands on them in the host country.

Sexism

Discrimination on the grounds of gender is most common particularly in the Gulf States where female migrant workers in all categories are subject to lower wages as compared to their male colleagues.

Interventions

Realistic, comprehensive immigration reform that would recognize the need for millions of low wage, low skill workers with legal status to work in the more advanced economies. Such a policy change would protect the migrant poor by ensuring the basic human rights of adequate pay and safe working conditions. In addition, education of the general public regarding the economic and cultural importance of this vital workforce would help to eliminate the pervasive anti-immigrant sentiments in many host countries.

Sam Blay

Chief Technical Advisor,

The International Law project,

UNDP, Laos



13. Patricia de Dossman, Fundacion Eugenio Espejo, Ecuador

Dear Members of the Community

1.       Our experience as an institution is based on our work with returned migrants.

2.        Problems commonly experienced by returned migrant workers are as follows:

a) Difficulties finding employment

b) Lack of training for technical jobs
c) Discrimination for having left their country
d) Low wages relative to wages in the countries to which they emigrated
e) Lack of awareness about job opportunities
f) Lack of awareness about employment programs

3.       Migrant workers and White Collar workers: Social Discrimination.

4.       Problems commonly experienced by returned migrant workers employed in domestic work:

a) Low wages
               b) Work schedules outside of legal boundaries and limits
               c) Lack of compensation for overtime and additional work

5.       Returned Migrants
To maintain stability at home, returned migrants feel it necessary to resettle in Ecuador, as well as to care directly for their children. Additionally, many aspire to establish a business for income generation.

One particularly interesting phenomenon is that migrants who do return seem to become accustomed to frequently changing jobs and try to replicate this in Ecuador. We have observed that those who receive assistance finding employment usually leave their job or change jobs easily without concerns over job security.

In our relationship with migrants and returned migrants, the following concerns have arisen:

  • Xenophobic racism and social discrimination is often experienced.
  • During temporary migration, human rights violations are frequent; migrants are employed without receiving appropriate financial compensation or social benefits guaranteed by law.
  • Many are required to perform dangerous or dirty jobs that natives of the recipient countries will not take.  

As far as children left behind in Ecuador, they are usually uncared for and their families broken.

Immigration laws in some countries treat migrants as criminals, as second-class citizens who are detained and deported.
What is striking is that in the 21st century, we are witnessing the erection of a wall that will divide a border; a wall called by Mexicans, “The Wall of Shame”. To us, this is by far the worst form of discrimination.

Patricia de Dossman, Fundacion Eugenio Espejo, Ecuador

JMDI project [EC-024] REDES-CAP: Redes de apoyo a las capacidades de las personas migrantes para el desarrollo



14. Panos Papantonopoulos, Athens Network of Collaborating Experts (ANCE), Greece

Egyptian Migrant fishermen working in Greece 

While working on our JMDI project on up skilling fishermen through training in Aquaculture, we are meeting continuously with grievances mostly involving Circular Migration workers. The lawmakers have imposed restrictions that often create extreme injustice situations.

I shall give you only one of several cases as an illustration: 

A group of Egyptian fishermen working under Circular Migration rules and contract have – after working for the first 3 months of their 9 months contract - experienced the sudden death of their employer - captain and fisher boat owner. They have not been paid for the last one and a half month and no one is responsible to pay them since there is neither inheritance nor legal obligation for compensation in such a case. These fishermen are literally "trapped" in the port having no salary, no return ticket, and no right to find another job according to the circular migration law which only provides "singular contract". These people see their dream turned to a nightmare. I am wondering why so little attention is paid from the law makers when dealing with these subjects. These people have to be taken care from charities?? What can be the provisions to protect migrant workers from similar cases in the future??  Why can’t they be provided with a second chance to find a job before going back to their countries or origin, and why do they have to return immediately back home (according to the single contract condition imposed by the Circular Migration Laws)???? Please let me know about your opinion.

Panos Papantonopoulos  

Athens Network of Collaborating Experts (ANCE)

Greece 

JMDI project [Eg-050] Migrant Skills Transfer in the Aquaculture Industry: The case of Greece and Egypt



15. Mohamed Khachani, Moroccan Association for Studies and Research on Migration (AMERM) Morocco

Topic 2: What opportunities for redress are available to migrant workers?

 

1)      Which mechanisms ?both judicial (e.g. courts) and non-judicial (e.g. human rights commissions, ombudspersons) ? are most adequate to protect migrants’ rights at the national and international levels? How appropriate, effective and efficient are these mechanisms a) for different groups of migrants? b) in different regional contexts?  How can different stakeholders support migrants’ access to judicial and non-judicial redress?

These remedies exist, but they face some obstacles:

  • Illiteracy of migrants especially of the first generation (the primary migrants) and being unaware of the possibility to appeal;
  • A large number of migrants (approximately 11 million in the U.S. and over 5 million in Europe) are weakened by their legal status – this discourages complaints against the perpetrators of the abuse they suffer.
  • A migrant’s proximity to migrant NGOs or human rights NGOs (working on support or advocacy) and a migrant’s trust in these organisations makes a difference in their ability or willingness to avail themselves to assert their rights.

2)      How can governments effectively discharge their duty to protect migrant workers’ right to redress, including through adequate provisions in labour migration policies and bilateral agreements? For example, do visas allow for workers to remain in the country to file a grievance and seek new employment if they have quit, or have been fired from, an abusive job? Are migrants effectively protected from retaliation in case they file a complaint?

The governments who have ratified the International Convention on the Protection of Migrants’ Rights have to incorporate it into their national legislation for better protection of migrants’ rights, regardless of the migrants’ legal status and create the mechanisms necessary to make it effective.  For example, Morocco has set up the RME Foundation, the Council of the Moroccan Community Abroad (CCME) and the Advisory Council on Human Rights (CCDH) in order to meet the needs of Moroccan migrants.  In turn, the civil society has provided more legal support to clandestine migrants, e.g. legal information centre for migrants/OMDH Maroc.

3)      How can employers and business take steps to better ensure the rights of migrant workers including their right to redress?

When the migrant is regular, the national social legislation regulating the working conditions provides protection for the migrants against discrimination and abuse. Nevertheless, a significant number of companies resort to the employing of irregular migrants. They take advantage of migrants’ weak legal status and exploit them while breaking employment law.

Mohamed Khachani

Moroccan Association for Studies and Research on Migration (AMERM)

Morocco



16.   Malu S. Marin, Achieve, Inc., Philippines

Topic 2: What opportunities for redress are available to migrant workers?

 

1)      Which mechanisms ?both judicial (e.g. courts) and non-judicial (e.g. human rights commissions, ombudspersons) ? are most adequate to protect migrants’ rights at the national and international levels? How appropriate, effective and efficient are these mechanisms a) for different groups of migrants? b) in different regional contexts?  How can different stakeholders support migrants’ access to judicial and non-judicial redress?

There are countries that have existing laws that protect the rights of migrant workers. The Philippines is one such example. It enacted the Migrant Workers Act of 1995 (RA8042, later amended to RA 10022). At the onset, this initial level of protection is important and necessary as it lays the policy framework,  in which migrants’ rights are be addressed. It also provides for the creation of appropriate structures and mechanisms, both in the country and in the foreign missions (embassies and consulates) abroad.  While the law has been in place for the last 15 years, it has not necessarily eradicated exploitation, violence, and abuses against migrant workers. The application of RA 8042 is only at the country level but the main accountability lies within the recruitment agencies responsible for employing migrant workers. However, if the wheels of justice turn so slowly for those who need it, migrants will continue to get discouraged from filing complaints and pursuing their cases in court. Thus, no justice will actually end up getting served.

2)      How can governments effectively discharge their duty to protect migrant workers’ right to redress, including through adequate provisions in labour migration policies and bilateral agreements? For example, do visas allow for workers to remain in the country to file a grievance and seek new employment if they have quit, or have been fired from, an abusive job? Are migrants effectively protected from retaliation in case they file a complaint?

First, migrants need to be educated about their rights. They must be capacitated to learn how to demand for the application of those rights. They must know when and how to invoke those rights, especially when they get exposed to abject conditions. They must be informed about the terms of their contracts and where they can seek redress if needed.

Countries, especially the origin countries, must continually seek solutions by working together at a regional level. This entails constant dialogue and representation with governments of destination countries, especially in the area of migrants’ rights protection.

Some countries do not allow migrant workers to look for other jobs if they have a pending case in court, i.e., labor-related complaint. Others are given only a limited amount of time to file their complaint, e.g. if they decided to run-away or if were unduly terminated from work.

Malu S. Marin

ACHIEVE, Inc.

Philippines



17.   Prof. Abel Gomez-Gutierrez, Autonomous University of Nayarit, Mexico

Migrant Workers in the South of Mexico and Mexicans in the U.S.

Most of the comments and research work published here could be related to both agricultural and domestic worker migrants (male and female) to whom I am referring here.

If people work there will be major problems for employers and governments; if people do not work or study (“NINI'S”) this will also become a problem for governments and society. None of these problems can be solved if our societies keep their work habit.

The real challenge and missing points are: Who is abusing migrants workers? The minimum salary in Mexico is 4.5 USD per day. If we compare this salary with salaries in Guatemala, the official salary in Mexico is only half of it. But in the US the salary is 50.00USD per 8 hours per duty in the agriculture industry. If our International Monetary Agency (IMF) requires competitive prices for some basic consumption products, why doesn’t it require equality on salaries among the member countries? As long as there are large salary differences among neighboring countries, migrant workers will continue to exist.

Our energy could be focused towards employers not on governments. Governments and labor authorities in countries like Mexico and the US are manipulated by major enterprises and middle companies associations to keep the actual conditions for workers.  For example: the Mexican employees of Bancomer, a Spanish Bank which is financing a great part of this forum, work more than slaves with salaries catalogued in the middle wage of Mexico. More than 2000 companies from the US, Europe and Asia are established in Mexico because closeness to the US market and comparative wages which benefit few investors.

I remark, research and speeches are not acting by themselves. What we need is a more practical approach with employers.

Prof. Abel Gomez-Gutierrez, Autonomous University of Nayarit, Mexico 



18.   ASB Migrant Access Programme Hambantota, Sri Lanka

Topic 1. What are common grievances of migrant workers?

•      Issues related to salaries and its increment such as:

- not receiving the salary or delayed payment
- not receiving increments with the service

•      Language barriers - Especially women migrating would love to have more contact with the children of the family for whom they work. The knowledge of the English language has become a major barrier for these women.

•      Issues with regard to employer
- abuse
- ill-treatment
- not being able to tell the migrant’s side of the story in case of a dispute
- non- acknowledgement of the work being done.

•      The void of information regarding the profile of the employer / workplace has greatly inconvenienced the migrants as they are unable to make a decision whether to accept or decline the offer of employment. These migrants need to be empowered to make their own decisions.

•      Common issues:

- Deprivation of food and drink
- Too much work and poor work conditions
- Poor lodging facilities
- Inaccessible to proper medical facilities
- Difficulties faced due to lack of exposure, knowledge and experience with regard to that particular countries culture, customs, traditions and values
- Due to internal political crisis
- Inexperience in handling electric appliances and modern equipment (house maids)
- Nationality to which some migrants belong to is a cause of problem. E.g. talented workers from Asian region are paid less and not granting due positions to talented individuals.

I. Does this vary for different types of migrant workers – e.g. Permanent vs. temporary; regular vs. irregular; blue collar vs. white collar workers? Yes

Do prevalent grievances vary across world regions? Yes

II. What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector?

- nonpayment of salary
- language barrier
- indefinite work hours
- unspecified duties and responsibilities
- lack of leaves and recreational facilities
- not being able to communicate with the family regularly

III. Women are increasingly migrating on their own rather than as dependents. What particular grievances are common for female migrant workers?

- subject to various kinds of abuses
- being left alone without any assistance or company
- problems with regard to personal security problems
- difficulty in adapting to a foreign culture
- lack of training in handling equipment
- forcibly putting to work

ASB Migrant Access Programme Hambantota,

Sri Lanka

JMDI project [Sr-128] Migrant ACCESS Programme (MAP)



19.   Juan Miguel Petit, UN, Paraguay

 Dear Members of the Community

I would like to add to the matters pointed by the colleagues, the need to work in the creation of social tissue that can help migrants reinstall in a new context. Just an example of this is the attitude that sometimes trade unions take towards migrants, reacting to them as a danger. I have seen how, for example, trade unions related to fisheries do not allow migrants to be members, because as they are in a desperate social situation, the migrant accept worse working conditions and wages than locales. This creates a risky vacuum. Away from home, with no legal advice, without the protection of trade unions, migrants are left alone. This puts them in a position of great vulnerability. There is a cultural and communication work to do to disseminate human rights and tolerance values so as to create safety nets in the day to day relationships of migrants.

Juan Miguel Petit
Asesor en Comunicación y Derechos Humanos
Oficina del Coordinador Residente
Oficina de las Naciones Unidas en Uruguay
Tel: (+598 2) 412 33 56/59 # 143
Fax: (+598 2) 412 33 60

www.onu.org.uy



20.   Mohamed Khachani, Moroccan Association for Studies and Research on Migration, Morocco

Topic 1: What are common grievances of migrant workers? (7 – 21 October)

1)      Does this vary for different types of migrant workers - e.g. permanent vs. temporary; regular vs. irregular; blue collar vs. white collar workers? Do prevalent grievances vary across world regions?

Grievances require a law adopted by the host country which draws on national law and potentially international conventions, in case the host country has ratified them, in order for regular migrants to seek redress. However, reality shows that clandestine, illegal or irregular migrants, who, if they don’t enjoy refugee status based on the political situation in their countries (DRC, Ivory Coast...), do not fall within the scope of the national law that regulates the entry and stay of foreigners and therefore cannot sue for the violations of their rights.

As a result, the main demand of these migrants, who fail to achieve their migration project, which is the case for migrants form sub-Saharan Africa going to Europe and Latin Americans migrating to the U.S. and Canada, is to enter the labour market and to be able to regularise their status in the host country.

It should also be noted that some countries, who have not even signed the international migrant workers convention, recognise certain migrants’ rights (right to health care, right of children to education, ...).  On the other hand, many developing countries who are signatories of the convention do not recognise the rights of clandestine migrants but instead apply their security laws to them.

In case of temporary employment, pressure exerted by the employer forces the employee to comply and keeps the migrant from claiming his/her rights in order to have the opportunity to be recruited again. Recruiting, another issue in the case of temporary / seasonal employment, is conditional on the "good conduct" of the worker.

2)      What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector?

Domestic work separates workers from the public sphere and therefore does not promote immigrants’ integration.

Moreover, it is necessary - at this level - to distinguish between 3 main situations:

  • The situation of regular migrants who, in cases of discrimination or violation of working conditions, are able to resort to the national law of the host country in order to claim the respect of their rights.
  • The situation of migrants who have refugee status, and who, in case of discrimination, have the same rights as nationals and are therefore entitled to seek enforcement of national laws regulating the conditions of employment.
  • The situation of irregular migrants is very problematic. Their illegal status does not allow them to resort to national law. However, in extreme cases, and if the host country has ratified the International Convention on Migrants' Rights and if the migrant is supported by human rights NGOs, irregular migrants might make use of international instruments.   

In general, grievances of migrant workers engaged in domestic work or work in the informal sector are informal given their status as "clandestine" migrants. Furthermore, these grievances focus on working conditions (Agricultural Sector (greenhouses) and domestic work in Spain), mainly on exploitation based on work schedules and low wages.

3)      Women are increasingly migrating on their own rather that as dependents. What particular grievances are common for female migrant workers?

Informal grievances are inherent to the working conditions (domestic work) and to the exploitation by networks which traffick young women and which became very prominent in several regions of the world (the Middle East, Eastern Europe …). Many women who have signed contracts to work as nurses, secretaries, hostesses or as domestic workers in the Middle East find themselves in prostitution rings. However, some women were able to break the silence and make the violations they suffered public.

Mohamed Khachani 

Moroccan Association for Studies and Research on Migration (AMERM)

Morocco 



21.   Unlad Lanao, Unlad Kabayan Migrant Services Foundation, Philippines

Topic  2. What opportunities for redress are available to migrant workers

 

1.)      Which mechanisms ?both judicial (e.g. courts) and non-judicial (e.g. human rights commissions, ombudspersons)? are most adequate to protect migrants’ rights at the national and international levels? How appropriate, effective and efficient are these mechanisms a) for different groups of migrants? b) in different regional contexts?  How can different stakeholders support migrants’ access to judicial and non-judicial redress?

At the national level, the courts are still the most adequate mechanisms to protect migrants’ rights. Contract violations especially relating to money claims are at the labour department but those of criminal nature are in courts. Adequacy, efficiency and effectiveness of these mechanisms depends on the country and its government as a whole. Where adequate legal protection and grievance redress procedures are in place, there are more opportunities for redress, e.g Hongkong. But there are exceptions. The Philippines for example, have a very elaborate system and procedure for redress but they do not work efficiently and effectively and therefore protection is inadequate.

Factors that affect opportunities for redress and adequacy of protective mechanisms:

a) Lack of legal remedies, protective mechanisms and grievance redress procedures

b) Where the above exist, there is the factor of quality of governance.

c) Value or importance given to migrants.

d) Language and provision of interpreters.

Opportunities for redress are more available for migrants working in the professional and highly skilled (highly educated) sectors than those in lower skilled sectors.

Different stakeholders can certainly increase and support migrants’ access to judicial and non-judicial redress:

a) Teach migrants their rights, legal remedies/mechanisms for protection and grievance redress procedures

b) Public education on human rights violations of migrants, citing cases, including those who had been able to win cases.

c) Legal aid and paralegal support.

2.)      How can governments effectively discharge their duty to protect migrant workers rights to redress, including through adequate provisions of migration policies and bilateral agreements.

Governments both sending and receiving should put in place policies that protect migrants’ rights to redress. Some policies that should be in place:

a) While cases are filed and awaiting resolution; migrants should have the right to extend visas until the resolution of their cases; to be legally employed; housing or reasonable cost of accommodation.

b) Bilateral agreements (ideal) should include migrants’ rights to redress and a clear redress procedure in the host countries.

c) Provision of legal and financial support to migrants with legitimate grievances. (Migrants need for financial support should not be exploited by politicians to gain political mileage.)

Fear of retaliation is the most common deterring factor why migrants do not file complaints (The second most common reason is the long and expensive process of court cases). Seafarers whose file complaints are immediately blacklisted by manning agencies. This is also practiced by a number of recruitment agencies in sending countries and brokers in host countries.

3.)      How can employers and business take steps to better ensure the rights of migrant workers including their right to redress?     

The presence of progressive trade unions sympathetic to the plight of migrant workers would be a good start to protect the rights of migrants in the workplace. Trade unions should, in the first instance, admit migrants as members of trade unions with rights and responsibilities equal to the local workers/members. Trade unions should provide representation for migrant members.

Unlad Lanao

Unlad Kabayan Migrant Services Foundation

Philippines



22.   Suraina Pasha, Asia Pacific Forum (APF), Australia 

The role of national human rights institutions

Dear community members,

My name is Suraina Pasha. I work for the Asia Pacific Forum of National Human Rights Institutions (APF) as its Regional Training Project Manager. The APF is a regional, membership-based network of national human rights institutions (NHRIs) in the Asia Pacific. I am honoured to join you for the second phase of this e-discussion.

As many of you will know, NHRIs are institutions that have been established by law (i.e. Constitution or Act of Parliament), with mandates specifically focusing on the promotion and protection of human rights. Worldwide, these institutions typically undertake a range of research, educational and advisory activities as part of their mandates. These institutions also often cooperate with international and regional human rights mechanisms and processes. In many countries, particularly in the Asia Pacific, African and Latin American regions, NHRIs also have quasi-judicial powers which enable them to actively exercise a protective mandate. This includes the competence to accept and consider complaints of alleged human rights violations, conduct public hearings and national inquiries, and visit places of detention. I would argue that by virtue of their formal status, powers and mandates, independent and effective NHRIs can play an important role in protecting and promoting the rights of migrant workers, and therefore act as a mechanism for redress for migrant workers whose rights have been violated.

There are currently 17 internationally accredited NHRIs in the Asia Pacific region. Many of these institutions regularly use their mandates to protect and promote the rights of migrant workers at the national level. There have also been interesting NHRI led cooperation initiatives at international, regional, sub regional and bilateral levels. Some of these initiatives focus more broadly on migration, whereas others are quite specifically focused on migrant workers. Here are some examples and links leading to core documents / relevant information:

  • International - Zacatecas Declaration – Outcome document of an international conference of NHRIs in Mexico in 2004, focusing on the causes, effects and outcomes of the migratory phenomenon and the role of NHRIs in the migratory process. This document is available at:  http://www.nhri.net/pdf/ZACATECAS_DECLARATION_15_OCT_2004.pdf
  • International - Santa Cruz Declaration – Outcome document of the 8th International Conference of NHRIs in Bolivia in 2006, focusing on the role of NHRIs in promoting and protecting the rights of migrants. This document is available at: http://www.nhri.net/default.asp?PID=360&AFD=0
  • International – ICC Working Group - Proposal by NHRIs in the Asia Pacific for an International NHRI Working Group on Migration to be established by the ‘International Coordinating Committee of National Human Rights Institutions’. See the outcome document of the 15th APF Annual Meeting: http://www.asiapacificforum.net/about/annual-meetings/15th-indonesia-2010
  • Regional – Seoul Guidelines - at the initiative of the Korean NHRI, several NHRIs in Asia gathered together in Seoul for a conference in 2008, to draft a set of guidelines on how Asian NHRIs can cooperate together to protect and promote the rights of migrant workers. The ‘Seoul Guidelines’ can be viewed at the following link: http://www.asiapacificforum.net/services/international-regional/regional-mechanisms
  • Regional – APF focal point officers on migrant workers rights –the APF focal point officers will facilitate the identification of NHRI best practices in protecting and promoting the rights of migrant workers, and provide input into the development of an APF training manual for NHRIs on migrant workers rights. http://www.asiapacificforum.net/about/annual-meetings/15th-indonesia-2010
  • Sub-regional – Southeast Asia - Cooperation amongst the NHRIs of Indonesia, Malaysia, Philippines and Thailand, focusing on migrant workers rights. See: http://www.aseannhriforum.org/bm/joint-projects/migrant-workers.html
  • Bilateral – Jordan and Philippines, Jordan and Indonesia - in 2009, the Jordanian NHRI signed bilateral MOUs with the Indonesian and Philippines NHRIs, focusing on cooperation to protect the rights of Indonesian and Filipino migrant workers in Jordan.

Suraina Pasha,

Asia Pacific Forum of National Human Rights Institutions (APF),

Australia



23.   Esther Lam, Office of the High Commissioner for Human Rights, Switzerland 

Dear Community of Practice members,

The Global Migration Group (GMG) formulated some key suggestions on Protecting migrant workers' human and labour rights at its Experts' Meeting on protecting the human rights of migrants in an irregular situation (22 Oct). The meeting was organized by the Office of the High Commissioner for Human Rights as current Chair of the GMG to follow up on the GMG's Principals' meeting and its landmark joint statement.

The key recommendations, which require partnerships and concerted action among different sectors and stakeholders, including migrants, as well as cooperation between countries/communities of origin and destination, are as follows:

  • Encourage ratification of the Convention on the Protection of the Rights of all Migrant Workers and their families. Implement the existing human rights standards and norms more widely. Eighty two countries ratified one of the three main instruments relating to protection of migrants. All UN Member States have ratified at least one of the nine core international human rights treaties, and 80 percent have ratified four or more conventions that guarantee the fundamental human rights of all. International law discriminatory treatment against migrants, whether they are in regular or irregular situations. A human rights based approach can reduce irregular migration and ensure dignified migration.
  • Regularize the process of labour mobility to facilitate regular migration flows: establish legal channels for essential workers and their family members. Such channels are more common for skilled workers, but considering the significant demand for unskilled workers, should be enhanced for the non skilled workers (many of whom are in an irregular situation). Regularize the status of (irregular) migrants to acknowledge the existing considerable demand for their contributions/ low skilled labour.
  • Strictly separate enforcement functions (eg. deportation) from protection functions (e.g. facilitation of employment rights, health care).
  • Facilitate access to health and social services and protection throughout the migration process, including the provision of information to migrants about their entitlements; ensure adequate delivery of humanitarian assistance. This point will imply considerable capacity building efforts at various levels and throughout various sectors (e.g. health, education, administrative) in order to provide services in a migrant sensitive fashion.
  • Reshape the image of migrants from community level to policy level. This point covers the need for data, proper disaggregation of data (distinguishing different needs and vulnerabilities among different migrant groups), effective usage of data for evidence informed programme and policy development; as well as the involvement of media and civil society to ensure coverage of events will not fuel discrimination and to raise public understanding of the positive role of migration in economic and social context.
  • Facilitate possibilities for migrants to organize themselves through unions, faith based activities, sports, services for migrants etc. This is of particular relevance for vulnerable groups such as women and youth.
  • Promote 'decent work' at home- and host community level. Albeit not all migration is triggered by a search for work, migrant workers and their family members represent some 90 percent of the migrant population. Proper working conditions at the home community level can be important to mitigate irregular migration flows.

We would like to thank all the experts, rapporteurs (for the summaries) and participants and their contributions to a very fruitful meeting.


Esther Lam 

Migration Advisor a.i.
Office of the High Commissioner for Human Rights

Switzerland



24.   Saskia Koppenberg, EC-UN JMDI, Belgium 

Dear Community of Practice members

Thank you very much for your active participation in our e-discussion on Protecting migrant workers' human and labour rights: Ensuring effective redress.

We would like to share with you the links and documents below which offer some valuable background information to help facilitate the second phase of the discussion on the question of What opportunities for redress are available to migrant workers? (21 October – 4 November).

Please find here the “International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families”. The status of ratification, declarations and reservations to the Convention can be found here.

Human Rights Watch published the following four reports which explore the human rights situation of migrant workers and their access to redress in four case countries, namely Russia, Kazakhstan, Lebanon and Kuwait.

  • "Are You Happy to Cheat Us? Exploitation of Migrant Construction Workers in Russia, February 2009. This 130-page report documents widespread withholding of wages, failure to provide required contracts, and unsafe working conditions by employers at construction sites across Russia. It also details cases in which workers were unwittingly trafficked into forced labor by employment agencies that promised construction jobs in Russia, but then delivered workers to employers who confiscated their passports and forced them to work without wages. In some cases, these workers were confined and beaten. Part 4 of the report on “Protection and Redress” gives particular information on governmental and non-governmental migrant workers’ rights protection measures and avenues for redress.
  • “Hellish Work: Exploitation of Migrant Tobacco Workers in Kazakhstan", July 2010. This 115-page report documents how some employers confiscated migrant workers' passports, failed to provide them with written contracts, did not pay regular wages, cheated them of earnings, and required them to work excessively long hours. Human Rights Watch also documented frequent use of child labor, with children as young as 10 working, even though tobacco farming is especially hazardous for children. The report was based on interviews in 2009 with 68 people who were working on tobacco farms in Kazakhstan or who had recently worked there. Part 3 of the report on “Protection and Redress” gives particular information on the lack of governmental redress mechanisms, non-governmental avenues for redress and the role tobacco enterprises play in the protection of migrant workers’ rights.
  • "Without Protection: How the Lebanese Justice System Fails Migrant Domestic Workers", September 2010. This 54-page report reviews 114 Lebanese judicial decisions affecting migrant domestic workers. It finds that lack of accessible complaint mechanisms, lengthy judicial procedures, and restrictive visa policies dissuade many workers from filing or pursuing complaints against their employers. Even when workers file complaints, the police and judicial authorities regularly fail to treat certain abuses against domestic workers as crimes.
  • "Walls at Every Turn: Abuse of Migrant Domestic Workers through Kuwait’s Sponsorship System", October 2010. This 97-page report describes how workers become trapped in exploitative or abusive employment then face criminal penalties for leaving a job without the employer’s permission. Government authorities arrest workers reported as “absconding” and in most cases deport them from Kuwait – even if they have been abused and seek redress.

Please find more information on human rights conditions of migrant workers in more than 90 countries and territories worldwide in the 20th Human Rights Watch World Report 2010.

We would like to draw your attention once more to the Report Protect, Respect and Remedy: a Framework for Business and Human Rights of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie, which we already mentioned in the background paper to this e-discussion. We also encourage you to have a look at the portal about the work of the Special Representative of the United Nations Secretary-General on business & human rights, John Ruggie here.

We hope this information is welcome and look forward to your active participation to the second phase of our e-discussion on Protecting migrant workers' human and labour rights: Ensuring effective redress!

Saskia Koppenberg,

M4D-Net facilitation team



25.   Akua Dua-Agyeman, UNDP, Ghana 

Dear Members,  

One area where Ghanaian migrant workers have faced serious challenges is in the maritime industry. Seafarers have to work under difficult conditions, sometimes denying them the appropriate welfare and wages and even the minimum international conditions. This is largely due to the fact that they do not have the bargaining power to negotiate for better employment conditions.

UNDP, through the project “Support to the Promotion of Employment in the Maritime Industry” has been helping the Government of Ghana to establish a legal and regulatory framework to create employment opportunities for the Ghanaian youth in the maritime industry worldwide. As part of that, a Collective Bargaining Agreement (CBA) for Ghanaian seafarers was developed and successfully negotiated with the International Transport Workers’ Federation (ITF) and got approval in 2009.

How the Ghana CBA provides for the protection of the Human and Labour rights of Ghanaian Seafarers as Migrant workers:

The Ghana CBA provides the means of ensuring that the human and labour rights of Ghanaian seafarers are protected, irrespective of the flag state of the ships that they work on. The CBA adopts the appropriate provisions of the Maritime Labour Convention, (MLC 2006). The MLC consolidates all existing maritime labour legislation and conventions which provides a comprehensive rights-based charter for seafarers. The rights covered range from decent working conditions for seafarers, health, safety, minimum age, recruitment, hours of work, and other issues affecting seafarers’ lives.

The specific areas included in the Ghana CBA  

Fundamental Rights and Principles, which tells the seafarers that each Seafarer has the fundamental rights to:

1.       freedom of association and the effective recognition of the right to collective bargaining;

2.       the elimination of all forms of forced or compulsory labour;

3.       the effective abolition of child labour; and

4.       the elimination of discrimination in respect of employment and occupation.

Seafarers’ Employment and Social Rights

1.       Every seafarer has the right to a safe and secure workplace that complies with safety standards.

2.       Every seafarer has a right to fair terms of employment.

3.       Every seafarer has a right to decent working and living conditions on board ship.

4.       Every seafarer has a right to health protection, medical care, welfare measures and other forms of social protection.

The following key national institutions are actively involved in ensuring that seafarers working as migrant workers get a fair treatment:

  • Ministry Employment and Social Welfare
  • Ministry of Transport
  • Ghana Maritime Authority
  • Labour Department
  • Local Unions Affiliated to ITF

o   Ghana Merchant Navy Officers’ Association (GMNOA)

o   National Union of Seamen (NUS)

o   Maritime and Dockworkers Union (MDU)

  • Recruiting/Manning Agencies

While the CBA is being used to address seafarers issues related to employment and welfare including wages, certification, health and safety as well as shipowners’ responsibilities among others, it is also used to provide the international Minimum Conditions, Rules, Standards and Requirements that Ghanaian seafarers have to meet in order to gain employment in the international maritime labour market.

UNDP Ghana



26.   Rene Plaetevoet, December 18, Belgium 

Dear Community of Practice,

Migrant Workers Convention as a tool for redress!

As many of you probably know, this year is the 20th anniversary of the UN Migrant Workers Convention, sometimes referred to as the "best kept secret in the UN." It seems appropriate in my view to first and for all remind everyone of the need for universal ratification of this core international human rights instrument. I therefore encourage you all to sign the petition at www.migrantsconvention.eu and to help spread the news about it. Of course, effective implementation of an international instrument requires follow up at the national level and with all stakeholders involved. But to me it is extremely important to recognize the need for international accountability, especially in the field of international labour migration. Obviously, we don't have to wait until a particular state has ratified the Convention. We should also encourage groups to use the other international instruments as tools to promote and protect the rights of migrants workers (and the necessary funds should be made available for awareness raising and capacity building).

Rene Plaetevoet
December 18 



27.   Clement Adegbaju 

Dear CoP,

Migrants are also entitled to certain human rights and protections. In order for migrant workers to enjoy human rights specifically linked to their vulnerable status, the following should be addressed:

1.       Countries receiving migrants should provide proper treatment and adequate social welfare services. Also, migrant workers should benefit from the protections provided by relevant National and International instrument.

2.       Effective measures against the exploitation of migrant workers.

3.       Equality of opportunity and treatment in respect of employment and social security.

4.       Elimination of racial discrimination. Equal right to a standard of living; equal pay for equal work without distinction of any kind.

5.       Gender equality. Establishment of linguistically and culturally accessible services for migrant women and girls.



28.   Dimitris Vournas, Athens Network of Collaborating Experts (ANCE), Greece 

Dear Members of the Community of Practice,

We present some of our views, thoughts and empirical examples relative to the mechanisms that are adequate - or not - to protect the migrant workers’ rights in general and the opportunities for redress in particular. We cannot claim any previous and/or formal expertise on the subject, other than our genuine interest and a lot of common sense plus our 12 months of intensive empirical work with the “Egyptian Migrant Fishermen” working around Greece. Therefore we are exposing our thoughts based on our life experience and on the observations and lessons learned while working with our project.

Topic 2: What opportunities for redress are available to migrant workers

Q1)  Which mechanisms ?both judicial (e.g. courts) and non-judicial (e.g. human rights commissions, ombudspersons) ? are most adequate to protect migrants’ rights at the national and international levels? How appropriate, effective and efficient are these mechanisms a) for different groups of migrants? b) in different regional contexts?  How can different stakeholders support migrants’ access to judicial and non-judicial redress? 

A.   At the international level, there is the International Convention on the Protection of the Rights of All Migrant Workers which aims at protecting migrant workers and the members of their families. In other words, it sets a moral standard and can be used as a guide for the promotion of the migrant rights (note: not only work rights). Let this be clear, that the convention does not create new rights for migrants but aims at guaranteeing equality of treatment and the same working conditions for migrants and nationals in each and every country that ratifies it. It is therefore, essential to encourage support for its ratification from all EC’s (mostly receiving-migrants) states.

Although Greece has not ratified the convention, the relevant law for entrance, stay and social integration of third country nationals (not EU) establishes the essential workers rights that are reflected in the Convention’s article numbers 25 (equal remuneration), 26 (trade union participation), 27 and 28 (social security, medical care) and the corresponding articles of part IV (articles 36-56) of the convention. Nevertheless the ratification of the Convention will prove the commitment of Greece (and all States ratifying it) to protect migrant workers rights and open up new paths for revision of the legal framework that each state applies.

We believe that the position (or lack of position) of Greece vis-vis the various international instances, treaties, and conventions attempting to promote protect, defend, enforce the legal, human, religious and work rights of migrant communities merits a particular attention on behalf of the international community. Unlike most of Europe’s constituent states, Greece has not a recent colonial past neither was Greece renown as a “promised land” for the migrant to attain easily economic prosperity. Throughout its entire history, Greece- a country with very limited natural resources- was traditionally a country on “migrants for survival”.

Therefore Greece has been the last among the European countries to experience a massive inflow of migrant and refugee populations. The proportion of this influx phenomenon is both extensive in numbers and intensive in time. No matter the official statistics, it is a common secret among Greek authorities that the country has accumulated within 20 years with a geometrically increasing rate over 2 million of legal and illegal migrants. This figure perhaps represents over 20% of the indigenous population and -if seen under the perspective prism of population growth statistics- given the comparative birth rates prevailing today among Greek and migrant populations, a 15 years-perspective shows that in terms of active population indigenous Greek population shall become soon a minority.

In addition, because of its extensive coastal frontiers, the country cannot provide for their effective protection by itself alone while the diplomatic political circumstances with its neighbor countries do not allow for easy bilateral control solutions.

Under the above circumstances, our appreciation is that the migration phenomenon attains unprecedented dimensions by any measure comparative to any other European country.

Given the “laissez-faire” attitude of a nearly bankrupt Greek state, the fact that we do yet not assist to more open and generalized/organized social violence phenomena of racism -similar to those we can testimony in France, Italy or elsewhere- can partially be inputted to the relative newness of this phenomenon and to the traditional philosophical tolerance of the Greek people show to the needy and poor human beings.

Our proposal : It is to the interest of EU Institutions to take immediate action for a deeper study and understanding of the migration & refugee phenomenon in Greece as a privileged entry door to Europe. Greek migration statistics show the highest per capita migration absorption and migrant tolerance in EU and this within the existing social and administrative framework (i.e.: without any serious provisions, measures and laws like in Italy, Spain or France). With the prevailing de-facto social tolerance, that the Greek people and its nearly bankrupt State machine, show to the increasing presence of popper migrants and refugees, EU must not be surprised that Greece –aided by its mild climate-is to be utterly transformed to a huge and easy-to-survive-in depot of migrants, a quasi-permanent transit platform for all its aspirants to Europe’s ‘promised land” destinations. (To those that may forget that social  history often proves capable to carry-on to the present  persistently and unconsciously surviving paradigms, may we remind that Greeks have been accustomed since antiquity to leave side-by-side and  permissively in relative peace and contained protest with other populations and that to this effect  they have even built and  instituted their early concept  of prosperous democracy based to the side by side coexistence with foreign slave-workers, domestic-slaves, liberated-slaves, slaves granted citizenship, “metoikoi and a host of other social strata categories , all together governed by strict yet flexible laws that were ultimately giving a certain degree of social mobility to the very poor. )      

Definitively, Migration social mechanics in Greece show particularities and must be first deeply understood.  Then -if EU wants to control illegal entries to its deeper territory-, to be realistic, Greece shall need to be materially assisted by the international community with the appropriate means and ways to protect its sea frontiers because not even its entire state budget can effectively control such extensive and permissive (especially to short-distance intrusion) frontiers.    For years EU has persistently refused to guarantee or protect Europe’s common frontiers through a common/collective defense and security policy (much to the delight of its extensive defense and security industry). 

To illustrate (ironically in relation to our “Fishermen” project), on the various un-coordinated and contradictory EU policies, to-date, common wisdom wants to believe that the two dozen of -very expensive to buy and maintain- Greek Coastal Guard fast patrol boats, plus a few helicopters, can restlessly and effectively do the job of intercepting the intruding every-night the hordes of dispatched “boat people”. The reality is a little bit more complicated: 600 Greek Trawler and Purse-Seiner fishing boats are entirely covering and toiling the Aegean Sea on a 24 hours basis equipped with modern radars and communication means for their profession: patently it is these boats that first spot, identify and report to the Coastal Guard the stigma (coordinates) of the intruding boat so that the nearest Coastal Guard vessel may have the chance to be there on time!. This is an extremely useful service that costs nothing to the Greek State and the opportunity cost of replacing such an “organically” operating and widely distributed control system if to be replaced by Coastal Guard vessels only, could be that of a few billion per year for Europe and for Greece!!!.

Alas, the compartmentalized EU policies for the fisheries sector, for the last 30 years had practiced all possible policies to decrease the efficiency of this control system: At first they have subsidized the increased size and productivity of the fishing fleet by financing the construction of bigger ones and the destruction of numerous smaller thus resulting to the spectacular of the number of fishing vessels sailing in the Aegean sea. More recently,  to protect the diminishing fish stocks the EU fisheries policy calls for a substantial retirement of vessels and supplies subsidies for the drastic (over 50%) reduction/destruction of the Greek fishing fleet within the last 15 years!!. No doubt, the above-mentioned system of cost-efficient and effective control of illegal trafficking has rapidly deteriorated resulting to the increased permeability of Greek sea frontiers!.

Could EU perform best? We believe yes if there could be a more comprehensive and synergetic analysis of the problems and consequences when it comes to sector policies. There must for sure exist several other alternative soft policies to safeguard the fish stocks other than the evident and crude decisions of destroying the fishing fleets (ex: fishing nets management, restricted areas, restricted seasons etc).  

For the rest, Greece shall also need the appropriate “social technology” to promote integration of migrants in the local society and/or to take seriously the case of their repatriation. In particular in Athens the situation with migrant “ghettoes” is becoming so critical that it reminds of similar problems in USA during the 60’s.

Faced with such situations, Institutional International Organizations for the protection of various types migrant rights and even less the various International NGOs and Watch mechanisms can do little more than denouncing cases of abuse of rights and criticizing a economically powerless government during the present crisis circumstances while still the majority of the local society seems to be sympathetic, to accommodate with, to tolerate or to simply disregard the migrant problems…  

B.    At the national level, to our knowledge, there are a few mechanisms in place; others functioning with an acceptable efficiency but mostly reactively rather than proactively. Others still exist in infant stage of operation and yet others remain totally inert following their foundation act.

  • For disputes between the public sector and the migrant workers, the Greek ombudsman (gr. synigoros tou politi = citizen’s defendant) has a special section for immigrants and refugees. Actually almost 8% of the yearly reports are filled out from immigrants. It is positive that the framework exists although there is further work to be done in particular related to the dissemination of its role among migrants. Unfortunately, the type of migrant community we are interviewing (fishermen) during our Project, are scattered off-shore all over the country for most of the time.

A very small percentage only –mainly among those seniors working here over 10 years and near the ports of the capital city (Athens), has information on the existence and the benefits of the particular mechanism. Further away from the capital, awareness for the existence of this instrument is already rare even among educated provincial Greeks and practically non-existent among the Egyptian migrant workers.

Our proposal: Given the positive social acceptance and the reputation for good level of efficiency that the Greek Ombudsman Institution enjoys today among Greeks, for the ombudsman organization to become effective for the purpose of the defense of migrant communities in general (and of migrant fishermen in particular), the existing section should operate proactively i.e.: should build awareness about its services among the migrant community by “branching” the section regionally and/or by adopting the marketing concept of “personal sales” – a “door-to-door” rep approach in the areas and sectors of migrant concentrations. “Awareness building” for the kind of services offered should normally lead to the “positioning in the minds” of the concerned communities of the potential to use the services of the special migrants section of the Ombudsman. Such an approach must be accompanied by the facilitation of knowledge dissemination through the appropriately translated awareness documents and initial information gatherings, later to be regularly held several times per year. Migrant workers should be assisted to formulate appropriately their grievances and should become aware of the power and limits of the ombudsman as well as of the time necessary to proceed with an appeal.

Should our “migrant fishermen” project continue and/or should we find new sponsors in order to attain sustainability, other than continuing with training, we intend to develop and  pilot-test this approach in coop with the Ombudsman Central offices for the Kavala Region.

  • Again at the National level, Greek Regional Authorities (Prefecture level) are since a few years empowered to permits for legal work visas and receive and treat the demands for Circular Migration contracts. But they are not adequately staffed to monitor and /or to defend or take care of the rights of migrant labor. They have rather a police authority and their sensitivity and extend of involvement in cases of defense of migrant rights registers a rather negative score.   

This year we assist to the reorganization of Local Government with the abolition of Prefectures and their replacement from elected Greater Regional Government bodies that they are supposed to be invested with increased powers in all aspects.

Proposal:  We believe that given the actual crisis in Greece, these regional bodies could be on the appropriate level for the coordination of the migration policy of the country. Presently the bulk of the migration flow is overflowing Athens just because there is no coordination policy for the efficient use of such pools of labor. With an aging Greek population particularly concentrated in the country-side, Greek Regions often are in bad need of migrant skills in services like hospitals, care for the elderly, construction and maintenance, agriculture and even in the trades and handicrafts fields (Egyptian skilled fishermen workers are just one of the examples).

But for the Regions to alleviate the Center, there must be a comprehensive study and a strategy followed by the creation of a mechanism to propagate information for employment opportunities and to give incentives for the decentralization and employment of those idle migrant masses accumulating in the Greater Athens Area in search of a job and of social life within a community of their own.

For the rest, we believe that the regional authorities should confine and focus themselves to (a) attracting the appropriate migrant labor to their areas, (b) aggregate management and rationalization of this migrant flow within the area as well as to the initiation and support of innovative integration and rights’ protection programs at the level -and with the responsibility- of local communities. In the country side, Local Communities by themselves are by their nature and culture parochial, conservative and closed ones. Therefore the task to open-up these communities to a foreign element should be given (and be maintained) to the New Regional Level Institutions that can be appropriately staffed with qualified people.

  • At the Municipal level, those Greek communities that have been experiencing a significant inflow of migrants in the last years (Athens, Pireas, Salonika and a few others) have already taken limited action in favor of their migrant populations. Nevertheless the problems we are faced with in the big agglomerations largely overpass the allocation of meagre municipal resources that are mostly confined to the organization of a few cultural events and –more recently – to the encouragement of the development of good and responsible businessmen among the migrant communities of big cities. 

Our proposal : A lot remains to be done at the municipal level for migrant populations in general. As the unplanned dense migrant ghettoes spread and overflow the city center, frequent and uncontrollable conflicts develop with the local Greek population but also among various ethnicities with different cultural backgrounds. Among the evident measures to be taken is to staff the police and municipal services with multicultural/multiracial units, to establish a number of well-equipped multi-service centers for local initiative with a wide variety of counseling services to the migrant communities, to include legal, medical, psychological, family, employment and language advice and monitoring.

Another activity that could be triggered at the Regional Level and could be implemented at the Municipal level is the provision of assistance to the various local ethnic migrant communities in order to organize their small associations of origin in order to be capable to host social and cultural activities proper for each community.

But above all, there is a need for the municipality to trigger through various methods the support and the mobilization of the progressive and benevolent elements of the local Greek society in favor of a host of acts and activities that can significantly promote the sense of citizenship and/or justice and respect among this recent migrant population.   

  • Finally, another non-judicial instrument is the non-governmental organizations (NGOs), functioning in the country (at the national level) and serving the role of informing and helping migrants on their rights. These frequently cover the gap created by the partial inability of state, regional and municipal authorities to provide such services and to address effectively the issues related with the rights of migrant workers. Their main contribution is to provide legal consulting free of charge to migrant workers.

Our proposal : During the present period of economic crisis and of a tight state budget in Greece, we believe that NGOs should become more active in order to replace the void of means or the lack of willingness to act at the level of regional and local authorities. NGOs should concentrate not only in the facilitation of migrant people to (dare to) express their grievances but also they should undertake -locally or nationally- more rigorous surveys of the people and problems while at the same moment disseminate multilingual information on local and international laws protecting their rights and describing their obligations. In addition, the NGOs should try to establish and organize access to the media for these migrant communities as well as to facilitate the sustainable establishment of migrants’ solidarity associations.

  • When it comes to the judicial system and the role of the courts, -the main and last recourse mechanism for redress-, unfortunately this path in Greece is chronically suffering from overload and very long queues and as a rule is known to be money-consuming. The system jargon and procedures are among those least accessible and adapted to the service and facilitation of other cultures.  More on this, when answering Q2.

Q2)  How can governments effectively discharge their duty to protect migrant workers’ right to redress, including through adequate provisions in labour migration policies and bilateral agreements? For example, do visas allow for workers to remain in the country to file a grievance and seek new employment if they have quit, or have been fired from, an abusive job? Are migrants effectively protected from retaliation in case they file a complaint?

Numerous are the cases we have met  during our 500 questionnaire adventure, where people were coming to us, with documentary evidence at hands, to complain for blatant abuses to which they have been subjected by their bosses or their “agents”.

Illustrative case 1: A fisherman had a bad accident during the work having been hit by the crane at head. The owner of the ship has misled the ignorant fisherman while in hospital and under various pretexts made him sign a paper stating that the accident was done while out of the ship while promising to him that upon redress he shall employ him again on the boat and he shall compensate him for lost salaries of over 8 months. The result is that after redress, he has been refused any compensation and sent back in Egypt semi-paralyzed where he now lives a miserable life. Lawyers, to whom he has addressed for assistance, assured him he shall be compensated, charged him considerable money for their services, but -since 5 years now- he has never received any compensation.

Illustrative case 2: A group of fishermen was left unpaid for 8 months and suddenly their ship-owner announced to them that he has declared himself bankrupt. The Greek courts took a decision that the fishermen are empowered to compensation after liquidation but still, they have never received any compensation.

Illustrative case 3: A fisherman has lost his life drown in the sea during the night as he was trapped in the net ropes during a routine manipulation. The intriguing detail is that this happened during an illegal night operation as the fishing boat was operating close to the coast in a prohibited area with no lights. Apparently, no compensation was given to his family and none has denounced the full situation, since migrant people on board not only fear to lose their job but probably also because -according to the prevailing remuneration system in Northern Greece- fishermen workers, instead of receiving a salary, are sharing to a certain agreed proportion the net revenues of the daily catch. Apparently this remuneration system ‘forces’ them to become “accomplices” in such malpractices. 

Illustrative case 4: In full connivance with the Egyptian agents, Greek fishing boat owners cancel their contracts with elder migrant fishermen holders of a resident visa in order to replace them altogether with Circular Migration contracts. This results to unemployment in the docks and to the excess presence of Egyptian fishermen in Greece. None is controlling the circumstances and the reasons of such replacement neither the harm it does in terms of pressure to the local labor market or in terms of potential pressure for the consequent migration of those who have lost their jobs to neighboring European countries. Undeniably, Circular Migration systematically benefits the fishing boat owners and the agents. Both of them have a common interest to increase their revenues. The ship-owner is supplied with cheaper labor and the agent gets from each one of the Circular Migrants a standard hefty fee per year!! No doubt the agent has interest to “kill” any one of those migrant fishermen with a resident permit working on Greek fishing boats and that he is ready even to subsidy the Circular Migration worker’s salary for a period in order to exhaust him economically and to get rid each one of those resident permit visa migrant workers that do not constitute for him a “profit center”!! Under this –difficult to control- situation, private individual businessmen (both ship-owner and the agent) may thrive at the expense of the Greek State, Greek society and eventually the EU that will have to pay the bill of unemployment benefits to the resident permit worker for a year; on top of this, the local labor market gets more pressure from artificial unemployment created and ultimately an Italian, French or UK city shall get one more desperate migrant worker before his resident visa expires, in search of a better chance to make a living.

We shall close this last subject by openly stating that in our limited sphere of competence –regarding the Egyptian migrant fishermen working in Greece- the Circular Migration concept has unfortunately triggered the declaration of a “total war” against the presence of legal migrant fishermen, holders of a resident work visa from the past. It is a pitiless war where a lot of money “ends up” in the hands of only a handful of persons: “the agents” responsible for recruiting fishermen from the coastal hinterland of Egypt. This is fully noticeable as currently this handful of “human resources managers” share among them an estimated minimum yearly net amount of 7-10 million euros after expenses! They strive to double this figure by getting rid of their enemies – the resident visa holders that presently still hold 50% of the crew positions in the Greek fishing boats!. It is also clear that these few individuals that gain today more than 2.000 Euros/capita/year in order to bring nearly 4-5.000 Circular migration workers per year to Greece, may have no difficulties to find allies among Greek fishing boat owners, consulates, prefectures and port authorities if this is to be needed in order to raise support in favor for their ..“holy war”.

Our proposal : Faced with such phenomena as the above, to-date we are unable -and to a great extend incompetent- to propose an easy “magic” solution. Therefore we are challenging the members of our Community of Practice to transfer to us their experience and thoughts and/or to think about ways and means to alleviate such profiteering phenomena triggered by the opportunities opened-up unintentionally since the application of the Circular Migration concept. 

  • Very often, the cost of engaging in a legal pursuit (or even get a basic advice) is too high for a migrant to bear, if he is not to be “helped” by a topic-related NGO. To our experience, most fishermen who have assigned to a lawyer a case for representation, have ended up with no results. A common example that we came upon to is the following: Although the relevant law declares that the migrant workers should not be paid below the standard minimum wage that applies for local unskilled workers, we have been told of many cases of underpayment.

Although this is a clear case for legal claims in the courts, practically the option is hindered by the poor information the immigrants have concerning their rights and by the fact that their case will take too long to be examined in courts and most probably by that time some of them might not be present in Greece or might be assigned a very remote from the courts.; this unfortunately is a situation that neither Greek nationals can escape from, as it has to do with the present state of the judiciary’s organizational infrastructure.

On top of these problems, we must also include fears of retaliation in the case of a migrant taking the “courts-route”. In other words, the network of  “agents” described above, are responsible for filling-in the necessary documents for the migrant workers to be admitted in Greece. In connivance with the interested fishing boat owners they can easily “black-list” the migrant worker that has filed a lawsuit. This will result to a new costly adventure back in his country in order to be able to come back to the country via the same route; it is worth noting that in most cases especially in province, and especially for Circular Migration contracts the “oligopoly” of unregulated local “agents” is the only route for a migrant-to-be to leave his country.

Our Proposals: What lacks presently, are the mechanisms for informing/educating migrant workers about the entry procedures and their rights in respect to labor, social security and medical care upon entry in the host country. Such information mechanisms should preferably be opened-up in the countries of origin. After all, even if mechanisms for redress are present, they bring no real benefit if the migrants that need them are not familiar with their existence. To our opinion, this is the first necessary step and there is a lot to be done in this direction for both the origin and destination countries (Egypt and Greece in our case). At present, even in cases where the migrant workers’ rights are clearly defined in the country’s legal framework, these are not applied in reality due to hesitation, disinformation and/or negligence.

The gap related to the lack of affordable legal advice on the subjects mentioned in the above paragraph, could additionally be covered by specific NGO activities in the origin country. In other words, if understaffed –sender-country- embassies and consulates are not able, willing or interested to provide migrant workers’ access to official and accurate information or legal help and translation at all times, this function could be seconded or replaced by early NGO activities.  . This already happens in some cases, but there is still room for improvement. Needless to say that, in the countries of destination the same activities can be undertaken locally by identifiable - accredited for this - NGOs that can pay a regular visit to the work locations of the key ports (Piraeus, Salonika, Volos, Kavala etc in our case), because distance from the local authorities and continuous traveling during working days is a great barrier for a hard-working migrant to access legal knowledge and advice.

Finally we should not forget that the authorities of the EU “destination” countries have a legal duty to make sure that migrants are treated as equals to nationals in courts as well as outside them. To date, during our project, we haven’t had significant complaints directly related to state or regional and municipal officers. Complaints are principally and massively focused primarily against the “agents”, then in turn against certain bad practices of fishing-boat owners and against the inefficiency of local lawyers taking advantage of them. (But our experience shows that migrants from other nationalities -not only the Egyptians that our project is concerned with-  frequently denounce a comparative lack of attention that equals discrimination on behalf of the various authorities because of race, color, ethnicity and/or religion).  

Q3)  How can employers and business take steps to better insure the rights of migrant workers including the right to redress?

Participation of the migrant workers (Note: Egyptian migrant fishermen comprise the absolute majority –a quasi-exclusivity- of workers in Greek fisheries) in Trade Unions and labor associations has to be encouraged by all relevant stakeholders. True, the extreme political party alignment of most of the Unions in Greece poses a double-end problem for both sides: For the politically aligned Unions, the scattered Egyptian fishermen working off-shore and having neither the interest or the right to vote in national elections, constitute a marginal target group. On the other hand, Egyptian fishermen, aware of the extreme political alignments of the Unions but also of the patently strong political beliefs of their bosses, hesitate to – unintentionally - enter politics rather than unionism.

One should also understand that the nature of their profession (intense small and close group work) and the structure of the fisheries sector (rarely a professional fishing businessman controls more than two fishing boats totaling a max of 15 workers) is not encouraging Unionism and collective bargaining but rather  a model of direct negotiations and the search for a consensus is limited with each owner.

It is also true that as the owner/captains are as a general rule always on board with their workers directing the catch effort, the interpersonal relations developing are often very strong no matter the utter interest of each side. Often a natural hierarchy is developing and usually one among the Egyptians of the crew, may finish to become “shadow partner” of the boss especially if there is no prospect of succession in the captain’s family.

Another barrier to Unionism comes from the fact that the oligopoly of rich “agents” opposes radically to any type of unionization or self -organization and uses for this its power in order to coerce a number of migrant workers that they selectively privilege with pecuniary means and use as informers.     

Overall, it is evident that the Greek Unions are sympathetic to the integration of legal migrant workers as they have at least all the -economic- interest to include in their ranks these young active migrant working communities in order to balance for the financial consequences of an aging Greek working force. Indeed a few labor unions have started promoting the idea of solidarity with migrant workers and supporting the mechanisms through which the migrant workers will be absorbed to the Greek economy as early as since 1991.

But on the other side -apart from the specific reasons linked to our fishermen migrant community- overall migrant workers demonstrate a persisting reluctance to use this mechanism and to enroll in trade unions as again there is severe lack of information regarding (a) their right to register in the syndicates, (b) the enrollment procedure, (c) the benefits of enrolling. Needless to point out that the problem gets prohibitive dimensions when it comes to circular migrants as, apart from fear and the direct control of their fate exercised by their ‘agents”, there is still some confusion as to the legal side of their participation in unions.

Talking about the persisting preference that some employers and marginal businesses show to the employment of illegal/irregular migrant workers over legal/regular ones,  it is by now apparent that the pecuniary advantages that the institution of Circular Migration offers to them, to a great extend acts as an incentive to quit this practice that entails increasingly fines and penalties.

In particular for our case of migrant Egyptian fishermen working on fishing boats in Greece, the use of illegal migrants is practically non-existent and not feasible as the profession entails risks that are severely punished by the law governing marine business. It might be that this was occasionally the case in the remote past (over 20 yrs ago) but this is by now history. Illegal migrant employment today is increasingly confined in remote agricultural areas at domestic exploitations, at small workshops and mainly in the urban and rural households as domestics, gardeners and guards.

Confining ourselves to our project needs and experience, apart from the various considerations analysed above, we believe that, given the very nature of their work, unionization of spatially-scattered and ever-moving fishermen with a “nomadic” behavior, is a very difficult enterprise most probably doomed to fail not –only- because of the strong opposition from “agents” and bosses alike.

Instead, we propose the initial building of local communal organizations (of the “self-help-solidarity” type) in each port, in order to create (or enhance) circumstances of mutual help among them; in parallel, (we propose) the mobilization and facilitation of cross-generational local citizens’ “friendship groups” that could include selected progressive and benevolent elements of the local society, and early retirement citizens from the professions (doctors, lawyers, bankers etc) that are respectful to migrants and active as citizens, as well as progressive members of the fishing community including owners of boats that show a sincere persistent and proven care for their Egyptian crews.

The recognition of their peaceful and positive co-existence by the local society through its civic organizations and local authorities is the prerequisite for a positive solution of any potential conflicts but also for the visible improvement of their life.

These “solidarity” organizations can perfectly become their “porte-parole” and an informal laboratory for the development of leadership.

We estimate that this solidarity type of organization should initially keep a low profile on subjects of collective bargaining and concentrate on matters of injustice by publicizing to the local community and the members of “friendship associations” the flagrant injustice cases. Should injustice cases be appropriately communicated through the locally-built networks, it is very doubtful that the concerned employer would opt to continue to be exposed for injustice in the eyes of the local society. We are of the opinion that, in local societies, social coercion can be a powerful tool for conflict prevention and resolution

For the rest, a two-way information dissemination is the most urgent task of the organizations involved. The next step is the social containment and “taming” of the evil aspects of the unregulated “agent’s” role and profession within the society of migrant fishermen both in the host and origin countries.

If local societies continue to ignore these problems and if the abusive aspects of some of their practices are not allowed to go public and to become visible and condemned in order to get their “stigma”, there is no means for these fishermen to get rid of such perpetrated abuses.

For the ANCE (Athens Network of Collaborating Experts ) Team,

Dimitris Vournas, Nikos Papantonopoulos, Panos Papantonopoulos

GREECE

JMDI project [Eg-050] Migrant Skills Transfer in the Aquaculture Industry: The case of Greece and Egypt



29.   Daouda Salam Traoré, AMID-FARAFINA JIGI, Mali 

Chers membres

Voici les réponses aux questions du thème 1: Quelles sont les plaintes les plus communes des travailleurs migrants ?

Les plaintes les communes des travailleurs migrants sont le non respect des engagements contractuels de la part des employeurs des pays d’accueils.

1)        Celles-ci varient-elles en fonction des différents types de travailleurs migrants – par exemple, permanent par rapport à temporaire ; régulier par rapport à irrégulier ; ouvrier par rapport à employé de bureau ? Les plaintes principales varient-elles selon les régions du monde ? 

Ca varie selon le type d’emploi : Car les migrants qui travaillent en tant que domestique sont les plus lésés que les migrants qui travaillent dans les entreprises. Selon les pays par exemple les migrants de l’Europe sont aussi plus sécurisés que les migrants des pays Arabes et ceux de   l’Afrique centrale.

2)        Quelles plaintes particulières sont-elles fréquentes chez les travailleurs migrants engagés dans un travail domestique ou un travail dans le secteur informel ?

Les migrants qui font le travail domestique se plaignent du sous /emploi et du non payement de salaire.

3)        Les femmes migrent de plus en plus par elles-mêmes plutôt qu’en tant que dépendantes. Quelles plaintes sont-elles particulièrement communes chez les travailleuses migrantes ?

Le harcèlement sexuel, la séquestration et beaucoup d’autres choses qui  ne sont faciles à évoqué sur ce plateau.

En vous souhaitant bonne réception, je reste à votre disposition pour l'approfondissement car je travaille depuis 2003.

Daouda Salam TRAORE

Président de l'Association Malienne Pour l'Intégration et le Développement  (AMID-FARAFINA JIGI)

Bamako/MALI

Tel : (223) 79 34 78 30

Many thanks to all who contributed to this query!

If you have more information that you would like to share with the network on this topic, please send it to: m4d@groups.dev-nets.org

Access the M4D discussion forum at: www.migration4development.org/cop/

Learn more about the EC-UN Joint Migration and Development Initiative (JMDI) at:

www.migration4development.org

This Consolidated Reply is based on exchange and communication by members of the Communities of Practice and reflects personal views of Members.

The views expressed here cannot be taken to reflect the views of the EU, IOM or the United Nations, including UNDP, UNFPA, UNHCR and ILO, or their member states.

Responses received

1.          Chris Nolan, Business for Social Responsibility, China

2.          Dr. Titilola Banjoko, AfricaRecruit, UK

3.          Flora Ventura, Centro Servizi per Immigrazione, Italy

4.          Vijay Nagaraj, International Council on Human Rights Policy (ICHRP), Switzerland

5.          Andrew Samuel, Community Development Services, Sri Lanka

6.          Richard Mandelbaum, Committee on Migration and CATA (Comité de Apoyo a los Trabajadores Agrícolas)

7.          Jacqueline Mogeni, UNDP Kenya

8.          Malu S. Marin, ACHIEVE, Inc., Philippines

9.          Junko Tadaki, Karin Lucke and Elizabeth Wabuge, OHCHR, Geneva

10.      Olufunke Aluki-Daniels, Coventry University, UK

11.      Students from the American University, Washington, USA

12.      Sam Blay, UNDP Laos

13.      Patricia de Dossmans, Fundacion Eugenio Espejo, Ecuador

14.      Panos Papantonopoulos, Athens Network of Collaborating Experts (ANCE), Greece

15.      Mohamed Khachani, Moroccan Association for Studies and Research on Migration (AMERM), Morocco

16.      Malu S. Marin, ACHIEVE, Inc., Philippines

17.      Prof. Abel Gomez-Gutierrez, Autonomous University of Nayarit, Mexico

18.      ASB Migrant Access Programme Hambantota, Sri Lanka

19.      Juan Miguel Petit, UN Uruguay

20.      Mohamed Khachani, Moroccan Association for Studies and Research on Migration, Morocco

21.      Unlad Lanao, Unlad Kabayan Migrant Services Foundation, Philippines

22.      Suraina Pasha, Asia Pacific Forum (APF), Australia

23.      Esther Lam, Office of the High Commissioner for Human Rights, Switzerland

24.      Saskia Koppenberg, EC-UN JMDI, Belgium

25.      Akua Dua-Agyeman, UNDP Ghana

26.      Rene Plaetevoet, December 18, Belgium

27.      Clement Adegbaju

28.      Dimitris Vournas, Athens Network of Collaborating Experts (ANCE), Greece

29.      Daouda Salam Traoré, AMID-FARAFINA JIGI, Mali

Related resources

Articles shared:

 §  Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence, International Council on Human Rights Policy 2010 – research project which examines the provisions that protect undocumented and smuggled migrants under international human rights law, and suggests how they might be integrated in migration policies, alongside economic and law enforcement considerations.

§  Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences, Gulnara Shahinian, 2010 – Following a brief overview of activities, the Special Rapporteur focuses on the manifestations and causes of domestic servitude and issues recommendations on how to end this global human rights concern.

§  International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, 1990

§  Status of ratifications, declarations and reservations to the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

§  “Are You Happy to Cheat Us?” Exploitation of Migrant Construction Workers in Russia, Human Rights Watch 2009 - This report documents widespread withholding of wages, failure to provide required contracts, and unsafe working conditions by employers at construction sites across Russia. It also details cases in which workers were unwittingly trafficked into forced labour by employment agencies that promised construction jobs in Russia, but then delivered workers to employers who confiscated their passports and forced them to work without wages. In some cases, these workers were confined and beaten.

§  “Hellish Work” Exploitation of Migrant Tobacco Workers in Kazakhstan, Human Rights Watch 2010 - This report documents how some employers confiscated migrant workers' passports, failed to provide them with written contracts, did not pay regular wages, cheated them of earnings, and required them to work excessively long hours. Human Rights Watch also documented frequent use of child labour, with children as young as 10 working, even though tobacco farming is especially hazardous for children. The report was based on interviews in 2009 with 68 people who were working on tobacco farms in Kazakhstan or who had recently worked there.

§  Without Protection: How the Lebanese Justice System Fails Migrant Domestic Workers, Human Rights Watch 2010 - This report reviews 114 Lebanese judicial decisions affecting migrant domestic workers. It finds that lack of accessible complaint mechanisms, lengthy judicial procedures, and restrictive visa policies dissuade many workers from filing or pursuing complaints against their employers. Even when workers file complaints, the police and judicial authorities regularly fail to treat certain abuses against domestic workers as crimes.

§  Walls at Every Turn: Abuse of Migrant Domestic Workers through Kuwait’s Sponsorship System, Human Rights Watch 2010 - This report describes how workers become trapped in exploitative or abusive employment then face criminal penalties for leaving a job without the employer’s permission. Government authorities arrest workers reported as “absconding” and in most cases deport them from Kuwait – even if they have been abused and seek redress.

§  World Report 2010, Human Rights Watch 2010 – This report describes the human rights conditions of migrant workers, amongst others, in more than 90 countries and territories worldwide.

§  Protect, Respect and Remedy: a Framework for Business and Human Rights, Human Rights Council 2008 – A report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie.


Articles and links related to national human rights institutions:

 §   Zacatecas Declaration, 2004 Outcome document of an international conference of NHRIs in Mexico in 2004, focusing on the causes, effects and outcomes of the migratory phenomenon and the role of NHRIs in the migratory process.

§   Santa Cruz Declaration, 2004 - Outcome document of the 8th International Conference of NHRIs in Bolivia in 2006, focusing on the role of NHRIs in promoting and protecting the rights of migrants.

§   15th Asia Pacific Annual Meeting, 2010 - Proposal by NHRIs in the Asia Pacific for an International NHRI Working Group on Migration to be established by the ‘International Coordinating Committee of National Human Rights Institutions’.

§   Seoul Guidelines, 2008 - at the initiative of the Korean NHRI, several NHRIs in Asia gathered together in Seoul for a conference in 2008, to draft a set of guidelines on how Asian NHRIs can cooperate together to protect and promote the rights of migrant workers.

§   South East Asia National Human Rights Institutions Forum (SEANF) Paper on Migrant Workers, 2010 - Cooperation paper amongst the NHRIs of Indonesia, Malaysia, Philippines and Thailand, focusing on migrant workers rights.

 Links shared:

-          Migration Linkages (Business for Social Responsibility) – the website aims to create a network of companies, suppliers, international organizations, and civil society groups that work together at local, regional, and global levels to develop solutions to persistent migration challenges.

-          Business & Human Rights Resource Centre – a portal about the work of the Special Representative of the United Nations Secretary-General on business and human rights, John Ruggie.

Introductory text

Prepared by Sarah Rosengaertner, Oliver Hudson and Miriam Aced.

For a printer friendly version, click here.

Original query

In collaboration with the Civil Society Days (CSD) of the fourth Global Forum on Migration and Development (GFMD), held in Puerto Vallarta, Mexico, from 8 to 11 November 2010, the Joint Migration and Development Initiative (JMDI) is pleased to launch this e-Discussion on “Protection of migrant workers’ human and labour rights: Ensuring effective redress”.

Much of migration in the world today happens for the purpose of work. According to the International Labour Organization (ILO), 50 per cent of the currently estimated 214 million migrants worldwide are workers, with women representing almost half of the total and increasingly migrating on their own account rather than as dependants. Indeed, economically active migrants and their families comprise 90 per cent of the total migrant population. Despite their contribution to prosperity and human development in countries around the world, migrant workers often face adverse living and working conditions and sometimes serious human rights violations. Their vulnerability to exploitation and abuse in the workplace is compounded by the fact that migrants are often fearful of calling on authorities to redress ill treatment, especially if they are in an irregular situation.

The e-discussion “Protection of migrant workers’ human and labour rights: ensuring effective redress” will be cross-posted on the UN Human Rights Policy network – HuriTALK and the UNDP Democratic Governance Practice network.  The topic of this discussion ties in directly with the theme of the GFMD entitled “Partnerships for migration and human development: shared prosperity – shared responsibility”. The GFMD will provide a platform for governments, as well as civil society and private sector stakeholders and international organizations to further define and develop common ground on the principle of shared responsibility as it applies to the effective protection of the rights of all migrants.

The e-discussion will gather a broad range of stakeholders – from governments; national judiciary and human rights institutions; international and civil society organizations; social partners; private sector entities such as private employment/recruitment agencies; migrant associations and more – to exchange ideas across different fields on the current state of play, initiatives, as well as gaps and challenges regarding migrant workers’ access to effective grievance and redress mechanisms. It aims to explore the roles and contributions of stakeholders, as well as the particularities of redress mechanisms and their accessibility to different groups of migrant workers.

Please access the background paper to this discussion here.

The e-discussion, which will last four weeks, will be split into the following topics which each include a series of questions:

Topic 1: What are common grievances of migrant workers? (7 – 21 October)

  1. Does this vary for different types of migrant workers - e.g. permanent vs. temporary; regular vs. irregular; blue collar vs. white collar workers? Do prevalent grievances vary across world regions?
  2. What particular grievances are common for migrant workers engaged in domestic work or work in the informal sector?
  3. Women are increasingly migrating on their own rather that as dependents. What particular grievances are common for female migrant workers?

Topic 2: What opportunities for redress are available to migrant workers? (21 October – 4 November)

  1. Which mechanisms ?both judicial (e.g. courts) and non-judicial (e.g. human rights commissions, ombudspersons) ? are most adequate to protect migrants’ rights at the national and international levels? How appropriate, effective and efficient are these mechanisms a) for different groups of migrants? b) in different regional contexts?  How can different stakeholders support migrants’ access to judicial and non-judicial redress?
  2. How can governments effectively discharge their duty to protect migrant workers’ right to redress, including through adequate provisions in labour migration policies and bilateral agreements? For example, do visas allow for workers to remain in the country to file a grievance and seek new employment if they have quit, or have been fired from, an abusive job? Are migrants effectively protected from retaliation in case they file a complaint?
  3. How can employers and business take steps to better ensure the rights of migrant workers including their right to redress?
  1.  
    • What kind of employer- or company-level grievance and redress mechanisms exist? How efficient and effective are they?
    • What responsibility do companies have to protect the right to redress for migrant workers when it is not guaranteed by national laws?  How can companies work with other stakeholders to advocate for legal changes?
    • What is the role of trade unions and other stakeholders in ensuring migrant workers’ access to effective company-level redress? 

Please feel free to respond to as many, or as few, questions as you like within each topic – there is no requirement to provide responses to all the questions!

We warmly encourage members to forward this message to your networks and invite those working in the area of migrants’ human and labour rights to participate in the e-discussion by responding to this email or posting responses online in the Migration4Development forum here. Please note that responses to the e-discussion are not automatically shared but go to the facilitation teams for compilation.

The results of this e-discussion will be presented at the GFMD CSD in November.  Therefore, by participating in this e-discussion you will be helping to shape the debate at the CSD of this year’s GFMD!

Timeframe: Thursday, 7 October to Thursday, 4 November 2010  


Français:

Question originale:

 En collaboration avec les Journées de la Société Civile (SDR) du quatrième Forum mondial sur la migration et le développement (FMMD), qui a lieu à Puerto Vallarta, Mexique, du 8 au 11 Novembre 2010, l'Initiative Conjointe pour la Migration et le Développement (ICMD) est heureux de lancer cette discussion en ligne sur la protection d es droits de l’homme et des droits du travail des travailleurs migrants: assurer un équilibre efficace.

La plus grande partie de la migration dans le monde aujourd’hui est motivée par la recherche d’un travail. Selon l’Organisation internationale du travail (OIT), 50% des 214 millions de migrants estimés actuellement sont des travailleurs.  Les femmes représentent près de la moitié de ce total et migrent de plus en plus pour leur propre compte plutôt que comme dépendantes. En effet, les migrants économiquement actifs et leurs familles comptent pour 90% de la population totale des migrants. Les travailleurs migrants contribuent à la prospérité et au développement humain dans tous les pays du monde. Toutefois, ils sont s ouvent confrontés à des conditions de vie et de travail défavorables, et parfois à des violations graves des droits de l’homme. Leur vulnérabilité à l’exploitation et aux abus sur le lieu de travail s’explique par le fait que les migrants ont souvent peur de contacter les autorités pour demander des réparations après de mauvais traitements, notamment lorsqu’ils se trouvent en situation irrégulière. 

La discussion en ligne sur le thème « Protéger des droits de l’homme et du travail des travailleurs migrants : assurer une réparation efficace » qui sera posté sur HuriTALK – le Human Rights Policy network et le PNUD Democratic Governance Practice network. Le thème de la discussion est directement lié au thème du GFMD, intitulé « Partenariats pour la migration et le développement humain : prospérité partagée – responsabilité partagée ». Le GFMD fournira une plateforme pour les gouvernements ainsi que pour les parties prenantes de la société civile et du secteur privé et les organisations internationales pour définir et développer encore davantage un terrain d’entente sur le principe de la responsabilité partagée, celui-ci s’appliquant à la protection effective des droits de tous les migrants.

La discussion en ligne rassemblera une large palette de parties prenantes – gouvernements ; institutions nationales en matière judiciaire et de droits de l’homme ; organisations internationales et de la société civile ; partenaires sociaux ; entités du secteur privé telles que les agences d’emploi et de recrutement privées ; associations de migrants et autre – pour échanger des idées sur différentes facettes de la situation actuelle, sur les initiatives ainsi que sur les lacunes et problèmes relatifs à l’accès des travailleurs migrants à des mécanismes efficaces de plainte et de réclamation. Il vise à explorer les rôles et contributions des parties prenantes, ainsi que les particularités des mécanismes de réparation et leur accessibilité par les différents groupes de travailleurs migrants. 

Veuillez accéder le document de travail à ce débat ici.

L’e-discussion, qui durera quatre semaines, sera divisée selon les thèmes suivants qui comprennent chacun une série de questions:

 Thème 1: Quelles sont les plaintes les plus communes des travailleurs migrants ? (du 7 au 21 octobre)

  1. Celles-ci varient-elles en fonction des différents types de travailleurs migrants – par exemple, permanent par rapport à temporaire ; régulier par rapport à irrégulier ; ouvrier par rapport à employé de bureau ? Les plaintes principales varient-elles selon les régions du monde ? 
  2. Quelles plaintes particulières sont-elles fréquentes chez les travailleurs migrants engagés dans un travail domestique ou un travail dans le secteur informel ?
  3. Les femmes migrent de plus en plus par elles-mêmes plutôt qu’en tant que dépendantes. Quelles plaintes sont-elles particulièrement communes chez les travailleuses migrantes ?

 Thème 2: Quelles sont les opportunités de réparation offertes aux travailleurs migrants ? (du 21 octobre au 4 novembre)

  1. Quels mécanismes – tant judiciaires (par exemple, les tribunaux) que non-judiciaires (par exemple, les commissions des droits de l’homme, les médiateurs) – sont-ils les plus appropriés pour protéger les droit des migrants aux niveaux national et international ? A quel point ces mécanismes sont-ils appropriés, efficaces et efficients a) pour les différents groupes de migrants ? b) dans les différents contextes régionaux ? De quelle manière les différentes parties prenantes peuvent-elles appuyer l’accès des migrants aux réparations judiciaires et non judiciaires ?
  2. De quelle manière les gouvernements peuvent-ils s’acquitter efficacement de leurs devoirs pour ce qui est de protéger les droits des travailleurs migrants à demander réparation, y compris grâce à des politiques et accords bilatéraux en matière de migration des travailleurs ? Les visas permettent-ils par exemple aux travailleurs de rester dans le pays pour déposer une plainte et chercher un nouvel emploi s’ils ont quitté leur travail, ou ont été licenciés, suite à un emploi abusif ? Les migrants sont-ils efficacement protégés contre les représailles au cas où ils portent plainte ?
  3. Comment les employeurs et les entreprises prennent-ils des mesures pour mieux garantir les droits de l’homme des travailleurs migrants, y compris leur droit à réparation ?
    • Quels types de mécanismes de réparation existent-t-ils au niveau de l’employeur ou de l’entreprise ? Dans quelle mesure sont-ils efficients et efficaces ?
    • Quelle responsabilité les entreprises ont-elles pour ce qui est de protéger le droit à réparation des travailleurs migrants lorsque celui-ci n’est pas garanti par les lois nationales ? Comment les entreprises peuvent-elles travailler avec d’autres parties prenantes pour promouvoir des changements juridiques ? 
    • Quel est le rôle des syndicats et des autres parties prenantes pour ce qui est d’assurer l’accès des travailleurs migrants à une réparation au niveau de l’entreprise ?  

S'il vous plaît n'hésitez pas à répondre au plus grand, ou au plus petit nombre de questions que vous souhaitez au sein de chaque sujet - il n'est pas nécessaire d'apporter des réponses à toutes les questions posées!

Nous encourageons chaleureusement les membres de la Communauté de Pratique à transmettre le présent message à leur réseau, et invitons ceux qui travaillent dans le domaine des droits de l’homme et du travail des migrants à participer à la discussion en ligne en répondant à ce message ou en postant une réponse en ligne sur la Communauté de pratique ici.  S'il vous plaît noter que les réponses à la discussion en ligne ne sont pas automatiquement partagés.  Toutes les réponses vont premièrement à la facilitation des équipes pour la compilation.

Les résultats de cette discussion en ligne seront présentés lors des Journées de la Société Civile (SDR) du quatrième FMMD, en Novembre. Par conséquent, participer à cette discussion en ligne vous aidera à façonner le débat à la CDD de FMMD de cette année!

Période impartie : du jeudi 7 octobre au jeudi 4 novembre 2010

Summary of responses

 Français >

 Topic 1: Common grievances of migrant workers

Factors determining migrants’ grievances and access to redress

The United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of their Families provides a definition of “migrant worker” at article 2(1). 

The responses received indicated that it is important to distinguish between different migration situations in order to understand migrants’ working conditions, their grievances and their access to opportunities for redress. It was observed that regardless of the type of migrant worker, grievances increase the more low skilled the migrant and the more labour intensive the nature of the employment.  Thus, someone working in the plantation sector is more likely to experience grievances than someone working in a medium skilled job in a less labour intensive industry. However, migrants’ status (whether regular or irregular, schemed or unschemed) can make a difference, having implications for their stay and their working conditions, and in turn, their grievances. 

Contributors observed that migrants in a regular situation (with a valid work permit) who experience discrimination or a violation of working conditions are – at least in theory – able to resort to the national law of the host country in order to claim the respect of his or her rights. However, domestic labour legislation (e.g. on maternity protection, occupational health and safety) is not always applied to migrant workers – even if they are in a regular situation.  Refugees have the same rights as nationals when it comes to employment and are therefore entitled to seek enforcement of national laws regulating the conditions of employment in case of discrimination.  The situation of irregular migrants was described as very problematic.  Even where they are de jure entitled to redress (and this is often not the case), de facto, their irregular status often prevents them from resorting to national law. 

Migrants in an irregular situation face the constant threat of being reported to the authorities, thereby forcing them to submit to numerous grievances without any recourse to redress or without using those that may be available for regular migrants for fear of detection. Multiple contributors noted common grievances of migrant workers (both documented and undocumented) as including: the void of information regarding the profile of the employer and the work place (making it difficult for the migrant to decide whether to accept or decline an employment offer), unilateral wage deduction and changes to employment contracts, lack of access to adequate health and social care, lack of work place safety, stress and a sense of alienation, deprivation of food and drink, the withholding of passports and return flight tickets as well as the migrants not being able to tell their side of the story in case of dispute. It was also pointed out that children born to irregular migrants often have the burden of statelessness (when born in countries where citizenship is not a birth right). Similarly elderly irregular migrants usually lack access to benefits, including old age and disability entitlement, creating a particularly vulnerable group.   

Vulnerability to rights violations arises also under regulated migration programmes, such as temporary and circular migration schemes, that link migrants’ immigration status to their employment contract.  In practice, this leaves them often with no other choice than to let employers take advantage of them (other than to voluntarily leave the country or risk being fired and then deported automatically). For example, one respondent described how, although migrant domestic workers have the same legal rights and protections as Italian domestic workers in Italy, some domestic live-in workers agree to their employer communicating to the State Pension Fund (INPS) that they worked less hours than they actually did, (resulting in less contributions paid by the employer and less benefits received by the worker). The migrant worker is unlikely to resist such behaviour out of fear that by doing so they will have their employment terminated, resulting in their immigration status being jeopardised. 

 Another respondent pointed to the example of a group of Egyptian circular migrants working in Greece, who, after the sudden death of their employer, have not been paid for over a month, have no opportunity to return due to the absence of their salary and are legally not allowed to find another job.  It was observed that, generally, only a small percentage of migrants, mainly those that have worked in Greece for over ten years and those living near the ports of Athens, are aware of the existence and of the benefits of particular redress mechanisms.  Awareness among Egyptian migrant workers, many of which are concentrated in Greek fisheries, was observed to be virtually nonexistent. 

In many cases under circular migration agreements, visas do not allow for adequate access to legal recourse if a violation has taken place, because they tie migrants to one employer.  Problems with circular migration were also highlighted as being the case for temporary workers in the United States.  An additional deterrent from seeking redress is the migrants’ fear of being “blacklisted” by the scheme operator if they file a complaint and of not being able to participate in the programme and acquire a visa again in the future.

 The UN Special Rapporteur on Contemporary Forms of Slavery highlighted in her latest report to the Human Rights Council that in a number of countries in Asia and the Middle East, domestic workers’ visas are linked to a particular family (a system which is called kafalah) and the possibility to change visa sponsors is very limited.  In addition, contributors pointed to the particular vulnerability of, mostly female, migrant domestic workers, which results from the fact that, although domestic work is often legitimized by work contracts between the employer and employee and by working permits issued by the destination country, it is not recognized under labour laws of most destination countries.  Legally speaking, domestic workers are thus not considered “workers”. Given the ‘private’ nature of domestic work, domestic workers remain invisible to public scrutiny (e.g. labour inspections). Reported grievances faced by migrant workers engaged in domestic work and work in the informal sector included verbal and physical abuse (especially for female migrant workers who are particularly vulnerable to sexual violence), refusal to pay the agreed upon wage, threats of reporting the worker’s irregular status to authorities, no (paid) days off (especially in the Middle East), long working hours, no freedom of movement, being left alone without assistance or company, no access to health and psychosocial care and lack of access to redress. 

Multiple contributors have noted the particular vulnerability of female migrants, which is also echoed in the UN Special Rapporteur’s report on Contemporary Forms of Slavery.  The various forms of exploitation associated with domestic work, and described in the paragraph above, are disproportionately endured by women and girl migrants who routinely find themselves employed in within this sector.  One contribution reported reported that many women who have signed contracts to work as nurses, secretaries, hostesses, or as domestic workers in the Middle East find themselves in prostitution rings. 

Several comments also echoed the Special Rapporteur’s warning of a system of ‘neo-bondage’ that may emerge in the context of migration for domestic work. Migrant domestic workers will often assume a considerable debt towards the employer or the agency organizing her recruitment and transport to cover the cost of the air ticket and recruitment fees. The domestic worker is then expected to work off this debt. In many countries, migrant domestic workers might be blocked from returning to their home country, because employers or recruitment agencies withhold passports or return air tickets.  Debts incurred to arrive in the country of destination (sometimes by paying fees to abusive recruiters) also discourage other migrant workers from seeking redress for abuses. Faced with the prospect of having to return home without the expected earnings, many migrants have no choice but to stay and tolerate the abuse.

Topic 2: Opportunities for redress

State-level redress

The discussion identified different mechanisms and avenues for improving migrant workers’ access to redress. It was observed that contract violations, especially relating to money claims, are matters usually taken to the labour department, whereas those of a criminal nature are usually dealt with by courts.  Respondents deemed courts to be still the most adequate mechanisms to protect migrants’ rights at the national level.  However, the adequacy, efficiency and effectiveness of courts as a mechanism for redress were described as being a function of the overall situation as regards the rule of law in a country.  

The Office of the High Commissioner for Human Rights in its capacity as current Chair of the Global Migration Group (GMG) shared the key recommendations from a recent Expert Meeting, held in October 2010, on the human rights of migrants, which encouraged states to ratify the Convention on the Protection of the Rights of all Migrant Workers and their Families (MWC) as the first step in protecting migrant workers’ human and labour rights.  It was underlined that access to effective legal redress for grievances requires adequate national laws being in place in the host country. Ideally, those should be in line with the provisions of the MWC and relevant ILO Conventions. In order to improve access to justice also for migrants in an irregular situation, practitioners called for delinking criminal investigations and the enforcement of labour laws from immigration enforcement.

However, it was also noted that the signing of the MWC (or indeed States’ obligations under International Law generally) does not necessarily have to be an indication of how a country treats its migrants.  Some countries that have not signed the Convention grant migrants certain rights (e.g. the right to health care, right of children to education, etc.); while other countries that are signatories to the Convention have not properly implemented its provisions. Some do not recognise the rights of migrants in an irregular situation, for example, but instead apply their security laws to them.  

 The Philippines was quoted as one example where law and practice are not fully congruent.  While the country enacted the Migrant Workers Act in 1995, the law has not necessarily eradicated exploitation, violence, and abuses against migrant workers. This was mainly attributed to the fact that it applies only at the country level, whereas the main responsibility for exposing migrants to maltreatment lies with recruitment agencies that provide Filipino migrant workers with access to employment abroad. This means that some unscrupulous recruitment agencies located domestically are able to escape prosecution since maltreatment of the migrant workers recruited happens abroad allowing the recruitment agencies to distance themselves from the abuse.

An example of domestic legal action came from Ghana. With Ghanaian migrant workers facing serious problems in the maritime industry, working under difficult conditions and experiencing denial of welfare and wages, the Government of Ghana, with the support of UNDP, has established a legal and regulatory framework to create employment opportunities for Ghanaian youths in the maritime industry worldwide under a project called ‘Support to the Promotion of Employment in the Maritime Industry’.  A Collective Bargaining Agreement (CBA) for Ghanaian seafarers was developed and approved in 2009 after negotiation with the International Transport Workers’ Federation (ITF).  This agreement adopts several provisions of the Maritime Labour Convention of 2006 and ensures human and labour rights. 

Recognizing the shared responsibility of countries of origin and destination in ensuring migrant workers’ rights, contributors recommended including legal mechanisms in bilateral labour agreements between sending and receiving states.  Ideally, bilateral agreements should be signed outlining specifically migrants’ right to redress and clear redress procedures in the host country.  These should be coupled with regular dialogue between countries of origin and destination.  It was observed that currently some agreements fail to address the fundamental rights of migrant workers (including, but not limited to judicial access, access to education, access to healthcare and access to social welfare).  Furthermore, where rights of migrant workers are recognised in bilateral agreements, it is important to emphasise that associated redress mechanisms should include provisions to allow the redress mechanisms to be accessible to even the most marginalised such as the illiterate or financially impoverished.

Delinking visas from employers and allowing migrant workers the right to seek other employment while lodging a grievance was also deemed essential to enable them to more effectively access and use mechanisms of redress. When cases have been filed or are awaiting resolution migrants should have the right to extend their visas until the end of their cases as well as the right to be legally employed and have access to housing or reasonable cost of accommodation until the end of the case. It was suggested that workers with irregular status who have legitimate claims against unscrupulous employers should be given the same opportunity as some other victims of crimes, such as is the case for victims of sex trafficking in the United States, who are offered visas to remain in country.

One contributor also pointed to National Human Rights Institutions (NHRIs) and the role they can play in providing opportunities for redress to migrant workers. NHRIs are established by law (i.e. Constitution or Act of Parliament), with mandates specifically focusing on the promotion and protection of human rights. Worldwide, these institutions typically undertake a range of research, educational and advisory activities as part of their mandates. These institutions also often cooperate with international and regional human rights mechanisms and processes. In many countries, particularly in the Asia Pacific, African and Latin American regions, NHRIs also have quasi-judicial powers which enable them to actively exercise a protective mandate. This includes the competence to accept and consider complaints of alleged human rights violations, conduct public hearings and national inquiries, and visit places of detention.  There are currently 17 internationally accredited NHRIs in the Asia Pacific region. Many of these institutions regularly use their mandates to protect and promote the rights of migrant workers at the national level. There have also been interesting NHRI led cooperation initiatives at international, regional, sub regional and bilateral levels. Some of these initiatives focus more broadly on migration, whereas others are quite specifically focused on migrant workers.

The role of non-state actors in ensuring migrants’ access to redress

Migrants’ associations or human rights NGOs (working on support or advocacy) were seen as key players that – if they have a migrant’s trust – can make a significant difference in her/his ability or willingness to seek redress.  For example, centres such as the Centro Servizi per Immigrazione in Italy inform migrants on how to renew their documents and what to do and where to go when employers fail to meet their legal obligations. Several factors can deter an individual from bringing forth a complaint, with the fear of retaliation and the cost and time accrued from a court case being identified as the most common ones.  Educating migrants about their rights, capacitating them to learn how to demand for the application of their rights, knowing when and how to invoke those rights, making them aware that they must be informed about the terms of their contracts, and where they can seek redress were all identified as fundamental steps that enable migrants to seek redress.

Massive campaigns on the rights of migrants in countries of origin and host countries, e.g. in diaspora related media, diaspora shopping areas and communities, as well as awareness-raising among companies, employees, trade unions and other civil society actors were also deemed important.  Stakeholders should receive training and education on their roles in preventing and reporting abuse.  However, it was also observed that, because migrant workers are often not afforded adequate legal protections in receiving countries, a higher onus placed on employer grievance mechanisms, with formal business sectors providing redress procedures that are beyond what is legally required.

The presence of progressive trade unions sympathetic to the plight of migrant workers was identified as a factor that can contribute to protecting the rights of migrants in the workplace.  Respondents advocated for trade unions to, in the first instance, admit migrants as members with rights and responsibilities equal to the local workers/members and provide representation for migrant members.  However, it was also observed that the relationship between migrants and trade unions is not always harmonious. Due to migrants’ often desperate social situation, they are willing to accept worse working conditions and wages than locals and union members, which can result in unions reacting negatively to migrants, as was reported for the fisheries sector. Without the protection of trade unions, however, migrants risk being left to their own devices, away from home and without legal advice. 

Generally, it was observed that the value and importance given to migrants can be a deciding factor in how their rights are seen and purported.  For example, it was observed that opportunities for redress are more readily available for migrants working in the professional and highly skilled (highly educated) sectors than those in lower skilled sectors. In a society where migrants are recognized as important contributors, and where public education on human rights violations of migrants, including the publicizing of cases (especially ones that have been successful) are part of the culture, these factors will undoubtedly serve to encourage migrants’ rights. 


Français:

 Résumé des réponses:

 Thème 1: Plaintes courantes des travailleurs migrants

Facteurs déterminants les plaintes des migrants et accès aux réparations

La Convention des Nations Unies sur la protection des droits de tous les travailleurs migrants et des membres de leurs familles donne une définition du “travailleur migrant” dans son article 2(1). 

Les réponses reçues soulignent l’importance de faire la distinction entre différentes situations de migration pour comprendre les conditions de travail des migrants, leurs motifs de plaintes et l’accès qui leur est donné aux opportunités de réparation. Il a été observé que, quel que soit le type de travailleur migrant, les plaintes sont d’autant plus importantes que la qualification du migrant est basse et que la nature de l’emploi se caractérise par une forte intensité de travail. Ainsi, quelqu’un travaillant dans le secteur de la plantation a plus de chances d’avoir des motifs de plaintes que quelqu’un ayant un emploi moyennement qualifié dans une industrie à moindre intensité de travail. Toutefois, le statut des migrants (qu’il soit régulier ou irrégulier, rentre dans le cadre d’un mécanisme ou pas), peut jouer un rôle important, ayant des implications sur leur séjour et leurs conditions de travail, et, par voie de conséquence, sur leurs motifs de plaintes.

Les participants à la discussion ont observé que les migrants en situation régulière (dotés d’un permis de travail valide) qui sont victimes de discriminations ou d’une violation des conditions de travail sont – au moins en théorie – en mesure de recourir à la loi nationale du pays-hôte afin de réclamer le respect de leurs droits. Toutefois, la législation en matière de travail domestique (par exemple, protection de la maternité, hygiène et sécurité du travail) ne s’applique pas toujours aux travailleurs migrants – même s’ils se trouvent en situation régulière. Les réfugiés ont les mêmes droits que les ressortissants au niveau de l’emploi, et ont donc le droit de demander l’application des lois nationales régulant les conditions d’emploi dans les cas de discrimination. La situation des migrants irréguliers a été décrite comme très problématique. Même lorsqu’ils ont de jure droit à une réparation (et ce n’est pas souvent le cas), de facto, leur statut irrégulier les empêche souvent de recourir à la loi nationale.

Les migrants en situation irrégulière sont confrontés à la menace constante d’être dénoncés aux autorités, ce qui les force donc à subir de nombreuses injustices sans aucun recours pour obtenir réparation ou sans pouvoir utiliser les moyens à disposition des migrants réguliers, par peur d’être repérés. De nombreux participants à la discussion ont cité parmi les injustices courantes auxquelles font face les travailleurs migrants (avec ou sans papiers) : l’absence d’information concernant le profil de l’employeur et le lieu de travail (faisant qu’il est difficile au migrant de décider s’il doit ou pas accepter une offre d’emploi), la retenue unilatérale de revenus et les changements apportés aux contrats de travail, le manque d’accès aux soins de santé et aux filets de sécurité sociaux, le manque de sécurité sur le lieu de travail, la fatigue et un sens de l’aliénation, la privation de nourriture et de boisson, la confiscation des passeports et des billets d’avion de retour, ainsi que l’incapacité des migrants à faire valoir leur version de l’affaire en cas de différend. Il a été également souligné que les enfants nés de migrants irréguliers doivent souvent porter le fardeau de l’apatridie (quand ils sont nés dans des pays où la citoyenneté n’est pas un droit de naissance). De même, les personnes âgées qui sont des migrants irréguliers n’ont généralement pas accès aux avantages sociaux, y compris aux droits attachés au grand âge et au handicap, ce qui en fait un groupe particulièrement vulnérable.

La vulnérabilité par rapport à la violation des droits existe également dans le cadre de programmes de migration régulés, tels que les systèmes de migration temporaire et circulaire, qui lient le statut d’immigration des migrants à leur contrat de travail. En pratique, les migrants n’ont souvent pas d’autre choix que de laisser leurs employeurs les exploiter (sauf à quitter volontairement le pays, ou bien d’être licenciés et déportés automatiquement). Un participant a décrit à titre d’exemple la manière dont, bien que les travailleurs migrants domestiques disposent des mêmes droits et protections légales que les travailleurs domestiques italiens en Italie, certains travailleurs domestiques logés et nourris acceptent que leur employeur communique à la Caisse publique de pensions (INPS) un nombre d’heures de travail moindre que celles réellement effectuées (ce qui permet à l’employeur de payer moins de contributions, et fait que le travailleur bénéficie de moins d’avantages). Il est peu probable que le travailleur migrant puisse s’opposer à un tel comportement, par peur de se voir licencié, et de mettre en péril son statut d’immigration.   

Un autre intervenant à attiré l’attention sur l’exemple d’un groupe de migrants circulaires égyptiens vivant en Grèce, et qui, après le décès soudain de leur employeur, n’ont pas été payés pendant plus d’un mois, se retrouvent dans l’impossibilité de revenir au pays en l’absence de tout salaire et n’ont légalement pas le droit de chercher un autre emploi. Il a été observé que, généralement, seul un faible pourcentage de migrants, principalement ceux qui ont travaillé en Grèce pendant plus de dix ans et ceux qui vivent près du port d’Athènes, sont au courant de l’existence de mécanismes particuliers de réparation ainsi que des avantages qu’ils offrent. On a observé que les travailleurs migrants égyptiens, dont beaucoup sont concentrés dans les pêches grecques, ne disposaient virtuellement d’aucune connaissance en la matière.   

 Dans la plupart des cas, en vertu des accords de migration circulaire, les visas ne permettent pas d’accéder de manière appropriée aux recours légaux lorsqu’une violation se produit, dans la mesure où ils lient les migrants à un employeur. Il a été souligné que les problèmes inhérents à la migration circulaire étaient également rencontrés par les travailleurs temporaires aux Etats-Unis. Un élément dissuasif additionnel empêchant les migrants de rechercher une réparation est leur peur d’être mis sur une « liste noire » par la personne en charge du dispositif quand ils portent plainte, et de ce fait de ne pas être en mesure de participer au programme et d’acquérir de nouveau un visa dans l’avenir. 

Le Rapporteur spécial des Nations Unies sur les formes contemporaines d’esclavage a souligné dans son dernier rapport devant le Conseil des droits de l’homme que dans un certain nombre de pays d’Asie et du Moyen-Orient, les visas des travailleurs domestiques sont liés à une famille particulière (un système appelé kafalah) et que la possibilité de changer de parrain pour le visa est très limitée. En outre, les intervenants ont attiré l’attention sur la vulnérabilité particulière des travailleurs domestiques migrants, surtout des femmes, vulnérabilité entraînée par le fait que, bien que le travail domestique soit souvent légitimé par des contrats de travail entre l’employeur et l’employé et par des permis de travail délivrés par le pays de destination, ce type d’emploi n’est pas reconnu en vertu des lois du travail de la plupart des pays de destination. Juridiquement parlant, les travailleurs domestiques ne sont donc pas considérés comme des « travailleurs ». Etant donnée la nature « privée » du travail domestique, les travailleurs domestiques demeurent invisibles aux yeux des autorités publiques (par exemple, au niveau de l’inspection du travail). Figurent au nombre des motifs de plaintes signalés auxquels sont confrontés les travailleurs migrants participant aux travaux domestiques et au travail dans le secteur informel : les abus verbaux et physiques (notamment pour les travailleuses migrantes qui sont particulièrement vulnérables à la violence sexuelle), le refus de payer les revenus convenus, la menace de dénonciation du travailleur irrégulier aux autorités, l’absence de congés payés (notamment au Moyen-Orient), les longues heures de travail, l’absence de liberté de mouvement, l’abandon sans aide ni compagnie, le manque d’accès aux soins de santé et psychosociaux et d’accès aux réparations.

De nombreux participants à la discussion ont noté la vulnérabilité particulière des migrantes, dont s’est également fait l’écho le rapport du Rapporteur spécial des Nations Unies sur les formes contemporaines d’esclavage. Les diverses formes d’exploitation associées au travail domestique, décrites dans le paragraphe ci-dessus, touchent d’une manière disproportionnée les femmes et filles migrantes qui se retrouvent systématiquement employées dans ce secteur. Un intervenant a indiqué que de nombreuses femmes qui ont signé des contrats pour travailler comme infirmières, secrétaires, hôtesses ou comme travailleuses domestiques au Moyen-Orient se retrouvent dans des réseaux de prostitution. 

Plusieurs commentaires se sont également fait l’écho de l’avertissement lancé par le Rapporteur spécial par rapport à un système de « nouvel esclavage » pouvant émerger dans le contexte de la migration pour le travail domestique. Les travailleurs domestiques migrants assument souvent une dette considérable envers leur employeur ou l’agence organisant leur recrutement et transport, pour couvrir les coûts du billet d’avion et les frais de recrutement. Le travailleur domestique est ensuite supposé rembourser cette dette. Dans de nombreux pays, les travailleurs domestiques migrants peuvent se trouver empêchés de retourner dans leur pays d’origine, les employeurs ou les agences de recrutement leur confisquant leurs passeports ou leurs billets de retour. Les dettes encourues pour parvenir dans le pays de destination (parfois en payant des commissions à des recruteurs abusifs) découragent aussi les autres travailleurs migrants de rechercher des réparations pour les abus subis. Confrontés à la perspective de devoir retourner à la maison sans les revenus espérés, de nombreux migrants n’ont pas d’autre choix que de rester et de tolérer les abus.

Thème 2: Opportunités d’obtenir réparation

Réparation au niveau de l’Etat

La discussion a identifié différents mécanismes et moyens pour améliorer l’accès des travailleurs migrants aux réparations. Il a été observé que les violations de contrat, en particulier celles liées à des motifs de plainte financiers, sont des affaires généralement examinées par le département du travail, alors que celles de nature criminelle sont généralement traitées par les tribunaux. Les intervenants ont estimé que les tribunaux étaient les mécanismes les plus appropriés pour protéger les droits des migrants au niveau national. Il a néanmoins été observé que la compétence, l’efficacité et l’efficience des tribunaux en tant que mécanismes pour obtenir réparation dépendent de la situation générale au niveau de l’Etat de droit régnant dans le pays.

Le Bureau du Haut-Commissaire aux droits de l’homme, en tant que Président actuel du Groupe mondial sur la migration (GMG), a partagé les recommandations clés d’une récente réunion d’experts, organisée en octobre 2010, sur les droits de l’homme des migrants, qui a encouragé les Etats à ratifier la Convention sur la protection des droits de tous les travailleurs migrants et de leurs familles (MWC) en tant que première étape de la protection des droits de l’homme et du travail des travailleurs migrants. Il a été souligné que l’accès à des réparations juridiques effectives pour des motifs de plaintes exige que des lois nationales appropriées soient en place dans le pays-hôte. Idéalement, ces dernières doivent être conformes aux dispositions de la MWC et des conventions pertinentes de l’OIT. En vue d’améliorer également l’accès à la justice des migrants en situation irrégulière, les praticiens ont appelé à défaire le lien entre les enquêtes criminelles et l’application des lois du travail d’une part, l’application des lois sur l’immigration d’autre part.

Il a toutefois été également noté que la signature de la MWC (ou des obligations des Etats en vertu du droit international en général) ne doit pas nécessairement être considérée comme une indication de la manière dont un pays traite ses migrants. Certains pays qui n’ont pas signé la Convention attribuent certains droits à leurs migrants (par exemple, le droit aux soins de santé, le droit des enfants à l’éducation, etc.), tandis que d’autres pays qui sont signataires de la Convention n’ont pas appliqué de manière appropriée ses dispositions. Certains ne reconnaissent par exemple pas le droit des migrants qui se trouvent en situation irrégulière, mais leur appliquent en revanche leurs lois en matière de sécurité.

 Les Philippines ont été citées comme un exemple de pays où le droit et le pratique ne sont pas pleinement en harmonie. Si le pays a mis en vigueur l’Acte sur les travailleurs migrants en 1995, les lois n’ont pas nécessairement éradiqué l’exploitation, la violence et les abus contre les travailleurs migrants. Cela a été principalement attribué au fait que cet Acte ne s’applique qu’au niveau du pays, tandis que la principale responsabilité au niveau de l’exposition des migrants à des mauvais traitements repose sur les agences de recrutement, qui assurent aux travailleurs migrants philippins l’accès à l’emploi à l’étranger. Cela signifie que certaines agences de recrutement peu scrupuleuses situées au niveau national sont en mesure d’échapper aux poursuites, dans la mesure où la maltraitance des travailleurs migrants recrutés a lieu à l’étranger, ce qui permet aux agences de recrutement de s’exonérer des abus.

 Un exemple d’action légale domestique est parvenu du Ghana. Les travailleurs migrants ghanéens du secteur de l’industrie maritime étant confrontés à de graves problèmes, car travaillant dans des conditions difficiles et étant privés des avantages sociaux et de salaires, le gouvernement du Ghana, avec l’appui du PNUD, a mis en place un cadre juridique et régulateur afin de créer des opportunités d’emploi pour les jeunes Ghanéens dans l’industrie maritime au niveau mondial, en vertu d’un projet appelé « Appui à la promotion de l’emploi dans l’industrie maritime ». Un Accord d’entente collectif (CBA) pour les gens de mer ghanéens a été élaboré et approuvé en 2009, après des négociations avec la Fédération internationale des ouvriers du transport (ITF). Cet accord adopte plusieurs dispositions de la Convention sur le travail maritime de 2006, et garantit les droits de l’homme et du travail.

Reconnaissant la responsabilité partagée des pays d’origine et de destination pour ce qui est d’assurer les droits des travailleurs migrants, les intervenants à la discussion ont recommandé d’inclure des mécanismes juridiques dans les accords bilatéraux concernant le travail entre les Etats d’origine et de destination. Idéalement, il conviendrait de signer des accords bilatéraux mettant spécifiquement en exergue les droits des migrants à obtenir réparation et à bénéficier de procédures de réparation claires dans le pays-hôte. Ces mécanismes devraient être couplés avec un dialogue régulier entre les pays d’origine et de destination. Il a été observé qu’à l’heure actuelle, certains accords n’arrivent pas à régler le problème des droits fondamentaux des travailleurs migrants (y compris, entre autres, de l’accès à la justice, à l’éducation, aux soins de santé et aux avantages sociaux). En outre, dans les cas où les droits des travailleurs migrants sont reconnus dans les accords bilatéraux, il est important de souligner que les mécanismes de réparation associés doivent inclure des dispositions assurant qu’ils soient accessibles à tous, même aux travailleurs les plus marginalisés tels que les analphabètes et les personnes financièrement appauvries.

Le fait de défaire le lien entre visas et employeurs et de donner aux travailleurs migrants le droit de rechercher un autre emploi pendant qu’ils portent plainte ont également été considérés comme des éléments essentiels pour leur permettre d’accéder et d’utiliser de manière plus efficace les mécanismes de réparation. Lorsque des dossiers sont en cours de constitution ou sont en attente de règlement, les migrants doivent avoir le droit de prolonger leurs visas jusqu’à la fin de leur affaire, ainsi que le droit d’être employés légalement et d’avoir accès à un logement ou à un hébergement au coût raisonnable jusqu’au terme de l’affaire. Il a été suggéré que les travailleurs irréguliers qui présentent des plaintes légitimes contre des employeurs peu scrupuleux se voient donner les mêmes opportunités que d’autres victimes de délits, comme cela est le cas pour les victimes de la traite des êtres humains à des fins d’exploitation sexuelle aux Etats-Unis, qui se voient offrir des visas afin de rester dans le pays.

Un intervenant a également attiré l’attention sur les Institutions nationales de défense des droits de l’homme (NHRI) et sur le rôle que ces dernières peuvent jouer pour ce qui est de donner l’opportunité d’apporter réparation aux travailleurs migrants. Les NHRI sont établies par la loi (à savoir, la Constitution ou un Acte du parlement), leurs mandats étant spécifiquement focalisés sur la promotion et la protection des droits de l’homme. Dans le monde, ces institutions entreprennent généralement, dans le cadre de leurs mandats, toute une gamme de recherches et d’activités éducationnelles et de conseil. Ces institutions coopèrent souvent aussi avec les mécanismes et processus internationaux et régionaux en matière de droits de l’homme. Dans de nombreux pays, particulièrement dans les régions de l’Asie-Pacifique, de l’Afrique et de l’Amérique latine, les NHRI disposent également de pouvoir quasi-judiciaires qui leur permettent d’exercer activement un mandat protecteur. Elles sont notamment compétentes pour ce qui est d’accepter et de traiter des plaintes pour violations présumées des droits de l’homme, pour conduire des audiences publiques et des enquêtes nationales, et pour visiter des lieux de détention. Il existe actuellement 17 NHRI accréditées au niveau international dans la région Asie-Pacifique. Un grand nombre de ces institutions utilisent régulièrement leurs mandats pour protéger et promouvoir les droits des travailleurs migrants au niveau national. Des initiatives de coopération intéressantes ont également menées par les NHRI aux niveaux international, régional, sous-régional et bilatéral. Certaines de ces initiatives se focalisent plus largement sur la migration, tandis que d’autres sont spécifiquement focalisées sur les travailleurs migrants.

Rôle des acteurs non-étatiques pour ce qui est d’assurer l’accès des migrants aux réparations

Il a été considéré que les associations de migrants ou les ONG travaillant dans le domaine des droits de l’homme (à des missions d’appui ou de mobilisation) jouent un rôle-clé qui – si elles bénéficient de la confiance du migrant – peuvent renforcer de manière significative sa capacité ou sa volonté de chercher réparation. A titre d’exemple, des centres tels que le Centro Servizi per Immigrazione en Italie informent les migrants sur la manière de renouveler leurs papiers ainsi que sur ce qu’ils doivent faire et le lieu où ils doivent se rendre lorsque les employeurs ne remplissent pas leurs obligations légales. Plusieurs facteurs peuvent dissuader un individu de porter plainte, les plus communs étant la peur des représailles et le coût et le temps à investir dans un procès. Eduquer les migrants sur leurs droits, leur donner la capacité d’apprendre comment exiger l’application de leurs droits, savoir quand et comment invoquer ces droits, leur faire prendre conscience qu’ils doivent être informés sur les termes de leurs contrats, et de les informer sur les cas où ils peuvent demander réparation sont autant de mesures fondamentales qui ont été identifiées comme permettant aux migrants de chercher réparation.

Des campagnes massives sur les droits des migrants dans les pays d’origine et les pays-hôtes, par exemple, dans les médias liés aux diasporas, dans les zones commerçantes et communautés des diasporas, ainsi que des campagnes de sensibilisation dans les entreprises, chez les employés, dans les syndicats et parmi les autres acteurs de la société civile ont également été jugées importantes. Il est aussi déterminant que les parties prenantes reçoivent une formation et des informations sur leurs rôles pour ce qui est de prévenir et de signaler les abus. Il a toutefois été observé que, les travailleurs migrants ne pouvant souvent s’offrir les protections juridiques adéquates dans les pays de destination, une responsabilité plus importante doit être placée sur les mécanismes de plaintes de l’employeur, le secteur privé formel assurant des procédures de réparation allant au-delà de ce qui est légalement requis.

 La présence de syndicats progressistes attentifs à la situation des travailleurs migrants a été identifiée comme un facteur susceptible de contribuer à la protection des droits des migrants sur le lieu de travail. Les participants à la discussion ont encouragé les syndicats à, dans un premier temps, admettre les migrants en tant que membres, avec des droits et des responsabilités égales à celles des travailleurs/membres locaux et à assurer une représentation des membres migrants. Il a toutefois été observé que la relation entre les migrants et les syndicats n’est pas toujours harmonieuse. En raison de leur situation sociale souvent désespérée,  les migrants sont prêts à accepter des conditions de travail et des salaires moindres que ceux des locaux et des membres des syndicats, ce qui peut provoquer une réaction négative de la part des syndicats, comme cela a été observé dans le secteur de la pêche. Toutefois, sans la protection des syndicats, les migrants risquent d’être contraints de se débrouiller tous seuls, loin de leur pays et sans aucun conseil juridique.

Il a généralement été observé que la valeur et l’importance données aux migrants peut décider de manière déterminante de la manière dont leurs droits sont considérés et défendus. On a par exemple noté que les opportunités de réparation sont plus facilement accessibles aux migrants travaillant dans les secteurs professionnels et hautement qualifiés (hautement éduqués) que dans les secteurs à moindre qualification. Dans une société où les migrants sont reconnus comme des contributeurs importants, et où l’éducation publique sur les violations des droits de l’homme des migrants, y compris la communication sur les affaires (notamment celles qui ont connu une issue favorable), font partie de la culture, ces facteurs permettront indubitablement de favoriser les droits des migrants.