87th Session
Geneva, June 1999
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Report III (1B) |
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Migrant Workers |
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Migrant workers who are in an irregular
situation
and/or illegally employed
289. Illegal migration for employment is not new; what is
striking about it today is the scale on which it takes place and the fact that
it affects both countries of origin and receiving countries. Although there
are no precise figures available in this area, the International Organization
for Migration (IOM) estimates that between 15 and 30 million persons who are
economically active in a country other than their own are there in an irregular
situation, having entered the country clandestinely and/or being illegally employed.(1)
What gives even more cause for concern than this increase in numbers is the
way in which the nature of migration is changing. Not only is illegal migration
becoming a highly organized international activity (see box below), but it is
now closely linked to other lucrative criminal activities(2) (drug
and arms trafficking, falsification of identity papers,(3)
human trafficking, forced prostitution, etc.). Formerly accounting for only
a small percentage of clandestine migration, labour trafficking(4)
has been particularly affected by this change and, unless it is brought under
control, could become one of the dominant forms of abusive migration in the
years to come. In this regard, the Committee has taken note of the comments
submitted by the World Confederation of Labour (WCL), according to which trafficking
(particularly of women and children), which it classifies as a "form of
modern slavery", is constantly increasing in certain regions of the world.(5)
Box 4.1 Trafficking may be part of a well-organized commercial activity run by large-scale operators with international networks, providing a whole range of services such as securing travel documents (which may often be forged or false), transportation and assistance in border crossing, arranging safe places in transit and finding residences and (illegal or unlawful) employment in the destination country. The operational elements of trafficking, prior to the arrival of trafficked persons in the country of destination, include planning and conspiracy for smuggling, collection of information on travel documents for purposes of producing forged documents or falsification of travel documents, intelligence gathering concerning processing of asylum applications to justify false claims, arranging hideouts for migrants before the arrival of transport and during transit, and camouflaging vehicles and other means of transport to avoid apprehension [...] With sophisticated telecommunications and other means, traffickers can keep in touch with their networks spreading worldwide and command enormous financial resources and operational capability. Source: B. Ghosh, op. cit., pp. 23-25. |
290. The growth of illegal migration and labour trafficking in particular is due to a combination of factors which may be summed up as follows: (a) on the one hand, the pressures to emigrate are strong (natural disasters, famine, demographic growth, economic disparities between countries, violations of human rights, civil war and other armed conflicts, etc.) at a time when whole sectors of the economy of receiving countries(6) are being pushed into instability and flexibility by increasing production constraints and international competition; and (b) on the other hand, faced with economic restructuring and growing social tensions, many countries (and not only traditional countries of immigration) are officially closing their borders to migration for employment and increasingly adopting restrictive laws and regulations.(7)
291. It is this interplay between rejection by the law, on the one hand, and strong economic pull factors encouraging clandestine immigration, on the other, which explains the persistence, and even growth, of illegal migration. Moreover, with the increasing build-up in many countries of legal restrictions on the entry and residence of foreigners, would-be immigrants are compelled to rely on more or less clandestine networks to slip through the net, and these in turn demand increasingly exorbitant fees for their services.(8) The ensuing financial and moral debt (clandestine employment often being presented as a "service rendered") thus traps migrants in a position of dependence, exposing them to unbridled exploitation of their labour in conditions that are close to slavery.
292. Lastly, the Committee draws the attention of governments to the particular vulnerability to exploitation and abuse of women migrant workers,(9) who according to some estimates account for half the entire migrant population worldwide today.(10) No longer only to be found among accompanying family members, women now make up an increasing proportion of migrant workers: for example, nearly half a million Sri Lankan women are working in the Middle East, while there are 12 women for every man among migrants from the Philippines to other Asian countries. In some parts of the world,(11) women migrant workers have become a major source of income for their countries of origin on a par with their male counterparts. The Committee notes in particular the increasing tendency to "import" women migrant workers for commercial -- including sexual -- exploitation through arranged marriages with foreigners or by getting them to sign contracts of employment that look tempting but rarely reflect the real situation. Their vulnerability lies principally in the fact that they are employed abroad and hence outside the legal protection of their country of origin, but is also due to the fact that they often hold jobs for which there is little protection under social legislation: domestic workers,(12) manual workers (in agriculture, factories or export processing zones), hostesses or entertainers in nightclubs or cabarets, etc. Their situation is made worse by the lack of autonomy and the strong relationship of subordination that are typical of the jobs usually held by these workers; added to this is the fact that these women are usually young and poor, living in fear of losing their jobs, having had to leave their families in their countries of origin, do not speak the language of the country of employment, are unaware that they have rights that are being infringed, and usually do not know where to go for help.(13) In these circumstances, the fact that they are in an irregular situation in the country of employment or that they are illegally employed there makes them even more vulnerable to violence or ill-treatment.
293. In view of the scale of clandestine migration today and of its impact both on respect for human rights and in economic terms,(14) the Committee can only regret the fact that, by and large, little information has been provided on the extent of this phenomenon in member States.(15) The Committee notes that some governments(16) merely stated that they were little or not at all affected by the phenomenon of clandestine migration or stated that, for example Finland and Kenya, they had no statistics on the extent of this problem in their country. The Committee also regrets the lack of information on concrete measures taken to combat migration in abusive conditions and illegal employment and on their effectiveness. Although Convention No. 143 does not lay down any specific obligation with regard to combating the exploitation of women migrant workers, the Committee recalls that Article 6 of Convention No. 97 calls on States to apply treatment without discrimination in respect of sex to immigrants lawfully within its territory. It noted with interest the information supplied on this point by some countries(17) but regrets that it was provided essentially by countries of emigration rather than immigration. The Committee accordingly hopes that in future government reports supplied under article 22 of the ILO Constitution will take account of these developments and contain more information on the specific application of the provisions of Conventions Nos. 97 and 143 to women migrant workers.
294. This chapter will deal first of all with the minimum standards of protection which should be enjoyed by all migrant workers, irrespective of whether or not they are in an irregular situation, then with migration in "abusive conditions", i.e. involving the illegal recruitment, introduction and placing of workers or misleading propaganda;(18) it will lastly examine illegal employment.
Section I. Minimum standards of protection
295. Convention No. 143 contains a number of provisions intended to ensure that migrant workers enjoy a basic level of protection even when they have immigrated or are employed illegally and their situation cannot be regularized. It is important to emphasize that the Convention does not in any way affect the sovereign right of each member State to allow or refuse to allow a foreigner to enter its territory and that it leaves it to each State to determine the manner in which it intends to organize the potential entry of migrant workers or the refusal of their entry.
296. Article 1 of Convention No. 143 provides that "each Member for which this Convention is in force undertakes to respect the basic human rights of all migrant workers". This Article refers to the fundamental human rights contained in the international instruments adopted by the UN in this domain,(19) which include some of the fundamental rights of workers. Some of these fundamental rights have recently been the subject of special consideration in the context of the ILO's principal mandate in the ILO Declaration on Fundamental Principles and Rights at Work, adopted by the International Labour Conference on 18 June 1998, which refers in its preamble to migrant workers as being especially in need of protection. The ILO Declaration lists these rights in paragraph 2 as follows: "(a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation".
297. Article 1 of Convention No. 143 refers to all migrant workers, irrespective of their legal status in the country of immigration. The exercise of these basic human rights is not linked to any requirement as to citizenship or legal residence in the country of employment. A distinction may however be drawn between the rights thus protected generally, and those which are laid down in greater detail for regularly admitted migrant workers in Part II of the Convention, which can be accepted separately.
298. The Committee draws the attention of governments -- in particular those(20) which state that they are unable to ratify Convention No. 143 because their national legislation does not expressly guarantee equal treatment between nationals and foreigners -- to the fact that the difference established by the Convention between the rights recognized for all migrant workers and those recognized only for those in a regular situation under Part II of the instrument lies in the level of commitment required of States (in other words, in the ratification of one or other for both Parts of the Convention). States are called upon to promote equality of treatment and opportunity between national workers and migrant workers legally within their territory through an active policy, which involves the adoption of a number of measures. No such requirement is laid down in Article 1, according to which, the irregular status of a migrant worker does not mean that he or she is devoid of rights.
299. Although both countries of origin and countries of employment are called upon to undertake to respect the basic human rights of all migrant workers, the rights to be respected are generally not the same for sending and receiving countries. It is as rare to find general provisions to ensure respect of basic rights of migrants in countries of employment as it is common to find countries of emigration adopting specific measures to protect the human rights of their nationals working abroad. Generally speaking, while some rights are recognized for migrants, this is only the case of those in a regular situation. Migrants in an irregular situation often do not enjoy any rights at all.
300. Virtually all of the governments which provided information on this subject in their reports cited provisions of their Constitution or national legislation guaranteeing respect of basic freedoms and human rights in general terms or offering this protection to residents, or specifically guaranteeing certain rights for the foreigners residing in their territory, with the notable exception of political rights.(21) However, the Committee notes that in the constitutions of many countries, the provisions on equality of treatment generally apply only to citizens.(22) The Constitution of the United Kingdom (Gibraltar), however, guarantees the respect of basic human rights for all persons, irrespective of their status, and the Labour Code of Togo applies to all workers, irrespective of their legal status. Other countries merely replied that they had ratified the relevant international instruments, such as the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and Peoples' Rights, etc. Lastly, the Committee notes that for Morocco, the basic rights referred to in Article 1 include, in particular, the principles enshrined in the basic Conventions of the ILO.
301. The Committee notes with interest the statement of the Government of the United States, according to which, in virtue of recent case-law, all foreigners, including irregular workers are considered as "employees" according to the National Labour Relations Act and that, as such, they are protected against unfair labour practices.(23) Although all foreign workers have rights under the NLRA, the remedies available for violation of these rights may be restricted for migrants in an irregular situation.
B. Rights arising out of past employment
302. Article 9(1) of Convention No. 143 provides that "without prejudice to measures designed to control movements of migrants for employment by ensuring that migrant workers enter national territory and are admitted to employment in conformity with the relevant laws and regulations, the migrant worker shall, in cases in which these laws and regulations have not been respected and in which his position cannot be regularized, enjoy equality of treatment for himself and his family in respect of rights arising out of past employment as regards remuneration, social security and other benefits". The purpose of Article 9(1) is to ensure that illegally employed migrant workers are not deprived of their rights in respect of the work actually performed. The legislation examined by the Committee does not refer directly to the question of the exercise of rights arising out of past employment of migrant workers in an irregular situation. Although the wording of most provisions of labour law apply to workers without distinction as to nationality, a migrant worker in an irregular situation will find it difficult to claim his or her rights, and in particular to gain access to the courts. In addition to the difficulties inherent in being a foreigner (language barrier, ignorance of procedures, etc.) the migrant's irregular situation constitutes an important obstacle deterring him or her from having recourse to the judiciary, for fear of making his or her situation known to the authorities and hence incurring the risk of being expelled.
303. The Committee notes that although Article 9(1) advocates equality of treatment, it does not specify that such equality is "with nationals". The Committee recalls in this connection(24) that equality of treatment between national workers and foreign workers in a regular situation is the subject of Part II of the Convention, which may be accepted separately. It would seem from the context that Article 9(1) should be understood as requiring that the irregularly employed migrant worker enjoy equality of treatment with regularly admitted and lawfully employed migrants and not with nationals of the country of immigration. Any other interpretation would require States which are not in a position to accept Part II, but could accept Part I, to grant illegally employed migrant workers equal treatment with nationals in respect of rights arising under past employment, including rights in the complex field of social security, even when they do not grant such equal treatment to regularly employed migrant workers.
304. Recognition of the principle that migrant workers in an irregular situation have the right to enjoy rights arising out of past employment in respect of remuneration and social security gives rise to problems in many countries. Spain, for example, states that only workers in a regular situation may enjoy the rights arising out of past employment. It would appear from an examination of the reports that recognition of this principle poses more of a problem in the field of social security than in that of remuneration.
305. Some countries(25)
state that violation of the legal provisions on the employment of foreigners
results in the nullity of the contract of employment so that the worker has
no contractual basis on which to claim, inter alia, unpaid remuneration, while
others, such as the Czech Republic and Paraguay, indicate
that the worker is able to recover the remuneration arising out of past employment,
either because a contract of employment without a work permit is legally valid
or because the legislation expressly provides that the worker has the same claims
against the employer as he or she would have had under a valid contract. The
Convention does not, however, appear to provide that a worker has claims going
beyond the period of actual employment. It would not appear that Article 9(1)
was intended to cover matters such as entitlement to a period of notice, which
are often the subject of complex legal regulations or judicial decisions, not
readily applicable to an irregular situation. Lastly, as mentioned above, the
Committee noted that some legislation, such as that of Mali, specifies
that if the employment is illegal as a result of the employer's negligence,
the worker may claim damages.
2. Social security and other benefits
306. The reference in Article 9(1), to rights arising out of past employment as regards social security and other benefits may be considered in connection with Paragraph 34 of Recommendation No. 151, according to which "a migrant worker who leaves the country of employment should be entitled, irrespective of the legality of his stay therein [...] to any outstanding remuneration for work performed, including severance payments normally due" and "in accordance with national practice [...] to compensation in lieu of any holiday entitlement acquired but not used". The extent to which a migrant worker in an illegal situation may be entitled to benefits of this kind, which are not expressly mentioned in the Convention, must be determined by reference to national legislation and the principle of equality of treatment. For example, if in a given receiving country a legally employed migrant worker is entitled to a period of notice, an illegally employed migrant worker should enjoy the same rights in spite of his or her irregular situation. Conversely, an illegally employed migrant worker would only be entitled to such benefits as are accorded to a legally employed migrant worker whose employment may also be terminated without notice.
307. As regards social security benefits, it may be noted that the Convention refers only to social security rights "arising out of past employment". It does not therefore extend to benefits the granting of which is not dependent on a period of employment. Moreover, it may be considered that the provision refers only to the rights which the worker has acquired by virtue of his or her period of employment and by fulfilling the other qualifying conditions required in the case of migrants in a regular situation. The Committee notes that some countries(26) have pointed out that migrant workers in an irregular situation are entitled to employment injury benefits and refers to paragraphs 267 and 268 of its 1980 General Survey on migrant workers. Article 9(1) of the Convention does not, however, appear to be applied if benefits are conditional upon being legally employed or resident in the country, as is the case in France, for example,(27) or holding a valid work permit, as is the case in Lebanon and the United Kingdom.(28) These conditions would deprive Article 9(1) of its principal effect.
308. The considerations above refer to social security rights arising out of a period of illegal employment. However, Article 9(1) refers to "rights arising out of past employment" in general. In the context of social security, this must be understood, in particular for the purpose of acquiring rights to long-term benefits, as covering also any period of legal employment in the country concerned which may have preceded the illegal employment, as well as past employment in another country which would normally be taken into consideration, on the basis of bilateral or multilateral international agreements, when calculating entitlement to benefits.
309. The requirement of paragraph 2 of Article 9 that in the event of dispute the worker shall have the possibility of presenting his or her case to a competent body does not appear to have given rise to problems in any of the countries referring to this matter, such as Greece, for example.(29) The right to initiate legal proceedings or appeal to a competent body on the same basis as nationals exists in all of these countries. In the absence of adequate information, the Committee is unable to assess the practical application of this essential provision. It wishes to emphasize its importance, however, as other sources besides government reports have informed it that once a migrant worker in an irregular situation has been seized by the law enforcement bodies, he or she is often immediately taken to the border without having had the possibility of recovering personal belongings, requesting the payment of wages or lodging an appeal with the judiciary bodies in the country of employment.
310. Article 9(3) of Convention No. 143 provides that "in case of expulsion of the worker or his family, the cost shall not be borne by them". A clear distinction should be made between (a) the case where the migrant worker is in an irregular situation for reasons which cannot be attributed to him or her (such as redundancy before the expected end of contract, where the employer failed to fulfil the necessary formalities to engage a foreign worker, etc.), in which case the cost of his or her return as well as the return of family members, including transport costs, should not fall upon the migrant, and (b) the case where the migrant worker is in an irregular situation for reasons which can be attributed to him or her, in which case, only the costs of expulsion may not fall upon the migrant.(30) Few governments, such as the United Kingdom (Jersey), indicated that in all cases of expulsion the costs are covered by the State. Some, such as the Czech Republic and Greece, indicated that the cost of expulsion primarily fall on the irregular migrant, and only if he or she is incapable of covering the cost does the State assume the responsibility, or turns to the transport company or the employer of the worker concerned.
311. Other governments appear to have taken this provision as covering all the costs incurred in the expulsion of a migrant worker in an irregular situation and his or her family to the country of origin. Lebanon, for example, requested the Committee to specify which costs should not be borne by the worker in the event of expulsion. In fact, the Convention does not appear to refer to the return travel costs, but only to the costs of expulsion, i.e. the costs incurred by a State in ensuring that the clandestine worker leaves the country, for example, the costs of the administrative or judicial procedures involved in issuing an expulsion order or in implementing the order (i.e. the costs incurred by a member State in connection with expulsion, such as escorting the worker and his or her family out of the country). Where the legislation provides that these costs are recoverable from the migrant worker, the Convention is not fully applied.(31) On this point, the Committee refers to its numerous observations(32) on this subject, and in particular its direct requests of 1993 and 1995 addressed to Norway, in which it considered that "the costs of surveillance referred to in section 46 of the Immigration Act(33) constitute administrative costs within the context of escorting the migrant worker to the frontier that must be borne by the State which wishes to ensure that the worker and his family actually leave the country following the decision to expel". However, those countries which leave it to the expelled migrant worker to pay his or her own travel costs are not for that reason failing to apply this provision of the Convention. This approach is borne out by the consideration that, if the cost of expulsion included travel costs, the illegal migrant would find himself or herself in a better position than the regularly admitted migrant worker, which might even encourage migrant workers to remain in the country after the expiration of their residence permit in order to be expelled and hence repatriated free of charge.
D. Regularization of the situation
312. Article 9(4) of Convention No. 143 provides that "nothing in this Convention shall prevent Members from giving persons who are illegally residing or working within the country the right to stay and to take up legal employment". Few countries have referred to their practice in regard to legalizing the situation of migrant workers in an irregular situation. In any event, this provision of the Convention is a declaratory one which does not require specific measures to be taken by ratifying States. Recommendation No. 151 suggests that the decision whether or not the migrant worker's situation is to be regularized or not should be taken quickly and that once the worker's position has been regularized, he or she should benefit from all rights provided for migrant workers lawfully admitted within the territory of the member State. The examination of the reports shows that there do not appear to be any difficulties in the application of the Recommendation on these points.
313. The Committee notes that migrant workers are sometimes allowed to be employed illegally for a number of years in a country, with no decision being taken relating to their status. This leaves them in a situation of permanent uncertainty in which they are far more vulnerable to abusive conditions. In order to avoid such situations, the Committee emphasizes once more the importance of rapid detection of migrant workers in an irregular situation and a decision as to whether to regularize them. Illegal employment of migrant workers partly results from a certain tolerance by States. The consequences of the slowness of existing proceedings, and the incapacity of States to effectively detect whether migrants are illegally employed in their territory ought not to fall exclusively upon migrant workers in an irregular situation. Although this is not explicitly covered in these instruments, the Committee considers that as a matter of equity in such cases, the State concerned should examine, on a case-by-case basis, the situation of each migrant worker in an irregular situation who has been living for a certain length of time in the country, and consider the possibility of delivering a residence permit.
314. It is clear from the reports that some States(34) regularly launch regularization campaigns in order to make a fresh start and eradicate clandestine migration and illegal employment once and for all, as well as for humanitarian reasons.(35) In some cases the intention is to cut through the legal Gordian knots in which some clandestine migrants can be neither expelled nor regularized, as is the case in France, for example; or to deal with unforeseen situations, such as that described by Greece, which explained to the Committee that in order to cope with the huge wave of clandestine migration from neighbouring countries (Albania, Bulgaria, Poland and the countries of the former USSR) which it is now experiencing, the Government has had to adopt two Presidential Decrees temporarily legalizing the situation of these foreigners by issuing them residence permits under certain conditions, which entitle them to the insurance benefits provided for in legislation.
Amnesties
315. Although Article 9(4) of Convention No. 143 talks of regularization, the Committee has noted that some countries undertake what is termed as "amnesty". An amnesty annuls legal consequences of the infractions which the migrant has committed by entering or working illegally in the country. Thus, as is the case in Saudi Arabia, which recently announced an amnesty in order to allow migrants in an irregular situation in the country to leave without fear of punishment. Elsewhere, often an amnesty is the first step towards regularization; thus in the United States, a recent amnesty began on 19 November 1997 when nationals of Cuba and Nicaragua who had lived in the United States for at least two years were amnestied. This Act also allowed nationals of El Salvador, Guatemala, the former USSR and some Eastern European countries to request suspension of expulsion orders under the more flexible regulations which were in force before the adoption in 1996 of the Illegal Immigration Reform and Immigrant Responsibility Act. Since March 1996 the Government of Germany has also set up an amnesty programme to legalize the status of asylum seekers residing in Germany whose application was submitted at least five years earlier. The Philippines also established an amnesty in 1995.(36)
Section II. Migration in abusive conditions
316. The subject of migrant workers who are in an irregular situation or illegally employed is dealt with essentially by Convention No. 143 (Part I). The 1949 instruments addressed the matter indirectly, first by requiring States to take appropriate steps against misleading propaganda relating to emigration and immigration, then by recognizing that a migrant in an irregular situation should have the right not to bear the cost of his or her return and that of family members -- provided that the migrant is not responsible for this situation.(37) Recommendation No. 86 also contains provisions to ensure "as far as possible" that a migrant who has been regularly admitted to the territory of a Member is not removed from its territory on account of a change in his or her situation for which the migrant is not responsible, for example a deterioration in the state of the employment market in the country of employment.
317. Only Part I of Convention No. 143, entitled "Migrations
in abusive conditions", deals specifically with clandestine or illegal
migration and illegal employment of migrant workers. Under its provisions, States
for which this Part of the Convention is in force shall take measures to detect,
eliminate and apply sanctions for clandestine movements of migrants
in abusive conditions and illegal employment of migrant workers, on the one
hand, and, on the other, provide a minimum level of protection to workers
in an irregular situation.
Box 4.2 Bases for action International economic, political and cultural interrelations play an important role in the flow of people between countries, whether they are developing, developed or with economies in transition. In its diverse types, international migration is linked to such interrelations and both affects and is affected by the development process. International economic imbalances, poverty and environmental degradation, combined with the absence of peace and security, human rights violations and the varying degrees of development of judicial and democratic institutions are all factors affecting international migration. Although most international migration flows occur between neighbouring countries, interregional migration, particularly that directed to developed countries, has been growing. It is estimated that the number of international migrants in the world, including refugees, is in excess of 125 million, about half of them in the developing countries. In recent years, the main receiving countries in the developed world registered a net migration intake of approximately 1.4 million persons annually, about two-thirds of whom originated in developing countries. Orderly international migration can have positive impacts on both the communities of origin and the communities of destination, providing the former with remittances and the latter with needed human resources. International migration also has the potential of facilitating the transfer of skills and contributing to cultural enrichment. However, international migration entails the loss of human resources for many countries of origin and may give rise to political, economic or social tensions in countries of destination. To be effective, international migration policies need to take into account the economic constraints of the receiving country, the impact of migration on the host society and its effects on countries of origin. The long-term manageability of international migration hinges on making the option to remain in one's country a viable one for all people. Sustainable economic growth with equity and development strategies consistent with this aim are a necessary means to that end. In addition, more effective use can be made of the potential contribution that expatriate nationals can make to the economic development of their countries of origin. [...] It is the right of every nation State to decide who can enter and stay in its territory and under what conditions. Such right, however, should be exercised taking care to avoid racist or xenophobic actions and policies. Undocumented or irregular migrants are persons who do not fulfil the requirements established by the country of destination to enter, stay or exercise an economic activity. Given that the pressures for migration are growing in a number of developing countries, especially since their labour force continues to increase, undocumented or irregular migration is expected to rise. Actions Governments of countries of origin and of countries of destination should seek to make the option of remaining in one's country viable for all people. To that end, efforts to achieve sustainable economic and social development, ensuring a better economic balance between developed and developing countries and countries with economies in transition, should be strengthened. It is also necessary to increase efforts to defuse international and internal conflicts before they escalate; to ensure that the rights of persons belonging to ethnic, religious or linguistic minorities, and indigenous people are respected; and to respect the rule of law, promote good governance, strengthen democracy and promote human rights. Furthermore, greater support should be provided for the attainment of national and household food security, for education, nutrition, health and population-related programmes and to ensure effective environmental protection. Such efforts may require national and international financial assistance, reassessment of commercial and tariff relations, increased access to world markets and stepped-up efforts on the part of developing countries and countries with economies in transition to create a domestic framework for sustainable economic growth with an emphasis on job creation. The economic situation in those countries is likely to improve only gradually and, therefore, migration flows from those countries are likely to decline only in the long term; in the interim, the acute problems currently observed will cause migration flows to continue for the short-to-medium term, and governments are accordingly urged to adopt transparent international migration policies and programmes to manage those flows. Governments of countries affected by international migration are invited to cooperate, with a view to integrating the issue into their political and economic agendas and engaging in technical cooperation to aid developing countries and countries with economies in transition in addressing the impact of international migration. Governments are urged to exchange information regarding their international migration policies and the regulations governing the admission and stay of migrants in their territories. States that have not already done so are invited to consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Source: Report of the International Conference on Population and Development, Cairo, 5-13 September 1994, op. cit., Ch. X. |
1. Forms of migration addressed
318. Various terms are used in the Convention: "migrations in abusive conditions", "clandestine movements of migrants", "illicit or clandestine movements of migrants for employment" and "workers who have immigrated in illegal conditions". It would seem that a distinction is made between (a) clandestine migration, in which the controls on exit from the country of emigration and/or entry into the country of immigration are evaded, for example by crossing the border at an unauthorized point, and (b) illegal or illicit migration, in which the exit or entry may be open and apparently lawful but the migrant conceals his or her true intention. This is the case, for example, of persons who travel as tourists and then take up unauthorized employment or those who are admitted as seasonal workers or with a work permit for a limited duration and stay on to work after their authorization has expired. The Committee considers, however, in the light of the legislation reviewed, that this distinction between clandestine and illegally employed migrants is not very relevant since the migrant worker runs the risk of being expelled in both cases.
319. Under Article 2(1) of Convention
No. 143, migration in abusive conditions includes situations in which migrants
are subjected during their journey, on arrival or during their period of residence
and employment to "conditions contravening relevant international multilateral
or bilateral instruments or agreements, or national laws or regulations".
It follows from this definition that (a) the abusive conditions referred to
are those which are prohibited by the relevant international instruments(38)
or by national laws or regulations; (b) while the Convention is aimed primarily
against the organized movement of migrant workers by labour traffickers, it
also applies to illegal or clandestine migration by individuals acting on their
own or in small groups; and (c) clandestine or illegal movements of migrants
for employment that take place in conditions that are not abusive within
the meaning of Article 2 are not covered by the scope of this Convention. The
Convention can thus be considered as aiming to prevent all forms of
illegal or clandestine migration for employment in so far as they take place
in abusive conditions. The Committee is aware however that, if States are to
combat effectively the clandestine migrations prohibited in Article 2(1) of
the Convention, they must combat all clandestine migration, and not
only that which is abusive under the terms of the Convention. In practice, the
line between migrations in abusive conditions and migrations in illegal conditions
is very difficult to draw with any precision. For a more detailed picture of
the "abusive conditions" prohibited by the Convention, governments
are referred to the following (non-exhaustive) list of malpractices in the field
of migration identified by the Tripartite Meeting of Experts on Future ILO Activities
in the Field of Migration, held in April 1997.
Box 4.3 Malpractices exist where the treatment of migrant workers and members of their family is not in accordance with national laws and regulations or ratified international standards and where such treatment is recurrent and deliberate. Exploitation exists where, for example, such treatment incurs very serious pecuniary or other consequences; migrants are specifically subjected to unacceptably harsh working and living conditions or are faced with dangers to their personal security or life; workers have transfers of earnings imposed on them without their voluntary consent; candidates for migration are enticed into employment under false pretences; workers suffer degrading treatment or women are abused or forced into prostitution; workers are made to sign employment contracts by go-betweens who know that the contracts will generally not be honoured upon commencement of employment; migrants have their passports or other identity documents confiscated; workers are dismissed or blacklisted when they join or establish workers' organizations; they suffer deductions from wages without their voluntary consent which they can recuperate only if they return to their country of origin; migrants are summarily expelled as a means to deprive them of their rights arising out of past employment, stay or status. Source: Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration , op. cit., Annex III, para. 1.2. |
B. Detection and elimination of migration in abusive conditions
320. Article 2(1) and Article 3 of Convention No. 143 require each Member for which this Convention is in force, first to "systematically seek to determine whether there [...] depart from, pass through or arrive in its territory any movements of migrants for employment in which the migrants are subjected during their journey, on arrival or during their period of residence and employment" to the abusive conditions defined above. Second, each Member shall "adopt all necessary and appropriate measures, both within its jurisdiction and in collaboration with other Members [...] to suppress clandestine movements of migrants [...] and [...] against the organizers of illicit or clandestine movements of migrants [...] in order to prevent and to eliminate the abuses" prohibited by relevant international multilateral or bilateral instruments or agreements, or national laws or regulations.
321. The measures to be taken to achieve these objectives are set forth in the Convention: (a) first, to establish systematic contact and exchange of information with other States (Articles 3 and 4); (b) to consult representative organizations of employers and workers (Articles 2, 4 and 7); (c) to prosecute authors of manpower trafficking whatever the country from which they exercise their activities (Article 5); and (d) lastly, to define and apply administrative, civil and penal sanctions (which include imprisonment in their range) in respect of the organization of movements of migrants for employment in abusive conditions and in respect of knowing assistance to such movements, whether for profit or otherwise (Article 6).
322. The Committee notes that very few countries have provided information in their reports on specific measures they have adopted to systematically seek to determine whether migration for employment takes place under abusive conditions in their territories. Generally speaking, reports tend to refer to police laws governing the entry and residence of foreigners (which are not primarily aimed at detecting migrants in an irregular situation) rather than a national immigration policy in the true sense of the term. The Committee also notes that this information is more concerned with combating clandestine or illicit migration in general than suppressing clandestine or illicit migration taking place in abusive conditions, which is the subject of Part I of Convention No. 143.
(a) Measures taken to detect migration in abusive conditions
323. As recalled above, Article 2(1) of Convention No. 143 requires States to take the measures they deem appropriate to systematically seek to determine whether there depart from, pass through or arrive in their territory any movements of migrants for employment under abusive conditions. This does not mean that States are required, as the Netherlands appear to have interpreted this Article to mean, to carry out regular and periodic checks of all persons whose physical appearance seems to indicate that they are foreigners, in order to determine whether they are legally resident and employed. The United Kingdom has stated that it is unable to accept a commitment to impose the type of surveillance envisaged in Article 2(1), while the Government of Luxembourg did not consider it necessary to set up a system of systematic control given that few abuses have been reported up to now. In this respect, the Committee emphasizes once again that it is for each State to take the steps it considers to be appropriate for the effective detection of clandestine or illicit migration in abusive conditions, whether departing from, passing through or arriving in its territory.
324. In examining the reports, the Committee has identified two tendencies shared by the large majority of States with respect to detection of clandestine movements of migrants: first, police checks have been stepped up considerably, both at borders and spot-checks within the country's borders, and second, transport companies (including airlines and land and sea transport) are increasingly held responsible for verifying passengers' travel documents and residence permits.(39) More specifically, the Committee has noted the following measures taken to detect clandestine or illicit migration: the introduction of special counters to detect "clandestine departures for employment" at airports;(40) systematic search of means of transportation likely to be clandestinely carrying emigrants;(41) mandatory communication of passenger lists to immigration officials;(42) special surveillance of regions with a high proportion of foreign workers(43) or of travellers arriving from ports identified as potential points of illegal departure for would-be immigrants;(44) cooperation of employment services, which are required to check the validity of foreign workers' residence and work permits when registering them,(45) of workers' organizations,(46) of hotels and boarding houses;(47) the use of information technology;(48) and the establishment of special units to combat illicit practices relating to the entry, residence and exploitation of migrants.(49)
(b) Measures taken to prevent and eliminate
migration in abusive conditions
325. Apart from the nearly universal (with a few exceptions(50)) obligation for all foreigners intending to stay in a country other than their own to obtain a visa,(51) virtually all the countries that submitted reports, both countries of emigration and countries of immigration, consider that the best means of preventing or eliminating illicit or clandestine movements of migrants for employment -- including those taking place under abusive conditions -- is to adopt and ensure strict compliance with appropriate measures governing the recruitment of these workers, their departure from the country of origin and their entry into and placement in the country of employment, i.e. measures such as those envisaged by Convention No. 97 and described in paragraphs 131-288 of this survey. Although the choice of means of recruitment does not really depend on the distinction between country of emigration and country of employment, the perspective will be different for these two types of country, since what is seen as recruitment by the country of employment is considered to be placement by the migrant's country of origin. A difference in approach will inevitably result.
326. The principle laid down by Convention No. 97 with regard to recruitment of foreign workers is that the public employment services and other official bodies of both the sending and the receiving country should be involved. However, except in cases where labour migration is governed by bilateral agreements between the sending and the receiving country,(52) public employment services currently play a small and diminishing role in the recruitment and placement of migrant workers. For example, the recruitment and placement of the millions of South Asian and South-East Asian migrants employed in the Middle East are not governed by any such agreement. In fact, nearly 80 per cent of migration to the Gulf States is currently handled by private recruitment agencies.(53) There are few countries today, such as Cameroon, Croatia, Lithuania and Luxembourg,(54) where the recruitment of foreign workers is the sole prerogative of the public authorities, or where there are no private recruitment agencies in place(55) or they are strictly prohibited, for example in Greece and San Marino. The ILO instruments were drafted with migrations organized by the State or by the employer in mind, rather than spontaneous individual migration. However, the terms of the annexes to Convention No. 97 are sufficiently flexible to allow more than one form of recruitment. As explained in paragraphs 188-189, direct recruitment by the prospective employer or his or her representative or by private employment agencies may be authorized by national laws or regulations or a bilateral agreement, subject to supervision by the public authorities. The adoption by the International Labour Conference of the Private Employment Agencies Convention (No. 181) in June 1997, revising the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), which had aimed at progressively eliminating for-profit fee-charging employment agencies, marks member States' recognition of the role that these agencies can play in a well-functioning labour market, provided they are closely supervised by the public authorities. In view of the growing market share of private employment agencies in the recruitment, introduction and placement of migrant workers and the fraudulent and abusive practices which are often imputed to them, any policy to prevent and eliminate clandestine migration in abusive conditions (pursued by both sending and receiving countries) must take these developments into account and accordingly focus on supervision of these agencies and the definition of appropriate sanctions.(56)
327. In its review of the legislation of countries concerning the prevention and elimination of migration in abusive conditions, the Committee noted the case of one country, Antigua and Barbuda, whose legislation provides that where the conditions of work of migrant workers in a particular country of immigration are known to be unsatisfactory, a ban on emigration of its nationals to that country may be applied. Similarly, faced with abuses inflicted on their nationals abroad and large numbers of complaints, some countries(57) have decided to ban all recruitment of their nationals for certain types of work in these countries; while others(58) have imposed special conditions for obtaining authorization to leave the national territory, with the aim of protecting certain categories of migrants. Applying provisions prohibiting persons from leaving the national territory may run counter to article 12, paragraphs 2 and 3, of the International Covenant on Civil and Political Rights, which provides that "everyone shall be free to leave any country, including his own" and, in the specific case of migrants for employment, to the provisions of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in so far as the categories in question are defined in terms of one of the grounds of discrimination set forth in Article 1(1)(a) of this instrument (such as sex, for example). Some of the legislative provisions examined by the Committee should be reviewed in the light of the principles of necessity, non-discrimination and proportionality: for example, restrictions imposed upon certain persons considered to be unsuitable for emigration or immigration because they are likely to commit acts contrary to the dignity of the State or violating national policy,(59) or because they are disabled or homosexual(60) or because they have a criminal record,(61) etc.
328. Most member States still see employment authorization systems as the main means of combating abusive practices. Hence most of the countries examined require would-be emigrants to go through the system of overseas recruitment organized by the public authorities of the sending country, or at least to obtain authorization to leave the territory to seek employment(62) and/or, if they do seek the services of private recruitment agencies, to prove to the competent authority of the sending country that they hold a work permit or entry visa authorizing them to work in the country to which they wish to immigrate, or a work contract, as in Congo for example, or a visa authorizing them to work in the country of employment, as in the case in China for example. Some countries of emigration are very vigilant; Pakistan, for example, requires that terms and conditions of offers of employment be examined by specialized agencies (in this case by the Bureau of Emigration and Overseas Employment and the Protectorate of Emigrants) and that the validity of these offers be attested by their embassies in the country where the offer of employment was made. Most countries(63) require the express authorization of the employment service or ministry of labour before performance of the contract of employment can begin, with some exceptions (in particular for nationals of regional blocs, such as CARICOM or the European Union); another prerequisite is the conclusion of an agreement with the sending country.
329. By regulating and supervising conditions of departure and arrival of migrant workers, countries hope to prevent and eliminate clandestine movements of migrants, including migration in abusive conditions. That fraud and malpractices in the recruitment of migrant workers still persist shows how difficult it is to mitigate the impact of market forces(64) on migration processes by relying entirely on the adoption of laws or regulations. The practical problems of countries which have large land and sea borders was mentioned by one country, Yemen.(65)
2. Collaboration between States
330. Like the 1949 instruments, Convention No. 143 seeks to promote cooperation between States.(66) In order to combat effectively clandestine migration in abusive conditions, measures need to be adopted at the national level; however, since illicit labour trafficking is often a criminal activity organized on an international scale, it also calls for international cooperation(67) and the involvement of all the countries concerned -- whether sending States, transit States or States of arrival of migrant workers in an irregular situation. The collaboration between States referred to in Convention No. 143 (as in Convention No. 97) is not (unless otherwise specified) contingent on ratification of these instruments by other States. Subject to the usual reservations, a State which has ratified one or both Conventions undertakes to cooperate, without there being any reciprocal obligation on the part of the other State(s), which is prompted only by the free and sovereign will to respond to the desire to cooperate.
331. Under the terms of the Convention, this collaboration consists of adopting measures: (a) to suppress clandestine movements of migrants for employment and illegal employment (Article 3(a)); (b) against the organizers of illicit or clandestine movements of migrants for employment and against those who employ workers who have immigrated in illegal conditions (Article 3(b)); (c) for systematic contact and exchange of information (Article 4); and (d) for the purpose of ensuring that the authors of manpower trafficking can be prosecuted whatever the country from which they exercise their activities (Article 5).
332. National legislation does not normally lay down measures calling for cooperation between States, with the notable exception of countries belonging to the same regional grouping.(68) In this respect, the Committee notes the very comprehensive Recommendation adopted by the European Union (dated 27 September 1996) on combating the illegal employment of third-country nationals.(69) In fact, collaboration between countries in combating migration in abusive conditions and against the organizers of illicit or clandestine movements of migrants for employment takes place essentially through the conclusion of bilateral or multilateral agreements between the countries concerned.(70) Some governments, such as that of New Zealand, refer in their reports to the existence of collaboration between States without giving any further information, while others, such as that of Switzerland,(71) mention bilateral or multilateral agreements; however, very little information is provided on international cooperation specifically related to combating clandestine or illicit movements of migrants.(72) The Committee notes with interest the activities of the Mexico-United States Binational Commission, which, although not dealing exclusively with clandestine movements of migrants or the illegal employment of migrants, may provide inspiration for other inter-State cooperation.(73) Some governments, such as those of Australia and the Falkland Islands (Malvinas), have stated that although there is no formal machinery for cooperation, they are prepared to respond to any request for information submitted by another State. In these conditions, it is difficult to assess the extent to which this aspect of the Convention is in fact implemented by member States.(74)
333. Collaboration between States under the Convention does not only apply to the States of departure and arrival of workers who immigrate in illegal conditions, but also involves transit States. The latter are to adopt the same measures as the former, i.e. the detection of illicit movement of migrants from their territory, the adoption of measures to suppress them and the application of sanctions in cases of abuse. Government reports do not mention measures taken by transit States to combat migration in abusive conditions. Romania has merely expressed the apprehension, faced with increasing numbers of persons entering its territory illegally, that it will become a country of temporary immigration. The Czech Republic has stated that since the political changes that occurred in 1989 it has become a transit country for large numbers of would-be migrants seeking to immigrate clandestinely to West European countries, and to Germany in particular. Although this was not specifically stated, it may be assumed that the decision to centralize and computerize the registration of all foreigners residing in its territory is one of the measures adopted by this country to remedy this situation.
334. Under Article 5 of Convention No. 143, one of the purposes of international collaboration in combating migrations in abusive conditions is that "the authors of manpower trafficking can be prosecuted whatever the country from which they exercise their activities". The reference to Articles 3 and 4 makes it clear that the problem of prosecuting authors of manpower trafficking is among those that should be solved through collaboration between States, as pointed out by Australia,(75) and through systematic contact and exchange of information. The aim of this provision is, in fact, for States to give each other the necessary assistance to ensure that authors of manpower trafficking may be prosecuted under an appropriate jurisdiction.
335. Article 6(1) of the Convention lists the types of administrative, civil and penal sanctions (which include imprisonment in their range) that must be defined and applied under national laws or regulations in respect of the organization of movements of migrants for employment in abusive conditions and knowing assistance to such movements, whether for profit or otherwise. The importance attached by governments to sanctions as means of combating illegal migration is evidenced by the fact that practically all of the laws and regulations examined lay down sanctions against organizers of manpower trafficking, which are periodically strengthened either by increasing existing penalties or by defining new offences to discourage illicit movements of migrants.(76)
336. The question was raised during the preparatory work for the adoption of Convention No. 143(77) as to whether the provisions concerning "administrative, civil and penal sanctions" meant that these three types of sanctions had to be applied simultaneously. The answer was that it did not, although it was pointed out that this possibility was not excluded in certain particularly grave instances. Since Article 6(1) leaves it to national laws or regulations to define sanctions, it appears to follow from this that it is for each country to decide on the precise form of sanctions to be provided for particular offences, subject to the express requirement that they shall include imprisonment in their range. While the Convention gives certain indications as to the offences concerned, it leaves their detailed definition to each State.
337. Generally speaking, there are three types of provisions relating to illegal immigration in national laws and regulations: those directed at migrant workers in an irregular situation; those aimed at punishing persons who organize or facilitate clandestine or illicit migrations; and those penalizing the illegal recruitment and employment of migrant workers.(78)
(a) Measures directed at migrant workers
338. The Committee recalls that the measures advocated in Part I of Convention No. 143 to combat clandestine movements of migrants are primarily targeted at the demand for clandestine labour rather than the supply. The ILO instruments accordingly do not address the question of sanctions against migrant workers in an irregular situation. An examination of national laws and regulations, however -- contrary to the spirit of the instruments -- shows that sanctions against migrants in an irregular situation are very widespread, both in sending and in receiving countries.(79)
339. Some countries of emigration have adopted laws and regulations providing for sanctions both against their own nationals who emigrate in irregular conditions and against persons assisting them or provoking their departure.(80) Some countries of immigration have provisions imposing sanctions on migrant workers who unlawfully enter or reside in the country of employment, or more specific provisions referring to the illegality of the employment relationship. In addition to the fines or prison sentences that may be imposed on migrants in an irregular situation,(81) many provisions also provide for the application of expulsion measures(82) which may be accompanied by a temporary or permanent ban on residence in the country of employment, as is the case in Switzerland and in the United Kingdom (Bermuda).
340. The Committee notes that two countries, Malaysia and Singapore, practise corporal punishment (caning) as a sanction in cases of clandestine immigration. In this respect, it would recall that Article 1 of Convention No. 143 stipulates that "each Member for which this Convention is in force undertakes to respect the basic human rights of all migrant workers". The Committee refers in this connection to the comments of the United Nations Human Rights Committee(83) and of the Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,(84) to the effect that "the prohibition on torture and cruel, inhuman or degrading treatment or punishment contained in article 7 of the International Covenant on Civil and Political Rights extends to corporal punishment" and that "corporal punishment is inconsistent with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined, inter alia, in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment".(85) The Committee itself considers that the sanctions foreseen by Malaysia and Singapore are not only contrary to the instruments here cited but also to the general principles of law.
(b) Measures directed at the organizers of clandestine
movements of migrants and those who knowingly assist
such movements, whether for profit or otherwise
341. Since each country is potentially a country of emigration and a country of immigration, the fight against labour trafficking is seen by each country in terms of combating illegal emigration of its own nationals and in terms of combating illegal immigration of foreign workers in its territory. However, the sanctions applied to organizers of clandestine movements of migrants and persons who knowingly assist such movements do not normally draw any distinctions between traffickers engaged in "exporting" or those involved in "importing" labour. Either the laws and regulations provide for official emigration machinery or a system for recruiting emigrants to ensure that the persons concerned are in possession of the necessary documents to enter the country of destination legally and take up employment lawfully, in which case it is an offence to cause, assist or encourage a person to emigrate for employment in a manner which is not in conformity with these provisions (offences of this kind are punishable in most countries by a fine and/or prison sentence); or they provide for official machinery for recruiting and introducing migrant workers; or a system of permits, in which case it is an offence to introduce migrant workers into the country in a manner which is not in conformity with the procedures laid down by law, punishable by fine and/or imprisonment. In principle, these sanctions apply to persons transporting or attempting to transport a foreigner in an irregular situation whether or not international borders are crossed. In this respect, the Committee has noticed a tendency to increase carriers' responsibility and strengthen the sanctions that may be applied to international transport companies for non-compliance with migration laws. There are very few countries, among them Cyprus and the United Kingdom (St. Helena), which consider that such measures are not necessary, or whose legislation does not provide for sanctions against organizers of illegal immigration of labour, such as Cape Verde, Nicaragua and the Syrian Arab Republic, for example.
342. Administrative sanctions for organizing or assisting illegal migration include administrative fines, withdrawal or suspension of the licence to act as an emigration agent, temporary or permanent closure of the offices or enterprises of the offenders, prohibition of residence in the country, suspension of the offender's driving licence, temporary or permanent withdrawal of the authorization to carry on international transport operations, and confiscation of the vehicle or any other object used in committing the offence, or its sequestration until the immigrant in an irregular situation is removed from the country, blacklisting of traffickers and employers, etc.
4. Consultation of employers' and workers' organizations
343. The Convention requires that employers' and workers' organizations be consulted in connection with the elimination of migrations in abusive conditions in three respects: (a) in seeking to determine whether there are any movements of migrants for employment in which migrants are subjected during their journey, on arrival or during their period of residence and employment, to conditions contravening relevant international multilateral or bilateral instruments or agreements (Article 2(2)); (b) in taking measures for systematic contact and exchange of information with other member States (Article 4); and lastly (c) in regard to the laws and regulations and other measures provided for in the Convention and designed to prevent and eliminate the abuses against which the Convention is directed (Article 7). It further provides that the representative organizations shall be enabled to furnish any information in their possession and to take initiatives for this purpose.
344. It is clear from the above that the Convention gives employers' and workers' organizations a far from negligible role in combating migration in abusive conditions. The Committee therefore cannot but regret the very small number of comments(86) from the employers' and workers' organizations which were communicated to government reports, on this point in particular.(87) Only the New Zealand Council of Trade Unions (NZCTU) has formulated comments on this point, in which it regrets the absence of formal consultation of the social partners when adopting laws and regulations to prevent abuse of migrant workers.(88) Most of the governments that mentioned this aspect of this Convention did so only in general terms, pointing out, for example, that employers' and workers' organizations are consulted on matters relating to migrant workers or on the grant of work permits. Such consultations may take place through committees responsible for manpower issues in general(89) or specifically for immigrant affairs.(90) In some countries, such as Luxembourg, representatives of migrant workers participate in these committees. Australia stated that the fact that there is no mechanism for tripartite consultation on illegal immigration (since clandestine movements of migration do not exist) constitutes one of the obstacles to ratification of Part I of the Convention.
345. The Committee takes this opportunity to draw attention once again to the importance of the role of employers' and workers' organizations in the ILO's supervisory machinery and to emphasize the fact that these observations are a particularly useful source of information on the way in which ILO standards are applied in law and in practice by States. They have often enabled it to gain a better knowledge and deeper understanding of the difficulties arising in the application in practice of ILO instruments.
Section III. Illegal employment
346. Although it is not defined, the term "illegal employment" may be considered to mean any employment that is not in conformity with national laws and regulations. This interpretation is confirmed by the Committee's examination of legislation.(91) In any case, it is for each State to define the precise scope of the term "illegal employment", as is indicated by the wording of Article 6(1).
347. Under Article 2(1) of Convention No. 143, each State for which this Convention is in force undertakes to seek to determine "whether there are illegally employed migrant workers on its territory and whether there [...] arrive in its territory any movements of migrants for employment in which the migrants are subjected [...] during their period of residence and employment to conditions contravening relevant international multilateral or bilateral instruments or agreements, or national laws or regulations". Article 3 requires ratifying States to adopt all necessary and appropriate measures to suppress the illegal employment of migrants and against those who employ workers who have immigrated in illegal conditions. Under Article 6(1), "provision shall be made under national laws or regulations for the effective detection of the illegal employment of migrant workers and for the definition and the application of administrative, civil and penal sanctions, which include imprisonment in their range, in respect of the illegal employment of migrant workers". It is thus clear from the wording of the provisions quoted above that Article 6 of the Convention applies to all forms of illegal employment and not just those in abusive conditions, while in respect of the organization of clandestine movements of migrants and assistance to such movements, the same Article requires sanctions only if the clandestine workers are subjected to abusive conditions.(92)
B. Detection and suppression of illegal employment
348. As in the case of clandestine or illegal migration, Convention No. 143 provides that each Member for which the Convention is in force shall take measures to detect illegally employed migrant workers on its territory. Article 2 of the Convention deals not only with cases of illegal employment, but also with the detection and elimination of cases in which lawfully employed migrant workers are in practice subjected to abusive conditions of work, i.e. conditions that are not in conformity with the requirements of national laws or regulations or of an international agreement, such as the bilateral agreement under which they were recruited. While migrant workers in an irregular situation are particularly vulnerable to exploitation by unscrupulous employers, the same is true to some extent of lawfully employed migrants, both because they are less well equipped than nationals to defend their own interests in a foreign country and because in many countries(93) they cannot change their job without authorization and thus may hesitate to seek a remedy against abuse for fear of losing their job and being refused permission to take other employment. It is therefore particularly important that receiving States be vigilant to ensure that the conditions of employment of migrant workers correspond in law and in practice to those laid down by legislation or bilateral or multilateral agreements, in particular as regards the most vulnerable categories of migrants (domestic workers and temporary migrants), not only when they check contracts of employment for conformity with legislation but also when supervising how they are carried out in practice. Sending States also have a role to play in this respect (see paragraphs 126-129).
349. One safeguard against the illegal employment of migrants referred to by a number of countries is the work permit system, under which either the worker must have a work permit, which in some cases must be issued before his or her entry into the country, or the employer must obtain an authorization to employ foreign workers. Supplementary measures prescribed in this context include the requirement, as a condition for the issue of a work permit, that the worker has entered the country legally, or that the contact between the prospective employer and worker has not been made through an illegal method of recruitment, or, where a recruitment agreement has been concluded with the sending country, that the worker has been recruited in conformity with its provisions.
(a) Employers' obligations
350. Among the measures for the detection of illegally employed migrant workers, mention may be made of provisions requiring employers to provide the competent authority with particulars of all foreign workers they employ: (a) in some countries, for example, Mozambique, employers must systematically inform the employment office, labour inspectorate or other authority responsible for ensuring the protection of workers of the number and names of foreign workers they employ and/or indicate to the employment office the termination of contract of a migrant worker; (b) in others, such as Bahrain, Thailand and Tunisia, employers in respect of whom work permits have been issued are required to supply particulars of all workers employed by them when so requested by an immigration officer, and must inform the immigration officer when they cease to employ a worker (including a migrant worker) admitted to work for them; (c) still other countries, such as Tunisia, require employers to keep a register of foreign workers employed by them, which must be presented to the inspectorate when requested. The Committee notes that in the United States,(94) since November 1986, the employer must verify the authenticity of the work permit presented by all "alien workers" hired by him or her and keep proof of his or her endeavours in this regard, in order to be able to present this should it be so required, to a representative of the Immigration and Naturalization Service and the Department of Labor.
(b) Obligations of public administrations and services
351. Public administrations also have a role to play in detecting illegal employment: in most cases, the labour inspectorate and labour administration or specific bodies, such as the Bureau of Foreign Employment in Sri Lanka and the Provincial Governor in the Republic of Korea are responsible for ensuring that no migrant workers are employed illegally by carrying out periodic unscheduled inspections, particularly in establishments and sectors known to hire or harbour workers illegally (hotels, construction, restaurants, food processing plants, etc.).(95) The labour inspectorate may also be called upon to assist the employment offices in ensuring that migrant workers are employed only in accordance with the law. The checks periodically carried out by social insurance funds are sometimes used as an additional opportunity for detecting the illegal employment of migrant workers.(96) The role of the police in detecting illegally employed migrant workers, as well as clandestine movements of migrants, has also been mentioned.(97) As the United States(98) emphasized, the detection of illegal employment could also be ensured by the receipt of written complaints against employers or private recruitment agencies. Finally, the Committee recalls that, in addition to their respective mandates, officials of public administrations and relevant services have the duty to respect the basic human rights of all migrant workers.
(c) Migrant workers' obligations
352. Migrant workers themselves are also called upon to participate in the process in that, once they have been temporarily admitted to a country for employment, they must generally be in possession of documents which enable the legality of their residence to be checked at any time.(99) In this respect, some countries such as Australia have reported problems in seeking to detect cases of illegal employment in the absence of a system of documentation which would readily show that a person is not entitled to take up employment.
353. Although governments did not refer to this aspect of the Convention in their reports, it should be recalled that Article 2(1) is worded in such a way as to include, in addition to conditions of employment, other living conditions of migrant workers during their period of residence. In other words, countries of employment are called upon to detect abusive conditions of residence and employment to which migrant workers are subjected (for example, in regard to housing) and to take measures to prevent and suppress them.
354. Article 6(1) calls for the definition and application of sanctions in respect of the illegal employment of migrant workers. Reference should be made to the sanctions required by the Convention in respect of the organization of clandestine or illicit movements of migrants for employment and in respect of knowingly assisting such movements, whether for profit or otherwise (paragraphs 335 to 342 above).
355. Article 6(2) provides that "where an employer is prosecuted by virtue of the provision made in pursuance of this Article, he shall have the right to furnish proof of his good faith". This Article should not be interpreted as reversing the burden of proof in the event of prosecution for illegal employment or as placing an obligation on the employer, as the Government of Australia appears to believe, to check the residence status of any foreign worker he or she wishes to hire. This is because, first, under Article 6(1), it is left to national laws or regulations to define the precise nature of the offence of illegal employment of migrant workers in accordance with the legal system; second, in most countries the general rules of criminal law require the prosecution to prove a guilty intent without it being expressly spelled out; third, according to the legal provisions examined by the Committee, the employer has to have acted "knowingly" or "negligently". In Australia, for example, section 233 of the Migration Act stipulates that "a person must not knowingly or recklessly harbour an unlawful non-citizen"; the penalty for this offence is two years' imprisonment; in Switzerland, to be guilty an employer must have acted "intentionally". A higher fine may be imposed by the judge if it is proved that the employer was motivated by "greed".(100) It is thus only if the prosecution does not have to prove that the employer acted knowingly or intentionally that paragraph 2 of Article 6 would be applicable.
356. Generally speaking, the sanctions that may be applied against employers in cases of illegal employment include imprisonment in their range.(101) In a number of countries the legislation provides that offenders shall be liable to a fine and/or imprisonment for the first offence and that the fine will be increased (usually doubled) and combined with a prison sentence for a second offence.(102) In other countries, such as Germany, the sanction depends on the gravity of the offence. In Switzerland it is not the "recruitment" of foreigners who are not authorized to work, but their "employment" which is sanctioned by legislation. The Committee takes this opportunity to recall that the Convention leaves it to each State to define the sanctions it considers adequate to combat the illegal employment of migrant workers. Accordingly, in so far as provisions ensure that illegal employment is prevented and that the sanctions provided for in the Convention are applied to it, they are in conformity with the objectives of the Convention. In countries in which it is not an offence to employ a migrant worker who does not have the necessary authorization to work, as is the case in Cape Verde, for example, it may be possible to charge the employer with aiding and abetting an offence under the immigration legislation or with harbouring a migrant in an irregular situation or a person who has committed an offence, with certain exceptions.(103)
357. As was pointed out in paragraphs 335-342, administrative sanctions may take two main forms: first, employers who have infringed the provisions regulating the employment of foreign workers or who have failed to comply with labour legislation generally may be refused further authorizations to employ foreign workers as in Austria, for example; second, financial penalties may be imposed administratively in the form of an obligation to pay the costs of repatriating the worker and his or her family as in Belgium, for example, as well as a fine or of a compulsory contribution to the funds used for regulating the immigration of foreign workers.(104)
358. Very few governments have referred to civil sanctions against employers who do not comply with legislation. The Committee has however noted that some of the legislation examined enables the illegally employed worker to claim damages and the cost of repatriation from the employer, provided that the worker is not responsible for the situation,(105) and in Belgium, the Ministry can initiate a procedure to halt activity with the Trade Tribunal on behalf of involved workers.
359. In their reports governments have generally confined themselves to indicating the legal provisions defining sanctions for the illegal employment of migrant workers. They have not given specific information on the manner in which these sanctions are applied in practice or on the extent to which legal proceedings have been brought against employers of clandestine migrant workers. Finally, it is of interest to note that, contrary to Europe, many receiving countries in Asia, as is the case in the United States, use sanctions against employers as a means of controlling clandestine migration rather than as an employment standard.(106)
360. Examination of the reports submitted to the Committee shows that member States of the ILO are, on the whole, very active in terms of attempting to combat clandestine migration -- whether or not under abusive conditions -- and against illegal employment. However, it appears that, short of establishing a disproportionate and expensive system of police surveillance, of which the efficiency could never be guaranteed, and without restricting public freedom, the multiplication of repressive laws and practices which have arisen in the past few years is not sufficient to efficiently control migration flows and abusive practices to which migrant workers can be victim often continue to occur on a similar scale.(107)
361. If the fight against clandestine migration and, a fortiori, the protection of nationals by both sending and receiving countries is justified, at the same time, it is important to ensure respect of the basic human rights of all migrant workers, in order to avoid migrant workers (notably those in an irregular situation) finding themselves in a situation where their rights are not respected and where they are vulnerable to abuses of all kinds. The protection of migrant workers and the fight against clandestine migration and illegal employment whilst protecting human rights is not always obvious in practice.
Situations of abuse and illegality
362. One of the problems the Committee encountered in carrying out the survey was in how to define certain of the terms used in Convention No. 143 in particular. As will appear from the text (Chapter 4), the precise meaning of "abusive conditions" (title of Part I, and Articles 2 and 3 read together) is not clear, and this might usefully form a part of future deliberations in the Governing Body and the International Labour Conference. The Convention would appear on a literal reading to qualify any migration "contravening relevant international multilateral or bilateral instruments or agreements, or national laws and regulations" as abusive; but clearly there are abusive situations which merit regulation regardless of whether the situation of the workers concerned is in entire accordance with the national and international law. In addition, Convention No. 143 leaves it somewhat ambiguous whether the term "illegal employment of migrants" used in Articles 3(a) and 6 refers to the kind of work being carried out by the migrant, or refers simply to the conditions under which the migrant was employed, or both these situations.
363. The Committee has also noted in carrying out the present survey that while under Article 3 of Convention No. 143 "Each Member shall adopt all necessary and appropriate measures [...] (a) to suppress clandestine movements of migrants for employment and illegal employment of migrants", the methods to do so require a balanced approach to this problem. This subject is not, however, covered in these instruments. The Committee recalls the requirement of Article 1 of Convention No. 143 that ratifying States undertake "to respect the basic human rights of all migrant workers", whether or not they are in a situation of legality. This may imply a framework for States' law enforcement efforts in this domain and could be addressed by the Conference in examining the question.
364. Finally, it can be questioned whether the conditions of residence and circulation of persons on the international level would not be more efficient were it the fruit of effective cooperation between concerned governments; that is to say, in parallel with the fight against clandestine migration and illegal employment, were action to be taken on the causes of migration pressures through the means of a realistic policy of durable co-development.(108)
1. B. Ghosh: Huddled masses and uncertain shores: Insights into irregular migration (IOM and Martinus Nijhoff Publishers, 1998), p. 18.
2. "Labour trafficking earns the mafias that organize it some US$7 billion a year", according to a study by André Linard for the International Confederation of Free Trade Unions (ICFTU), entitled Migration and globalization: The new slaves (July 1998).
3. The expression "undocumented migrant", which is often used in English, is nonetheless often a misnomer. In reality, the majority of irregular status migrants are able to produce identity papers. The problem is that "in recent years, documents produced upon arrival in many countries are bogus documents -- consisting of counterfeit or altered documents, forged unissued passports stolen from embassies and consulates throughout the world, or even genuine documents that were improperly issued. In recent years, a whole underground industry for the production of fake documents (e.g. passports, visas, identity papers) has sprung up to cater to the needs of migrant trafficking. Bogus documents are frequently recycled to be used again and again [...] Whereas the technology exists in many countries to prevent illegal entry through the use of counterfeit-proof travel documents, verification of identity through fingerprinting, and so forth, a number of countries have expressed reservations in regard to possible infringements of privacy or even abuses of civil rights stemming from such procedures", in International migration policies, Department of Economic and Social Affairs, Population Division, United Nations (ST/ESA/SER.A/161) (New York, 1998), p. 217.
4. There is no generally accepted definition of the concept of labour trafficking. However, at its Seminar on the International Response to Trafficking in Migrants and the Safeguarding of Migrants' Rights (Eleventh IOM Seminar on Migration, Geneva, 26-28 October 1994), the IOM put forward a definition of this type of illegal migration. According to this definition, the concept of migrant trafficking involves four main elements: first, a trafficker or intermediary who undertakes to help the would-be migrant cross one or more borders; second, payment made by the would-be migrant (or on his or her behalf) to the trafficker for services rendered; third, the movement itself is illegal and hence involves committing other illegal acts; and fourth, the would-be migrant gives his or her consent -- at least formally -- to the transaction, in that he or she actually wishes to leave the country of origin.
5. The WCL indicates the phenomenal increase in the traffic of young children (in particular young girls) in western Africa. These children, who come from countries like Benin, Burkina Faso, Nigeria and Togo, are transported to other countries in the subregion, like Côte d'Ivoire, Congo Brazzaville, Cameroon, Gabon and Senegal. This trafficking is not limited to Africa, as it can also be seen in Europe, Asia and Latin America.
6. Especially those with a high labour density such as construction and public works, the garment industry, hotels and catering, domestic service, agriculture, etc.
7. Although in international law the distinction between migrant and refugee is clear, a certain overlap exists between the reasons which push a migrant or a refugee to leave his or her country of origin which will have some impact on the way in which these categories are treated in practice.
8. According to the ICFTU study mentioned above, "Phnom Penh has become, over the past years plagued by a huge network of emigration to the United States, Europe and Japan. Prospective emigrants, the majority of them Chinese, are prepared to pay up to US$45,000 for the tortuous journey to America."
9. Since the exploitation of child labour goes far beyond labour trafficking, this survey will not address child trafficking, although it is closely linked to the issue of trafficking and sexual exploitation of women migrant workers. On this subject, see L.L. Lim (ed.), op. cit.
10. See footnote 22 in the Introduction.
11. The main sending countries of women migrants are Indonesia, the Philippines, Sri Lanka and Thailand, while the main destinations are the Gulf States (Kuwait and Saudi Arabia in particular), Brunei, Hong Kong, Japan, Malaysia, Singapore and Taiwan, China. For further details, see Lin Lean Lim and Nana Oishi: International labour migration of Asian women: Distinctive characteristics and policy concerns (Geneva, ILO, 1996).
12. On the situation of domestic workers, see A. Blackett: Making domestic work visible: The case for specific regulation, Labour Law and Labour Relations Programme WP.2 (Geneva, ILO, 1998).
13. IOM studies on this subject have shown that the profile of women migrants from eastern Europe, from which trafficking is on the increase, is markedly different from that of women migrants from developing countries. The former are usually younger (aged between 15 and 25), single and have a substantially higher level of education.
14. According to a European Commission communication of Apr. 1998 on undeclared labour, the underground economy accounts for between 7 and 16 per cent of gross domestic product (GDP) of the European Union, i.e. between 7 and 19 per cent of all declared jobs. In other words, the "clandestine economy" provides the equivalent of 10 to 28 million full-time jobs, which gives some idea of the huge losses in revenue to the State. The Committee recalls however that, while clandestine immigrants account for a large percentage of undeclared workers, they are not the only ones working illegally.
15. Germany informed the Committee that in 1996 the Federal Labour Office instituted a total of 85,742 violation proceedings on suspicion of illegal employment of foreign workers, that 24,836 fines were imposed and that a total of DM36.8 million in fines and warnings coupled with a fine had been levied on violators. Of the violation proceedings, 8,130 were referred to public prosecutors on suspicion of a criminal offence. Italy reported that it had expelled 9,005 clandestine migrants in 1997, which represents a 3.34 per cent increase over 1996, and issued 50,020 expulsion orders.
16. For example: Antigua and Barbuda, Australia, Belize, Cyprus, Falkland Islands (Malvinas), Kenya, Luxembourg, New Zealand, Qatar, San Marino, Sri Lanka (only as regards immigration), Suriname, Syrian Arab Republic, United Kingdom (Saint Helena).
17. For example: Bangladesh and Sri Lanka adopted measures to prohibit the emigration of female nationals to take up jobs as entertainers, which often serve as a cover for prostitution; Belgium states that it has amended its regulations on work permits for entertainers, and cabaret performers in particular, with a view to combating certain abuses, including human trafficking; in 1995 the Philippines adopted Republic Regulations No. 8042/1995 stipulating that the State will deploy its nationals only to those countries where the rights of Filipino migrant workers are protected, and adopted Department Order No. 32/1996 entitled "Selective deployment of Filipino women workers", the aim of which is to define strategies on the deployment of women workers overseas so that protection is better ensured and job-related risks are minimized. Destination countries are therefore chosen on the basis of the host country laws for foreign workers, mechanisms that allow protection of these workers, bilateral and multilateral agreements and other measures that ensure their protection. This policy also emphasizes non-vulnerable occupations and the phasing out of occupations that expose women to abuse and exploitation; although Sweden considers that it is hardly affected by trafficking in women migrant workers, in December 1997 its Minister of Foreign Affairs commissioned a report to the Foundation Women's Forum on the trafficking of women migrant workers in the European Union, with the principal aim of identifying the extent of the phenomenon as well as all the agencies (including NGOs) working against trafficking and providing assistance to victims; the report also makes a number of recommendations; Thailand has established an awareness-raising campaign aiming to discourage women from migrating for employment in the domestic sector.
18. As measures to combat misleading propaganda have been addressed in paras. 214-225, they will be only briefly mentioned in this chapter.
19. Such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966); the International Covenant on Economic, Social and Cultural Rights (1966), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), etc.
20. For example: United Kingdom (British Virgin Islands, Isle of Man, Jersey).
21. Art. 8b of the Treaty of Maastricht provides for the right of citizens of the European Union residing in a Member State other than that of which they are nationals to vote and to stand as candidates in elections to the European Parliament and in municipal elections in the Member State in which they reside.
22. For example: Algeria, Angola, Congo, Egypt, Ireland, Lebanon, United Republic of Tanzania (Zanzibar), Togo.
23. Case-law has held that the Fair Labour Standards Act (1938) applies also to irregular migrants in respect of minimum wage and maximum hours. However, numerous types of employment are partially or completely exempt from the scope of this Act, and the Committee notes that these types of employment are those usually taken up by migrant workers: agriculture, fishing, sales and retail employment, etc.
24. See para. 260 of the 1980 General Survey.
25. For example: Cameroon (s. 27(3) of the Labour Code), Republic of Korea (comprehensive measures for protection of all illegal foreign workers), Mozambique (s. 20 of Legislative Decree No. 1/76).
26. For example: Belgium (the legislation governing employment injury compensation is a matter of public policy and hence mandatory: the nullity of a contract concluded with a worker in an irregular situation cannot be invoked in order to evade payment of compensation. If the employer is not insured, it is the Employment Injury Compensation Fund which pays and subsequently claims from the employer); Republic of Korea (under the Industrial Accident Compensation Insurance Act, "illegal" and "unregistered" migrant workers can obtain protection against industrial accidents and against overdue payment under administrative guidance).
27. In France only foreigners legally residing and employed in French territory are entitled to social security benefits.
28. The United Kingdom reported that the extension of social security benefits to irregular and non-regularizable migrant workers is inconsistent with current legislation, which allows for the suspension or disallowal of benefit for the duration of any period of detention as the result of a criminal act, which may include violation of immigration law.
29. s. 27(4) of Act No. 1975/1991.
30. See in this respect Art. 9, Annex II, of Convention No. 97 and paras. 316 and 612-613 below.
31. For example: Australia, s. 210 of the Migration Act 1958 provides that deportees and removees are liable to the Commonwealth (the federal Government) for the costs of their removal or deportation. Costs are defined in s. 207 to mean "in relation to a non-citizen's removal or deportation, the fares and other costs to the Commonwealth of transporting the non-citizen and a custodian of the non-citizen from Australia to the place outside Australia to which the non-citizen is removed or deported".
32. For example: direct requests addressed to Burkina Faso (1993, 1995bis), Cameroon (1995bis, 1996), Portugal (1991, 1993, 1995bis), Slovenia (1997).
33. The Government had stated in its report that the cost of procedures leading up to the expulsion order are not borne by the migrant worker or his family, except in cases in which costs of surveillance are incurred because the foreign national does not leave the country voluntarily. In this case, the immigration authorities must have clear indications that the foreign national in question will unlawfully evade the implementation of the decision to expel.
34. For example: Argentina, Belgium, Costa Rica, France, Greece, Italy, Republic of Korea, Malaysia, Mexico, Netherlands, Portugal, South Africa, Spain, United States, Venezuela.
35. These sometimes involve workers in an irregular situation who have been in their territory for many years and have brought up families which are completely integrated in the society of the country of employment.
36. Act on the Social Integration of Foreigners, No. 7919, 1995.
37. See paras. 310-311 and 612.
38. The preparatory work for the adoption of Convention No. 143 shows that participants did intend to refer essentially to ratified international instruments. However, the Committee considered in its 1980 General Survey (para. 188) that account may also be taken of other international instruments which States agree to respect even if they have not ratified them.
39. Simultaneously with increasing the severity of sanctions against transport companies, a number of States (Canada, Germany, Netherlands) have elaborated training programmes targeted at airline company staff and immigration officials, or have created official liaison posts in sending countries. See International migration policies, op. cit., p. 215.
40. Sri Lanka.
41. For example: Antigua and Barbuda, United Republic of Tanzania (Zanzibar), Zambia.
42. For example: Cyprus, Dominica, Israel, Kenya, United Republic of Tanzania (Zanzibar).
43. For example: Italy, Uruguay.
44. For example: New Zealand.
45. For example: France.
46. For example: Czech Republic, Ghana.
47. For example: Argentina, Greece, Kuwait, Malaysia, Paraguay, Venezuela.
48. For example: in the Czech Republic the Government is currently setting up a system to centralize registration of all foreigners residing in its territory, which will also include a list of all the bilateral agreements concluded by this country with the governments of countries whose nationals are interested in coming to work in the Czech Republic; in Switzerland the Central Register of Foreigners has been computerized, enabling the different authorities, including the police, to check rapidly whether foreigners are legally resident in the country; the countries of the European Union that have signed the Schengen agreements have adopted the Schengen Information System (SIS): a foreigner whose name is entered in this database by any of the States parties will be refused a visa to enter the other Member States.
49. For example: Australia (one of the prominent roles of the Department of Immigration and Multi-cultural Affairs is detecting illegal immigration); France (in 1997 the Government set up a national commission and departmental commissions to combat illegal employment; in 1996 it established the Central Office for the Suppression of Irregular Immigration and Employment of Undocumented Foreigners; and in 1994, a central directorate for immigration control and combating employment of illegals within the general directorate of the national police was created; etc); Greece (under s. 5 of Act No. 1975/1991, the Government has set up special police units to combat clandestine immigration along its land borders); Philippines (establishment in 1995 of the National Committee on Illegal Entrants); Poland (establishment in 1997 of the Interministerial Team for Migration Issues, whose tasks include putting forward recommendations on measures to combat negative phenomena linked to migration, in particular illegal immigration); Qatar (a department has been set up within the Ministry of Labour with special responsibility for controlling the activities of private recruitment agencies).
50. This obligation has generally been lifted in regional groupings; for example, European Union nationals are exempt from the obligation to obtain a visa for short stays in European Union Member States. The same applies to nationals of the Economic Community of West African States (ECOWAS) (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Togo).
51. In some cases, States have had recourse to a visa system in order to respond in a flexible way to changes in illegal migration flows. For example, after having suspended the visa requirement for nationals of Chile in 1993, Canada announced the following year that it was reintroducing the visa obligation for Chilean citizens, notably due to the large number of non-genuine requests for asylum being made by Chilean nationals. In mid-1996, the United States abolished the visa requirement for Argentinian nationals as the majority of Argentinian visitors to the United States had not overstayed the validity of their visas. See International migration policies, op. cit., p. 214.
52. For example: the bilateral agreement between Turkey and Germany under which recruitment is carried out solely by the Turkish Employment Service and placement by the German Employment Service; the intergovernmental agreements concluded between the countries of the Caribbean Community (CARICOM) (Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Montserrat, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Suriname, Trinidad and Tobago) on the one hand and Canada and the United States on the other, under the US Farm Work Program, the US Hotel Workers Program and the Canadian Caribbean Seasonal Agricultural Workers Program, under which nationals of CARICOM are temporarily employed in Canada and the United States every year; and the Agreement on the Employment of Croatian Workers in Germany, signed on 11 July 1992 between the Federal Labour Office of Germany and the Croatian Employment Office, under which Croatian nationals, most of whom are women (72.69 per cent), go to work in Germany for three months every year.
53. "Were it not for recruitment agents, overseas employment promoters, manpower suppliers and a host of other legal and illegal intermediaries, Asian labour migration since the mid-1970s would not have reached such a massive scale", Lim and Oishi, op. cit., p. 4.
54. In Croatia, only the Croatian Employment Office is competent to recruit foreign workers; in Lithuania it is the National Labour Exchange while in Luxembourg it is the employment administration.
55. For example: Antigua and Barbuda, Cape Verde, Central African Republic, Falkland Islands (Malvinas), Syrian Arab Republic and United Kingdom (British Virgin Islands).
56. See in this connection paras. 171-187 above and the Guidelines on special protective measures for migrant workers recruited by private agents.
57. For example: the Philippines decided to prohibit the emigration of its nationals to take up domestic work in Saudi Arabia in 1982 and Singapore in 1987 but had to lift the ban in view of these two countries' reaction. The Philippines then decided in 1988 to ban all emigration of domestic workers to any country pending the results of an in-depth study on the conditions of work applied in the main countries receiving this category of migrant workers in Asia and the Middle East, with a view to concluding bilateral agreements with all of these countries. This general ban was lifted by the Philippines without the Government having concluded bilateral agreements with all of the countries concerned; Sri Lanka prohibited the emigration of its women migrant workers to Lebanon until the conclusion of an agreement between the two countries relating to the minimum wage, transfer of earnings and savings of migrant workers, free meals, freedom of movement, etc. For further details see L. Gulati: Women migrant workers in Asia: A review, Asian Regional Programme on International Labour Migration (New Delhi, ILO-UNDP, 1993).
58. For example: until 1991 Bangladesh required women domestic workers seeking employment abroad to be accompanied by their husbands; Ghana set down the principle that no one aged under 18 could be recruited to work abroad; Indonesia decided that its women nationals had to be aged at least 22 years in order to leave the country to take up jobs as domestic workers; the age required by Pakistan for this type of employment is 35 years.
59. For example: Republic of Korea (s. 3(8) and (9) of the Emigration Act, as amended on 14 Dec. 1991).
60. For example: Trinidad and Tobago (s. 8(1)(c) and (e) of Act No. 41/1969).
61. For example: having noted in a direct request of 1995 (reiterated in 1997) the wide discretion vested in the Minister with regard to authorization to emigrate -- under s. 4(2) and (3) of the Recruitment of Workers Act, No. 39/1993 -- the Committee suggested that the Government of Mauritius envisage repealing this section when it next revises the Act.
62. For example: Albania, Belarus, Central African Republic, India, Jamaica, Republic of Korea, Pakistan, Sri Lanka, Viet Nam.
63. For example: Angola, Antigua and Barbuda, Austria, Barbados, Bahrain, Benin, Bulgaria, Burkina Faso, Cameroon, Central African Republic, Congo, Côte d'Ivoire, Croatia, Egypt, Germany, Ghana, Greece, Italy, Jamaica, Jordan, Kyrgyzstan, Lebanon, Mali, Mauritius, Morocco, Mozambique, New Zealand, Pakistan, Papua New Guinea, Philippines, Romania, Saudi Arabia, South Africa, Suriname, Thailand, Tunisia, Togo, Viet Nam, Zimbabwe.
64. See paras. 290-291.
65. "Yemen has extensive land and sea borders. This geographical situation enables the easy entry and departure of persons in and out of the country and makes it difficult for governmental authorities to regulate the situation."
66. Under Art. 1 of Convention No. 97, the first area of cooperation between States is the exchange of information on national policies, laws and regulations relating to emigration and immigration, migration for employment and the conditions of work and livelihood of migrants for employment. On this point, see paras. 207-213 above.
67. "Trafficking cannot be tackled effectively without a multidisciplinary and coordinated approach which involves all concerned players -- NGOs and social authorities, judicial, law enforcement and migration authorities -- and which involves both national and international cooperation. The recommendations from the Conference point to a lead responsibility for member States, because many issues either need to be or can best be tackled at national level. However, the transfrontier nature of the issues also requires action at European Union level: firstly by initiating actions at European level or by complementing national actions; secondly through Community cooperation with third country partners" (conclusion of the EU Conference on Trafficking in Women, held in Vienna by the European Commission in 1996).
68. For example: the North American Agreement on Labor Cooperation, concluded in Sep. 1993 between the Governments of Canada, Mexico and the United States, provides for such cooperation and exchange of information at different political or administrative levels; as does the Supplementary Protocol adopted by the Economic Community of West African States, setting forth a code of conduct for the application of the Protocol on the free movement of persons, the right of residence and settlement, signed on 6 July 1985, Title V of which relates to subregional cooperation with a view to reducing and eliminating clandestine migration.
69. The Recommendation applies to third-country nationals, except for family members of citizens of the European Union, nationals of member States of the European Free Trade Association (EFTA) party to the Agreement on the European Economic Area and their family members; third-country nationals in a situation governed by Community law; third-country nationals whose status is covered by a bilateral or multilateral agreement. Third-country nationals wishing to work in the territory of a member State must be in possession of the authorizations to reside and to work required by the legislation of the member State concerned. Illegal employment of workers, encouraging, facilitating or promoting illegal employment, and illegal trafficking in labour should give rise to the imposition of criminal and/or administrative penalties in accordance with the law of the member State concerned. Penalties must be effective, dissuasive, appropriate and proportional to the seriousness of the offences committed. They should permit the elimination of added profits or other advantages obtained by employers as a result of the offences committed. Member States should adopt the necessary measures to coordinate the activities of the competent services in combating illegal employment and exploitation of third-country nationals. Both bilaterally and within the Council, member States should exchange information with regard to combating the illegal employment of third-country nationals and organized networks trafficking in labour.
70. For example, the Agreement by exchange of letters between France and Morocco concerning the movement of persons, signed on 10 Nov. 1983 (and confirmed on 25 Feb. 1993) provides that the Moroccan authorities shall take measures to inform would-be emigrants and take steps to prevent Moroccan nationals likely to try to establish residence in France in irregular conditions from setting off for France; the Mutual Administrative Assistance Agreement on Customs, Trade and Immigration between the People's Republic of Benin, the Republic of Ghana, the Federal Republic of Nigeria and the Republic of Togo of 10 Dec. 1984, s. 14(3) of which provides that the contacting parties undertake to inform their citizens on the need to conform to the requirements for entering the territory of member States; the Agreements of 1992 and 1993 concluded between Morocco and Portugal concerning the readmission of foreigners in an irregular situation.
71. Switzerland has stated that it cooperates with other countries in combating clandestine immigration, in particular through participation in the work of the Budapest Group and in the Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia.
72. According to the Trade Union Association of Estonia, cooperation between the authorities of their country and neighbouring countries has not been very effective.
73. See Binational study on migration between Mexico and the United States (Commission on Immigration Reform/Secretaría de Relaciones Exteriores, Mexico, 1997).
74. For example: Burkina Faso, which has signed bilateral agreements with, inter alia, Côte d'Ivoire (Agreement of 9 Mar. 1961 concerning the conditions of recruitment and employment of workers from Upper Volta [Upper Volta changed its name to Burkina Faso on 4 Aug. 1984] in Côte d'Ivoire) and Gabon (Agreement of 13 Aug. 1973 concerning technical cooperation in the field of manpower), states in its report that serious difficulties have arisen in the application of these two agreements: "there is no follow-up by the competent services of the two countries, workers continue to emigrate to these countries and to work there without any control. Although the agreements have not been denounced by the parties, Gabon has unilaterally decided to control foreign manpower in its territory by obliging all migrants from Burkina Faso wishing to work and stay in Gabon to pay a security of 500,000 CFA francs. Any worker from Burkina Faso who is unable to pay this sum is automatically expelled. In Feb. 1995, 400 migrants from Burkina Faso were expelled from Gabon in this way".
75. The Government states in its report that: "Any manpower trafficking offences and international prosecution provisions enacted in accordance with both Articles 5 and 6 would have to conform with the terms of bilateral extradition arrangements between Australia and various countries." Belgium and Switzerland stated that the place where the violation is committed is deemed to be both that where the violator acts and that where the results are produced.
76. For example, by extending the period of limitation for offences involving the clandestine introduction of foreign workers, not allowing extenuating circumstances or reductions of sentences, or refusing to lower the minimum fine, irrespective of the circumstances, in cases of illegal employment, etc.
77. ILC, Record of Proceedings, 60th Session, Geneva, 1975, p. 652, para. 158.
78. Sanctions imposed on recruiters or users of migrant workers in an irregular situation will be dealt with in paras. 354-359.
79. For example: Albania, Angola, Antigua and Barbuda, Bahamas, Bahrain, Barbados, Bulgaria, Cameroon, Chile, Colombia, Côte d'Ivoire, Cyprus, Dominica, Dominican Republic, France, Germany, Ghana, Indonesia, Israel, Jamaica, Japan, Kenya, Republic of Korea, Lebanon, Mauritius, Morocco, Mozambique, Philippines, Portugal, Romania, Singapore, South Africa, Sri Lanka, Switzerland, Syrian Arab Republic, Thailand, Tunisia, United States, Zambia.
80. For example, Jamaica (persons attempting to emigrate without the necessary authorization may be sentenced to up to three months' imprisonment, with or without forced labour, under the Emigrants Protection Act of 1925); Pakistan (under the Emigration Ordinance of 1979, persons attempting to emigrate unlawfully or helping another person to emigrate unlawfully, or provoking a person's departure in these conditions may be punished by a sentence of imprisonment of up to five years, or seven years for a repeat offence, and a fine); Sri Lanka (persons who infringe the provisions of the Passport (Regulation) and Exit Permit Act of 1980, which requires an exit permit, may be punished by a fine and/or a prison sentence of up to one year).
81. For example: Albania, Antigua and Barbuda, Bahamas, Cyprus, Dominica, Ghana, Indonesia, Israel, Jamaica, Japan, Kenya, Republic of Korea, Lebanon, Mauritius, Morocco, Portugal, Switzerland, Syrian Arab Republic, Thailand, Tunisia, Zambia.
82. For example: Republic of Korea (Exit and Entry Control Act, 1993), Indonesia (Act No. 25/1997), Lebanon (Order No. 17561 of 18 Sep. 1964), South Africa (Aliens Control Act, 1991), United Arab Emirates (s. 32 of Federal Act No. 13/1996), Switzerland (Federal Act respecting the residence and establishment of foreigners of 26 Mar. 1931, codified in 1993).
83. See documents of the United Nations General Assembly, 37th Session, Supplement No. 40 (A/37/40) and 47th Session, Supplement No. 40 (A/47/40).
84. See document of the United Nations Commission on Human Rights, 53rd Session, E/CN.4/1997/7.
85. For further details see doc. E/CN.4/1997/7, in particular on the concept of lawful sanctions to which reference is made in Art. 1 of the Convention against Torture, which effectively excludes from its scope acts entailing "pain or suffering arising only from, inherent in or incidental to lawful sanctions".
86. Only 27 representative organizations (14 employers' organizations and 13 workers' organizations) have submitted observations to the Committee concerning the application of Conventions Nos. 97 and 143 in their countries. The Committee has also received general observations from the World Confederation of Labour.
87. The role of trade unions, particularly those in receiving countries, with respect to migrants in an irregular situation, consists of offering the assistance they need "in sorting out the practical problems arising out of repatriation and ensuring that the rights of illegal migrant workers acquired in the course of their work in the matter of remuneration, social security and other benefits are respected, and that they are able to receive legal aid". Protecting the least protected: Rights of migrant workers and the role of trade unions, Labour Education 1996/2, No. 103 (Geneva, ILO), p. 14.
88. In reply to these comments the Government recalled that in New Zealand in the case of legislative change, consultation with all the interested parties takes place.
89. For example: Australia (National Labour Consultative Council), Ghana (National Advisory Committee on Labour); Syrian Arab Republic (legal and technical committees of the Ministry of Social Affairs and Labour and the Tripartite Committee for Consultation and Dialogue); Togo (National Council on Labour and Labour Legislation), Yemen (Labour Council).
90. For example: Luxembourg (the National Employment Committee and the National Immigration Council); Norway (Forum for Multi-Cultural Norway).
91. For example: Cyprus (under Regulation 9(1) of the Aliens and Immigration Law, any non-national working within the national territory without a work permit is deemed to be an illegally employed migrant); Lithuania (s. 17 of the Employment Contract Act defines illegal employment as any activity carried out by a foreigner in violation of labour legislation).
92. The conclusions adopted by the Conference Committee on this subject after the first discussion did in fact contain this limitation, referring to "any person employing workers who have immigrated in such conditions", but it disappeared as a result of the adoption during the second discussion of an amendment intended to introduce specific provisions for the detection of the illegal employment of migrant workers. There was no indication that it was intended to change the nature of the offence of illegal employment.
93. For example: Benin, Burkina Faso, Cameroon, Congo, Czech Republic, Greece, Indonesia, Jordan, Republic of Korea, Kuwait, Lebanon, Lithuania, Malaysia, Mauritius, Morocco, New Zealand, Papua New Guinea, Philippines, Saudi Arabia, Sri Lanka, Thailand, Tunisia, Turkey, Viet Nam.
94. Immigration Reform and Control Act (an amendment to the Immigration and Nationality Act) (8.U.S.C., s. 1342(b)).
95. For example: Bahrain, Benin, Burkina Faso, Congo, Côte d'Ivoire, Ghana, Indonesia, Jamaica, Republic of Korea, Lebanon, Mali, Morocco, Mozambique, New Zealand, Papua New Guinea, Sri Lanka, Togo, Tunisia, United Kingdom (Gibraltar), United States.
96. For example: France, Greece.
97. For example: Morocco, San Marino.
98. In the United States, any person or entity having knowledge of a violation or potential violation of the federal law may submit a signed, written complaint containing detailed factual allegations relating to the potential violation and the specific conduct alleged to constitute a violation of the federal law (8.U.S.C., s. 1324(a)(e)).
99. For example: France, Morocco, Switzerland, Thailand.
100. s. 23(4) of the Federal Act of 26 Mar. 1931 respecting the residence and establishment of foreigners.
101. For example: Gabon (Act No. 5/86 of 18 June 1986 respecting the admission and residence of foreigners provides for the imposition of a fine and imprisonment for employers recruiting a foreign worker in violation of the provisions of the law); Greece (s. 33 of Act No. 1975/1991 provides for three months' imprisonment and a fine of at least 100,000 drachmas); Republic of Korea (the Exit and Entry Control Act imposes up to one year's imprisonment and a 5-million won fine on employers of clandestine migrants); United States (the Immigration and Nationality Act of 1952 provides that the judge may put an end to the employment of a foreigner in an irregular situation and order the payment of a civil fine of $250 to $10,000 for each foreigner employed in violation of the Act; the employer or the enterprise may in addition be liable to criminal conviction or a fine and, where applicable, a prison sentence of up to six months).
102. For example: Gabon, Indonesia, Republic of Korea, Luxembourg, Malaysia, Mauritius, Norway, Papua New Guinea, Suriname, Thailand, Tunisia, United States.
103. Australia states that there are no measures against employers who hire migrant workers who have immigrated in illegal conditions unless they do so knowingly.
104. For example, in Switzerland, under the Ordinance of 6 Oct. 1986 limiting the number of foreigners, the Cantonal Employment Office will reject some or all of the applications to hire foreign labour presented by an employer who has repeatedly or seriously infringed the legislation governing foreigners (s. 55(1)). Under s. 55(3), the guilty employer is required to pay the cost of assisting and repatriating the foreigners employed without authorization.
105. For example: Egypt (the Tribunal can demand payment of damages and interest to the victim, Act No. 10, 1991), Mali.
106. International migration policies, op. cit., p. 223.
107. See, for example, in this respect, document GB.265/ESP/2, paras. 35-36 on the persistence of bad treatment inflicted upon migrant workers.
108. For a number of poor countries, it is remittances from emigrants and not that of international aid which constitutes the largest portion of the national income: with 0.27 per cent of the gross national product devoted to public service development, developed countries have never been so far from the 0.7 per cent of GNP which is the target of Overseas Development Assistance from the international community.
Updated by HK. Approved by RH. Last update: 26 January 2000.