Migration - Migrant workers

The International Organisation for Migration estimates that there are 150 million migrants in the world who live outside the country of origin. Although a proportion of this number are forced migrants moving for the purposes of obtaining protection, an increasing number are migrants moving voluntarily for the purposes of employment. In an age of globalisation, and the consequent relative ease with which people are able to move, irregular economic migration has become a cause for national concern. Sovereign States wish to have control over who enters their country for the purposes of employment, in order to do so they may put in place substantial laws, rules and regulations to govern the entry of individuals to take up or seek employment. National Governments may seek to recruit employees from different countries with particular skills in order to fill gaps in their own labour force. They therefore may not welcome economic migrants arriving independently who may not fit with their criteria. In order to prevent the entry of irregular ‘economic migrants’ States may encourage individuals to apply for entry for employment purposes from their country of origin and set up rigorous border controls to prevent entry into the territory.

There is no international right to migrate for the purposes of employment. Under the 1951 Convention Relating to the Status of Refugees, refugees are entitled to recognition of their status and cannot be returned to the country in which they risk persecution. In a number of countries there is growing concern and a perception that persons seeking asylum under the 1951 Convention or international human rights law are in fact migrant workers in search of employment. For this reason the economic migration and protection debates have become interlinked, with migrant workers being increasingly the subject of negative public perception.

In a number of national States migrants workers are not guaranteed rights and benefits they may not be entitled to residence permits, or to pay and conditions equal to those provided to nationals. Such treatment may be accorded to both irregular and regular migrants. Although regular migrants with lawful status may be more likely to have a chance of benefiting from legal entitlements this is certainly not always the case. As a result of the lack of protection migrant workers may be exploited, marginalised and subjected to discrimination.

The OSCE participating States have made a number of Commitments relating to migrant workers, in 1975 in Helsinki a commitment was made to ensure equal rights of migrant workers and nationals, in Budapest in 1994 they reconfirmed their condemnation of acts of discrimination against migrant workers on the grounds of race, colour and ethnic origin, including racism and xenophobia. The Council of Europe States opened for signature the European Convention on the Legal Status of Migrant Workers in 1977 which sets out in great detail the rights and entitlements on migrant workers and provides for rights equal to migrants in areas such medical assistance, social security and conditions of work. The Convention came into force in May 1983 and a Consultative Committee was established in 1984 to request information on the implementation of the Convention from Contracting Parties, analyse compliance and provide guidance on the interpretation of the Convention.

The UN International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, (1990), should finally come into force in 2003 after receiving its 20th ratification. It defines the migrant worker as "a person who is to be engaged, is engaged or has been engaged in a remuneration activity in a State of which he or she is not a national”. This instrument, unlike International Labour Organisation Conventions on migration, guarantees fundamental rights to all migrant workers including irregular migrants during the entire migration process, such as the protection of human rights, emergency medical care and education. Further protection is afforded to regular migrant workers and their families including freedom of movement in the territory of the State and the right to participate in public affairs and vote. Unfortunately it is primarily migrant-sending countries that have ratified this Convention; therefore it may not provide the necessary protection and safeguards to migrant workers in major migrant receiving countries. The unwillingness of receiving states to ratify the Convention illustrates the difficulty of securing the rights of migrant workers.

Analysis provided by Anisa Niaz, LLM (Public Law), United Kingdom.