Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the statistical information supplied by the Government but observes that it does not allow a distinction to be made, in the migration flows recorded, between labour migrants and persons visiting Kenya for tourism or on business, or leaving Kenya to work elsewhere or for other reasons. In its General Survey of 1999 on migrant workers, the Committee noted that the extent, direction and nature of international labour migration had undergone profound changes since the adoption of the Convention (see paragraphs 5-17 of the General Survey). It would be grateful if the Government would indicate how present trends in migration affect the content and implementation of its national emigration and immigration policy and legislation and to provide information on the questions contained in the report form of the Convention. Please also provide statistics of the number, nationality and geographical distribution by occupation of migrant workers in Kenya and the number of Kenyan nationals employed abroad.

2.  The Committee wishes to recall that according to Article 1 of the Convention, all migrant workers, whatever their position in law in the country of immigration, are entitled to have their fundamental rights respected. The Committee would therefore appreciate receiving information on the measures taken to ensure respect of the fundamental rights of migrant workers in an irregular situation and of their rights deriving from previous employment, particularly as regards remuneration and social security. It would also appreciate information, including statistics on administrative, civil and penal sanctions applied in practice in the event of the unlawful employment of migrant workers, the organization of migration in abusive conditions and assistance provided wittingly to such migration.

3.  Part II of the Convention (Equality of opportunity and treatment). Article 8, being one of the provisions cited most often by governments at the time of the General Survey as being difficult to apply (see paragraphs 577-597 of the General Survey), the Committee asks the Government to provide information on the application of the principle that the authorization of residence and/or work permit shall not systematically be withdrawn from a migrant worker in an irregular situation in the event of loss of his employment.

4.  The Committee again recalls that under Article 10 of the Convention, a national policy designed to promote and guarantee equality of opportunity and treatment for migrant workers and the members of their families lawfully residing in the territory of a State which has ratified the Convention, in respect of employment and occupation, social security, trade union and cultural rights and individual and collective freedoms, must be declared and pursued. According to Article 12(d), any provisions or administrative practices incompatible with the policy of equal treatment and opportunity must be amended.

5.  However, the Committee emphasizes that in its previous report the Government recognized the need to take into consideration the provisions of Article 14(a) of the Convention which allows States which have ratified the Convention to make free choice of employment for migrant workers subject to the condition that they have resided lawfully in the territory for the purpose of employment for a prescribed period not exceeding two years. The Committee hopes that the Government will review its national policy on migrant workers in the light of the provisions of Articles 10 and 12 of the Convention and that it will be able to indicate in the near future the measures taken or envisaged to bring national legislation and practice into line with the Convention.