Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 1 of the Convention. Basic human rights of all migrant workers. Recalling the obligation of the Government to respect the basic rights of all migrant workers, irrespective of their legal situation in the receiving country, the Committee would be grateful if the Government would provide information on the relevant legislative or administrative provisions.

Articles 2 to 7. Measures to combat illegal immigration. The Committee notes the adoption of Act No. 23/2007 of 4 July 2007 and its implementing regulations of 5 November 2007, which establish the legal framework for the entry, residence, departure and expulsion of foreign nationals from the country. In particular, the Committee notes sections 181 et seq. of the Act which confirm the penalties previously established by Act No. 4/2001 in the event of infringements and crimes related to illegal immigration, such as assisting in illegal immigration and the recruitment of immigrants for profit. The Committee further notes that the Act includes the possibility of granting the victims of trafficking a one-year residence permit. The Committee asks the Government to provide detailed information on the effect given in practice to these provisions, including relevant court rulings and initiatives undertaken by the Foreigners and Frontiers Service to combat irregular immigration. The Committee would also be grateful to be provided with information on irregular migration for employment originating from or towards Portugal, or in transit through the country, and any other information on the measures adopted or envisaged, in collaboration with the organizations of employers and workers.

Article 8. Non-return in the event of loss of employment. Noting that, under the terms of Act No. 23/2007, authorization to reside in the country for work-related reasons is intrinsically bound up with the existence of an employment contract, the Committee asks the Government to clarify whether, in the event of loss of employment, migrant workers who have resided legally in the territory maintain their residence permit, in accordance with Article 8 of the Convention. The Committee also asks the Government to indicate the manner in which it is ensured that such workers benefit from equal treatment with that of nationals in relation to security of employment, the provision of alternative employment, relief work and retraining.

Article 9(3). Expulsion. The Committee notes that sections 134 to 180 of Act No. 23/2007 govern the expulsion of workers who are in an illegal situation. In particular, section 172 provides that the costs of expulsion shall be compensated in accordance with the criteria established by the European Council. The Committee understands that the Government is referring to Council Decision No. 14698/03 of 3 December 2003 setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40/EC on the mutual recognition of decisions on the expulsion of third-country nationals, where expulsion cannot be carried out at the charge of the national or nationals of the country concerned. Considering that the information provided does not reply to its previous direct request, the Committee recalls that, in accordance with Article 9(3) of the Convention, in case of expulsion of the worker or his or her family, the cost shall not be borne by them, and reiterates its request for information on the costs of expelling workers in law and practice.

Article 9(1) and (4). Regularization and measures relating to rights arising out of past employment. The Committee notes that, according to the Government, it has been necessary to have recourse periodically to extraordinary measures for the regularization of illegal immigrant workers, as in the case of the Lula Agreement of 2003 respecting Brazilian workers. The Committee takes this opportunity to emphasize that, due to the uncertainty surrounding their situation, illegal migrant workers are particularly vulnerable to abuse and it is therefore fundamental to identify illegal workers as rapidly as possible and to decide whether or not they are to be regularized. Moreover, if they are regularized, such workers should benefit from all the rights granted to migrant workers who have entered the country legally. In the light of the above, the Committee would be grateful if the Government would provide information on the implementation of the regularization measures adopted and their results and invites it to continue providing information on any other regularization measures adopted in future. In the case of migrant workers who have not been regularized, please provide information on the legislative measures which ensure that such workers and their families enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration and social security.

Articles 10 and 12. Equality of opportunity and treatment. The Committee notes that, according to the UGT, the process of the integration of migrant workers continues to be problematic. The Committee recalls that the Convention addresses not only the principle of quality of treatment, but also equality of opportunity and requires the adoption of an active policy to ensure respect of this principle in practice. Noting the Immigrant Immigration Plan (PII), as well as the mandate of the High Commissioner for Immigration and Ethnic Minorities and of the Commission for Equality and Against Racial Discrimination in this area, the Committee asks the Government to provide detailed information on the national policy designed to guarantee equality of opportunity and treatment for migrant workers and their families in the fields enumerated in Article 10 of the Convention, as well as the measures adopted for its implementation, with particular reference to migrant women workers. Please also indicate the legislative measures and educational programmes adopted in consultation with employers’ and workers’ organizations to promote acceptance and compliance with this policy, and any specific measures taken to eliminate discriminatory practices against migrant workers and guarantee their equality of treatment with respect to conditions of work in accordance with Article 12 of the Convention.

Practical application. See comments under the Migration for Employment Convention (Revised), 1949 (No. 97).