87th Session
Geneva, June 1999
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Report III (1B) |
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Migrant Workers |
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Migrants in society
453. It was stated in paragraph 102 above that while the instruments deal principally with migration for employment, a number of provisions take into account the social consequences of migration, including consequences for members of the migrant's family.
Section I. Social policy formulation
454. Paragraph 4 of Recommendation No. 86 encourages Members to "develop and utilize all possibilities of employment and for this purpose to facilitate the international distribution of manpower and in particular the movement of manpower from countries which have a surplus of manpower to those countries that have a deficiency". On a similar note, Paragraph 1 of Recommendation No. 151 encourages Members to formulate a coherent policy for migration for employment, based upon the "economic and social needs of both countries of origin and countries of employment", taking into account "not only [...] short-term manpower needs and resources but also [...] the long-term social and economic consequences of migration for migrants as well as for the communities concerned". The Committee will not linger on these provisions, drafted as they are in general terms, as implementation and application of migration for employment policy forms the basis of this survey as a whole.
455. A number of provisions in the instruments relate to the formulation of a social policy taking into account the needs of migrant workers and members of their families. Article 12(e) of Convention No. 143 stipulates that Members should "in consultation with representative organizations of employers and workers, formulate and apply a social policy appropriate to national conditions and practice which enables migrant workers and their families to share in advantages enjoyed by its nationals while taking account, without adversely affecting the principle of equality of opportunity and treatment, of such special needs as they may have until they are adapted to the society of the country of employment". Paragraphs 9 to 12 of Recommendation No. 151 develop this point.
456. The basic principle of the provisions relating to social policy is to guarantee equality of opportunity and treatment with nationals. Social policy measures directed at the population of the receiving country, such as information campaigns, have been dealt with in detail in paragraphs 423-426 above. This chapter deals more specifically with aspects of social policy which are directed at migrant workers and members of their families.
457. The dualistic element of these provisions specifies that on one hand, migrants and members of their families should be encouraged to integrate into the country of employment, and participate in society on an equal footing with nationals, while on the other, specific measures should be taken to ensure that they are encouraged to preserve their national and cultural identity. Approaches to social policy appear to vary across member States, reflecting various historical experiences with migration and expectations as to the length of stay of migrants.(1) To generalize the vast variety of social policies, it appears that countries which accept migrants for permanent settlement upon entry, such as the traditional migrant-receiving countries of Australia and Canada, appear more likely to favour policies aiming at both social integration and "multiculturalism", while those which issue permanent resident status after a number of years in the country are more likely to focus on "assimilationist" policies, and those who view migrants as primarily temporary workers are likely to favour voluntary repatriation and reintegration assistance. The following examples serve to illustrate the nature and diversity of social policy objectives.
458. Countries which view migrants as temporary workers tend to adopt social policies which attempt to encourage as many migrants as possible to return to their home countries after completing their period of employment, in the form of voluntary repatriation incentives and reintegration assistance. One example is that of Germany which does not admit migrants for permanent settlement on entry, and devotes much of its social policy objectives to encouraging voluntary repatriation through the institution of the Coordinating Agency for Promoting the Reintegration of Foreign Workers.(2) In this respect, Germany participates in a number of bilateral agreements with sending countries, including Greece, Italy, Portugal, Spain and Turkey, which aim to improve young migrants' chances of obtaining a qualification which will be recognized and useful in the home country. These agreements take the form of theoretical courses given in Germany in the mother tongue, followed by a five or six week practical training course in the country of origin.
459. The Committee noted a number of reports citing "integration" or "multiculturalism" as the primary social policy objective. Such policies tend to focus upon the mutual adjustment of the national population and migrants to create a society wherein all residents can participate on an equal footing. In other words it involves "tolerating, or even promoting ethnic and other differences in such a way that identifiable groups coexist and interact to produce a heterogeneous but stable society".(3) The Committee draws attention to examples of such policies in several major migrant-receiving countries.
460. Canada (Province of Quebec) reported that one of the tasks of the Quebec Ministry for Relations with Citizens and Immigration was to "establish and maintain, for persons settling in Quebec, an integration programme aiming at encouraging their integration into Quebec life". France reported that one of its major social policy objectives was to ensure that migrants entering the country through family reunification were integrated successfully, and that identifying particularly vulnerable migrants, such as young migrants and female migrants, was an essential prerequisite to successful integration. The Government also indicated special measures taken at "key moments" in its integration policy, focusing particularly upon the integration of family members.(4) Italy indicated that social policy was directed at defining "public measures designed to foster family relations, the social and cultural integration of foreigners resident in it, respect for diversity and the cultural identity of the persons concerned".(5) Australia reported its adoption of a multicultural approach to social policy, which focuses upon the need to "maintain, develop and utilize effectively the skills and talents of all [...] regardless of background". Similarly, Sweden provided the Committee with leaflets advertising a social policy aiming "at supporting people's economic self-sufficiency and social participation [...] equal rights and opportunities for all, regardless of ethnic and cultural background [...] social unity based on the diversity of society and social development which is characterized by mutual respect and tolerance and which everyone, regardless of background, shall participate in and be jointly responsible for". Norway reported that "the Government favours active recruitment of qualified persons with an immigrant background in all levels of [the] public sector. [The] public sector on all levels should reflect the fact that Norway is a multicultural society". The United Kingdom reported that "while the Employment Department's policy is one of integration wherever possible, it is recognized that ethnic minority groups could be at a disadvantage when competing in the labour market and the Employment Department has made provision accordingly".
1. Formulation and implementation of social policy
461. There appear to be a number of ways in which social policy can be formulated and implemented. While most countries did not provide specific responses as to how and by whom social policy is formulated, some examples may serve to illustrate the most common means of so doing.
462. In some countries, such a social policy on immigration is drafted and coordinated by the relevant Ministry, for example, in New Zealand by the Ministry of Immigration, and in Norway by the Ministry of Local Government and Labour.(6) Other countries, such as Germany(7) and Sweden, have appointed a Government Delegate or Parliamentary Ombudsman to monitor migration flows and to develop social policy objectives. In Italy, the President of the Council of Ministers is obligated to present a policy paper to the Government every three years, which is then submitted to Parliament; and on an annual basis, the Commission for Integration Policies, under the Department of Social Affairs, must present a report on the implementation of social policy.(8) Burkina Faso reported that a Permanent National Committee for Migration Issues was established in 1974, and in 1997 Azerbaijan established a Government Commission whose main task is to "create a legal framework on migration, in line with international standards, specifically on labour migration and the provision of social and legal protection for migrant workers". In France the institution charged with formulating social policy for immigrants changed its name from the National Commission for the Migrant Population to the National Commission for the Integration of the Migrant Population,(9) reflecting a stronger focus upon integration policies.
463. Several States reported that they were in the process
of formulating or adopting new social policies on migration. New Zealand
indicated a major policy change took place in 1991 with the introduction of
the "points system"(10) to regulate
migration, and South Africa reported that the social policy inherited
from the previous administration "was unsatisfactory for a number of reasons",
inter alia, as a result of apartheid, and thus national policy was currently
being revised.(11) Slovenia reported
that it is currently formulating an immigration policy relating to "the
living conditions, social benefits, possibilities of education, learning the
language, preservation of immigrants' culture and the professional, cultural,
political and social involvement of immigrants in the life of Slovenian society
according to the integration principles of developed European societies"
and San Marino also reported that it was in the process of reformulating
social policy for temporary and permanent residents.
3. Consultation with employers' and workers' organizations
464. Very few States provided information as to the extent of the social partners' involvement in the formulation of social policy in general, but some indicated that this was routine practice. For example, San Marino reported that "the social partners participate in the committees that oversee the management of national social policy", and Australia indicates that the Department for Immigration and Multicultural Affairs (DIMA) has an active partnership with business associates, universities and government agencies and has worked closely with the Department of Workplace Relations and Small Business to "ensure that legislation and information regarding the new workplace bargaining environment takes account of the particular needs of workers from diverse linguistic and cultural backgrounds". Germany reported that the federal Government and German industry have collaborated in establishing a coordinating agency for promoting the reintegration of foreign workers, the object of which is to facilitate the reintegration of foreign workers into their home countries, through the promotion of vocational qualifications. France reported that the Social Action Foundation which consists of representatives of government, the social partners and NGOs is consulted on social policy.
465. In respect of consultation with other relevant organizations, Italy has a provision in its new legislation on immigration which stipulates that "initiatives and activities [of social policy] shall be carried out on the basis of a survey of local needs and integrated area planning, as well as in agreement with foreigners' associations, with the consular or diplomatic representatives of the countries of origin or provenance and voluntary organizations".(12)
466. On the other hand, the New Zealand Council of Trade Unions reported that one of the difficulties of application of these provisions was that there was no tripartite consultation in the formulation of social policy.
B. Difficulties in application
467. One country, Singapore, reported that the approach it has taken to migration and social policy does not conform with the provisions of the instruments. The Government reported that "Singapore subscribes to the principle of free market in the employment of workers. It is noted that many of the provisions of the Convention/Recommendations require government intervention [...] we feel this may not necessarily be the best approach [...] giving the varied economic, social and political conditions prevailing". The Falkland Islands (Malvinas) reported that existing social policy deals principally with nationals, and as the vast majority of migrants "are from English-speaking backgrounds and share similar cultural interests with Falkland Island nationals [...] there has not been any need to alter a social policy to date to accommodate migrants for employment not from English-speaking backgrounds".
468. The Mauritius Employers' Federation reported that Paragraph 11 of Recommendation No. 151, which recommends that social policy should attempt to "spread the social cost of migration as widely and equitably as possible over the entire collectivity of the country of employment, and in particular over those who profit most from the work of migrants" is unacceptable and constitutes a barrier to implementation.
Section II. Migration and the family
469. Many of the provisions refer to the rights of the family members who are authorized to accompany or join the migrant worker. Some of these relating to equality of opportunity and treatment with nationals have been addressed in paragraph 392 above. The primary focus of this section will be the conditions under which family reunification is encouraged to take place.
470. In 1974 an ILO preparatory report to the adoption of Convention No. 143 stated that:
Uniting migrant workers with their families living in the countries of origin is recognized to be essential for the migrants' well-being and their social adaptation to the receiving country. Prolonged separation and isolation lead to hardships and stress situations affecting both the migrants and the families left behind and prevent them from leading a normal life. The large numbers of migrant workers cut off from social relations and living on the fringe of the receiving community create many well-known social and psychological problems that, in turn, largely determine community attitudes towards migrant workers. (13)
471. A similar point was made again more recently by the ILO when the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration, 1997, adopted guidelines which stated "prolonged separation and isolation of family members lead to hardships and stress affecting both the migrants and the dependants left behind, which may give rise to social, psychological and health problems, and even affect workers' productivity. Therefore, family reunification should be facilitated".(14)
472. When the 1949 instruments were adopted, the most significant portion of migratory flows were due to time-bound labour migration -- that is, the primary breadwinner migrating for temporary periods in another country. By the time the 1975 instruments were adopted, in the aftermath of the oil crisis of 1973 which resulted in many migrant-receiving countries tightening their borders, family reunification had started to compete with labour migration as the most common form of migration. In many countries today family reunification remains almost the only legal means of immigration for many prospective migrants.(15) As Norway, which adopted a complete ban on immigration in 1975, reports "foreign experts, refugees and persons arriving because of family reunification are the most significant categories excepted from the ban".(16)
473. It should be stressed that Members are not bound by any provision of international law to guarantee family reunification. Article 13(1) of Convention No. 143 stipulates that "a Member may take all necessary measures which fall within its competence and collaborate with other Members to facilitate the reunification of the families of all migrant workers legally residing in its territory".(17) The strongest ILO provision in a Convention on the subject is to be found in Article 6 of the Social Policy Convention, 1962 (No. 117) which, with specific reference to migrant workers, reads "where circumstances under which workers are employed involve their living away from their homes, the terms and conditions of their employment shall take account of their normal family needs". The notion of family reunification has caused a certain amount of friction between sending and receiving States, in particular in relation to temporary or time-bound migration.
474. Paragraph 15 of Recommendation No. 86 reads: "(1) Provision should be made by agreement for authorization to be granted for a migrant for employment introduced on a permanent basis to be accompanied or joined by the members of his family; (2) The movement of the members of the family of such a migrant authorized to accompany or join him should be specially facilitated by both the country of emigration and the country of immigration".
475. As a general rule, family reunification does not appear to have given rise to significant problems for the majority of States who admit migrants for permanent settlement. For example, New Zealand indicates that provisions exist for the reunification of "close family members of migrants who have obtained New Zealand residence". Similarly, Australia reports that its immigration policy "includes a family reunion component".
476. Countries which do not admit migrants for permanent settlement, but which issue medium or long-term residence permits also do not appear to have confronted major difficulties in relation to facilitating family reunification. For example, the United Kingdom (Jersey) reported that "legislation allows for the spouse and minor children of a person who holds a work permit for a period of more than 12 months to accompany that person", and South Africa reported that, while at present work permits are usually only granted for an initial period of six months, workers granted permanent residence or permanent work permits are permitted to bring their families with them.
477. The Committee notes with interest the report of France which has enacted special measures to facilitate the arrival of family members of permanent migrant workers. These measures include pre-arrival assistance to help the primary migrant prepare for the family's arrival and a post-arrival visit to the family to inform them of social policy, as well as their rights and duties in France. The focus of such visits is principally upon young family members and female migrants.
478. While Paragraph 15 of Recommendation No. 86 applies only to "migrants for employment introduced on a permanent basis", other provisions relating to family reunification do not contain this limitation. Article 13 of Convention No. 143 extends family reunification to "all migrant workers legally residing in [the] territory". Bearing in mind the exceptions to the definition of "migrant worker" given in Article 11 of this Convention, Members are encouraged to facilitate the family reunification of temporary and even seasonal migrants who are legally resident in the country.
479. In adopting the Guidelines on Special Protective Measures for Migrant Workers in Time-Bound Activities, the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration stated in 1997 that "even in the case of seasonal and special purpose workers countries should favourably consider allowing family migration or reunification".(18) Governments' reports indicate various responses to this kind of exhortation.
480. Canada reported that "dependants of temporary foreign workers who accompany the worker to Canada are allowed to work and study in Canada. However, spouses and children of workers are required to obtain employment or student authorizations, as the case may be, prior to commencing work or study". Barbados reported that, under the terms of the Canadian Farm Labour Programme, emigration only of workers is permitted between the two countries, not members of their families. Switzerland reported that its migration policy does not appear to be in conformity with Article 13 of Convention No. 143, for while migrants with year-long permits can, under certain conditions be permitted to be accompanied by their family, "Swiss law does not authorize family reunification for temporary residents, whether they be seasonal workers, trainees or other foreigners residing in Switzerland for a short period". Belarus reports that the conditions for family reunification for all migrants, permanent and otherwise, is regulated by the specific contract between the worker and the employer. In New Zealand, entry into the country under family reunification rules depends upon having a "sponsor" who is living legally and permanently in the country, and in France, only migrants who have lived legally in the country for a period of at least two years, holding at least an annual residence permit, can apply for family reunification.(19) Trinidad and Tobago reported that family reunification is not permitted for temporary migrant workers. Finally, Israel reported that no migrants are admitted for permanent settlement and that no family members are authorized to accompany temporary migrants.
481. The Committee notes that in some cases of temporary, seasonal or project-tied work, family reunification may be inappropriate. In its 1980 survey of these instruments, the Committee remarked that:
Clearly, the admission of the families of migrant workers who are to be in the country only for a limited period of time may cause practical problems of accommodation, schooling, adaptation, etc., and it would not seem that it is necessarily called for by the Recommendation, which speaks of "all possible measures" to facilitate family reunification; it may well be considered that it is not possible to take measures to facilitate the short-term stay of the families of seasonal migrant workers. (20)
482. The Committee is of the opinion that separation of a migrant who has been granted permanent residence in a country from his or her family would appear to constitute unreasonable hardship. In the case of migrant workers on time-bound contracts, the individual circumstances of each case should be taken into account when considering whether to authorize family reunification. For some conditions which may be considered, see paragraphs 488-495 below.
3. Scope of family reunification
483. Article 13(2) of Convention No. 143 and Paragraph 15 of Recommendation No. 151 define the family as "the spouse and dependent children, father and mother". Paragraph 15(3) of Recommendation No. 86 goes beyond this and states that "favourable consideration should be given to requests for the inclusion of other members of the family dependent upon the migrant".
484. The Committee draws attention to some reports which indicate that the scope of family reunification does not appear to conform with the more extensive of these provisions. For example, Austria indicated that it considers Paragraph 15(3) of Recommendation No. 151 a major barrier to implementation, reporting that "family immigration within the meaning of section 20(1) of the Foreigners Act applies only to the spouse and minor children [with the exception of] nationals of [certain] third States granted favourable conditions under EU law, this does not apply to dependent relatives in an ascending line as well". Similarly, in France, only the spouse and minor children born to the couple are permitted to be reunified with the migrant worker,(21) as is the case in the United Kingdom, unless "exceptional circumstances" pertain.(22)
485. The Committee notes with interest however from a number of reports that the countries concerned appear to accept a wider interpretation of "family" than that given in the instruments. For example, the Syrian Arab Republic indicates that migrants are not forbidden from bringing their spouse, children and other "persons for whom they are responsible", and Italy reports that family reunification regulations apply to "(a) spouse not legally separated; (b) dependent minors also of the spouse or born outside wedlock, unmarried or legally separated on the condition that the other parent, if known, has given consent; (c) dependent parents; (d) dependent relatives to the third degree unfit to work according to Italian legislation".(23) Argentina reported that once legal residence permission has been granted to a migrant worker, the migrant is permitted to apply for reunification with their spouse, children under the age of 21, parents and handicapped children without limit of age. Cyprus reports that there is no limit for family reunification (in the case of regular migrants), and that it interprets the term to include the spouse, dependent children, parents, brothers, sisters and grandchildren; and New Zealand authorizes the entry of individuals who belong to any of the following three categories: (a) spouse of a New Zealand citizen; (b) individual in a de facto homosexual relationship with a New Zealand citizen or permanent resident; or (c) parents, dependent children and single adult brothers, sisters and children of a New Zealand citizen or permanent resident. In Norway a spouse over the age of 18, a cohabitant of the opposite sex with whom the migrant has been living for at least two years, unmarried children under the age of 18, children who the migrant intends to adopt, unmarried dependent children under the age of 21, parents of foreign nationals under the age of 18 and unmarried siblings under the age of 18, single elderly parents with no family in the country of origin, as well as children of any age who are wholly dependent upon their parents for medical or personal care are eligible to enter the country under the family reunification policy.(24) Australia recently passed legislation to the effect that the definition of a "spouse" of a migrant worker for the purpose of granting visas should be enlarged to include a person of the opposite sex who is in a de facto relationship with another person without necessarily being married to them.(25)
486. The law and practice of most countries which have supplied information on family reunification indicate that where children are permitted to accompany the migrant worker, this permission depends on their age, their dependency status or their marital status, and examples of all were found in the reports submitted to the Committee. The Committee draws attention to a statement made in its last General Survey that:
In many cases, of course, children who have reached the age of majority will no longer be dependent on their parents, but problems may well arise for handicapped children after majority and for young persons continuing their studies beyond the age of majority, or unable to find employment in the home country because of lack of employment. The reference in the 1975 instruments to "dependent" rather than "minor" children would seem to indicate that it is the actual situation of the child in relation to his parents, and not his legal status, which should be taken into consideration in deciding whether to admit him under the heading of family reunification. (26)
487. Beyond the actual definition of what constitutes "family reunification", in most cases family reunification is dependent upon conformity with a number of conditions, most commonly the provision of suitable accommodation and sufficient resources to cover living expenses.
B. Conditions for family reunification
488. Paragraph 13(2) of Recommendation No. 151 states that "a prerequisite for the reunification of families should be that the worker has, for his family, appropriate accommodation which meets the standards normally applicable to nationals of the country of employment". The Committee stresses, however, that Paragraph 13 of Recommendation No. 151 is intended to ensure the provision of reasonable accommodation for families of migrant workers, and that this provision "should not be interpreted as giving receiving countries the possibility of endlessly preventing family reunification".(27)
489. A significant number of countries which provided information on this subject reported that the provision of adequate housing was a prerequisite to authorization of family reunification. For example, Germany reported that family reunification is authorized when, inter alia, the migrant has sufficient accommodation for his or her family, and Italy reported that foreigners seeking family reunification must be able to provide, inter alia, "accommodation that meets the minimum standards laid down in regional law on public housing for residential purposes or, in the case of a child under 14 years of age following one parent, with the consent of the landlord of the accommodation where the minor will actually stay".(28) Similar provisions are in place in Norway and the Association for Immigrant and Refugee Housing takes this into account when allocating state subsidized housing. In France, accommodation which is considered "normal for a comparable French family"(29) is a prerequisite for family reunification and inspections of migrants' housing are carried out by the Office for International Migration. The United Kingdom (Jersey) reported that work permits are only issued when adequate accommodation is available for migrants and any accompanying dependants.
490. Switzerland reported that "it may be the case that the local housing situation [...] does not satisfy regulations (construction, fire, hygiene); in such cases the authorities would decide to refuse or postpone family reunification". Togo indicated that where an employer provides a migrant with a permanent contract, the employer must also provide suitable housing for the migrant and his or her family.
491. The Committee notes with interest the report of the Falkland Islands (Malvinas) which indicates that, while it previously encouraged the reunification of families, in recent years increasing migration, as well as growth in the national population, has meant that this has "placed a great strain on government housing, education and medical services". As the result of a "housing needs assessment" which was conducted by the Government in March 1998, the Falkland Islands Government is "considering adopting a policy whereby reunification of families will be discouraged where such reunification will place a strain on housing, education and medical facilities", and that "this policy will be reconsidered when there is sufficient housing [...] to accommodate families". The Committee points out that this approach provides a good example of the flexible nature of the provisions. Indeed, Paragraph 16 of Recommendation No. 151 states that "each Member should take full account of the needs of migrant workers and their families in particular in its policy regarding the construction of family housing, assistance in obtaining this housing and the development of appropriate reception services". The Committee notes with interest the report from Italy, which indicates that "the regions shall pay contributions to the communes, provinces, common consortia, or public or private corporate entities for health and sanitary improvements to housing units they own [...] and that are designed to provide housing for foreigners".(30) In France, new local government agreements established in 1993 take into account the needs of immigrant populations in the framework of programmes which are destined to improve the most disadvantaged districts.
492. A number of countries appear to make family reunification conditional also upon the migrant worker assuming financial responsibility for his or her dependants.
493. For example, Germany reported that family reunification is permitted when the migrant is "living legally in Germany [...] and can cover the needs of his or her family, as a result of his or her professional activity, his or her own resources, or by other means". Similarly, in Norway,(31) family reunification is permitted, inter alia, if the migrant can guarantee subsistence for family members, and in Switzerland family reunification can be refused if the worker's income is insufficient to cover the family's living expenses. Italy reports that migrants must be able to guarantee "an annual income from lawful sources no lower than the annual amount of social benefit for two or three family members, triple the annual amount of the social benefit for four or more family members to come".(32) In France, migrants must dispose of "stable and sufficient resources [and] insufficient resources cannot trigger a refusal if they are above the national minimum wage".(33) The evaluation of resources in this case is undertaken by the Office of International Migration.
494. The Committee notes with interest the comment made by one sending country, Pakistan, indicating that making family reunification conditional upon providing subsistence for family members had the effect that only migrants who "are highly qualified and highly skilled and are able to meet the expenditures incurred on their families in the country of employment from their salaries" will qualify for family reunification, while low-paid, low-skilled workers will not be able to meet such expenses.
495. A few States also lay down in law a number of other conditions upon which family reunification depends. In France, for example, new regulations mean that the primary migrant applying for family reunification must have entered the country legally, and in the case of polygamous marriages only the first spouse and his or her children are permitted to join the migrant.(34) Reunification of family members may also be refused if the presence of family members is a threat to public order, if they carry an illness which threatens the public order or if they live in France already.(35) In the United Kingdom reunification is only permitted to family members other than the spouse and children if no relatives in the home country could reasonably support the person.(36) It appears from the reports submitted that such conditions are widespread.
C. Visits to country of origin
496. Paragraph 17 of Recommendation No. 151 states that:
[...] when a migrant worker who has been employed for at least one year in a country of employment cannot be joined by his family in that country, he should be entitled: (a) to visit the country of residence of his family during the paid annual holiday to which he is entitled under the national law and practice of the country of employment without losing during the absence from that country any acquired rights or rights in course of acquisition and, particularly, without having his employment terminated or his right to residence in the country of employment withdrawn during that period; or (b) to be visited by his family for a period corresponding at least to the annual holiday with pay to which he is entitled.
Paragraph 18 of Recommendation No. 151 states further that "consideration should be given to the possibility of giving the migrant worker financial assistance towards the cost of the travel envisaged in the preceding Paragraph or a reduction in the normal cost of transport, for instance by the arrangement of group travel".
497. Of the sparse information which was supplied on these provisions, Ghana reports that "where the period of service to be stipulated in a re-engagement foreign contract, together with the period of service already served under the expired contract, involves the separation of the worker from his family for more than 18 months, the worker shall not begin the service stipulated in the re-engagement contract until he had had the opportunity to return home at the employer's expense".(37) A similarly worded provision can be found in the legislation of Belize.(38) While commending such a provision in principle, the Committee points out that the period specified in Recommendation No. 151 is 12 months.
498. New Zealand reports that while there are no restrictions on migrants travelling abroad to visit their families, if they are residents of New Zealand, they must be in possession of a returning resident's visa to re-enter the country. San Marino confirmed that migrants can leave the country during the period of annual leave without prejudice to the continuation of work or residency, as did Norway, on condition that the relevant permit does not expire during the period of absence. On the whole, no major difficulties are reported to have arisen for migrant-receiving countries in this respect.
499. In relation to subsidizing the travel costs of migrants' home visits, however, no countries reported undertaking any such measures, and San Marino and New Zealand reported that they did not do so. Given also that no countries provided information on this topic for the last General Survey, the Committee considers that this may be one provision which has not been applied to any significant extent in any migrant-receiving countries.
D. Consultation with employers' and workers' organizations
500. Paragraph 14 of Recommendation No. 151 encourages States to consult with employers' and workers' organizations during the formulation of policy relating to family reunification. No information was provided on this particular provision, although attention is drawn to the references to tripartite consultation in paragraphs 464-466.
Section III. Safety and health at the workplace
501. Paragraphs 20, 21 and 22 of Recommendation No. 151 relate to the protection of migrant workers from work-related accidents, and from special health risks, and to the provision of occupational health and safety training, in a language which the worker can understand.
A. Special health and safety risks
502. In the course of the preparatory work for Recommendation No. 151,(39) three types of special health risk to which migrant workers may be exposed were identified: (a) conditions already suffered from in the country of origin (especially forms of parasitosis); (b) disorders contracted in the country of employment where the migrant workers may have inadequate immunity to certain diseases; and (c) physical and psychological disorders peculiar to the process of adaptation to a new environment (particularly digestive disorders and neuroses).
503. Despite the fact that the changes which have occurred in the nature and extent of migration may have reduced the relevance of certain of these risks, the Committee considers that migrants may still be subject to occupational hazards and illnesses to which the national population is not subject. Migration specialists often describe typical migrant occupations as dirty, dangerous and often undertaken in degrading conditions, highlighting some of the causes of the special health risks to which they may be exposed. For example, migrants are frequently employed in seasonal agricultural occupations, or in factory work which national workers may be unwilling to perform due to the transient nature of the work, hazardous working conditions or low pay. The recruitment of migrant workers, and in particular those in an irregular situation, is often a means of reducing costs. For this reason, occupations which are primarily undertaken by migrant workers often do not attract large investments in health and safety at the workplace. The Committee notes that migrant workers are particularly vulnerable to industrial accidents and emphasizes the urgency of reinforcing safety and health mechanisms in such occupations. Also, the Committee notes that in many countries, migrants continue to be more likely to be victims of drug abuse and alcoholism. While the provisions relating to special health risks may no longer apply to many highly skilled or highly qualified migrant workers, the Committee considers that they are essential to protect adequately the most vulnerable groups of migrants.
504. The Committee noted above, in paragraphs 264-266, the disturbing phenomenon of testing potential immigrants for HIV and AIDS. As regards HIV/AIDS testing once the migrant worker is employed in the host country, the Committee recalls the guidelines relating to testing upon recruitment, or upon application for employment, as covered by the ILO/WHO Joint Declaration on AIDS and the Workplace, adopted in June 1988. In terms of preventative measures, migrant workers and members of their families, as well as national workers, ought to have access to informational and educational programmes on HIV/AIDS, as well as appropriate advisory and information services. In respect of special health risks to which the migrant population may be vulnerable, the Committee also takes note of the discussions of the 12th World AIDS Conference relating to migration and HIV/AIDS infection in June 1998, and considers that, while this issue is not of direct relevance to migrants for employment per se, action programmes aiming to provide information to concerned migrants may be appropriate.
505. Few governments provided information on preventive measures in relation to specific health risks which migrants may face at the workplace. Bahrain reported that "all preventative measures must be taken and security measures must be furnished to migrants without cost. They must be informed of the risks which their work entails, as well as the means of protecting themselves from such risks; all necessary precautions to ensure migrants' protection from accidents in the workplace and occupational illness must be taken to the same extent as for national workers".
506. The Committee notes with interest brochures provided by Finland directed at female migrants, explaining basic nutritional and dietary requirements for pregnant and breast feeding women, babies and young children.
1.
Measures to acquaint migrants with occupational
safety and health regulations
507. Few reports provided information on this subject. Of those which did, most did not report any significant difficulties in this respect. Some countries indicated that information on safety and health regulations was brought to migrants' attention prior to their arrival in the country of employment. For example, Bulgaria reported that employers are obliged to include in contracts with foreign workers, a clause on the rules of industrial hygiene and occupational health,(40) and Kyrgyzstan indicated that "the licensing authorities must, before an employment contract is signed, supply workers with appropriate information on [...] personal safety and health".(41)
508. Canada (Province of Ontario) reports that employers must "post in the workplace, a copy of [the Occupational Health and Safety Act] and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers with regard to occupational health and safety". In relation to training, the Government stated that "language requirements [...] are not explicit, but the Act states that the employer shall 'take every precaution reasonable in the circumstances for the protection of the worker'. Making sure migrant workers understand safety regulations and provisions can be considered a reasonable precaution." From other information supplied to the Committee, it appears that this may be the case in other countries as well. For example, the Czech Republic reported that "employers are obliged, within their sphere of authority [...] to acquaint employees with legal and other regulations and the safeguarding of safety at work, technical safety equipment and the protection of health at work which supplement their qualification prerequisites for the work, to test regularly their knowledge of these regulations and demands and check on their observance".(42) Again, while the language of instruction is not specified, it appears that in order to fulfil their obligations, employers would have to, where necessary, provide training in a language which the workers can understand.
509. Canada (Province of Nova Scotia) reported that "under the Trade Union Act this [provision of information in a language which the migrant can understand] would be problematic [...] the only language Nova Scotia Government agencies use consistently is English and there are no legislative requirements for employers to use other languages. To assume such a responsibility would involve major implications and costs". Japan also indicated that, while workers must be informed of health and safety regulations, employers are not obliged to provide such information in languages other than Japanese.(43)
510. Regarding penalties for violation of the provisions, which should, according to Paragraph 22 of Recommendation No. 151, include the imposition of administrative, civil and penal sanctions, only San Marino indicated that sanctions are applied regardless of whether the violations involved relate to foreign workers or to nationals; and Japan indicated similar provisions. It seems reasonable to conclude that where sanctions are specified for non-conformity with training and information provision on health and safety, sanctions are applied regardless of the nationality of the worker.
511. The provision of adequate health care to migrant workers and members of their families outside of employment is an area which is not addressed by either Convention No. 97 or Convention No. 143. The provision of medical services upon arrival in the host country has been discussed in paragraphs 56-66 above. Recommendation No. 86 in Paragraph 12 states that "in the case of migrants under government-sponsored arrangements for group transfer, medical assistance should be extended to such migrants in the same manner as provided for nationals", but no provision extends this access to other categories of migrant.
512. From the limited information available to the Committee on health care, in some countries, such as Croatia, the Netherlands and Trinidad and Tobago, migrants have equal access to health care services with nationals, as is the case in Australia, although on a full-cost recovery basis with regard to non-residents. Other countries, such as Israel, Japan and Saudi Arabia, report that it is the employer's responsibility to ensure adequate health care for migrant workers, although no reference is made to members of their families.(44) In the case of Sri Lanka, workers recruited for employment in the domestic sector in Kuwait, Saudi Arabia and the United Arab Emirates, the employer is obliged to provide medical care. A small number of countries, including Australia(45) and Croatia indicate that health care provision may also be regulated by bilateral or multilateral agreements. Canada (Province of Ontario) reported that health coverage is only extended to migrant workers who have employment authorization to work with a specific employer and in a specific occupation, which has been issued for at least six months. In relation to health care, the Committee notes with concern the passing of legislation in France to the effect that irregular migrants may no longer qualify for medical insurance.(46)
A. Functions of the social services
513. Recommendation No. 151 specifies that a social service should be twofold, assisting first migrant workers and members of their families and secondly, authorities and bodies with responsibilities relating to the conditions of life and work of migrant workers and their families.
1. Activities to assist migrant workers
514. Paragraph 24 of Recommendation No. 151 specifies that the activities of the social services should include assistance in adapting to their new environment; interpretation and translation services; assistance in complying with administrative and other formalities; assistance in making use of education, vocational and language training, health services, social security, housing, transport and recreation. Many activities provided in this regard have already been covered in paragraphs 267-276 dealing with information provision upon arrival in the country of employment.
515. A few countries, such as San Marino and Romania, reported that while their social services do not undertake any specific programmes relating to assisting migrant workers and members of their families, social services are available to all residents, regardless of nationality. Others, such as Portugal, reported that programmes were in place relating to all socially marginalized or vulnerable groups, which would, as appropriate, also include migrants.(47)
516. Several countries, however, reported specific programmes or activities addressing the social needs of migrants. In Italy, for example, the social services, on the local as well as the national level, address the problems in particular of non-EU residents by providing, inter alia, information to migrants on their rights and obligations under Italian law; ensuring access to vocational training for migrants; assisting migrants in finding accommodation; providing social assistance in relation to trade union membership, taxes and social security rights; and assisting migrants in cases of work-related accidents and in case of return to the country of origin.(48) Germany reported that social counselling services provide guidance to migrants and promote the use of "self-help" measures, give assistance with language handicaps and encourage young migrants to take vocational training courses and, in France, the Social Action Fund provides information and reception services to migrants, covering such issues as transport, translation and interpretation services, and housing. Australia indicated that the Department for Integration and Multicultural Affairs (DIMA) provides a national translating and interpretation service, 24 hours a day, seven days a week in over 100 languages.
2.
Activities to assist authorities and other
bodies which deal with migrant workers
517. Paragraph 24 of Recommendation No. 151 also specifies that social services should assist public authorities and other bodies which deal with migrants. In this respect, activities should include: identifying migrants' needs and in adapting thereto; giving the competent authorities information and advice relating to the formulation, implementation and evaluation of social policy with respect to migrant workers; and providing information to employers and fellow workers about the situation and potential problems of migrant workers.
518. In many major migrant receiving countries, mechanisms appear to be in place which act as a liaison service between migrant communities and the national authorities. As a rule, these bodies also provide advice to the Government on formulation and implementation of social policy on migration and in some cases can make suggestions for the improvement of related legislation. To take a small number of examples, in Norway, a liaison committee was established in 1984 to act as a link between migrants and the national authorities. The Forum for Multi-Cultural Norway is an ad hoc body which advises the Government on pressing issues relating to migration. The members of this Forum are NGOs and the social partners. In the United Kingdom, the Commission for Racial Equality advises and provides information to the Government on issues relating to social problems of migrants, and in Denmark, the Board for Ethnic Equality advises the Government on improvements to law and practice in relation to migrant workers and members of their families. It appears that in most major migrant-receiving countries, such mechanisms are commonplace, although lack of detailed information prevents the Committee from drawing more general conclusions on this matter.
B. Organization of social services
519. The instruments provide that social services can be provided in a number of ways. Paragraph 25 of Recommendation No. 151 states that they can be provided by "public authorities, by approved non-profit-making organizations or bodies, or by a combination of both", with the corollary that "the public authorities should have the overall responsibility of ensuring that these social services are at the disposal of migrant workers and their families". The following examples illustrate the diverse means by which States provide social services.
520. Germany, for example, reported that "with the Länder, the Minister of Labour and Social Affairs supports a special advice service in the social field, to foreign workers and members of their families [...] the re-enforcement of the interpenetration of the various social services and social advice to foreigners is considered to be an important task". The Government also indicated the existence of around 600 counselling offices maintained by voluntary organizations, mostly staffed by individuals who originate from the home countries of foreign workers. In France, a policy of decentralization has been adopted to provide specialized social services for immigrants on a regional level.
521. Examples of countries using both public authorities and non-governmental associations, include Switzerland which reported that:
[...] the Federal Aliens Office has published [...] recommendation[s] for the use of local authorities [...] these recommendations invite towns and large communities to elect an "integration delegate" who does not belong to the executive, to establish an assistance service for foreigners and to create a consultative organ permitting foreigners to defend their rights and interests to the competent authorities [...] the assistance services for foreigners are public or private organizations called "working communities" (there are some 50 organizations spread throughout practically all cantons).
In France, the Social Action Fund, which assists both migrants and the relevant authorities in coping with migration-related problems, consists of representatives of the Government, the social partners and NGOs.
C. Cooperation and coordination between social services
522. Paragraphs 27 and 28 of Recommendation No. 151 specify that Members should ensure cooperation and coordination between different social services, and should organize and encourage regular meetings on the local, national or regional levels with social services of other sending and receiving countries to exchange information and experiences. No countries provided information on this topic, although the Committee notes with interest the report of Italy, which indicates that the social services are mandated to ensure that information is channelled to the diplomatic and consular missions of major sending countries.
D. Consultation with employers' and workers' associations
523. Paragraph 29 of Recommendation No. 151 states that Members should cooperate with employers' and workers' organizations in respect of the provision of social services to migrants and members of their families. Again, very little specific information was provided on this aspect.
524. On a general level, Switzerland reports that it regularly cooperates with the social partners, as well as relevant organizations of migrants, on all aspects of migration. San Marino reported that the social partners supported many activities relating to programmes and activities relating to migrants, and Portugal also reported regular cooperation with the social partners and other relevant organizations. In the case of Luxembourg, such collaboration takes the form of the National Employment Commission as well as the Commissariat for Foreigners and the National Council for Foreigners. In contrast, Estonia reported that "representatives of workers and employers are not involved in activities provided by Convention No. 143".
525. Paragraph 10 of Recommendation No. 86 states that "Migration should be facilitated by such measures as may be appropriate -- (e) to provide access to schools for migrants and members of their families". The importance of this provision was underlined by the report from France which stated that "education plays a major role in the integration of migrant children and teenagers".(49)
526. Many countries do not appear to have encountered any problems with this provision, and allow migrants and members of their families unrestricted access to public schooling. To take some typical examples, Bahrain and San Marino report that family members have the right to access to schools and colleges on the same basis as nationals. In the latter case, compulsory schooling to the age of 16 is provided to all children free of charge, regardless of nationality. In Italy, foreign children are subject to compulsory education, and "all the provisions in force concerning the right to education, access to education services and participation in the life of the school community shall apply to them".(50) In the United Arab Emirates, foreign nationals have access to the national education system, which is compulsory in the elementary stage, and free for all in every stage. In the Syrian Arab Republic, children of migrant workers have the same right to access to schools under the same conditions as nationals. The Committee notes the report of the Falkland Islands (Malvinas) which states that while schooling is not available to any resident beyond the age of 11, the Government pays for any child who has reached that age to complete his or her studies in the United Kingdom, including, where required, tertiary education. This provision applies equally to the children of non-nationals employed in the public sector.
527. Canada (Province of Ontario) reported that immigrant children, if accepted by a school board to enrol at a school "must be charged fees",(51) while Canadian children resident in the province enjoy these services for free or at a reduced rate. In New Zealand, immigrant children have access to schools on the condition that in doing so they do not jeopardize access by national children.(52)
528. Few countries reported on access to education for migrants themselves, though Canada (Province of Ontario) reports that "migrant workers are able to access vocational programmes through private vocational schools [...] as well as programmes in colleges of applied arts and technology and universities".
529. As has been pointed out earlier, Convention No. 97 and Recommendation No. 86 do not relate directly to migrants with an irregular status in the country of employment. However, the Committee draws attention to the fact that, given the extent of irregular migration, large numbers of migrants' children currently find themselves in an irregular situation. In respect of access to education, the Committee recalls the Universal Declaration of Human Rights, which states in Article 26(1) that "everyone has the right to education" as well as Article 28(1)(a) of the Convention on the Rights of the Child (1989)(53) which has 191 States parties. The UNESCO Convention Against Discrimination in Education (1960) should also be noted. A few examples of how countries have addressed the problem of irregular status migrant children may prove useful.
530. Canada (Province of Ontario), reports that school boards are not permitted to refuse to admit migrant children to elementary or secondary schools because their parents or guardians are illegally in the country. Similar provisions are in place in Switzerland, where, in addition, schools are under no obligation to inform the authorities of the legal status or address of foreign children or their parents. On the other hand, in Norway the contrary obligation pertains, whereby schools must inform the authorities of migrant children suspected of having entered or resided in the country illegally. The Committee notes such practices with concern, including the adoption of the so-called Gallegly Amendment in the United States (California) in 1996, which attempted to discourage irregular immigration by barring children of undocumented migrants from state-funded education (from kindergarten to university).(54)
B. Recognition of qualifications obtained abroad
531. One prerequisite to being capable of competing with nationals in accessing employment is to have qualifications which are recognized in the country of employment. Article 14 of Convention No. 143 states that "a Member may -- (b) after appropriate consultation with the representative organizations of employers and workers, make regulations concerning recognition of occupational qualifications acquired outside its territory, including certificates and diplomas". The same provision is contained in Paragraph 6 of Recommendation No. 151.
532. The recognition of vocational and academic qualifications gained abroad does not appear to be approached consistently by all States. Of the few which provided information on this subject, in Norway, the Ministry of Education, Research and Church Affairs is currently drafting new guidelines on the recognition of work experience gained abroad following a survey of recruitment practices in trade and industry in 1992. The Government also reports that "vocational testing will be established for those who have trained in upper secondary school but do not have a certificate". In Italy, new legislation on immigration and social policy provides that "within the framework of a national integration programme, and on the basis of agreements with local and regional authorities, educational institutions must promote [...] study tracks leading to the compulsory education certificate or the upper secondary school diploma which would take account of education obtained in the country of origin [and] criteria for the recognition of qualifications obtained in the country of origin, in order to facilitate integration into the school system".(55) In Australia, the Federal Department of Workplace Relations and Small Business provides national recognition in metal and electrical trades for permanent residents and skills assessment in most trades for people applying to migrate to Australia. The state governments also provide assistance with skills recognition, such as the Overseas Qualifications Unit in the Victoria Department of State Development, which operates under the coordinating umbrella of the National Office of Overseas Skills Recognition, which is part of the Department of Employment, Education, Training and Youth Affairs. New Zealand reports that the New Zealand Qualifications Authority has responsibility for assessing overseas qualifications for their equivalence to those gained in New Zealand. In addition, New Zealand legislation requires the registration of people wishing to practice certain professions, e.g. doctors, and the Government reports that "human rights jurisprudence establishes that qualifying bodies must have procedures in place for assessing overseas qualifications". In Israel, the Ministry of Labour appoints "trade committees" which oversee the recognition of skills obtained abroad, and issue trade certificates, which are a prerequisite for registration at the National Employment Bureau.
533. The Committee notes with interest recent developments in South Africa whereby a judge of the High Court of Pretoria dismissed a previous legal opinion of the Human Rights Committee which had ruled that although doctors from abroad were being discriminated against (on the grounds of nationality) in terms of being permitted to practice in the private sector, this discrimination was justifiable under the Constitution. In his recent ruling, the judge stated that "citizenship can never be a criterion for assessing the professional competence of an individual".
534. A small number of States reported that qualifications were recognized on the basis of bilateral or multilateral agreements. For example, in Jamaica, the Caribbean Community (Free Movement) of Skilled Persons Act specifies that certain categories of qualified persons do not require a visa to enter any of the Caribbean Community States (CARICOM). Qualifications are evaluated by the University Council of Jamaica. Slovakia reports that the recognition of qualifications is regulated by bilateral agreements, although details of these agreements were not given.
535. With respect to problems which were reported, in the case of Canada (Province of Ontario), according to the Ministry of Citizenship, Culture and Recreation, "if temporary workers want to have their academic qualifications or professional accreditation assessed in Ontario, they would have to use the same fee-for-service means as a prospective immigrant or person migrating from another province. Acquiring these assessments is the responsibility of the worker". In the case of Canada (Province of Nova Scotia), the Government stated that this may prove an obstacle to implementation, stating that "it may be difficult to give full value to the qualifications earned in another country". Estonia reported that recognition of qualifications is not currently regulated by national legislation, although the Government indicated that this will change when the country joins the European Union.
536. To conclude, the Committee is of the opinion that recognition of qualifications obtained abroad is one area in which significant changes to national policy and practice are in order, to ensure that regular entry migrant workers can access employment on equal terms with national workers.
Section VI. Cultural aspects of social policy
537. Learning the language of the host country is essential to ensuring that migrant workers and members of their families make a smooth transition to the country of employment, and are not marginalized either in the workplace or in society at large. Competence in the host country language may be of particular importance for the spouse and children of a migrant worker who may not work or yet attend school.
538. Paragraph 7 of Recommendation No. 151 states that Members, after consultation with employers' and workers' organizations, should take the necessary measures to ensure that migrant workers and their families are able to learn the language of the host country, "as far as possible during paid time".
539. In Germany, the Ministry of Labour and Social Affairs supports the teaching of the German language to migrant workers through the intermediary of the association "German for Foreign Workers", and in particular the Government reports that "courses taking account of occupational needs are becoming more and more important". Since the establishment of this society in 1974, over 1.2 million foreigners have benefited from such courses in Germany, and the Committee notes with interest that some of these courses specifically take into account the needs of migrant women and girls, and couple language training with preparation for vocational training. Other examples include San Marino, where "each year, the State promotes and organizes Italian and foreign language courses to assist foreign and local citizens in their everyday work and social exchanges". In Italy, schools and institutions must provide courses and events in the Italian language for the benefit of non-Italian speakers.(56) Finland reports that "the Government intends to increase services that promote the integration of migrants. The Government aims to give all adult migrants in need of language training, etc., a chance to participate both in [...] education offering them orientation into Finnish society and working life, and basic and complementary vocational training". In the United Kingdom, section 35 of the Race Relations Act (1976) permits differential treatment in favour of members of particular groups in order to meet special educational, training or welfare needs which they may have. The Government reports that "this provision has been used to provide English courses for speakers of other languages".
540. The Committee notes the report of Belgium, which indicates that the German-speaking community has organized for the past several years, a programme entitled "integration for all through reading and writing" which is directed at socially marginalized groups, among them migrants and members of their families -- aiming to improve their ability to read and write in German and to give a basic knowledge of both French and German.
541. In Australia, the Special Broadcasting Service (SBS), a statutory corporation, produces a television series entitled "English at Work", and in Canada (Province of Quebec), "immigrants who live in Quebec and who cannot demonstrate, according to evaluation procedure regulations, a sufficient knowledge of French to enable them to integrate harmoniously into the French-speaking majority community in Quebec and who satisfy certain other conditions specified in law, are eligible for linguistic integration services".
542. The Committee notes with interest the report of Norway, which states that "hitherto, immigrants [...] have been offered 500 hours of tuition in the Norwegian language including basic information about the Norwegian society. The offer will now be extended, so that the participants may receive tuition until they have attained a specific level of proficiency in Norwegian".
543. Of the countries which reported problems with this provision, the Falkland Islands (Malvinas) reported that "migrant workers in the Falkland Islands are almost exclusively from English-speaking backgrounds. Given the very small population of the Falkland Islands, there is not the financial or manpower resources at the present time to enable the country to cope with a large influx of non-English-speaking migrants". However, the Government also reports that English as a foreign language classes are given outside working hours for non-native speakers. The Committee also notes that, according to brochures designed for the use of prospective migrants to New Zealand, in order to migrate "at least one member of the family who is over 17 must be able to read, understand and respond to questions and conduct a conversation in English about yourself, your family and your background", and considers that such a provision may be out of keeping with the spirit of the instruments, which deal with language tuition after arrival, rather than as a condition for entry.
544. The Committee has not received any reports which indicate that language classes take place during paid working hours, as specified in Recommendation No. 151.
B. Awareness-raising programmes
545. Article 12(c) of Convention No. 143 stipulates that Members should "take measures, encourage educational programmes and develop other activities aimed at acquainting migrant workers as fully as possible with the [social] policy, with their rights and obligations and with activities designed to give effective assistance to migrant workers in the exercise of their rights and for their protection".
546. Few receiving countries reported instigating such measures under this provision. With specific reference to this provision, the Falkland Islands (Malvinas), for example, reported that relevant legislation is brought to the attention of each migrant worker, although the Government is of the opinion that "it is the responsibility of the employer to take measures to acquaint migrant workers as fully as possible with government policy and law". In Ghana, the Government reports that "summaries of laws relating to contracts shall be provided to employers and workers concerned [which] shall be posted in conspicuous places on the premises of the employer for the information of the employees".
547. The Committee notes with interest the initiatives taken by a small number of migrant sending States to ensure their nationals are informed of policy and practice in countries of employment. In Tunisia, for example, the Direction of Emigration and Labour is mandated to maintain an information service for the use of Tunisians abroad. In the Philippines, the Department of Foreign Affairs is mandated to "undertake the necessary initiative such as [...] an assessment of rights and avenues of redress [...] that are available to Filipino migrant workers who are victims of abuse and violation [...] if a complaints machinery is available under international or regional systems, the Department of Foreign Affairs shall fully apprise the Filipino migrant workers of the existence and effectiveness of such legal options".
548. Morocco which reported that "there does not exist, either in legislation or in practice, measures giving effect to Article 12 of Convention No. 143, in particular concerning the establishment of educational programmes and the development of activities to ensure migrants have effective assistance to protect and allow them to exercise their rights", and stated that it considers this a barrier to ratification.
C. Preservation of migrants' cultural identity
549. Article 12 of Convention No. 143 stipulates that "each Member shall, by methods appropriate to national conditions and practice -- (f) take all steps to assist and encourage the efforts of migrant workers and their families to preserve their national and ethnic identity and their cultural ties with their country of origin, including the possibility for children to be given some knowledge of their mother tongue". Paragraph 7(c) of Recommendation No. 151 supplements this provision.
550. The Committee notes with interest the large amount of information which was provided on this topic, and the variety of initiatives which have been taken to encourage the preservation of national and cultural identity.
1. Preservation of national and ethnic identity
551. Most governments do not report any problems with the implementation of these provisions. For example, the Falkland Islands (Malvinas) reported that "the preservation of national and cultural identities of migrant workers is encouraged, although no specific programmes are in place". Slovakia reports that it "creates specific space for the support of migrating workers in sustaining their national and ethnic identity, for creating cultural links with countries of origin, including the possibilities of affording knowledge of their maternal language". Lebanon reported that "freedom of the individual and of the group as well as the cultural rights of migrant workers are guaranteed according to current legislation".
552. Sweden disseminates financial support to national organizations of migrants. In Belgium the German-speaking region reports organizing on a regular basis festivities for Spanish migrant workers, aiming to create links between the national population and the migrants. The profits from such activities go towards Spanish organizations who organize cultural events and language classes for Spanish children. In Viet Nam, migrant workers are permitted an additional holiday on their national day with full pay. In 1987, the Philippines established an Office on Muslim Affairs(57) which aims to ensure "the rights and well-being of Muslim Filipinos with due regard to their beliefs, customs, traditions and institutions, as well as to further ensure their contribution to national goals".
553. Finland indicated that, according to section 14(3) of the Constitutional Act, minority groups have the right to maintain and develop their own language and culture. The Constitution of Slovenia states that "all persons have the right freely to express affiliation to his nationality or national community, to nurture and express his/her culture and to use his/her language and script".(58) Although few reports provided such information, supervision of many such international instruments as the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111), or the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), indicate that a number of ratifying countries have such provisions in their Constitutions or general legislation relating to human rights.
554. The Committee notes with interest a number of initiatives taken by sending countries to encourage links with nationals abroad. For example, the Hassan II Foundation in Morocco, aims to open and maintain links between Moroccans resident abroad and their homeland, and to help them overcome any difficulties relating to emigration. The Foundation also contributes towards the teaching of the Arabic language, culture and religious instruction for Moroccans abroad, and supplies material to Moroccan organizations and schools abroad. It also organizes holiday camps in Morocco. Similar initiatives have been taken in Tunisia. In Pakistan, a Welfare Fund has been established(59) which is dedicated to the social and economic welfare of nationals abroad, which can be used for the establishment of vocational training institutions, educational institutions and the establishment and management of or investment in commercial, industrial or service enterprises.
555. The Committee notes two reports which appear to indicate that the right to practice cultural and ethnic traditions depends to a certain extent upon demonstrating a reciprocal commitment to the host country. For example, Bahrain reports that it "authorizes foreigners to create clubs and private schools and to establish places of worship, such as churches and mosques [and recognizes] the language, religion, belief and traditions of foreign workers, within the limits given by Islamic law (the sharia) and by public order". Australia reports that "it is the basic right of all Australians, whatever their background, within the framework of an overriding and unifying commitment to Australia, to preserve, celebrate and share their cultural traditions".
556. Few countries reported initiatives to ensure that migrant children receive teaching in their mother tongue, although the majority of reports which provided information on this subject indicated that such teaching was encouraged. Sweden in its policy statement, states that "children whose native language is not Swedish should be encouraged to develop that language alongside learning Swedish". Italy indicated a provision in its new law which states "the school community shall receive the various languages and cultural differences as a value providing the basis for mutual respect, an exchange of cultures and tolerance; to that end it should promote and facilitate initiatives designed to bring about acceptance, care for the culture and language or origin and holding of joint cultural events". Germany reported that, where necessary, migrant students were provided with mother-tongue teaching as well as assistance with homework. Norway indicated that mother-tongue teaching is providing when there are at least four immigrant children with the same language background at kindergarten. The Committee notes with interest a brochure received from Finland on child care in Finland, for the benefit of migrants, which stresses the benefits of bilingualism for migrant children, and encouraging the parents of such children to speak to them in their mother tongue.
D. Recreational and welfare facilities
557. Paragraph 11 of Recommendation No. 86 provides that migrants and their families should have access to recreational and welfare facilities. In this respect, little information was provided, although it may be reasonable to conclude, as with the case of access to education, this does not tend to provoke major difficulties for regular entry migrant workers and their families in most countries. The Committee draws attention to but one example, that of Finland, which reported providing information specifically directed to female migrants and encouraging them to participate in local recreational facilities.
558. To conclude, the Committee notes that, given the fact that most of the provisions which have been discussed in this chapter are included in Recommendations Nos. 86 and 151, they should not in themselves constitute a barrier to ratification of the Conventions, although some member States have reported difficulties in ensuring their application in practice. In relation to section I of this chapter, States do not report any major difficulties arising from the formulation and implementation of social policy in relation to migrant workers, and the Committee notes the variety of approaches which have been taken to this issue in practice. In section II, the Committee noted that while few difficulties appear to have arisen for most States in relation to facilitating family reunification for permanent migrants, extension of such a right to temporary migrants appears to be much less widely applied, although it should be noted that in neither case does an obligation stem from the instruments being discussed in this survey. Where family reunification is not possible, no States reported undertaking measures to assist migrants to visit their families in the country of origin, as encouraged by the instruments. In relation to section III, the Committee concluded that one issue which is not addressed by the instruments but which appears to significantly affect the lives of migrant workers and members of their families is access to adequate health care in the country of employment. Finally, from section V it appears that the recognition of qualifications obtained abroad is far from universally guaranteed, which may create initial barriers to workers in their attempt to enter the labour market in a country other than their own.
1. For an overview of the evolution of social policy relative to migration in a number of major, migrant-receiving countries, see Stalker, op. cit., pp. 72-75. See also International migration policies, op. cit., pp. 45-64.
2. The objectives of this agency are: "(a) to integrate foreign workers and their families, especially those originating from the former countries of recruitment; (b) to limit further entries from States other than those of the European Community; and (c) to provide assistance towards the voluntary repatriation of foreign workers and members of their families and towards their reintegration in their home countries".
3. Stalker, op. cit., p. 72.
4. See the Framework Agreement of 22 Nov. 1993 between the Ministers of Social Affairs, Health and Urban Affairs and the Social Action Foundation for Migrant Workers and Their Families.
5. s. 3(1) of Act No. 40, op. cit.
6. Since 1985 the Directorate for Immigration has been responsible for implementing these policies.
7. In Germany the Federal Government Delegate for the Integration of Foreign Workers and Members of Their Families was created in 1978.
8. ss. 3(1) and 44(1), respectively, of Act No. 40, op. cit.
9. By Decree No. 93-290 of 5 Mar. 1993.
10. See footnote 19 in the Introduction.
11. Information on the formulation of migration policy in South Africa can be found at the Government's Internet site.
12. s. 36(4) of Act No. 40, op. cit.
13. ILO: Migrant workers, Report VII(1), International Labour Conference, 59th Session, Geneva, June 1974, p. 27.
14. Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration, op. cit., Annex I, para. 6.1.
15. For information on family reunification policies and practice relating to traditional migrant-receiving States, see Secretariat of the Inter-Governmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia: Report on family reunification: Overview of policies and practices in IGC participating States (Geneva, IGC, Mar. 1997).
16. Quote taken from Ministry of Local Government and Labour, Department of Immigration and Refugee Affairs: Current issues relating to Norwegian migration policy and the integration of migrants (Oslo, 1994), p. 1.
17. Emphasis added. Even the United Nations far-reaching Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families only stipulates that ratifying States should "take measures that they deem appropriate and that fall within their competence to facilitate [...] reunification".
18. Report of the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration, op. cit., Annex I, para. 6.1.
19. s. 29 of Law No. 93-1027 of 24 Aug. 1993 concerning Immigration Control and Conditions of Entry, Reception and Residence of Foreigners in France.
20. 1980 General Survey, para. 431. See also Böhning, op. cit., p. 77.
21. s. 29 of Law No. 93-1027, op. cit. In cases where the other parent has died or has abandoned his or her parental responsibilities, children from previous relationships may also be included.
22. Under "exceptional circumstances" children over the age of 18, parents over the age of 65, uncles, aunts, brothers and sisters who are mainly dependent on the migrant may be granted entry to the United Kingdom.
23. s. 27 of Act No. 40, op. cit.
24. s. 23 of the Immigration Regulations, 1 Jan. 1991.
25. Migration Regulations (Amendment) (No. 92) of 1997.
26. 1980 General Survey, para. 422.
27. Böhning, op. cit., p. 76.
28. s. 27(3) of Act No. 40, op. cit.
29. s. 29 of Law No. 93-1027, op. cit.
30. s. 38(1) of Act No. 40, op. cit.
31. s. 22 of the Immigration Regulations, 1 Jan. 1991.
32. s. 27(3) of Act No. 40, op. cit.
33. s. 29 of Act No. 93-1027, op. cit.
34. Act of 11 May 1998, op. cit.
35. s. 29 of Act No. 93-1027, op. cit.
36. s. 56 of the Immigration Act, 1971, as amended on 8 July 1989.
37. s. 25(1) and (2) of Labour Decree, 1967.
38. s. 60(2) of Labour Ordinance (No. 15), 1959.
39. ILC, 59th Session, Geneva, 1974, Report VII(1), p. 33.
40. s. 29 of the Foreign Investments Act.
41. s. 24 of the Licensing Act Regarding the Job Placement of Kyrgyz Nationals in Employment Abroad, 1997.
42. s. 133(1)(f) of Act No. 65/1965.
43. Recognizing this discrepancy, the Ministry of Labour has commissioned the Japan Industrial Injury Prevention Association to prepare supplementary information in Chinese, English, Portuguese and Spanish.
44. In this regard, the Committee has requested the Government of the United Republic of Tanzania (Zanzibar) on several occasions since 1964 to make the necessary changes in legislation to ensure that members of migrant workers' families are also covered in case of illness.
45. Bilateral agreements exist with Finland, Italy, Malta, Netherlands, New Zealand, Sweden and the United Kingdom.
46. Act No. 93-1027, op. cit.
47. In Portugal, such programmes focus upon the elimination of poverty and social integration for those living on or below the poverty line.
48. Act No. 943/86.
49. For mother-tongue teaching, see para. 556.
50. s. 36(1) of Act No. 40, op. cit.
51. s. 49(6) of the Education Act.
52. s. 4(3A) of Education Act, as amended, No. 156 of 1989.
53. "States parties recognize the right of the child to education and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) make primary education compulsory, available and free to all."
54. See International migration policies, op. cit., p. 227.
55. ss. 36(5)(c) and 6(b) of Act No. 40, op. cit.
56. s. 36(5)(d) of Act No. 40, op. cit.
57. Executive Order No. 122-A creating the Office on Muslim Affairs, 27 Apr. 1987.
58. s. 61 of the Constitutional Act of 23 Dec. 1991.
59. Emigration Act, 1979.
Updated by HK. Approved by RH. Last update: 26 January 2000.