Geneva, June 1999
Report III (1B)
Employment, residence and return
559. The instruments under consideration in this survey guarantee migrant workers' rights relating to the extent to which they should be allowed to continue to reside in the receiving country beyond periods of actual employment, and rights relating to their possible return to the country of origin. On the whole, these provisions are for application principally within the jurisdiction of receiving countries, although certain rights relating to return and reintegration also create obligations for the sending country.
560. Summarizing the various provisions relating to employment, residence and return, guidelines adopted by the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration in April 1997 included a recommendation to the effect that:
Migrant workers and members of their families should not be subject to measures of arbitrary expulsion. Migrants who are the objects of an expulsion order should enjoy due process of law in respect of the expulsion procedure. They should further have the right to claim unpaid wages, salaries, fees or other entitlements due to them.
561. Paragraph 34 of Recommendation No. 151 provides for certain guarantees to migrant workers who leave the country of employment, regardless of the legality of their stay or employment in the host country. The rights of migrants in an irregular situation have been discussed in more detail in paragraphs 302-309, and rights relating to social security benefits for regular entry migrants were addressed in paragraphs 430-435. This section is accordingly limited to dealing with the additional rights of both regular and irregular migrants upon their departure from the host country.
562. Paragraph 34(1) of Recommendation
No. 151 states that a migrant worker who leaves the country of employment
should be entitled, "irrespective of the legality of his stay therein --
(b) to benefits which may be due in respect of any employment injury suffered".
As stated in the 1980 General Survey on migrant workers,(1)
employment injury insurance or workers' compensation schemes do not always provide
for payment of benefits to an individual residing abroad, as required by this
provision. Several governments have, however, indicated that this lacuna is
filled in practically all cases by bilateral agreements.
563. Migrant workers, irrespective of the legality of their
stay, are also entitled, according to Paragraph 34 of Recommendation No. 151,
"(c) in accordance with national practice -- (i) to compensation in lieu
of any holiday entitlement acquired but not used". No reports indicated
either problems or measures taken in this regard, although in the case of regular-status
migrant workers, equality of treatment in this regard is likely to be addressed
through general labour legislation. However, the Committee takes note of resolution No. 7
of the Fifth Asian-Pacific Regional Conference of the International Federation
of Building and Wood Workers, 1995, which drew attention to the delayed payment
of wages and non-payment for overtime and rest days for migrant workers in the
564. In accordance with the same Paragraph, migrant workers are also entitled "(c) in accordance with national practice -- (ii) to reimbursement of any social security contributions which have not given and will not give rise to rights under national laws or regulations or international arrangements: provided that where social security contributions do not permit entitlement to benefits, every effort should be made with a view to the conclusion of bilateral or multilateral agreements to protect the rights of migrants".
565. Indicating difficulties in implementation, the United
Kingdom reported that benefit supplements are only payable abroad as specified
under bilateral agreements and that social security contributions are not reimbursed
where they do not give rise to benefits.
566. Article 7(1)(e) of Annex II to Convention
No. 97 obliges States to facilitate the migration process by ensuring that
migrants for permanent settlement are permitted to liquidate and transfer their
property from the home country to the country of employment. Paragraph 10(d)
No. 86 also stipulates that migrants for permanent settlement should be
permitted to transfer capital from the home country to the host country. This
Paragraph takes account of national variation in that it states that such transfers
should occur "within the limits allowed by national laws and regulations
concerning export and import of currency". With the exception of Slovakia,
which stated that the provisions of Article 7 "do not harmonize with national
legislation", no governments provided information allowing the Committee
to evaluate the application of these provisions.
567. Article 9 of Convention No. 97 states that "each Member for which this Convention is in force undertakes to permit, taking into account the limits allowed by national laws and regulations concerning export and import of currency, the transfer of such part of the earnings and savings of the migrant for employment as the migrant may desire".
568. The global flow of remittances through official channels was recently estimated by the World Bank to amount to some US$71 billion.(2) Reaching almost two-thirds of the value of official development assistance, this has been recognized as "a major form of transfer of resources" from industrialized to developing countries.(3) Clearly, remittances play a significant role in transferring capital from receiving to sending countries and, given that this transfer is also connected to such issues as family reunification, length of stay, socio-economic integration and so on, the notion of remittances has aroused a certain amount of debate. In the preparatory discussions for the drafting of Convention No. 97 it was stated that: "as long as a migrant has no security of domicile in the country of immigration, he will, in order to secure his bridges, want to send more and more important sums by way of savings home to the country of origin, and this does, of course, as is widely recognized, create difficult problems for the Government concerned".(4)
569. Several governments which provided information on this subject to the Committee, including Bahrain, Belize, Germany, Israel, Oman, Saudi Arabia and the Falkland Islands (Malvinas), reported that migrants are free to transfer any amount of savings or earnings to their home country. Some countries, such as the Czech Republic,(5) Malaysia(6) and Antigua and Barbuda,(7) have established limits on the amount which can be transferred without declaration to the authorities, while others such as Cyprus,(8) Kenya,(9) Malawi(10) and Tunisia(11) fix parameters according to a percentage of the migrant's salary or savings. Portugal reported that regulations concerning the transfer of capital are the same for nationals and non-nationals. Although such a policy may appear justified on the principle of equal treatment, the Committee, however, points out that non-nationals supporting a family in another country are likely to be more affected by legislation on this subject that their national counterparts, and thus may be, in this regard, detrimentally affected by provisions which treat the two groups as identical.
570. Mauritius reported that migrants are free to transfer any amount of earnings or savings on the condition that they are in possession of a work permit. Bearing in mind that the definition of "migrant for employment" as given in Convention No. 97 applies only to regularly admitted migrants for employment, this would appear to be in conformity with the Convention. Some countries appear to differentiate between transfer of currency of migrants for permanent settlement and those for temporary stay. For example, Grenada reported that no legal provisions exist with regard to remittances, as there are no migrants for permanent settlement in the territory, and other countries, such as the Czech Republic(12) and Kenya(13) reported differential limits for capital transfer depending upon length of stay. In this regard, the Committee recalls that, unless explicitly stated in the instruments, no distinctions between migrants on the basis of their length of stay are permitted and Article 9 of Convention No. 97 applies to all migrants for employment regardless of the length of their stay. Thus, regulations which distinguish between capital transfer of short-term migrants and that of long-term or permanent migrants may not be in conformity with this Article.
571. The Committee notes the establishment of the Overseas Workers' Investment Fund in the Philippines, which aims to provide incentives to overseas nationals to participate in official remittance schemes and to reduce the foreign debt burden,(14) as well as Sri Lankan legislation to the effect that all citizens of Sri Lanka employed abroad are obliged to remit a part of their earnings in foreign exchange.(15) According to legislation in Viet Nam,(16) nationals working abroad for a limited period of time are required to pay 30 per cent of their earnings to the Government. The Committee considers that such a policy is contrary to the spirit, if not the letter, of Article 9 of Convention No. 97.(17) The Committee notes the proposal made in South Africa's White Paper on Immigration that compulsory remittances will be phased out within five years.
572. Article 10 of Annex II to Convention No. 97 stipulates that "if the competent authority of the territory of immigration considers that the employment for which a migrant for employment was recruited [...] has been found to be unsuitable, it shall take appropriate measures to assist him in finding suitable employment which does not prejudice national workers and shall take such steps as will ensure his maintenance pending placing in such employment, or his return to the area of recruitment if the migrant is willing or agreed to such return at the time of his recruitment, or his resettlement elsewhere."
573. Slovakia reported that bilateral agreements on the mutual employment of migrants stipulate that when the migrant's employment relationship is terminated for any reason which is beyond his or her control, the recruiting body shall endeavour to find other appropriate employment. Lebanon, on the other hand, reported that no such measures were in place, and that the Government was not prepared to undertake the financial implications of ensuring employment or maintenance to migrants in such a situation. Limited information on this provision prevented the Committee from evaluating its application on a broader scale.
574. Paragraph 32 of Recommendation No. 151 provides that a migrant worker who has lodged an appeal against the termination of his or her employment should be allowed sufficient time to obtain a final decision. If the court rules that the employment was unjustly terminated, the migrant should be entitled to the same remedies as national workers in a comparable situation, as well as sufficient time to find alternative employment if reinstatement is not an available remedy.
575. Few governments included information on this aspect of the instruments in their reports. In effect, the problem which migrant workers face in practice is not the inability to use the same redress mechanisms as nationals and to benefit from the same rights in this regard, but rather the inability to obtain an extension of his or her residency while waiting for the judicial decision. Thus, the Falkland Islands (Malvinas) reported that migrants finding themselves in such a situation are allowed sufficient time to obtain a ruling on the condition that their residence permit does not expire during that period. It appears, therefore, that in such a case the migrant has no guarantee of being allowed to remain in the country until he or she obtains a ruling, as suggested in the Recommendation. On the whole, the information supplied to the Committee was not sufficient to enable it to evaluate the implementation of these provisions in practice, although, in general, it appears that the availability of the same remedies as nationals is addressed by equal treatment in the application of labour and other relevant legislation as discussed in paragraph 447 above.
576. The instruments contain several provisions relating to the extent to which migrants who lose their employment should be permitted to continue to reside in the host country and the rights which should be granted to them during this time.
577. Article 8 of Convention No. 143, states that "(1) On condition that he has resided legally in the territory for the purposes of employment, the migrant worker shall not be regarded as in an illegal or irregular situation by the mere fact of the loss of his employment, which shall not in itself imply the withdrawal of his authorization of residence or, as the case may be, work permit".
578. Paragraph 30 of Recommendation No. 151 states that regularly admitted migrants ought not be expelled on the grounds of their lack of means or the state of the employment market and the loss of employment should not, in itself, imply the withdrawal of residency permission. Paragraph 31 of the same Recommendation stipulates that migrants who lose their employment should be allowed "sufficient time to find alternative employment, at least for a period corresponding to that during which he may be entitled to unemployment benefit; the authorization of residence should be extended accordingly". Paragraph 18(1) of Recommendation No. 86 discourages States from removing regularly admitted migrant workers from their territory on account of their lack of means or the state of the employment market.
579. Article 8 of Convention No. 143 and the related provisions of the two Recommendations appear to have caused significant problems for States which have ratified the Convention as well as for those which have not. While it should initially be noted that the provisions cited above relate exclusively to regular status migrants, the most commonly cited problem stems from the fact that, unlike Article 8 of Convention No. 97, these provisions make no explicit distinction between permanent entry and time-bound migrants. This point was summarized in the report of Finland, which stated "Part I of the Convention does not specify what is meant by the term 'migrant worker'. Thus [...] Article 8 is applicable to all foreign citizens with worker status, irrespective of the purpose of their stay, or the nature or duration of their employment".
580. It appears to be standard practice in many migrant-receiving countries to issue permits for time-bound activities, specifying that the worker must return to his or her country of origin at the end of the contract. In relation to Article 8(1) of Convention No. 143, some countries have interpreted this practice to be contrary to the meaning of the provision, and have taken this Article to mean that once a migrant has been regularly admitted for employment, regardless of the nature of the contract, the country of immigration can no longer insist upon the return of the workers at the end of a specified time-frame.
581. The Committee points out that the practice of returning migrants at the end of a time-bound contract does not, in itself, constitute a violation of the Convention. Article 8(1) refers exclusively to migrant workers who lose their employment, as opposed to those whose employment comes to an end as foreseen in the employment contract. Thus, the common practice of specifying a period of time and insisting that migrants return to the home country upon completion of this period, is not in itself in contradiction to this Article, and ought not to be considered as a barrier to ratification. This point was made in the report from Japan, which stated, in relation to the Immigration Act,(18) "it should be noted that it is understood that the law does not grant the migrant worker concerned the right to demand to be allowed to continue to stay in Japan".
582. Given this clarification, which may dispel some concerns, a number of States which provided information on this topic do make a de jure distinction between treatment of permanent residents and those accepted for time-bound employment.
583. In general, application of this Article to migrants who have been granted the status of permanent resident does not pose major problems, and in many countries permanent residents enjoy similar privileges to national workers in the case of loss of employment. In the Czech Republic, for example, holders of permanent residence permits are not required to hold an employment permit. Similarly, in New Zealand, migrants who have been granted residence cannot be expelled as a result of unemployment. In the Falkland Islands (Malvinas), there are no grounds for revoking a permanent residency permit in the case of unemployment, and "long-term migrants" can continue to seek work for the length of the residency permit which has been issued to them. The United Kingdom (Jersey) confirmed that after five years of residency, permit holders and authorized members of their families are not liable to be returned to their home countries for reasons of unemployment. Austria and Switzerland indicated that migrant workers, even those holding a permanent residence permit can have it revoked if his or her means of subsistence are judged insufficient. Togo reported that while loss of employment does not imply withdrawal of a regular migrant's residence permit, a new contract will only be approved if the residence permit is still valid.
584. More significant difficulties appear to arise when attempting to apply this provision to migrant workers who are recruited for time-bound employment. Such employment may range from seasonal work to short- and medium-term employment which can extend to several years. In such cases, governments report a number of difficulties in ensuring that, should the migrant lose his or her employment prior to the period specified in the contract, residency is guaranteed until the end of the period originally specified in the contract.
585. To illustrate the extent and nature of this problem, a few examples may be cited. For instance, in the Czech Republic, non-permanent residents, including "long-term migrants" are not permitted to remain in the country beyond the actual period of employment, regardless of the period of residence specified in the work permit. Similarly, in the Falkland Islands (Malvinas) temporary residence permits can be revoked due to a loss of employment. In Australia, the Government reports that although loss of employment neither implies illegal status nor automatic cancellation of the work permit, temporary residents no longer employed by their "sponsoring employer" are required to leave the country. Finland reported that while loss of employment does not, in practice, lead to loss of residency status, this occurs "only because loss of the job does not even come to the resident permit authority's attention". Grenada indicated that if a migrant worker's contract is terminated within two months of his or her entry into the country, they can be repatriated.
586. A number of States reported that while residency and employment permits are linked for migrants, both could be renewed should the worker fulfil the same conditions for which the permits were issued in the first place. For example, Finland reported that, under certain conditions, a work permit can be limited to a specific job or a specific employer, and "in such cases, a person who loses his or her job will need a new work permit if he intends to continue work in Finland".(19) Similarly, Norway reports that renewal of the work or residency permit is based upon conformity with conditions required for issuance of the original permit. Similar provisions appear to be in place in Bahrain, Chile and Egypt, which reported that, while withdrawal of an employment permit appears to imply withdrawal of residency, the migrant is not impeded from making a new application. The Committee notes with interest the approach taken by Egypt, where a migrant who reaches the end of his or her contract may apply for a tourist permit and reside in the country for the purposes of seeking employment.
587. The Committee draws attention to the fact that Article 8 of Convention No. 143 extends beyond permitting migrants to reapply for a new work permit, and expressly requires that permission to reside in the State should not be revoked where the migrant loses his or her employment prematurely.
588. The Committee notes that in a number of countries extension of the residency permit, while independent of the expiration of the work permit, depends upon the migrant not becoming a "burden upon public funds". For example, Portugal indicates that "the mere fact that a foreign worker becomes unemployed does not, in itself, constitute a ground for the non-renewal of a residence permit as long as it is established that housing and economic stability of the family are guaranteed".
589. Article 8(1) of Convention No. 143 states that the loss of employment should not "in itself" lead to revocation of work or residency permits. In this respect, therefore, it appears that countries such as Portugal which do not automatically demand the return of migrants upon loss of employment, are acting in conformity with the wording of the Convention. However, the Committee draws attention to a comment submitted by the General Union of Workers of Portugal, which inferred that economic stability and provision of accommodation often go hand in hand with paid employment. Thus, when a worker becomes unemployed, in most cases economic stability and continued accommodation cannot be guaranteed.
590. A significant number of States indicated that Article 8 of Convention No. 143 is incompatible with national law and constitutes a major barrier to ratification. For instance, Austria states that the provision of alternative employment to migrants depends, as was seen to be the case with a number of States above, upon reapplication for a new work permit, and in particular states that it is in contradiction with section 8(2)(a) of the Employment of Foreigners Act, No. 218 of 1975. Germany indicates that Article 8 of Convention No. 143 is "incompatible with the principle of priority to German workers and comparable foreign workers". Tunisia also considers this Article to be a barrier to ratification, on the grounds that according to section 12 of Act No. 68-7 of 8 March 1968, residence permits can be revoked by the authorities if the reasons for which it was issued cease to pertain. Qatar indicates that Article 8 constitutes a barrier to ratification and Morocco reports that "these provisions do not appear to conform with article 7 of the Dahir of 15 November 1934 [...] which states that '[a migrant] may not prolong his stay in Morocco unless he is granted a new contract or a new permit'". Lebanon reports that "the authorized residence of a foreigner may not be renewed [...] unless he obtains the authorization of the Minister of Labour, in conformity with current legislation". In addition to the barriers to ratification of Convention No. 143 cited above, Switzerland and Austria indicated that Paragraph 18 of Recommendation No. 86 is difficult to implement.
Alternative employment, retraining and relief work
in case of loss of employment
591. Article 8(2) of Convention No. 143 states that the migrant worker "accordingly shall enjoy equality of treatment with nationals in respect in particular of guarantees of security of employment, the provision of alternative employment, relief work and retraining".
592. This Paragraph also appears to have caused significant problems for a number of States which provided information on this point. The most common problem appears to stem from difficulties in interpreting the provisions.
593. The Committee recalls a memorandum prepared by the International Labour Office in relation to Article 8(2), in reply to a request for clarification of its terms, which was cited in the 1980 General Survey on migrant workers, paragraph 469:
It should first be noted that this provision is contained in Part I of the Convention, which deals with migration in abusive conditions, and not in Part II, which deals with national policies to be adopted and applied as regards equality of opportunity and treatment. This distinction is important because under Article 16 of the Convention, ratification may be restricted to either of the two Parts. Moreover, the use of the term "accordingly" seems to indicate that Article 8, paragraph 2, is conceived, not as an end in itself, but as a means of reaching the objective sought in paragraph 1. In other words, the safeguards provided by paragraph 2 are to facilitate restoration of the previous position of the migrant worker who has lost his employment, and should not result either in giving him more rights than he had at the outset or in placing him in a more favourable position than that of other migrant workers who have not lost their employment and remain subject to the conditions laid down in their permits. It would also seem unreasonable that a provision included in the part of the Convention which purports to protect migrant workers against abuse should provide for greater access to employment than the part dealing with equality of opportunity and treatment -- which permits the free choice of employment to be restricted for a period, as will be seen below. It is within that framework that the effect of national regulations regarding residence and work permits has to be considered. There are two main observations which should be made.
8. First, the right to equal treatment which the migrant worker should enjoy in case of loss of employment remains subject to the duration of his residence or work permit. This means, in practice, that a migrant worker who has lost his employment and seeks to change his occupation is not entitled to training for new employment if this would continue beyond the duration of his residence or work permit. The same would apply to alternative employment in a case where the loss of the original employment occurs at a time when the residence permit expires.
9. Second, the safeguards which a migrant worker should enjoy in case of loss of employment may be subject to such conditions and limitations as are specified in his work permit, but these should not prevent attainment of the objective stated in Article 8, paragraph 1. Thus, if the work permit was originally issued to a migrant worker for a particular category of employment only, the equality of treatment as regards alternative employment which such a worker must enjoy under paragraph 2 of this Article will relate only to the same type of employment.
10. The arguments set out in the preceding paragraph presupposes that the worker retains his work permit after losing his employment. If on the other hand only his residence permit remains valid, it would seem that the equality of treatment required under paragraph 2 of Article 8 of the Convention cannot be subject to limitations other than those mentioned in paragraph 8 of the present paper. Accordingly, legislation under which the issue of work permits to migrant workers who have lost their jobs may be refused on the basis of the employment market situation would not be in conformity with the Convention.
594. As previously stated, therefore, it appears that Article 8(2) of Convention No. 143 does not require a State to extend a migrant worker's residence permit in case of loss of employment, but refers only to equality of treatment with national workers for the remainder of the validity of that permit.
595. One Government, that of the Falkland Islands (Malvinas), reported that while no unemployment benefits exist either for nationals or non-nationals, migrants employed within the public sector are permitted to reside for three months beyond the end of their employment in order to find alternative employment.
596. However, it is clear that a number of countries which supplied information on this point, consider Article 8(2) a barrier to ratification of the Convention. For example, Finland reports that national legislation is in conflict with this Article and it constitutes a barrier to ratification. Lebanon reports that "8(2) is difficult to implement in Lebanon given the current legislation which accords priority to Lebanese workers in both the public and private sector". Switzerland reported that "the Federal Act of 25 June 1982 on Obligatory Unemployment Insurance and Compensation in case of Bankruptcy contains no provisions permitting migrant workers to remain in Switzerland while unemployed; in this regard, the sole determining factor is a valid residence permit. For migrant workers in possession of a residence permit with no limit of time, the federal authorities have, nonetheless, recommended the cantons to prolong residence permits, in order to allow unemployed foreigners to find work and to receive benefits to which they have regularly contributed". The United Kingdom reports that Article 8(2) of Convention No. 143 constitutes a major barrier to ratification stating that, in relation to mobility between employers and occupations, "foreign workers who are admitted to the United Kingdom may also be governed by restrictions [which] require the worker to remain in the same type of work until the restrictions are removed [...] and as permits are generally only issued to skilled workers, they are ineligible for vocational training while subject to work permit conditions". Finally, New Zealand reported that current legislation and policy do not guarantee equality of treatment along the lines of Article 8(2) and considers such a provision to be a threat to the protection of employment opportunities for New Zealand citizens. This constitutes, in the eyes of the Government, as well as those of the New Zealand Council of Trade Unions, a barrier to ratification.
597. The Committee concludes that Article 8(1) and (2) of Convention No. 143 and the provisions of Recommendations Nos. 86 and 151 which relate to it appear to constitute a major barrier to ratification of Part I of the Convention and implementation of the Recommendations. In some instances, difficulties appear to result from an interpretation of the instruments which does not coincide with the Committee's understanding. In other cases, however, more serious problems have arisen with application of the provisions. Discrepancies between national legislation and the instruments are varied, but the principal problem appears to be blanket application of Article 8 to migrant workers regardless of the length of their employment or residence. Many States have reported that the application of the provision to all migrants, regardless of the nature of the contract or the length of the migrant's stay is incompatible with national law and practice, and see no possibility of ratification as a result. The Committee again recalls that this provision appears only in one part of the Convention, which can be excluded from ratification. The Committee has addressed a number of direct requests relating to this Article in recent years.(20)
598. With the exception of Paragraph 2 of Recommendation No. 86 which deals with their recruitment, the only Article of the instruments specifically relating to refugees and displaced persons is Article 11 of Annex II to Convention No. 97, which states:
If a migrant for employment who is a refugee or a displaced person and who has entered a territory of immigration [...] becomes redundant in any employment in that territory, the competent authority of that territory shall use its best endeavours to enable him to obtain suitable employment which does not prejudice national workers, and shall take such steps as will ensure his maintenance pending placing in suitable employment or his resettlement elsewhere.
599. Few governments provided information in relation to this provision. Slovakia reported that officially recognized refugees have the same "legal position" as Slovak citizens and can use national employment services. They have the right to choose their occupation freely and have freedom of movement within the Slovak Republic. Sweden reported that an amendment to the Aliens Ordinance of 1 July 1992 exempts asylum seekers who meet "certain conditions" from the requirement to obtain a work permit. Thus, refugees and asylum seekers can be permitted to engage in gainful employment. The United Kingdom reported that the Employment Service has close links with the British Refugee Council and other organizations with the aim of facilitating the settlement of refugees, and Norway reported that refugees and immigrants granted a residence permit on humanitarian grounds are regarded as a "priority group" for participation in a job placement programme which involves enterprises being subsidized by the State. Lebanon, on the other hand, indicated that ensuring such services for refugees and displaced persons would entail financial costs which the State is not in a position to cover.
600. According to Article 8(1) of Convention No. 97, "a migrant for employment who has been admitted on a permanent basis and the members of his family who have been authorized to accompany or join him shall not be returned to their territory of origin or the territory from which they emigrated because the migrant is unable to follow his occupation by reason of illness contracted or injury sustained subsequent to entry, unless the person concerned so desires or an international agreement to which the Member is a party provides". Paragraph 2 of the same Article stipulates that, in the case of migrants admitted on a permanent basis upon arrival in the country of immigration, the provisions of paragraph 1 shall come into force only after a "reasonable period", and in any case not exceeding a period of five years from the date of admission.
601. As with Article 8 of Convention No. 143, this Article has stimulated much debate and appears to constitute a barrier to ratification for a significant number of countries. Initially, it should be noted that paragraph 1 applies to all migrants with permanent residence status, while paragraph 2 specifically addresses those migrants who are admitted on a permanent basis at the time of their arrival in the host country.
602. Germany, Grenada, Israel, Japan, Malawi, Mauritius, Netherlands and Tunisia reported that as no migrants are admitted upon arrival on a permanent basis this Article is not applicable. In this regard, the Committee points out that should a Member have no migrants for permanent settlement in the country, then the provisions of this Article are not applicable. Kenya, in its most recent report referring to this Article, indicated that after five years of lawful residence a migrant is eligible for a resident's certificate. Upon receipt of this certificate the migrant and authorized members of his or her family cannot be returned to their country of origin on the grounds specified in Article 8 of Convention No. 97. The legislation of other countries, including Antigua and Barbuda and Belize,(21) follow almost exactly the wording of Convention No. 97. Other countries, such as Argentina, report encountering no difficulties with this provision.
603. The United Kingdom (Bermuda) reports that while the "number of permit renewals is not limited [...] workers are not viewed as immigrants to Bermuda, but as temporary guest workers no matter how long they and their families may remain in Bermuda". For this reason, the Government indicates that Article 8 of Convention No. 97 could not be implemented.
604. The most commonly cited difficulty with this Article was that in many States residency permits can be revoked when a migrant becomes a burden on public funds, regardless of their residency status. For example, Switzerland reports that this Article, in particular the second paragraph, constitutes a major barrier to ratification on the grounds that foreign workers with permanent residence permits can be expelled "if they, or a person for which he is responsible relies continuously and to a large extent upon public funds".(22) Zambia cites section 2(1) of the Immigration and Deportation Act, Chapter 122 (1967), which stipulates that "the Chief Immigration Officer may by notice in writing revoke any permit issued under this Act if he is satisfied that the holder [...] has become or is likely to become a charge on the Republic in consequence of his failure to support himself and such of his dependents as may be in Zambia". Finland reports that migrants holding fixed-term residence permits can be expelled if a "weighty cause" exists. According to a Government Bill (47/1990 session), one reason could be some fundamental change in the grounds for allowing entry. Although health reasons were not mentioned by the Government, it would appear to imply that migrants suffering from an illness or injury which, had they applied for entry into the country with the same affliction, would prejudice their chances of entry, may find their permits non-renewable. Similarly, the Falkland Islands (Malvinas) reports that while permanent residence permits cannot be revoked solely on the grounds of illness or injury, they can be if it appears that the individual will become a "burden on public funds [...] or if it appears that the holder is unable to adequately maintain himself or his dependents".(23) Guatemala reported that workers admitted for permanent settlement cannot be repatriated on the grounds of ill health on the condition they have resided for at least two years in the country.(24) In all these cases, it appears that national legislation is in conflict with the provisions of the Convention.
605. Problems appear to have arisen for a small number of States which it appears could be dispelled with relative ease. For example, in its last report referring to this Article, Nigeria reported that Article 8 of Convention No. 97 is applied on a reciprocal basis as regard migrants from other member States which have ratified the Convention. The Committee points out, once again, that the provisions of the instruments are not, unless otherwise specified, subject to the principle of reciprocity. The United Republic of Tanzania (Zanzibar) indicates that "the question of repatriation because of incapability depends upon the nature of the contract of employment between the employer and the employee". The Committee recalls that the provision in question is binding upon the State, and is not dependent upon the volition of the employer or worker. Trinidad and Tobago reported that the provisions do not apply to the national situation, as there is no organized migration into the country for the purposes of employment, and Lebanon appears to have understood the provisions to mean that the State is obliged to pay for the repatriation of migrant workers who fall ill. The Committee points that Article 8 of Convention No. 97 applies to all forms of regular migration, organized or otherwise, and that repatriation on the grounds of ill health or injury is a practice which the instruments explicitly discourage.
606. On a more substantial level, Bahrain indicates that the authorities can refuse to renew a work permit, or can revoke a work permit which has already been delivered in the case of "incapacity to work for health reasons due to the execution of an employment contract", and that renewal of work permits is only authorized on presentation of a medical certificate indicating that the migrant is in good health and carries no contagious diseases, and the Syrian Arab Republic reported that migrant workers can be repatriated in case of illness.
607. Other States also view Article 8 of Convention No. 97 as a barrier to ratification. For example, Austria reports that while migrants can be expelled for failing to engage in a gainful activity for an uninterrupted period of one year, leave which is taken subsequent to a work-related injury is considered as authorized gainful activity, and for this reason migrants could not be expelled on the grounds of injury. The Government also stresses that residence permit holders who have lived in the country for between five and eight years cannot be expelled on the grounds that they do not have the means to finance their stay or on the grounds that they represent a financial burden to a local authority, although migrants must show that they are actively endeavouring to secure the means of their own subsistence. While the Government considers this an obstacle to ratification, the Committee sees no major discrepancy between this provision and the wording of Convention No. 97, on the essential condition that national workers claiming unemployment benefit and/or retraining allowance and so on, are bound by a similar obligation to prove they are endeavouring to support themselves.
608. In conclusion, the Committee recognizes that Article 8 of Convention No. 97 constitutes a barrier for ratification to many member States, among them a number of major migrant-receiving States. The principal problem appears to arise from the fact that many States continue to revoke or refuse to renew residence permits in cases where ill health or injury prevail, or where the migrant or members of his or her family constitute a burden on public funds. The Committee stresses that security of residence for permanent migrants and members of their families in case of ill health or injury constitutes one of the most important provisions of the instrument, and is concerned that in cases where this is not effectively applied, permanently resident migrants may thus find themselves living under the constant threat of repatriation.
609. At the end of their period of residence, the migrant and members of his or her family enjoy certain rights pertaining to the process of returning to the home country. The major aspects of the return journey in case of expulsion of irregular migrants has been dealt with in more detail in paragraphs 310-311 above. Accordingly, this section deals with rights of regular migrants returning to their home country at the termination of their period of residence abroad.
610. Article 2 of Annex III to Convention No. 97 stipulates that the personal effects and portable hand tools and equipment of regular entry migrants and members of their families authorized to accompany or join them should be free from customs duties upon return of the migrant and his or her family to the country of origin, providing they have retained the nationality of the home country.
611. While the Articles discussed above fall almost exclusively within the jurisdiction of the migrant-receiving States, this provision is binding primarily upon the migrant-sending State. While few countries provided information on this subject to the Committee, this Article does not appear to pose major problems in practice. In most cases, such as that of the Falkland Islands (Malvinas) and Paraguay, returning migrants and members of their families are exempt from customs duties on all personal belongings. Only one country, Slovakia, reported that this provision was inconsistent with national legislation.
612. Article 9 of Annex II to Convention No. 97 states that "if a migrant for employment introduced into the territory of a Member in accordance with the provisions of Article 3 of this Annex fails, for a reason for which he is not responsible, to secure the employment for which he has been recruited or other suitable employment, the cost of his return and that of the members of his family who have been authorized to accompany or join him, including administrative fees, transport and maintenance charges to the final destination, and charges for the transport of household belongings, shall not fall upon the migrant". The guarantee that the migrant will not, in cases of irregularity, pay for his or her expulsion appear also in Article 9(3) of Convention No. 143 and in Paragraph 8(5) of Recommendation No. 151 and have been discussed in paragraphs 310-311 above.
613. A number of governments indicated measures which are taken in advance of a migrant's entry into the host country in order to prevent the cost of repatriation falling upon public funds. The Government of Antigua and Barbuda reported that upon granting of a work permit, migrants are obliged to deposit a sum of money which is sufficient to cover "all risk of that person having to be repatriated at the cost of the Colony". Similar provisions are in place in Kenya,(25) where a magistrate, on being satisfied that expenses have been incurred in excess of the 5,000 shilling deposit which migrants must provide to enter the country, a warrant can be issued for the levy of such an amount by the "sale of any moveable property" belonging to the migrant. In Barbados(26) the amount which a migrant is required to deposit depends upon the country from which he or she emanates, and in Cyprus,(27) until such a security is furnished by the employer, the migrant is considered to be in an illegal situation. The Falkland Islands (Malvinas) reported that resident permits are only issued to non-nationals if the employer has furnished a bond which binds them to pay the transportation costs of migrant workers and members of their families whenever they leave the territory. The only exceptions are in cases where a migrant worker terminates the contract of his or her own volition, or is dismissed as the result of misconduct. Similarly, in Bahrain, the Labour Code stipulates that the employer must cover the costs of repatriation, and in Mexico all contracts between Mexican nationals and foreign employers must contain a clause stipulating that the costs of repatriation are covered by the employer. In Colombia, employers who engage migrant workers enter into an agreement with the State, to the effect that in cases where the contract is terminated or where the worker is deported or expelled, the employer will cover the cost of the return journey of the worker and his or her family. To this end the employer must furnish a bank guarantee. Legislation in Pakistan(28) specifies that in cases where a recruited worker is not hired because he or she is unfit to undertake the employment, the recruiter is bound to bear the return travel expenses; a provision which seems to be reflected in many other countries, such as Antigua and Barbuda,(29) Dominica,(30) and Jamaica.(31) Finally, Zambia reported that the costs of repatriation are covered by the employer in all cases.
614. Migrant workers should be guaranteed, by virtue of a number of provisions in Recommendation No. 151, the right to legal redress should they lodge an appeal either claiming violation of benefits and compensation as specified in Paragraph 34(2), or against the issuance of an expulsion order, as specified in Paragraph 33. Paragraph 33 further specifies that migrants contesting an expulsion order should be permitted to reside in the country for the duration of the case -- "subject to the duly substantiated requirements of national security or public order" -- should have equal access with national workers to legal assistance, and should have access to an interpreter. Equal rights of redress between regular entry migrants and national workers have been dealt with in more detail in paragraph 447 above.
615. Few reports included information on these provisions. Some of the reports received indicate no difficulties in applying these provisions, such as Qatar which reports that according to section 8 of its Labour Code, "all suits filed by workers or their successors in accordance with its provisions shall be examined immediately and shall be exempt from legal fees", and New Zealand, which reports that an independent appeals procedure is in place, which "revolves around the humanitarian situation of the migrant". Some problems appear, however, to have arisen in other cases. Norway reports that while nationals and non-nationals have the same rights regarding free legal aid, there are "certain limits" in the case of expulsion.(32) The Czech Republic indicated that "in proceedings before a Czech court, foreigners have the right to exemption from court fees and deposits and the appointment of a representative to protect their rights free of charge if reciprocity is guaranteed".(33) Foreigners who are able to present a case are guaranteed the right to address the court in a language of their choice, and the costs of any necessary translation are covered by the State. Germany also indicated that translation is only provided on the basis of reciprocity.(34) The Committee points out, once more, that the provisions of Conventions Nos. 97 and 143 and Recommendations Nos. 86 and 151 are not subject to the principle of reciprocity.
616. The Committee notes with concern reports, including that of Germany,(35) which indicate that an objection or action against the refusal of the granting or renewal of a residence permit does not postpone its effect, effectively implying that migrants may be removed from the country on the basis of an expulsion order which may turn out to be unjustified. The unintended effect of such policies may be to dissuade migrants who may otherwise believe their employment to have been unjustly terminated, from lodging an appeal. The Committee takes account of an opinion submitted by a non-governmental organization which pointed out that, even where a residence permit is prolonged to allow a migrant to pursue a complaint, in some cases this process may take several months or even years, and unless the migrant is also permitted to work during this time, in practice, many migrants may not have the means to complete the procedure or to cover his or her living expenses. At the same time as encouraging States to consider the possibility of permitting migrants to work during the period of their appeal, the Committee notes with interest that in certain countries, such as Senegal, legislation contains provisions to the effect that migrant workers have the choice between pursuing a complaint either in the country where the employment took place, or in their country of origin.(36)
617. The Committee also notes with interest initiatives taken by some sending countries to ensure that their nationals have access to appropriate redress mechanisms while employed abroad. For example, the Philippines only seeks to deploy Filipinos to countries where, inter alia, existing labour laws protect the rights of migrant workers. The establishment of a Legal Assistant for Migrant Workers in the Department of Foreign Affairs and the Legal Assistance Fund, are further means the Government has taken to ensure the protection of nationals abroad.(37)
Employment and benefits upon return
to the home country
618. Paragraph 20 of Recommendation No. 86 states that "when migrants for employment or members of their families who have retained the nationality of their State of origin return there, that country should admit such persons to the benefit of any measures in force for the granting of poor relief and unemployment relief, and for promoting the re-employment of the unemployed, by exempting them from the obligation to comply with any conditions as to previous residence or employment in the country or place".
619. Very few governments provided information on this provision. Croatia reports that social security benefits to returning nationals are given on the basis of bilateral agreements, but that in the absence of such agreements "such insurance rights can be exercised under the provision of the Employment Act only if he/she was paying payroll contributions to the Employment Office for a period of at least nine months over the last 24 months prior to the termination of his or her employment abroad. In that case, the compensation basis is determined by the Minister of Labour and Welfare, subject to an approval by the Minister of Finance". Croatia also indicated that it is the responsibility of the Croatian Employment Office to assist returning migrant workers on their employment rights,(38) while Viet Nam reported that responsibility for securing the resettlement of returning migrants lies with private recruitment agents. San Marino reports that San Marino citizens can be registered on lists for placement with the employment service even when resident abroad. Upon their return they have access to the benefits available with regard to housing, social assistance and health care. The Syrian Arab Republic reports that "they [return migrants] benefit from equal treatment with nationals who have not emigrated, as all citizens are equal before the law, and there exists no restriction in terms of residence or employment in Syria". In Slovenia, regulations adopted in 1997(39) provide for the acquisition and extent of rights and obligations and payment of contributions to Slovenians returning to the country after a period of time working abroad, as well as to the spouses of such nationals. In Albania, nationals are guaranteed recognition for time spent abroad on the condition (a) that they return to Albania and (b) regularly pay contributions to the Social Insurance Agency.(40)
620. The Committee notes that several problems have been cited in government reports relating to these provisions. On occasion, these have been cited as preventing ratification of the instruments. The major difficulties appear to stem from Article 8 of Convention No. 143, which deals with non-return of migrants in the case of loss of their employment. The difficulties cited in this regard, in many cases in reports from major migrant receiving countries, relate principally to the application of this provision to both permanent and temporary migrants. Ensuring the application of Article 8 of Convention No. 97 also appears to have raised difficulties for a number of States, which indicated that, despite the fact that this provision applies only to migrants for permanent settlement, should migrants become a burden on public funds, regardless of their residency status, they may no longer be permitted to reside in the country.
1. Para. 481.
2. See S. Stanton Russel.: "Migration: Implications for the World Bank", HROWP54, World Bank.
3. Stalker, op. cit., p. 122.
4. ILC, Record of Proceedings, 32nd Session, 1949, p. 299.
5. Migrants are obliged to declare amounts over 200,000 Czech crowns.
6. The Federal Exchange Control Act provides that whenever an amount exceeding 1,000 Malaysian dollars is remitted out of the country, it must be approved by the Central Bank of Malaysia.
7. Permission of the Financial Secretary is necessary where migrants intend to transfer sums of more than $3,000 or £3,000.
8. Cyprus reports that "normally an immigrant is allowed to transfer not more than 50 per cent of his net earnings on a non-cumulative basis. Each case is considered on its merits".
9. Up to 50 per cent of earnings.
10. Under government-sponsored transfer to South Africa, up to 60 per cent of wages were compulsorily transferred for encashment on return to the home country.
11. Up to 50 per cent of earnings. See Decision of the Minister of the Economy and Finance, No. 15 (1990).
12. Permanent residents are not bound by the same obligation to declare monetary transfers as non-permanent residents.
13. After a period of residence of four years, the permitted amount a migrant can transfer to the home country drops from 50 per cent of earnings to 20 per cent. See Exchange Control Circular No. 5 of 1966.
14. Republic Act No. 711 establishing Overseas Workers' Investment (OWI) Fund, 21 Oct. 1991.
15. Passport (Regulation) and Exit Permit Act, 1980.
16. Decision No. 370 of the Council of Ministers, 1991.
17. It should be recalled that compulsory remittances were considered by the Tripartite Meeting of Experts on Future ILO Activities in the Field of Migration as one form of abusive practice. See box 4.3.
18. Immigration Control and Refugee Recognition Act.
19. Contracts binding migrants to employment with a specific employer or a specific occupation were addressed in more detail in paras. 388-389.
20. Cameroon in 1989, 1991, 1995 and 1996; Germany in 1992 and 1995; Guinea in 1993, 1995 and 1996; and Slovenia in 1997.
21. 8A(1) and (2) of the Principal Ordinance as amended by Ordinance No. 1 of 1966.
22. s. 6 of the Federal Act on the entry and residence of foreigners, of 26 Mar. 1931.
23. s. 11B(1)(d) and (e) of the Immigration Ordinance, 1987.
24. ss. 2-3 of Ministerial Agreement No. 1, 1971.
25. ss. 31-32 of the Immigration Act (Ch. 172), 1968. See s. 29(2)(e) (Ch. 179), of the Laws of the Bahamas for similar provisions.
26. s. 6 of the Immigration Act, 1952.
27. s. 17(1) of the Aliens and Immigration Act (Ch. 105), 1972.
28. Emigration Act, 1979.
29. s. 9 of the Recruiting of Workers Act (Ch. 151), 1941.
30. s. 7 of the Recruiting of Workers Act, 1961.
31. Recruiting of Workers Act, 1991.
32. See s. 42 of the Immigration Act (amended) (Jan. 1998).
33. According to s. 50 of Act No. 97/1963 on International Private and Procedural Law.
34. s. 14(4) of the Labour Courts Act (2 July 1979).
35. s. 72 of the Act of 16 Dec. 1983.
36. This depends, of course, upon the conclusion of a judicial agreement to this effect between the countries concerned.
37. Migrant Workers and Overseas Filipinos Act of 1995 (No. 8042).
38. s. 4 of the Employment Act.
39. Regulations of 27 Feb. 1997 on voluntary insurance in the event of unemployment of insured persons temporarily employed abroad and their spouses (No. 859).
40. s. 10 of the Act on the Employment of Albanian citizens outside the territory of Albania (No. 7517), 1991.
Updated by HK. Approved by RH. Last update: 26 January 2000.