Which of the Following Best Defines the Term Migrant Worker




87th Session
Geneva, June 1999


Report III (1B)


Migrant Workers


Affiliate two

Scope of the instruments

83.
The two Conventions and Recommendations forming the basis of this survey have every bit their common aim the protection of workers from discrimination and exploitation while employed in countries other than their own. The terms used in the titles and the texts of these instruments, as clarified through the preparatory work for their adoption and by the Committee in the supervisory process, spell out the scope of the fundamental features of the instruments.


Section I. Summary of the instruments

A. Contents of the 1949 instruments

one. Migration for Employment Convention


(Revised), 1949 (

No. 97
)

84.
Born of the upheavals that occurred in Europe in the aftermath of the 2d Earth War and prompted past a concern to facilitate the movement of surplus labour from this continent to other parts of the world, this Convention consists of 12 operative Articles and three annexes.

85.
Under Article xi(1) of the Convention, the term “migrant for employment” means a person who migrates from one country to another with a view to being employed otherwise than on his or her own account. The scope of Convention No. 97 excludes frontier workers, the short-term entry of members of the liberal professions and artistes, and seafarers (Article 11(2)).

(a) Measures aiming to regulate the condition

in which migration for employment must occur

86.
Under Commodity 1 of Convention No. 97, ratifying States undertake to brand available on asking to the ILO and to other Members information on national policies, laws and regulations relating to emigration and immigration; on special provisions apropos migration for employment and the conditions of work and livelihood of migrants for employment; and concerning full general agreements and special arrangements concluded on these questions. This exchange of information must be supplemented by cooperation between employment services and other services continued with migration (Article seven); and, where appropriate, cooperation against misleading propaganda (Article iii(2)). Lastly, Commodity ten invites the Members concerned to enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the Convention.

(b) General protection provisions

87.
The Convention provides for the maintenance of a free service to assist migrants and provide them with information (Article 2); Members undertake to take advisable steps against misleading propaganda relating to emigration and immigration (Article 3(i)); measures to facilitate the departure, journeying and reception of migrants for employment (Article 4); the maintenance of advisable medical services (Article 5); and permission for migrants for employment to transfer their earnings and savings (Commodity ix). The Convention too prohibits the expulsion of migrants for employment admitted on a permanent footing in the effect of incapacity for work (Article 8).

(c) Measures aiming to ensure equal handling in

a number of areas to regular migrant workers

88.
Article six prohibits inequality of handling between migrant workers and nationals arising out of laws or regulations or the practices of the administrative regime in iv areas: living and working weather, social security, employment taxes and access to justice.

(d) Annexes

89.
Under Article 14, each Member ratifying the Convention may, by an express declaration, exclude from its ratification any or all of the annexes. In the absenteeism of such a declaration, the provisions of the annexes have the same consequence every bit those of the Convention. The first ii annexes deal with organized migration for employment, while the third, more general in scope, applies to migration for employment, whether organized or spontaneous.

    (i) Annex I

xc.
Annex I, consisting of 8 Articles, deals with the recruitment, placing and conditions of labour of migrants for employment recruited otherwise than nether government-sponsored arrangements for group transfer.

    (2) Annex 2

91.
Addendum Two, consisting of 13 Manufactures, deals with the recruitment, placing and weather of labour of migrants for employment recruited under government-sponsored arrangements for group transfer.

    (3) Addendum III

92.
Annex 3, consisting of two Articles, regulates the importation of the personal effects, tools and equipment of migrants for employment.

2.

Recommendation No. 86

93.
This Recommendation, which is divided into eight parts (comprising 21 Paragraphs), recommends a serial of measures intended to supplement the provisions of Convention No. 97, in particular as regards information and help to migrants (Part 3); recruitment and option (Part Four); equality of treatment in admission to employment and supervision of weather of employment (Part Five). Information technology also contains provisions aimed at protecting migrant workers against expulsion on account of their lack of means or the state of the employment marketplace (Part 6). An annex to the Recommendation sets along the methods of awarding of the principles laid down in Convention No. 97 and Recommendation No. 86, and is intended to serve as a model for the decision of bilateral agreements.

B. Contents of the 1975 instruments

1. Migrant Workers (Supplementary Provisions)


Convention, 1975 (

No. 143
)

94.
In 1975, when the Conference adopted this Convention, the international economic and social context had undergone radical changes since the adoption of the 1949 instruments. It was no longer a question of facilitating the movement of surplus labour, but of bringing migration flows nether control and hence focusing on the emptying of illegal migration and suppressing the activities of organizers of undercover movements of migrants and their accomplices.

95.
Convention No. 143 consists of iii parts: Office I (Manufactures 1-9) is the first attempt by the international community to bargain with the problems arising out of clandestine migration and illegal employment of migrants, which had become peculiarly acute in the early 1970s. The provisions of Part II (Manufactures 10-14) essentially widen the scope of equality between migrant workers in a regular state of affairs and nationals, in particular past extending it to equality of opportunity. Lastly, Part Three (Articles fifteen-24) contains the usual final provisions, in item Article sixteen, under which any Member which ratifies the Convention may exclude either Role I or Part II from its acceptance of the Convention at the time of ratification.

(a) Part I

96.
Article 1 lays down the full general obligation to respect the basic homo rights of all migrant workers. The intention is to assert, without challenging the right of States to regulate migratory flows, the correct of migrant workers to be protected, whether or not they entered the country on a regular footing, with or without official documents. The struggle confronting clandestine immigration calls for the member States concerned to adopt a number of measures to
decide
systematically whether there are illegally employed migrant workers on its territory and whether any movements of migrants for employment depart from, pass through or arrive in its territory in which the migrants are subjected during their journey, on arrival or during their menses of residence and employment to conditions contravening relevant international multilateral or bilateral instruments or agreements, or national laws or regulations (Article ii). At the same time, Members shall, where appropriate in collaboration with other Members,
suppress
clandestine movements of migrants and illegal employment of migrants and
punish
the organizers of illicit or clandestine movements of migrants and those who use workers who take immigrated in illegal weather, with the aim of preventing and eliminating abuses (Article 3).

97.
At the national level, the Convention provides for the adoption and awarding of
sanctions
against persons knowingly assisting undercover or illegal movements of migrants; persons illegally employing migrant workers (employers who are prosecuted on these grounds shall have the correct to replenish proof of their expert organized religion); and organizers of secret or illegal movements of migrants (Article 6). At the international level, systematic contacts and exchanges of information on these matters shall take place between the member States concerned (Commodity 4). One of the purposes of this cooperation is to make information technology possible to prosecute authors of manpower trafficking whatever the land from which they exercise their activities (Article five). The representative organizations of employers and workers are to be consulted in regard to the laws, regulations and other measures provided for and designed to foreclose and eliminate migration in abusive conditions and the possibility of their taking initiatives for this purpose are to be recognized (Article 7). Part I of the Convention likewise lays down sure protective measures for migrant workers who take lost their employment (Article eight) and for those in an irregular situation (Article ix).

(b) Part 2

98.
While the provisions of the 1949 instruments are intended to prohibit inequalities of treatment, including those arising out of the activity of public regime, Role II of Convention No. 143 aims to promote equality of opportunity and handling and the emptying of discrimination in practice. The Conference considered that to eliminate discriminatory provisions or measures from national legislation or practice is non enough in itself, inasmuch that migrants suffer more than than others from prejudice and discriminatory attitudes in employment. This is why the 1975 instruments become further and describe upon the provisions of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). They differ, however, on two points: first, national policy must not simply
promote
just also
guarantee
equality of opportunity and treatment in employment and occupation for migrant workers and members of their families who are lawfully inside the territory of the country of employment. Second, this equality of opportunity and treatment also applies to social security, merchandise union and cultural rights and individual and collective freedoms (Article ten). While leaving it to States to utilise methods appropriate to national conditions and practice, the Convention lays downwardly a series of measures for this purpose (Article 12). Article fourteen, however, permits limited restrictions on equality of access to employment. Lastly, Commodity thirteen requires States to facilitate the reunification of the families of migrant workers legally residing in their territory.

99.
For the purpose of Part Two of Convention No. 143, the definition of the term “migrant worker” excludes two further categories of workers in addition to those mentioned in the 1949 instruments: persons coming specifically for purposes of training or education and persons admitted temporarily to a country at the request of their employer to undertake specific duties or assignments for a limited and defined menstruation of time, and who are required to leave that country on the completion of their duties or assignments (Commodity eleven).

ii.

Recommendation No. 151

100.
This Recommendation consists of three parts: Role I lays downwardly the measures to be taken to ensure respect for the principle of equality of opportunity and treatment between migrant workers lawfully within the territory of a Member and its nationals; Office Two lays down principles of social policy intended to enable migrant workers and their families to share in the advantages enjoyed by nationals while taking account of such special needs as they may take until they are adapted to the country of employment; and Part III calls for the adoption of a number of measures to ensure minimum protection, in detail in the event of loss of employment, expulsion and divergence from the country of employment.


Section Two. Persons covered past the instruments

A. Definition of the term “migrant worker”

i. Employment

101.
The scope of the ILO instruments in the field of migration is delineated principally by the Organisation’s mandate to protect the rights and freedoms of workers. That is to say, the instruments are primarily concerned with migrants for employment, every bit opposed to migrants in general. During the discussion leading to the adoption of the 1949 instruments, it was felt that the ILO was not the appropriate forum to hash out the many and varied problems which face migrants in general. However, it was pointed out that the provisions are intended to cover refugees and displaced persons, in so far as they are workers employed outside their home country.(one)

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2. Families of migrant workers

102.
The Conventions and Recommendations were as well adult bearing in listen the fact that migration is not but an economic miracle, but also a social one, and that often migration for employment does non bear on simply the private involved in the employment relationship, but members of his or her family also. For this reason, throughout the text of these instruments, the protection of many of the rights outside the employment human relationship as such are explicitly extended to the members of migrant workers’ families. It should be noted that in Convention No. 97, and Part II of Convention No. 143 these provisions employ only to family members who are entitled by law to back-trail the migrant.

103.
In Convention No. 97, these provisions relate principally to the migration process itself, that is, the entry and departure process. Convention No. 143 broadens the obligations by stipulating in Commodity 13 that governments must take all necessary measures to “facilitate the reunification of the families of all migrant workers legally residing in its territory”.(2)
The term “family” is defined in Article 13(2) of Convention No. 143 as “spouse and dependent children, father and mother”, although some States take called to interpret the term more broadly.(iii)

iii. International migration

104.
The term “migrant for employment” is defined in Article eleven, paragraph i, of Convention No. 97 as “a person who migrates from ane land to another with a view to being employed otherwise than on his own account and includes any person regularly admitted as a migrant for employment”. A similar definition forms the footing of the provisions of Role II of Convention No. 143, given in Commodity 11(one). Information technology should be noted that this definition covers but migration betwixt countries, that is, migrants are defined as those who cross international boundaries for the purposes of employment, and does not include those workers who motion inside a land for the purposes of employment.

iv. Surreptitious migration and illegal employment

105.
The provisions of Convention No. 97, Recommendation No. 86 and Office Ii of Convention No. 143 deal just with the protection of migrant workers who have been “regularly admitted” for the purposes of employment. That is to say, individuals who have entered a country illegally are not covered by these provisions. Role I of Convention No. 143 and several provisions of Recommendation No. 151 bargain explicitly, however, with the suppression of cloak-and-dagger migration flows and the protection of irregular condition migrants.

106.
Article 1 of Convention No. 143 stipulates that ratifying States undertake to protect the basic human rights of “all migrant workers”, and Article 3 specifies that the clandestine
motion
of migrants for employment is to be suppressed, as is the illegal
employment
of migrants. The introduction of the protection of irregular-status migrants to Convention No. 143 may appear at first sight to explain the low number of ratifications. However, this was not identified as a major bulwark by most States which provided information for this survey, and information technology should be noted that of the xviii States which take ratified Convention No. 143, only 1,
Norway, has fabricated a proclamation under Article 16(1) excluding Part I.(4)
Occasionally, governments claimed that clandestine migration and illegal employment was not an issue in their countries, and for that reason, several perceived Part I of the Convention to be of limited relevance.

v. Length of stay

107.
The four instruments dealt with in this survey in general make no distinctions between workers who have migrated for permanent settlement, and those who have migrated for brusk-term or fifty-fifty seasonal work. States are non permitted to exempt any category of regular-entry migrant worker not specified in the instruments. In other words, no distinction can be made, within the provisions of the instruments, betwixt migrants for permanent settlement and migrants who practise not intend to stay for any significant length of time in the host country, such as seasonal workers.(5)

108.
Certain provisions, however, relate only to migrants and members of their families who intend to settle permanently in the host country, in particular Commodity 8 of Convention No. 97 which is aimed at protecting migrant workers and their families from expulsion from the host land on the grounds of incapacity to work. It should be noted that some governments, including those of, for case,
Republic of ghana
(six)
and
Republic of kenya,(7)
and even amongst those which take ratified Convention No. 97, such every bit
Hong Kong
(8)
and
Israel,(ix)
claimed that at that place were no migrants for permanent settlement in their territory, and that, therefore, these provisions did not employ to the national situation. In item, the Committee notes the report of
Commonwealth of australia
which states that: “Part II of Convention No. 143 does not apply to migrant workers who have temporary entry visas.” The Committee points out that according to Article xi(two) of Convention No. 143 short-term migrants cannot exist excluded from its coverage. Commodity 11(2)(e) of Convention No. 143, which excludes sure short-term workers, will be addressed in more detail in paragraph 115 below.

B. Reciprocity

109.
Beyond the parameters specified above, it should be pointed out that the provisions of neither the 1949 nor the 1975 instruments operate on the basis of reciprocity (unlike the ILO Migration for Employment Convention, 1939 (No. 66), which never entered into force due to lack of ratifications). That is to say, a migrant worker does non take to exist the national of a State which has ratified the instruments, or which guarantees equal treatment to the subjects of the ratifying State in order that the provisions apply. In recent years, the Committee has addressed a number of requests to governments(10)
reminding them that the provision of these ILO instruments are not dependent upon reciprocity. This has non prevented some governments from providing data for this survey exclusively on migrants originating from particular regions, including countries which had signed reciprocity agreements with the reporting Country,(11)
or other States, such equally the
United
States
from emphasizing that the rights guaranteed to migrant workers depend, in the large office, upon reciprocity on the field of study in the migrant’due south country of origin.

C. Exceptions

110.
The Conventions and Recommendations beingness considered in this survey explicitly mention categories of workers which are excluded from their provisions. Article 11(two) of Convention No. 97 excludes “(a) frontier workers; (b) artistes and members of the liberal professions who have entered the state on a short-term basis; (c) seamen”, and Recommendation No. 86 follows this. Article 11(2) of Convention No. 143 specifies these 3 exceptions, plus “(d) persons coming specifically for purposes of training or education; (east) employees of organizations or undertakings operating within the territory of a country who have been admitted temporarily to that country at the request of their employer to undertake specific duties or assignments, for a limited and defined period of time, and who are required to leave that country on the completion of their duties or assignments”. It should exist noted that the exclusion of migrants given in Article 11(2) of Convention No. 143 applies only to the provisions of Role II of the instrument. Part I does non explicitly permit the exclusion of whatever category of migrant worker.(12)
Recommendation No. 151 makes no explicit mention of exceptions. In addition to these exclusions, migrants who are self-employed are excluded by definition from the provisions of whatsoever of the four instruments.

111.
The Committee considers that while the exclusion of self-employed workers from the scope of awarding of the instruments was justified when the instruments were adopted, today this is no longer advisable. In upshot, many regular- and irregular-status migrants are employed or cocky-employed and may even be working in the informal or marginal sections.(13)
These migrant workers are offered no protection under the instruments considered in this survey and for this reason the Committee suggests that this point should be included in future discussions regarding these instruments.

112.
The term “frontier workers” is not divers in either of the Conventions, and the report form adopted by the Governing Trunk on these Conventions asks ratifying States to ascertain what they consider, from a legal perspective, the term to mean.(fourteen)
Some States, such every bit
Antigua and Barbuda,
Grenada,
Guyana
and
Malawi, reported to the Committee that the concept of frontier workers is 1 which is not applicable, often for reasons of geography. In the past, definition of the term has occasionally led to difficulties of interpretation by member States.(15)
Similarly, the working definition of “short-term entry” tin can be seen to vary widely beyond States.(16)
The third exception, seafarers, was included in Conventions Nos. 97 and 143 principally considering a trunk of international and national legislation — including a substantial number of ILO Conventions — had been developed of specific relevance to this group, and it was felt merited distinct protection.

113.
The exclusion of “liberal professions and artistes” may be said to have taken on a significance which did not plant a major migration problem at the fourth dimension of the drafting of the 1949 and 1975 instruments. Of item relevance to female migrants, the relatively recent phenomenon wherein women are recruited for employment abroad and issued with permits to work as dancers in night clubs or every bit hostesses in bars, when in reality they are forced to become “sexual activity workers”, has go an outcome of increasing business organization which did non form a significant chemical element of the migration process 50 years agone.(17)

114.
The exclusion of students and trainees from the provisions of Part Two of Convention No. 143 appears to reflect the legislation of a number of countries, such equally
Finland,(eighteen)
which likewise exclude these individuals from legislation relating to the employment of migrant workers. The Committee notes the report of the
South korea
which indicates that “industrial trainees” outnumber other strange workers, merely are not covered by the Labour Standards Act, and the Government questions whether this is in conformity with Convention No. 143. The Committee affirms that trainees are excluded from the definition of “migrant worker” equally given in Article 11(2)(d) of Convention No. 143, only stresses that this applies merely to the provisions of Role Ii of the Convention.

115.
Article xi(2)(e) of Convention No. 143 adds to the listing of exceptions “employees of organizations or undertakings operating within the territory of a land who accept been admitted temporarily to that country at the request of their employer to undertake specific duties of assignments, for a limited and divers menstruation of time, and who are required to leave that state on the completion of their duties or assignments”. The preparatory piece of work(19)
to Convention No. 143 stressed that this provision applies essentially to those workers who have special skills, going to a country to undertake specific brusque-term technical assignments.(twenty)
The provision does non imply that
all
stock-still-term workers can exist excluded from the provisions of Part 2 of Convention No. 143, contrary to that which
Australia
appears to believe, which indicated that Function Ii does not employ to any temporary workers. Equally regards the specific case of seasonal migrant workers, the preparatory piece of work to the adoption of Convention No. 143(21)
shows that the definition of “migrant worker” makes “no distinction between seasonal workers and other categories of migrant workers (although the former could not always benefit in fact from all the provisions under consideration)”.(22)

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D. Spontaneous and organized migration

116.
In principle, the provisions of the instruments relate to both spontaneous and organized forms of migration; that is to say they cover both government-sponsored and privately arranged recruitment likewise as workers who drift exterior such programmes in the search for employment. Nevertheless, certain provisions, notably Annexes I and Two to Convention No. 97, chronicle but to recruited workers — those who accept a concrete offer of employment prior to entry into the host state. The general application to both spontaneous and organized migration is i which appears to hinder some States such as
Grenada,(23)
from fully applying the provisions of the Convention.

117.
Subject field to the categories of work listed to a higher place as exceptions, the provisions of the instruments are to exist applied without discrimination to every category of employment. More specifically, the provisions must be applied equally to every member of the economically active non-national population. The Land may not brand distinctions between migrants on the basis of their type of occupation, the nature of their duties or the level of their salary. In the past the Committee has had to analyze this to a number of countries, pointing out that managers, executive staff, enterprise administrators and highly qualified technicians are migrant workers within the pregnant of Commodity xi of the Convention. The reports of some countries were unclear as to what extent these groups are covered both in legislation and in practice.(24)
Clearly, the exclusion of certain categories of workers on the ground of their level of didactics, nature of employment or salary is contrary to the spirit, if not the letter, of the instruments.


Section III. Telescopic of measures to be taken

A. Flexibility of the instruments

118.
In both 1949 and 1975, the International Labour Conference was at pains to pattern instruments which would grant protection from calumniating conditions of employment and equality of opportunity and treatment to the greatest number of migrants in the greatest number of States. The form of the instruments themselves contributed towards one of the novel aspects of the 1949 instruments, in that they contained flexibly worded provisions specifying but the bones rights of regular-status migrants for employment. The annexes to Convention No. 97, on the other paw, which can exist excluded from ratification, provided details of the means of achieving these ends. The first of the annexes relates to individually recruited migrants; the 2d to migrants recruited under group arrangements; and the 3rd to the personal effects and tools of all migrant workers. This experimental class was designed in order that the maximum number of States possible could consider ratification, and to avert presenting governments with rigid obligations which may not have into account the particular national situation of each country. At the time of drafting information technology was stated that the results of this experiment would be seen in the “number of ratifications equally a Convention, non but of the Convention itself but of i or other of the annexes”.(25)
Information technology should exist noted that of the 41 countries which have ratified the Convention, simply 16 accept ratified all the annexes.

119.
The grade of Convention No. 143 was designed with the same objective in heed, namely to allow every bit many States as possible to ratify. The division of the instrument into two parts, the kickoff dealing with the management of migrations in abusive conditions and the 2nd dealing with equality of opportunity and treatment between regular entry migrants and nationals and the inclusion of a selective ratification clause in Article sixteen(ane) has aroused as much controversy every bit the structure of the before Convention. Nevertheless, despite the fact that States tin can exclude either part, information technology should be noted that, past virtue of Article sixteen(iii), States which practise and so are however leap to report upon the extent to which outcome has been given to the provisions of the part it has not ratified along with reasons for exclusion of the role from ratification.

120.
In combination with their experimental structure, the flexible wording of the requirements of the two Conventions also contributed to their novelty. Article three of Convention No. 97 states that: “Each Member for which this Convention is in force undertakes that information technology volition,
then far equally national laws and regulations permit
, take all appropriate steps against misleading propaganda relating to emigration and clearing.” Commodity 10 of Convention No. 143 states that: “Each Member for which the Convention is in force undertakes to declare and pursue a national policy designed to promote and to guarantee,
by methods appropriate to national conditions and practise, equality of opportunity and handling.”

B. Hierarchy of legal provisions relating

to migrant workers

121.
In the context of national regulations, the implementation of the standards apropos migrant workers is ensured by an extremely wide range of laws and regulations covering all aspects of the instruments and beyond. While specific aspects of the coincidence of national legislation and the provisions of the instruments will be covered nether later on chapters of this survey, a few general points behave mentioning at this stage.

122.
In their reports, governments brand item reference to two unlike types of laws and regulations: (a) texts of a full general nature, such as labour codes and labour laws applying to nationals and non-nationals alike; and (b) texts more specifically designed with migration equally the primary focus. Of these latter policies, a further distinction can be made, betwixt those aiming to regulate migration flows and those aiming to protect migrant workers from exploitation and abuse. The objectives of these 2 types of policies exercise not necessarily converge. In countries of employment, regulation of migration flows may entail a desperate reduction in numbers of migrants legitimately entering the country, and increased protection of the migrants who practise enter may non exist the ultimate consequence. These divergencies, while often not apparent from legal texts, tin can emerge, if the provisions of the police are not reflected in administrative practice. For this reason, such authoritative practices need to be closely monitored.(26)

123.
In their reports, governments quote the texts of a general nature chiefly in relation to the provisions concerning equality of opportunity and handling. Often, countries have a general anti-bigotry provision contained in the Constitution or other basic laws,(27)
although in some cases, such as
Antigua and Barbuda,(28)
Republic of belarus
(29)
and
Canada,(30)
the application of such provisions to nationals just is explicitly stated. Across constitutional provisions, the scope of labour legislation in principle depends on the being of a work relationship, that is, information technology is generally specified that the law applies “to workers” regardless of their nationality, as is the case, for example, in
Jordan,(31)
and
Lithuania.(32)
Where the definition of the term “workers” makes no specific reference to the latter criterion, as is, for case the case in
Egypt
and
Lebanon, the wording is sufficiently full general to cover strange workers. This is also true of legislation such as that of
Bolivia
and
Norway, whose scope depends on the establishments covered, as well as, for example in
Republic of croatia,(33)
of legislation on health insurance.

124.
Mostly speaking, the scope of national legislation on migration is broader than that envisaged past the instruments. Thus, many laws, such every bit those of
France
(34)
and
India,(35)
lay down the conditions of entry and sojourn of foreigners, irrespective of whether or non they are workers.

125.
In this regard, information technology should be noted that in national legislation the migrant worker falls into several legal categories. First and foremost, the migrant is regarded as a
foreigner
and is discipline to clearing legislation. Secondly, as a
migrant
worker, the foreigner may too be bailiwick to special regulations, for case, the correct to reside in the country may be dependent upon get-go property a work allow. 3rd, the migrant worker is often, as mentioned higher up, categorized along with nationals, as a
worker, in relation to labour law and labour regulations. 4th,
social security

legislation also tends to be phrased in terms covering both nationals and non-nationals, although frequently with provisions specifically relating to the position of non-national workers. And finally, as a
resident
in the land, a migrant worker may exist subject to rules regarding entitlement to social services and housing.(36)


Section IV. Sending and receiving countries

126.
The 1949 and 1975 instruments are intended to have as broad a coverage as possible, in society that every bit many countries as possible may ratify and implement them. For this reason, their provisions are intended to be flexible and applicable not just to receiving countries, but also to sending countries, likewise as to 3rd countries or transit countries, in some cases. A number of States which provided information for this survey cited as a reason for non-ratification the fact that they were primarily countries of emigration as opposed to clearing. Several countries, including
Grenada, Mexico
and
Pakistan,(37)
stated that it is the responsibility of migrant-receiving States to implement the instruments. It should exist pointed out that the instruments apply both to sending and to receiving countries. Clearly, certain of the provisions specifically relate to the duties of receiving countries to protect workers from away, such as articles relating to the reception of migrant workers in the host land and the provision of adequate housing and equality with nationals in relation to working conditions and social security benefits. Other provisions, however, can be applied by the sending state likewise, such every bit those relating to remittances, information provision prior to migration, measures to ensure equality of treatment as regards the content of the employment contract and measures related to the suppression of secret migration.

127.
Article 1(a) of Convention No. 97 stipulates that all ratifying States must submit information to the Role and other Members on national policies, and on laws and regulations relating to both emigration and immigration. The reports which were submitted indicated that many countries failed to recognize this double applicability of the provisions, and, every bit was the case with, for instance, the
Central African Republic,
(38)

Republic of malaŵi

(39)and
Sri Lanka,(40)
restricted their responses to legislation and practice relating to either emigration or immigration.

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128.
Examples of sending countries developing means of participating in the protection of their nationals abroad appear to be various(41)
and imaginative. To take two examples, both the Philippines and Sri Lanka take institutionalized the protection of nationals overseas by ensuring that all contracts for workers leaving the state for employment must exist approved past the State, and by verifying that the conditions of piece of work and the contract are sufficient to ensure that the worker is not exploited, likewise as monitoring working conditions through the deployment of labour adhere�s working in offices in major receiving countries.(42)

129.
Cooperation between sending and receiving countries in the class of both migration policy and in the form of coordination between employment agencies of sending and receiving countries is specifically mentioned in Manufactures 3(ii) and 7 of Convention No. 97. The Model Agreement appended to Recommendation No. 86 indicates the important part of cooperation betwixt sending and receiving States, a function which has, if annihilation, go more significant since the instruments were drafted.(43)
Article xv of Convention No. 143, stating that “this Convention does not foreclose Members from terminal multilateral or bilateral agreements with a view to resolving bug arising from its application”, was inserted to counter the merits that some States may consider their obligations fulfilled through such agreements instead of through ratification of the instruments.

* * *

130.
In decision to this section it can be seen that the scope and nature of the provisions of the instruments under study in this survey have been clarified on many occasions. Despite this, neither Convention has succeeded in achieving significant rates of ratification, and a significant number of reports submitted under articles 19, 22 and 35 of the Constitution demonstrate that many States do not fully understand the telescopic of the instruments. One of the principal objectives of this survey will be to determine to what extent declining ratification of the Conventions is based upon erroneous interpretations of the instruments’ provisions, and to what extent they may remain, for whatever reason, difficult to ratify for a pregnant number of States.




ane. See ILC,
Record of Proceedings, 32nd Session, Geneva, 1949, p. 285.

2. Come across below, paras. 470-500.

3. For more details on the application of provisions relating to the families of migrant workers, see paras. 483-487 beneath.

4.
Sweden
has made a announcement under Fine art. sixteen(i) excluding Part Ii of Convention No. 143 from ratification.

5. For more information on the application of the instruments to seasonal workers, see ILC,
Tape of Proceedings, 32nd Session, Geneva, 1949, p. 285, and Appendix Thirteen, p. 578.

six. Maximum length of stay for migrant workers in
Republic of ghana
is 2 years.

7.
Republic of kenya
only issues permits for specific periods and specific jobs.

8. Maximum length of stay on arrival for migrants is 12 months. It should exist noted that the latest report which the Committee has received from
Hong Kong
was prior to 1 July 1997, when
Red china
resumed authority over the territory. Any references to
Hong Kong
in this survey thus refer to legislation and exercise while previously under the authority of the
United Kingdom.

9. Maximum length of stay, with extensions, is 27 months, subsequently which period the migrants must leave the land, with the exception of care givers, who tin can be extended to v years.

ten. For case:
Benin, Brazil, Burkina Faso, Cameroon, Guinea
and
Portugal.

11. The report from
Norway, for example, focused upon migrants emanating from other countries of the European Marriage, and independent picayune information on nationals of other countries working in
Norway.

12. The placing of the definition of the term “migrant worker” was the subject of some argue during the discussions leading to the adoption of the 1975 instruments. See ILC,
Record of Proceedings, 60th Session, Geneva, 1975, p. 793.

xiii. See para. 16.

14.
Germany
has defined the term to mean a person who “while maintaining his domicile in the frontier region of a given country, is employed as a wage-earner in the borderland region of a neighbouring country and returns to his place of home at least one time a calendar week”. The compatibility of this definition with the provisions of s. 6 of the 1990 Lodge to Make Exceptional Regulations Concerning the Granting of Work Permits to Newly Arriving Strange Workers was the subject of a straight asking addressed to the German Regime in 1995 (see note 15 below).
Malaysia, for example, although information technology has no legal definition, interprets the term to mean “persons crossing national frontiers with temporary permits or visas to work and recrossing the frontiers after each day’due south work or subsequently a brusk period of work, eastward.g., one week or one month continuously”.

15. For instance, a direct asking was addressed on this subject to
Federal republic of germany
in 1995, questioning whether the definition given in south. six of the 1990 Order mentioned in notation 14 above, stating that frontier workers had to return across the edge
daily, and to limit their occupation to two days per week, contradicted the definition given in previous reports to the Role.

16. For example,
Malaysia
defines curt-term workers every bit “commonly interpreted as the entry of a migrant for employment for a short period, ranging from two weeks with a possible extension of up to iii or six months at the virtually”. The
United Kingdom
reports that “curt-term entry” is “unlikely to exist longer than six months”.

17. See para. 23 above.

18. s. 15 of the Aliens Act, No. 378, 1991.

19. See particularly ILC, 60th Session, Geneva, 1975, Record V(2) Office Commentary, p. 19. Information technology should be noted that during the second give-and-take, the proposal to add a more than general provision “excluding all types of short-term workers who are admitted to perform specific functions or tasks for a limited or stock-still period of time and take to leave the country when their employment ends” was not adopted (ILC,
Record of Proceedings, 32nd Session, Geneva, 1949, Annex 34, para. 68).

20. This exception refers to the situation of workers already employed in organizations or enterprises which carry out activities in a third country to which these workers are detached to undertake specific tasks. The European Community addressed this question in Directive No. 96/71/EC concerning the detachment of workers in the field of the provision of services.

21. ILC,
Record of Proceedings, 60th Session, para. 69, 1975.

22. In this respect, encounter para. 378 below.

23.
Grenada
provides medical services upon entry into the land only to those participating in government-sponsored migration programmes and not to those recruited past private agents or migrating independently.

24. For example, as illustrated by data supplied by
Hong Kong
which stated that “virtually of the people who come to Hong Kong for employment are professional and well-qualified people and are regarded as sufficiently sophisticated to take care of their ain needs”.

25. ILC,
Tape of Proceedings, 32nd Session, Geneva, 1949, pp. 285-287.

26. Meet L. Picard:
International labour Conventions and national legislation on migrant workers: Convergence and departure, Interdepartmental Projection on Migrant Workers (Geneva, ILO, 1996), p. 6.

27. For instance, the Constitution Deed of
Finland
as amended on 17 July 1995 extends to all within the jurisdiction of Republic of finland, all basic rights which were previously restricted on the ground of citizenship, with the exception of voting in national elections. For examples of full general anti-discrimination constitutional provisions, encounter paras. 161-202 of the Committee of Experts’ Special Survey on Equality in Employment and Occupation in Respect of Convention No. 111, 1996.

28. The Constitutional Order of 1981 stipulates in article 14(4)(b) that the general prohibition of discrimination laid down does non apply “with respect to those who are not citizens”.

29. Art. xi of the Constitution states that “strange citizens and stateless persons in the territory of Belarus shall take the aforementioned rights and freedoms and the same obligations as citizens of Belarus unless otherwise specified by the Constitution, laws and international agreements”.

30. The Constitutional Act of
Canada, 1982 (79) Schedule B, Part I (Canadian Charter of Rights and Freedoms) illustrates the distinction between provisions applying to citizens just and provisions applying to all inside the country — arts. ii, 7, viii and nine refer to “everyone” while arts. 3, half dozen(i) and 6(2), relating to mobility and political rights, refer to “every citizen of Canada”.

31. The Labour Code of
Jordan, Act No. 8 of 1996 defines workers as “any person, male or female person performing piece of work against remuneration for an employer and nether his direction, including minors, trainees and persons on a trial menses”. In the report submitted past the Jordanian Government, it was stated that “this definition is absolute and does not discriminate on the basis of sex or nationality […] thus national and non-national workers savour the same rights and receive the same benefits provided by the law”.

32. The Lithuanian Employment Contracts Act states in s. ii that “labour relations shall be regulated with a view to observing the principle of equal rights irrespective of gender, race, nationality, citizenship, political convictions, etc.”.

33. The Wellness Insurance Act of
Croatia, 1997, contains no special provisions for non-national workers, on the understanding that the provisions are broad enough to cover both nationals and not-nationals.

34. Human activity No. 98-349 of 11 May 1998 concerning the entry and sojourn of foreigners in France (modifying Ordinance of 2 Nov. 1945).

35. Foreigners Act, 1946.

36. This hierarchy of legal provisions relating to migrant workers was ane of the findings of the study undertaken by the ILO Interdepartmental Projection on Migrant Workers from 1994-95. For complete references see footnote 26 higher up.

37.
Islamic republic of pakistan
stated in its written report that “at present ratification of the Conventions is not envisaged […] Pakistan is not manpower importing and therefore ratification would […] be more than applicative in worker importing countries”.
Grenada
and
Mexico
provided like interpretations.

38. The report from the
Key African Republic
deals exclusively with immigration, and not emigration.

39. The study from
Malawi
deals merely with emigration procedures and the protection of Malawi nationals abroad.

xl.
Sri Lanka
states that immigration measures are non relevant because “there is no inward migration for employment”.

41. For example, the 1970 Constitution of
Guyana
stipulates in art. 31 that “it is the duty of the State to protect the just rights and interests of citizens abroad”.

42.
Sri Lanka
has labour attach�southward stationed for this purpose in
State of kuwait, Lebanon, Sultanate of oman, Kingdom of saudi arabia, Singapore, and the
United Arab Emirates.

43. Encounter overview higher up (paras. 76 and 77) on the growth of bilateral and multilateral agreements.

Updated by HK. Canonical by RH. Last update: 26 January 2000.



Which of the Following Best Defines the Term Migrant Worker

Source: https://www.ilo.org/public/english/standards/relm/ilc/ilc87/r3-1b2.htm

Originally posted 2022-08-03 21:24:10.

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