Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Migration for Employment Convention (Revised), 1949 (No. 97) - Portugal (Ratification: 1978)

Other comments on C097

Observation

Direct Request

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN) communicated with the Government’s report.

Measures addressing the situation of migrant workers during the COVID-19 pandemic. The Committee notes the Government’s indication, in its report, that a number of measures were adopted to address the situation of foreign workers during the COVID-19 pandemic in particular by: (1) automatically extending the validity of temporary residence permits, and (2) giving temporary residence permits to immigrants with pending applications, thus enabling their access to healthcare, employment, social support benefits and housing (Order No. 3863-B/2020 of 27 March 2020; extended by Order No. 10944/2020 of 8 November 2020; and Order No. 4473-A/2021 of 3 April 2021). The Committee notes that more than 356,000 immigrants benefited from this temporary regularization. It welcomes this information. It however notes that the Ombudsman for Justice received several complaints from immigrants about the implementation of these measures in practice, alleging more particularly difficulties regarding access to health services. The Committee asks the Government to provide information on the implementation and impact over time of the specific temporary measures adopted in the context of the COVID-19 pandemic.

Article 1 of the Convention. Migration flows. The Committee previously noted that, as a result of economic and financial crises, migrations flows had changed with a decrease being observed in employment contracts signed with foreign workers, while the number of nationals emigrating abroad for employment had increased. The Committee notes the Government’s indication that these trends have been reversed over the past years. According to the statistical information provided by the former Foreigners and Borders Service (SEF), in 2019, the number of foreign citizens residing in Portugal rose by 22.9 per cent, in comparison to 2018. In 2019, there were 590,348 documented third-country nationals holding a residence permit (mainly from Brazil, Cabo Verde and United Kingdom), the highest since 1976. Furthermore, 218,892 foreigners were working in the country representing 7 per cent of the total working population in Portugal (compared to 5 per cent in 2017). The Government adds that there is no available information on the number of Portuguese workers abroad, but the number of permanent emigrants decreased from 31,753 in 2017 to 28,219 in 2019 – 87 per cent of whom were in the working age. The Committee asks the Government to provide statistical data, disaggregated by sex and nationality where available, on the employment of migrant workers (European Union citizens and third-country nationals, distinguishing between third-country nationals with temporary, long-term and permanent residency permits) in the various economic sectors. It also asks the Government to continue to provide statistical information on the number of permanent Portuguese emigrants.

Information on national policies, laws and regulations. The Committee previously noted the adoption of the Strategic Plan for Migration for 2015–20 (PEM), as well as the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017), and requested the Government to provide information on their impact on the application of the Convention. The Committee notes the Government’s statement that, according to the final evaluation report of the PEM, which ended in 2020, its overall execution rate was estimated at 86.9 per cent. The Government adds that, in the framework of the PEM, 22,407 actions were carried out to promote gender equality and combat trafficking in persons, labour exploitation and undeclared work, as well as to disseminate information and raise awareness. The Committee notes the adoption of the National Plan for the Implementation of the Global Compact for Migration (PNIPGM), by Resolution of the Council of Ministers No. 141/2019, of 1 August 2019, with a view to implement the United Nations (UN) Global Compact for Safe, Orderly and Regular Migration (UN resolution, A/73/L.66, 12 December 2018). It notes, more particularly, that the PNIPGM sets 23 objectives articulated around five main dimensions: (1) promoting safe, orderly and regular migration; (2) improving the processes to organize and manage migratory flows; (3) promoting and qualifying migrant reception and integration mechanisms; (4) supporting connections between migrants and their home countries and projects for return; and (5) enhancing development partnerships with countries of origin and transit. Regarding trafficking in persons, the Committee further notes the adoption of the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021 (PACTSH IV), by Resolution of the Council of Ministers No. 80/2018, of 7 June 2018. Referring to its previous comments, the Committee further notes with interest the adoption of: (1) Decree Law No. 101-E/2020 of 7 December 2020 which transposed into national law the Directive (EU) 2018/957, pursuant to which Member States of the European Union shall apply to posted workers the terms and conditions of employment of the host country in a series of matters, including remuneration, maximum work periods and minimum rest periods, minimum paid annual leave, minimum age, health, safety and hygiene at work, and accommodation; as well as (2) Law No. 28/2019, of 29 March 2019, amending the Foreigners Act of 2007, which establishes a presumption of legal entry into the national territory when granting a residence permit for the exercise of professional activity in Portugal. In that regard, the Committee notes that, in its observations, the CGTP-IN considers this legal presumption as a positive development as a result of the simplification of the regularization mechanism for undocumented immigrant workers who are working in the country, although in practice the effective regularization and obtaining of respective residence permits remain extremely problematic, namely due to bureaucratic obstacles and deficiencies in the functioning of the responsible services. Welcoming these new developments, the Committee asks the Government to provide information on the concrete measures implemented to give effect to the provisions of the Convention, including in the framework of the National Plan for the Implementation of the Global Compact for Migration and the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021, as well as on any assessment of their impact. It asks the Government to continue to provide information on national policies, laws and regulations elaborated and implemented to give effect to the provisions of the Convention.

Articles 2 and 4. Services to assist migrant workers. Referring to its previous comments, the Committee notes the Government’s indication that several measures were continued to improve the quality of migration services and disseminate information on the rights and obligations of migrant workers. It notes, more particularly, that the three National Immigrant Support and Integration Centers (CNAIM) and the national network of Local Immigrant Support and Integration Centers (CLAIM) continued to provide free assistance to immigrants on different areas, such as regularization, nationality, family reunification, housing, work, security social, health, education, professional training, entrepreneurship and support for immigrant associations. The Government adds that, as of June 2021, the national network of CLAIM was composed of 119 local offices and, in some regions, this service is provided on a roaming basis, bringing the service to migrant citizens who otherwise do not have access to it, either due to lack of mobility or lack of other resources. The Committee notes, from the statistical information provided by the Government that, between January 2020 and April 2021, the national network of CLAIM provided assistance to 147,132 immigrants. The Committee welcomes this information. It further notes the adoption of the Resolution of the Council of Ministers No. 43/2021 of 15 April 2021 according to which the former SEF is now replaced by the Foreigners and Asylum Office (SEA). It notes the Government’s statement that this change serves to make clearer distinction between assistance to immigrants for administrative migration processes, for which the SEA is now responsible, and the police functions, that are transferred to the security forces, namely the Public Security Police (PSP) and the National Republican Guard (GNR). The Committee asks the Government to continue to provide information on the services provided to assist migrant workers, in particular by the National and Local Immigrant Support and Integration Centers and the newly created Foreigners and Asylum Office, and on the manner in which such services address their particular concerns and needs, as well as on any obstacles encountered.

Adequate and free services and measures to facilitate the migration process. The Committee notes the Government’s indication that measures to encourage the return of emigrants and Portuguese descendants have been continued, including through the implementation of the “Regressar” Programme, approved in March 2019, extending specific support for emigrants and Portuguese descendants and their families, in housing, education, social protection and priority access to active employment and training policies. The Government adds that around 1,400 applications were registered in the framework of this programme, corresponding to more than 3,000 persons. In that regard, the Committee notes that the National Plan for the Implementation of the Global Compact for Migration provides for several measures to encourage the return of emigrants and Portuguese descendants. The Committee asks the Government to provide information on the measures taken to facilitate the migration process and provide free services to Portuguese emigrants and returnees, including through bilateral agreements, in particular in the framework of the National Plan for the Implementation of the Global Compact for Migration.

Article 3 and Annexes I and II. Private employment agencies and measures to prevent misleading propaganda. The Committee previously noted that Law No. 5/2014, of 12 February 2014, amending Decree-Law No. 260/2009, of 25 September 2009, simplified the legal regime governing the operation and licensing of private and temporary employment agencies and requested the Government to provide information on the measures taken to ensure adequate protection for migrant workers recruited or placed in its territory by private employment agencies in order to prevent misleading propaganda. Noting with interest the ratification of the Protocol of 2014 to the Forced Labour Convention, 1930 (No. 29) on 23 December 2020, the Committee regrets the lack of information provided by the Government in that regard. It however notes that: (1) the PNIPGM sets as specific objective to facilitate fair and ethical recruitment and safeguard conditions that ensure decent work, including by strengthening the capacity of labour inspectors within the scope of monitoring mechanisms and prior certification of recruiters, employers and service providers in all sectors, namely by carrying out an assessment of their suitability and legitimacy; and (2) the PACTSH IV foresees, among others, measures to promote a better monitoring of recruitment agencies. The Committee observes, from the statistical information provided by the Government, that the number of infringements by private employment agencies identified by the Working Conditions Authority (ACT) drastically decreased from 44 in 2010 to none in 2019. In light of the dramatic decrease in the number of infringements by private employment agencies identified by the Working Conditions Authority, the Committee asks the Government to provide information on the proactive measures taken, including in the framework of the National Plan for the Implementation of the Global Compact for Migration and the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021, to ensure adequate protection for migrant workers recruited or placed in its territory by private employment agencies in order to prevent misleading propaganda. It further asks the Government to continue providing information on the number and nature of violations, if any, of the provisions of Decree-Law No. 260/2009 detected by the Working Conditions Authority, as well as on the number of cases, if any, identified after 2019 where private employment agencies were sanctioned by a temporary prohibition of activity while specifying the reasons on which such sanction was based. The Committee asks the Government to provide information on any assessment made of the supervision of the private employment agencies by the Working Conditions Authority, as well as on the reasons of the important decrease in the number of infringements recorded.

Article 6. Equality of treatment. The Committee previously noted the concerns expressed by the CGTP-IN and the General Workers’ Union (UGT) regarding migrant workers who were, in practice, still more vulnerable to discrimination. It requested the Government to provide information on how it was ensured that, in practice, no less favourable treatment is applied to migrant workers lawfully within its territory, in particular third-country nationals, regarding remuneration, membership in trade unions, accommodation and social security. The Committee notes that the Government merely refers to Articles 13 and 15 of the Constitution which generally provide for equality of rights between nationals and foreigners staying or residing in the national territory. It however notes that, in its observations, the CGTP-IN reiterates its concerns regarding the fact that, despite several amendments introduced in 2015 in the Foreigners Act No. 23/2007, the provisions of the Act establishes different categories of migrant workers that could create certain differences of treatment among them, and ultimately force unskilled workers to remain in irregular situations. The Committee further notes that, in its 2020 report, the Observatory for Migration highlights that the segmentation of the labour market according to nationality persists, with foreign workers being still over-represented in least attractive jobs, characterized by lower or no qualifications, tougher working conditions and high levels of insecurity (half of them being concentrated in the three lowest occupational groups), while during the same period there was an increase in the number of foreign workers with medium and higher educational levels and a decrease in the number of foreign workers with lower qualifications. In that regard, the Committee refers to its 2021 direct request on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and the observations made by the GGTP-IN regarding increasing discrimination faced by migrant workers in employment and occupation. Regarding “European Union (EU) Blue Cards” for highly qualified nationals from countries outside the EU (“third-country nationals”), the Committee notes the Government’s general indication that 15 men and 1 woman have been granted a EU Blue Card, but observes that no information is provided by the Government on the period covered by this statistical data. In light of the persistent vulnerability to discrimination in employment observed against migrant workers, the Committee asks the Government to provide information on the proactive measures taken to ensure that, in practice, no less favourable treatment is applied to migrant workers lawfully within its territory – other than citizens from the European Union, the European Economic Area, Switzerland and Blue Card holders – than that which is applied to its own nationals, in respect of the matters set out in Article 6(1)(a)–(d) of the Convention, in particular remuneration, membership in trade unions, accommodation and social security. It further asks the Government to continue to provide statistical information, disaggregated by sex and nationality and, if possible, by occupation, on the number of “ EU Blue Card” holders, as well as temporary and long-term third-country nationals in Portugal.

Article 8. Maintenance of residence in the event of incapacity for work. The Committee previously noted the clarifications provided by the Government regarding the national provisions applicable to migrant workers and their family in the event of occupational accident or disease, regarding in particular compensation, rehabilitation and rehiring of workers. The Government added that inability to work as a result of an occupational accident or disease is not included in the list of the grounds for compulsory removal or expulsion from the country of non-nationals, provided for in section 134 of the Foreigners Act. The Committee notes the Government’s repeated indication that the national legislation provides for compensation in case of incapacity for work of migrant workers. While noting the Government’s explanations regarding section 249(2)(d) of the Labour Code according to which illness is not a valid reason for termination of employment, the Committee recalls that Article 8 of the Convention addresses the right of permanent migrant workers to maintain their residence permit if, as a result of injury sustained or illness contracted after entry, they are unable to work. The Committee again asks the Government to indicate how it is ensured that migrant workers, who have been admitted on a permanent basis to the country, and their families, who have been authorized to accompany or join them, maintain their right of residence in the event of incapacity for work of the migrant worker due to illness contracted or injury sustained subsequent to entry, and whether this right is maintained even if they find themselves without means of support.

Enforcement. The Committee previously noted that the Strategic Plan for Migration (2015–2020) provided for enhanced cooperation between various national and local authorities, as well as through partnerships with local municipalities and associations, in welcoming and integrating immigrants and refugees. It further noted that specific concerns had been expressed about the ineffectiveness of the labour inspectorate or judicial system and requested the Government to provide information on the measures taken or envisaged to strengthen the labour inspectorate. The Committee notes the lack of information provided by the Government in that regard. It however notes, from the statistical information provided by the Government, that, between 2017 and 2019: (1) the number of labour inspectors decreased from 303 to 292; (2) the number of labour inspection visits decreased from 37,482 to 31,455; while (3) the number of violations concerning the employment of foreign workers identified by the ACT increased from 48 in 2017 to 88 in 2019. The Government adds that, between 2019 and 2021, five judicial decisions were handed down on issues covered by the Convention. The Committee again asks the Government to provide information on the measures taken or envisaged to strengthen the labour inspectorate in order to ensure that legislative provisions and regulations are adequately enforced, especially in sectors where migrant workers are mostly represented. It further asks the Government to provide information on the number and nature of cases of unequal treatment dealt with by the labour inspectorate and the courts, or any other competent authority concerning terms and conditions of work of migrant workers, including remuneration, social security, and accommodation as referred to in Article 6(1)(a) and (b) of the Convention, and the amounts and nature of wages or other benefits received by migrant workers as a result of these cases.

The Committee further refers to its comments on the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143).