Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

Other comments on C097

Direct Request

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Article 1(a) of the Convention. Information on national policy and legislation. In its previous comments, the Committee asked the Government to provide specific information on the implementation in practice of the “National foreign policy plan (PLANEX 2020)”, and particularly on any progress made regarding the adoption of migration legislation, and also on plans adopted at the local level and their impact. The Committee notes the Government’s statement in its report that on 6 February 2017 the Basic Act on Human Mobility (LOMH) came into force, governing the exercise of rights, obligations, institutional structures and mechanisms connected to “persons in situations of human mobility”. The Committee observes that this category includes emigrants, immigrants, people in transit and Ecuadorian returnees (section 1 of the Act). The Committee notes that the LOMH implements the principle of universal citizenship enshrined in the Constitution and recognizes a set of rights for Ecuadorian citizens abroad, Ecuadorian returnee migrants and foreign citizens in Ecuador, among others. The Committee notes in particular that the LOMH recognizes the entitlement of Ecuadorians abroad to send and receive remittances, to information, health, education and social security, and also the rights of association, access to justice and access to the plans, programmes and projects of the State abroad (section 5 et seq.). As regards social security, the LOMH provides that Ecuadorians abroad can affiliate to the Ecuadorian social security system on a voluntary basis and that the State shall promote the signing of international instruments enabling the portability of social security rights (section 20).

As regards institutional structures relating to human mobility, the Committee notes that the LOMH establishes a lead entity for human mobility responsible for protecting and ensuring observance of people’s rights with regard to human mobility and for formulating the necessary public policies, plans and programmes to achieve that, in conjunction with other state institutions (section 163). According to the LOMH implementing regulations, issued by Executive Decree No. 111 of 3 August 2017, policy on human mobility is the responsibility of the Ministry of Foreign Relations and Human Mobility (Foreign Ministry) (section 1 of the regulations). The Committee also notes that the LOMH provides that the competent labour bodies shall monitor observance of the labour rights of immigrants by public institutions and private companies. Accordingly, the Ministry of Labour shall issue the necessary regulations to monitor and penalize lack of observance of individuals’ human mobility rights (section 132). The Committee also notes the “National agenda for equality in human mobility (2013–17)”, which seeks to help guarantee the rights recognized in the Constitution for people on the move and accordingly establishes four components comprising 16 specific policies which address, inter alia, non-discrimination, regularization of immigrants, strengthening of institutional capacity for the effective protection of mobile persons, and access to health services, education, social security, housing and decent work. The Committee requests the Government to provide information on the application of the LOMH and the implementation of the “National agenda for equality in human mobility (2013–17)” and the impact thereof, and to continue providing information on all progress made regarding the adoption of migration legislation or policies.

Article 1(b). Special provisions on migration. Women migrant workers. The Committee notes the Government’s statement that, further to the promulgation of the Basic Act on national equality councils in 2014, five specialist councils were set up, including on equality in gender and human mobility, whose purpose is to promote, foster, protect and ensure respect for the right to equality and non-discrimination, and to participate in the formulation, mainstreaming, observance, follow-up and evaluation of public policies within their areas of thematic competence. The Committee also notes the information supplied by the Government regarding various measures taken to promote respect for the rights of women domestic workers, particularly an information campaign on their labour rights and various inspection initiatives involving home visits to monitor compliance with the regulations in force. Recalling the importance of gender mainstreaming in migration policies, the Committee requests the Government to continue providing information on the measures taken to ensure that women migrant workers also enjoy the rights established in the Convention, in particular any measures for women emigrant and immigrant workers adopted by the national equality councils. The Committee also requests the Government to send any available information on the living and working conditions of women migrant workers and the difficulties encountered.

Article 1(c). Information on general agreements and special arrangements. In its previous comments, the Committee asked the Government to continue providing information on the general agreements and special arrangements concluded by the Government. The Committee notes the Government’s information regarding the memorandum of understanding between the Government of Ecuador and the Government of Australia concerning “work and holiday visas”, signed in Sydney on 19 January 2017, whereby it is planned to grant up to 100 “work and holiday visas” for a temporary stay of 12 months. The Committee also notes the information provided by the Government on processes for the regularization of foreign citizens, including those of Haiti, Bolivarian Republic of Venezuela, Peru and the Dominican Republic, which it has been carrying out in recent years. The Committee requests the Government to continue providing information on the general agreements and special arrangements concluded by the Government.

Articles 2–4 and 7. Services and assistance for migrant workers. In its previous comments, the Committee asked the Government to provide information on the difficulties encountered by the Migrant Workers’ Unit and the Migrant Labour Offices in their work, and also on the assistance and information services which deal with issues particularly affecting women, including those arising from misleading information on employment opportunities and conditions of work. The Committee notes that, according to the provisions of the LOMH and its implementing regulations referred to by the Government in its report, the Foreign Ministry is obliged to provide assistance, inside the country and abroad, to the mobile Ecuadorian community, and formulate and implement programmes for the prevention of hazardous migration and for the inclusion of the community of foreign citizens in Ecuador. The Committee also notes the Government’s statement concerning the cooperation agreement with the International Organization for Migration, signed on 17 July 2015, proposing to strengthen institutional capacity in migration matters and, in particular, to develop and implement services for people on the move. The Committee further notes the setting up of the Directorate for the Integration of Returnee Migrants (DIMR), which has eight “returnee migrant integration units” within the eight area coordination offices. In this regard, the Committee observes that the LOMH establishes various rights for Ecuadorian returnee migrants, including: social and economic inclusion; approval, validation and recognition of studies abroad; placement in education; information about returning to the country; training, approval and certification of labour skills; and access to the retirement pension. To uphold these rights, the State will work towards signing international instruments regarding the portability of contributions for affiliated persons and the grant of retirement benefits at the place of residence (section 25 et seq.). The Committee notes the information provided by the Government regarding the various support programmes for returnee migrants which have been created, covering areas such as assisted return, business plans, job placement, credit and housing subsidies. The Committee further notes the information on the implementation of the “Welcome home” programme, which allows the tax-free import of household goods, vehicles and work equipment, and the special measures provided for in the technical regulations on public sector staff selection, with a view to facilitating the return to work for Ecuadorian migrants. The Committee requests the Government to supply information on the initiatives undertaken by the lead entity for human mobility to provide appropriate assistance and information for migrant workers. The Committee also requests the Government to supply information on the work of the Migrant Workers’ Unit, regarding migration flows between Ecuador and Spain, and the Migrant Labour Offices established under the Andean Instrument on Labour Migration, and the difficulties faced. The Committee also once again requests the Government to provide information on assistance and information services specifically for women migrant workers, particularly those aiming to counteract misleading information on employment opportunities and conditions of work. The Committee further requests the Government to continue providing information on assistance programmes relating to the return of migrant workers.

Article 6. Equal treatment. In its previous comments, the Committee asked the Government to provide specific information on the measures adopted by the Government through the various competent institutions to ensure the full application of the rights set out in Article 6 of the Convention. The Committee notes that the LOMH provides that foreign nationals in Ecuador have the right to responsible freedom of mobility and safe migration, information on migration, social participation and organization, access to justice under equal conditions for the protection of their rights, approval and recognition of studies undertaken abroad, work, social security and health (section 42 et seq.). The Committee also notes the information supplied by the Government on the functions of the Under-Ministry of Human Mobility, the National Council for Equality in Human Mobility, and the decentralized autonomous governments regarding the protection of migrants’ rights. The Committee further notes that the Council of the Judiciary has developed policies to prevent violence, mistreatment and/or sexual exploitation, and to ensure access to justice and protection for women victims of violence, irrespective of their migration status. Moreover, the Committee notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW), in its concluding observations, expressed concern at the negative perception of foreign nationals – especially Colombians, Peruvians, Cubans and Venezuelans, as well as nationals of various African and Asian countries – which persists in the country, as well as the xenophobia observed in relation to the population of Colombian origin (CMW/C/ECU/CO/3, 5 October 2017, paragraph 18). While noting the information provided by the Government, the Committee requests it to provide information on the specific measures taken to ensure that migrant workers who are legally in the country receive no less favourable treatment than that given to Ecuadorian nationals with regard to the rights established in Article 6 of the Convention, including information on the monitoring carried out by the Under-Ministry of Human Mobility and the National Council for Equality in Human Mobility. The Committee also requests the Government to send copies of any relevant court decisions and information on the number and nature of violations reported by the labour inspectorate. The Committee further requests the Government to supply information on any awareness-raising or other measures adopted to promote the application of the principles of the Convention.

Article 8. Maintenance of residence in the event of incapacity for work. In its previous comments, the Committee asked the Government to indicate the legal provisions establishing the right of migrant workers and the members of their families, both in the Andean region and in third countries, to maintain the right of permanent residence in the event of incapacity for work. The Committee notes the Government’s indication that, even though the LOMH does not explicitly establish the right of residence in the event of incapacity for work, incapacity is considered a case of force majeure or chance occurrence which does not correspond to the grounds laid down in section 68 of the Visa Cancellation or Revocation Act, and so the right of residence in the event of incapacity is protected. In this context, the Committee observes that, under section 64 of the LOMH, the accreditation of lawful means of living enabling the subsistence of the applicant person and his/her dependent family members is one of the preconditions for obtaining residence. The Committee requests the Government to provide detailed information on the application in practice of section 68 of the LOMH with regard to maintaining residence in the event of incapacity for work, as provided for in Article 8 of the Convention, including information on cases of visa cancellation or revocation registered by the competent authorities or examined by the courts on grounds of sickness or accident sustained by a migrant worker after being admitted to the country on a permanent basis. The Committee also requests the Government to clarify whether section 64 of the LOMH could entail the loss of the right of residence if a migrant worker did not have any means of subsistence as a result of incapacity for work.

Enforcement. The Committee notes that the LOMH provides for the setting up of a national integrated information system on human mobility (section 168). The Committee also notes the statistical information provided by the Government on migration flows (entries and exits) by nationality, sex and age group in 2016 and 2017. The Committee requests the Government to continue providing all available statistical information on migration flows into and out of Ecuador. The Committee also requests the Government to indicate whether any court decisions have been issued or any violations registered by the labour inspectorate involving questions of principle relating to the application of the Convention.