Demande directe (CEACR) - adoptée 2013, publiée 103ème session CIT (2014)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Portugal (Ratification: 1978)

Autre commentaire sur C143

Observation

Demande directe

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The Committee notes the observations of the General Union of Workers (UGT) and the General Confederation of Workers of Portugal (CGTP) that refer to the implementation of the Convention.

Article 1 of the Convention. Basic human rights. The Committee notes that according to the Government, the national Constitution provides that foreigners and stateless persons who are in the country, whether as residents or otherwise, enjoy the same rights and are subject to the same obligations as Portuguese citizens. The Government also refers to measures that have been adopted in the framework of the Second Plan for Immigrant Integration (2010–13) to ensure the right to health and education for all migrants irrespective of their legal situation as well as to ensure access to justice in particular for domestic workers, victims of human trafficking and in the case of serious crimes of employment of migrants in an irregular situation. The Committee notes, however, that the United Nations Committee on the Elimination of Racial Discrimination (CERD) expressed concerns regarding the response by the Government to the current financial and economic crisis which should not lead to “a situation which would increase poverty and potentially give rise to racism, racial discrimination, xenophobia and related intolerance against foreigners, immigrants” (CERD/C/PRT/CO/12-14, 13 April 2012, paragraph 20). While noting the diverse measures adopted by the Government to ensure respect for the human rights of all migrant workers, the Committee requests the Government to ensure that the measures adopted to address the current economic and financial crises do not hamper the enjoyment of migrant workers’ human rights. The Committee further requests the Government to continue to provide information on the measures adopted in order to ensure respect for the basic human rights of all migrant workers irrespective of their legal status.

Articles 2 to 7. Measures to combat irregular migration. The Committee notes the efforts made by the Government to address irregular migration. The Committee notes in particular that the Government refers to the adoption of Act No. 29/2012 which transposes Directive No. 2009/52/CE and increases criminal sanctions for any assistance given to irregular immigration, criminalizes employment of migrant workers in an irregular situation and increases the fines imposed on employers that have recourse to them. The Committee further notes that, in the framework of the Second Plan for Immigrant Integration, measures have been taken to increase by 10 per cent the number of inspections carried out by the Foreigner Frontiers Service or the Conditions of Labour Authority and to reinforce border (Integrated Borders Management) protection against irregular immigration and human trafficking. The Government has established cooperation with other countries to prevent and combat irregular immigration and human trafficking, and to better manage circulation at borders. It also contributes bilaterally and multilaterally to the exchange of information on migration issues and has established the Advisory Council on Immigration Issues aimed at ensuring the participation of migrant workers’ associations as well as workers’ and employers’ organizations in the development of public policies concerning migration. With respect to human trafficking, the Second Plan for Immigrant Integration provides for four concrete measures with a view to combating this crime, establishing a network for the assistance, protection and reception of victims and consolidating the Human Trafficking Observatory. The Committee welcomes the statistical information disaggregated by sex provided by the Government on the number of inspection procedures carried out in enterprises, the number of migrant workers in an irregular situation entering the country, specifying country of origin and sector of employment. The Committee requests the Government to continue to provide information on the measures adopted to combat irregular immigration and, in particular, on the concrete impact of these measures on the reduction of this phenomenon.

Article 9(1). Measures relating to rights arising out of past employment. The Committee notes the Government’s indication that section 63(2) of Act No. 84/2007 provides for the fulfilment of fiscal and social security obligations as a condition for the renewal of the residence permit. However, in order not to prejudice migrant workers, the Second Plan for Immigrant Integration provides that the residence permit will be nonetheless renewed if it is the employer who has not respected the obligations concerning social security (measure No. 22 of the Plan). The Committee requests the Government to provide information on the measures which ensure that migrant workers whose situation could not be regularized and their families enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration, social security and other benefits. Please also indicate how many migrant workers have benefited from measure No. 22 and other benefits under the Second Plan for Immigrant Integration.

Article 9(3). Expulsion. The Committee notes that according to section 213 of Act 23/2007 “Expenses necessary to leave the country that cannot be supported by the foreign national, or should not be supported by him under special international conventions, shall be borne by the State.” It also provides that the State may bear the expenses for voluntary return of the members of the migrant worker’s family upon the expulsion or deportation of the migrant worker. The Committee requests the Government to take appropriate measures so as to ensure that migrant workers in an irregular situation for reasons that cannot be attributed to them are not required to bear the costs of expulsion, in conformity with Article 9(3) of the Convention.

Articles 10 and 12. Equality of opportunity and treatment. The Committee notes that section 4 of the Labour Code provides that migrant workers lawfully in the country enjoy the same rights and obligations as Portuguese workers. Section 24(1) provides for equal opportunities and treatment regarding access to employment, vocational training, career advancement and conditions of work, with respect to a number of grounds, including nationality. The Committee notes that the Second Plan for Immigrant Integration contains 17 areas of strategic intervention, including access to social rights and promotion of employment and vocational training, education and health, with the objective of ensuring greater equality of opportunities and reinforcing social cohesion. These measures have also been taken into account in the “Main lines for the Plan for 2012–15”. The Government established the Bureau for the Professional Insertion of Migrants which provided training to 342 migrant workers in 2010 and 290 in 2011, and the Programme for Unemployed Migrant Workers which provided assistance to 12,751 migrant workers in 2010 and 13,802 in 2011. The Committee notes, however, that the CERD noted with concern that immigrant women face multiple discrimination (for example with respect to remuneration) and urged the Government to evaluate and monitor racial discrimination against women, particularly immigrant women (CERD/C/PRT/CO/12-14 13 April 2013, paragraph 18). The Committee notes in this respect that the Second Plan for Immigrant Integration also contains measures aimed at mainstreaming gender, as well as measures related to the prevention of discrimination and racism by the Commission for Equality and Against Racial Discrimination (CICDR) including to increase its competencies. The Government is also implementing the Immigrant Entrepreneurship Promotion Project as well as the Intercultural Mediation in Public Services Project (MISP). Since 2007, the network for the labour insertion of migrant workers (REDE GIP Immigrant), constituted by 25 Employment Bureaus, works throughout the country in conjunction with the Institute for Employment and Professional Training. The Committee requests the Government to provide information on the concrete impact of legislative and practical measures adopted in the framework of the Second Plan for Immigrant Integration as well as any other measures adopted to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers. The Committee further requests the Government to provide information concerning the main difficulties faced by men and women migrant workers respectively, in the country according to the information gathered and research developed by the Observatory for Migration established in the framework of the High Commissioner for Immigration and Intercultural Dialogue.

Article 13. Family reunification. The Committee notes that in reply to the UGT’s comment on the need for policies on family reunification, the Government points to the Second Plan for Immigrant Integration which provides for measures in this regard. The Committee further notes the establishment of the Office for the Support of Family Reunification (GARF) in the framework of the High Commissioner for Immigration and Intercultural Dialogue, with the objective of providing information and assisting migrant workers in the process of family reunification. Please provide further information on the concrete measures adopted to facilitate migrant workers’ family reunification, particularly by the GARF, including information on the number of migrant workers who have benefited from such measures and any difficulties that have arisen in their implementation.

Enforcement. The Committee notes the Government’s indication that the Authority for the Conditions of Work (ACT) had imposed fines with respect to 340 cases involving migrant workers in 2010, 234 cases in 2011 and 62 cases in 2012. The Committee requests the Government to continue to provide information on measures by the ACT with respect to migrant workers as well as on any administrative or judicial decisions adopted with respect to the equality and non-discrimination provisions in the legislation regarding migrant workers.