Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Mauritanie (Ratification: 2019)

Autre commentaire sur C143

Demande directe

2021

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The Committee takes note of the Government’s first report on the Convention. However, the Committee observes that the Government’s report provides scant or no information on the many questions raised in the report form on the application of the Convention, approved by the Governing Body.

Article 1 of the Convention. Respect for migrant workers’ basic human rights. The Committee observes that certain articles of the Constitution relative to basic rights are applicable to citizens. It notes in particular that that is the case in sections 1 (protection against discrimination) and 10 (freedom of movement, freedom of opinion and thought, freedom of expression, freedom of assembly, freedom of association and to join a political party or trade union of their choice). The Committee notes that the United Nations Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) expressed concern at the persistence of forced labour in the case of migrant workers. The CMW also noted with concern the situation of migrant women in an irregular situation employed as domestic workers, who are vulnerable not only to exploitation but also to prostitution (Concluding observations, CMW/C/MRT/CO/1, 31 May 2016, paragraph 30). Finally, the Committee refers to its comments on the application of the Fee-Charging Employment Agencies Convention (Revised), 1949 (No. 96), in which it requested the Government to provide its comments regarding the observations of the Free Confederation of Mauritanian Workers (CLTM) alleging serious abuse of Mauritanian women domestic workers abroad. The Committee requests the Government to provide detailed information on the measures adopted to ensure protection of the basic human rights of foreign migrant workers in Mauritania. In particular, the Committee requests the Government to indicate whether the basic rights recognized for citizens under the Constitution are also recognized for men and women foreign workers in the country. It also requests the Government to provide information on the measures adopted to ensure respect for the basic rights of men and women Mauritanians working abroad.

Article 2. Migration flows. Measures aimed at combating clandestine movements of migrants, illegal employment of migrants, and sanctions. The Committee notes that Mauritania, according to the migration profile established by the International Organization for Migration (IOM), is essentially a major destination and transit country for migrants from Sub-Saharan Africa (mainly from Senegal and Mali, but also from Côte d’Ivoire, Gambia, Guinea Bissau, etc.). Many migrants in the country work in the informal sector, transiting through Mauritania on their way to Europe, especially Spain, via the Canary Islands. It notes that the Government indicates in its report that the management of migrant labour will in future be better informed, thanks to measures put in place in the National Statistics Office, which will include a series of questions on migration and work in the employment module of the survey on household living conditions (EPCV) and in the employment survey. In that regard, the Committee stresses that under Article 2 of the Convention, each country for which this Convention is in force shall systematically seek to determine whether there are illegally employed migrant workers on its territory and whether they depart from, pass through or arrive in its territory any movements of migrants for employment in which the migrants are subjected during their journey, on arrival or during their period of residence and employment to conditions contravening relevant international multilateral or bilateral instruments or agreements, or national laws or regulations. It recalls that the representative organisations of employers and workers shall be fully consulted and enabled to furnish any information in their possession on this subject. The Committee therefore requests the Government to ) keep it informed of any system put in place to collect in the future precise data on migration for employment departing from, passing through, or arriving in its territory. It further requests the Government to communicate statistics, disaggregated by sex and nationality: (i) on migration flows departing from and arriving in Mauritania, in particular on the number of foreign workers residing legally in the country; and if available (ii) the number of workers who entered the country seeking employment and who are in an irregular situation; as well as on (iii) the number of Mauritanian citizens leaving Mauritania to seek employment abroad who are in either a regular or irregular situation.

Article 3. Collaboration with other Member States to prevent and suppress clandestine migration and illegal employment. The Committee notes that the Government collaborates with other Member States in respect of migration in the framework of numerous international agreements. It welcomes such cooperation and recalls in this connection that according to the General principles and operational guidelines for fair recruitment, approved by the Governing Body of the ILO in 2016, Governments should make public the bilateral and multilateral agreements on migrant labour and inform migrant workers of their provisions (paragraph 13.1). The Committee requests the Government to provide information on the measures taken in this connection.

Article 4. Systematic exchange of information. Consultation with the social partners. The Committee observes that Act No. 2020-017 of 6 August 2020 concerning the prevention and repression of human trafficking and the protection of victims provides for the establishment of a National Instance against human trafficking and trafficking of migrants, of which the functions include: encouraging cooperation with peer instances in other countries with which it has signed cooperation agreements; and accelerating the exchange of information with them, in order to have early notice of violations of the law and prevent them occurring. The Committee requests the Government to provide detailed information on the activities of the National Instance against human trafficking and the trafficking of migrants in respect of the systematic exchange of information, as well as on any other mechanism in place concerning the exchange of information on labour migration, and to specify whether the social partners are consulted within the framework of these mechanisms.

Article 6. Effective detection of the illegal employment of migrant workers. The Committee notes that, according to section 18 of Decree No. 2018-025 of 8 February 2018, abrogating and replacing Decree No. 2009-224 of 29 October 2009 establishing the employment conditions of migrant labour and instituting work permits for foreign workers, a labour inspector or a police officer, or any other duly appointed administrative agent can take note of breaches of the above-mentioned Decree. It notes in this regard the concern of the CMW that the labour inspections concentrate more on the status of the migrant workers than on their working conditions (Concluding observations, CMW/C/MRT/CO/1, paragraph 30). In this connection, the Committee recalls that cooperation between the labour inspectorate and the immigration authorities should be carried out cautiously, keeping in mind that the main objective of the labour inspection system is to protect the rights and interests of all workers, and to improve their working conditions, rather than the enforcement of immigration law. Where a large proportion of inspection activities relate to verifying the immigration status of migrant workers, this may mobilize considerable resources in terms of staff, time and material resources, to the detriment of those allocated to the inspection of conditions of work and deter them from making complaints (2016 General Survey concerning the migrant workers instruments, paragraph 482). The Committee requests the Government to provide details of the role of the labour inspectorate in the verification of the status of migrant workers. It requests the Government to provide information on activities aimed at detecting the presence of illegally employed migrant workers or the organization of clandestine migration for employment, and to indicate the administrative, civil or penal sanctions imposed on persons that organize clandestine migration for employment, or on those who employ migrants illegally. The Committee requests the Government to communicate information on any legal procedure engaged in accordance with the relevant sections of the Penal Code, indicating the sanctions imposed on the authors.

Article 7. Consultation of the social partners. The Committee notes that the National Strategy for better management of migration, adopted in 2010, provided for the establishment of a system for the management, monitoring and evaluation of migration, with the participation of the social partners, in particular through the establishment of a National Committee for the Management of Migration. The Committee also notes that the Government indicates its intention to reinforce cooperation with the social partners by setting up a National Council for Social Dialogue (Decree No. 2021-012 of 26 January 2021, establishing the National Council for Social Dialogue), which will allow discussions with the tripartite constituents on how to integrate migrant workers and protect their rights. The Committee requests the Government to indicate whether the National Committee for the Management of Migration has been put in place in practice and if so, to provide detailed information on its activities. It also requests the Government to provide information on the activities of the National Council for Social Dialogue in respect of labour migration.

Article 9. Possibility of defending rights. The Committee takes note that according to section 21 of the Constitution of the Islamic Republic of Mauritania, any foreign national in a regular situation on the national territory enjoys the protection of the law in respect of his or her person and property. It notes, nevertheless the CMW’s concern that migrant workers are subject to forms of exploitation such as inadequate pay or excessive working hours or a lack of information on the effective access to remedies to challenge their expulsions (Concluding observations, CMW/C/MRT/CO/1, paragraphs 30 and 38). The Committee recalls in this regard that expulsion orders, in general, should not have the effect of denying migrant workers the right to appeal those orders nor should they have the effect in practice of denying migrant workers the right to file complaints with regard to violations of other rights (2016 General Survey, paragraph 499). The Committee requests the Government to provide information on the measures adopted to allow migrant workers to appeal expulsion orders and to defend their rights arising out of current or past employment. In particular, it requests the Government to indicate the existing measures taken to allow migrant workers to submit complaints to the labour inspectorate, but also before a competent court.

Article 9(3). Cost of expulsion. The Committee notes that according to section 33(b) of Decree No. 64-169 of 15 December 1964 regulating immigration in the Islamic Republic of Mauritania, when a foreign national residing in Mauritania definitively leaves the national territory, the repatriation deposit paid on arrival must be refunded, after release by the Minister of the Interior, once it has been established that the foreign national is the holder of a ticket to travel abroad. Recalling that the Convention expressly provides that in case of expulsion of the worker or his family, the cost shall not be borne by them, the Committee requests the Government to specify whether the repatriation deposit is used to cover the cost of expulsion of the migrant workers and their families.

Article 10. National policy of equality of treatment of migrant workers. The Committee notes the Government’s indication according to which the National Strategy for better management of migration adopted in 2010 is currently undergoing revision in light of new governance contexts, especially the 2018 adoption in Marrakesh of the Global Compact for Safe, Orderly and Regular Migration by the international community. The Committee requests the Government to provide detailed information on the practical implementation of the National Strategy for better management of migration and, as appropriate, on its revision in light of the Marrakech Pact for Safe, Orderly and Regular Migration. More generally, it requests the Government to provide detailed information on the adoption of a national policy designed to ensure equality of opportunity and treatment in respect of employment and occupation, of social security, of trade union and cultural rights, and of individual and collective freedoms for persons who as migrant workers or as members of their families, are lawfully within its territory.

Equality of treatment. Trade union rights. The Committee observes that section 273 of the Labour Code provides that members responsible for the administration or management of a trade union must, if they are foreign nationals, be able to justify five consecutive years’ exercise of the occupation defended by the trade union in the Islamic Republic of Mauritania. The Committee recalls that Article 10 of the Convention makes it obligatory for the Government to declare and pursue a national equality policy with respect to “trade union rights” and that the rules concerning the election of union officers should be left to the unions concerned. It further recalls that, if the principle remains that of unconditional equality of treatment, it has acknowledged in some cases certain exceptions for legislation restricting the ability of migrant workers to take up trade union office, it has emphasized that migrant workers should be able to take up trade union office at least after a reasonable period of residence in the host country (2016 General Survey, paragraph 410). In light of the above, the Committee requests the Government to consider reducing the period of residence required for a foreign worker wishing to exercise trade union functions.

Article 12(c). Activities aimed at migrant workers. The Committee notes the Government’s indication according to which the Ministry for the Civil Service has organized a communication and awareness-raising campaign on the scope of, and issues arising from, the Convention, in the regions with a high concentration of migrant workers (Nouadhibou, Rosso, Sélibabi Alioune), aimed at the tripartite constituents and associating the territorial authorities and the security forces. The Committee requests the Government to provide information on the measures under consideration or adopted to encourage educational programmes aimed at acquainting migrant workers with their rights and enabling them to exercise them in practice.

Article 14(b). Recognition of qualifications. In the absence of information on this subject, the Committee requests the Government to give details of the measures taken to regulate recognition of occupational qualifications acquired outside its territory, including certificates and diplomas.

Article 14(c). Restricted access to limited categories and functions. The Committee observes that according to section 30 of Decree No. 64-169 of 15 December 1964 regulating immigration in the Islamic Republic of Mauritania, no foreign national may exercise in Mauritania, without special authorisation of the Ministry of the Interior, the following occupations: customs officer, forwarder or freight forwarder, officer dealing with immigration and emigration, insurance agent, shipping agent, ship chandler, ship’s agent, director of a travel agency or of an airline company, public transport contractor, currency exchanger, printer, news agent, surveyor, arms and ammunition dealer, operator of hydrocarbon (derivatives or residues) depots, mineral prospector, hotel and bar keeper. The Committee recalls that general prohibitions as regards the access of foreigners to certain occupations, when permanent, are contrary to the principle of equality of treatment. The Convention does however authorize certain restrictions to the principle of equality of treatment with regard to access to employment: (1) Article 14(a) allows the State to make the free choice of employment subject to temporary restrictions for a prescribed period not exceeding two years, while (2) Article 14(c) permits restricting access to limited categories of employment or functions where this is necessary in the interests of the State (2016 General Survey, paragraph 370). The Committee consequently requests the Government to examine the list of “protected” occupations in light of Article 14(c) of the Convention and to alter it accordingly. In the meantime, the Committee requests the Government to provide information on the manner in which the above-mentioned section 30 of Decree No. 64-169 of 15 December 1964 is applied in practice.