1. The Migrant Workers Convention
Dr. Vladislava Stoyanova

2. Dislocation of the Borders and the Consequences
‘These noncitizen immigrants have entered the spatial domain of universal citizenship, but they remain outsiders in a significant sense: the border effectively follows them inside [emphasis added].’ ‘What legitimate bearing should the government’s claimed interest in regulating the ingress of foreigners have on its general treatment of non-citizens who are present in our society? To what extent do national concerns with protecting the boundaries of territory and membership properly structure the status of non-citizens currently residing in the national territory and participating in national life?’

3. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into force 1 July 2003.

4. The Migrant Workers Convention
Conception of the idea in 1970s; text negotiated in 1980s; adopted on 18 Dec 1990s; entry into force on 1 July 2003
One of the core human rights treaties at UN level
Ratification pattern – ratified predominantly by the sending states in the South.
treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-13&chapter=4&lang=en

5. The Migrant Workers Convention
Definition of a MIGRANT (Article 2(1))
‘The term "migrant worker" refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.’

6. The Migrant Workers Convention
Subdivisions of Migrants (Article 5)
‘For the purposes of the present Convention, migrant workers and members of their families:
Are considered as documented or in a regular situation if they are authorized to enter, to stay and to engage in a remunerated activity in the State of employment pursuant to the law of that State and to international agreements to which that State is a party;

7. The Migrant Workers Convention
Subdivisions of Migrants (Article 5)
‘For the purposes of the present Convention, migrant workers and members of their families:
(b) Are considered as non-documented or in an irregular situation if they do not comply with the conditions provided for in subparagraph (a) of the present article.’ .

8. Comparing Part III and Part IV of The Migrant Workers Convention
HUMAN RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES (Article 4 defines ‘members of the family’)
Part IV
OTHER RIGHTS OF MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES WHO ARE DOCUMENTED OR IN A REGULAR SITUATION
undocumented migrants are included
undocumented migrants are excluded

9. Comparing Part III and Part IV of The Migrant Workers Convention
The distinction in treatment between documented and undocumented migrants is not exclusive to the Migrant Workers Convention. It has been applied in other contexts also. Examples:
Benamar v. the Netherlands, ECtHR, Admissibility Decision of 5 April 2005, Application No /04 (right to family life)
Defence for Children International v. The Netherlands, European Committee of Social Rights, Complaint No. 47/2008

10. Francoise Tulkens, Migrants and their Right to a Family and Private Life under Article 8 of the European Convention on Human Rights, Greek Law Journal Nomiko Bhma (2010), pp.35-50, p.35.

11. Comparing Part III and Part IV of The Migrant Workers Convention
‘The MWC and other contemporary norms of international law are no isolated phenomena, no historical singularities – if they were, we would be scandalized by what we would very likely perceive as legalized apartheid. Rather, these norms appear to us so normal, so matter-of-fact-like, because they correspond neatly to figures of political thought which have become so widespread to be almost forgotten.’
Gregor Noll, Why Human Rights Fail to Protect Undocumented Migrants, European Journal of Migration and Law 12 (2010), p.264

12. Part III of the Migrant Workers Convention
Reflection of preexisting civil and political rights
In comparison with the ICCPR, the following rights are missing:
peaceful assembly (Art.21 ICCPR)
freedom of association (Art.22 ICCPR)
right to marry (Art. 23 ICCPR)

13. Part III of the Migrant Workers Convention
A limited number of economic, social and cultural rights are added and specified
Art.25 (Remuneration, conditions of work or other terms of employment not less favorable than that which applies to nationals)
Ar.25(3) States Parties shall take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from this principle by reason of any irregularity in their stay or employment. In particular, employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of such irregularity.
Enforcement ?

14. Part III
A limited number of economic, social and cultural rights are added and specified
Art. 26 (right to join a trade union, take part in its meetings and seek its aid and assistance; no right to start a trade union)
Art. 27 Social security rights
1. With respect to social security, migrant workers and members of their families shall enjoy in the State of employment the same treatment granted to nationals in so far as they fulfill the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties. The competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine the modalities of application of this norm. (cont. on next slide)

15. Part III Art. 27 Social security rights
2. Where the applicable legislation does not allow migrant workers and members of their families a benefit, the States concerned shall examine the possibility of reimbursing interested persons the amount of contributions made by them with respect to that benefit on the basis of the treatment granted to nationals who are in similar circumstances.

16. Part III
A limited number of economic, social and cultural rights are added and specified
Art.28 Emergency medical care
Migrant workers and members of their families shall have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals of the State concerned. Such emergency medical care shall not be refused them by reason of any irregularity with regard to stay or employment.
- Comparison Art.12 ICESCR
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

17. Part III
A limited number of economic, social and cultural rights are added and specified
Article 30 (access to education by children)
Each child of a migrant worker shall have the basic right of access to education on the basis of equality of treatment with nationals of the State concerned. Access to public pre-school educational institutions or schools shall not be refused or limited by reason of the irregular situation with respect to stay or employment of either parent or by reason of the irregularity of the child's stay in the State of employment. A

18. Part III
Rights specific to the Migrant Workers Convention in comparison to the general human rights treaties
Art.16(2) protection against violence, injury, threats and intimidation
Art.16(3) verification of identity
Article 20(2) (relation: work permit – residence permit)
No migrant worker or member of his or her family shall be deprived of his or her authorization of residence or work permit or expelled merely on the ground of failure to fulfill an obligation arising out of a work contract unless fulfillment of that obligation constitutes a condition for such authorization or permit.
Art.21 destruction of documents
Art.22(1) collective expulsion of aliens
Art.4 Protocol 4 to ECHR
Conka v. Belgium, Application No.51564/99, Judgment 05 May 2002
Hirsi Jamaa and Others v. Italy, [GC] Application No /09, Judgment of 23 February 2012

19. Part III
Rights specific to the Migrant Workers Convention in comparison to the general human rights treaties
Art.22(6) In case of expulsion, the person concerned shall have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her and any pending liabilities.
Art.22(9) Expulsion from the State of employment shall not in itself prejudice any rights of a migrant worker or a member of his or her family acquired in accordance with the law of that State, including the right to receive wages and other entitlements due to him or her.

20. Reassuring states that there are no hidden risks
Article 35 Nothing in the present part of the Convention shall be interpreted as implying the regularization of the situation of migrant workers or members of their families who are non-documented or in an irregular situation or any right to such regularization of their situation, nor shall it prejudice the measures intended to ensure sound and equitable-conditions for international migration as provided in part VI of the present Convention.

21. Reassuring states that there are no hidden risks
Article 79 Nothing in the present Convention shall affect the right of each State Party to establish the criteria governing admission of migrant workers and members of their families. Concerning other matters related to their legal situation and treatment as migrant workers and members of their families, States Parties shall be subject to the limitations set forth in the present Convention.

22. Part IV of the Migrant Workers Convention
Compare with Art.12 ICCPR
Liberty of movement (Art.39)
Right to form associations and trade unions (Art.40(1))
Access to educational institutions, housing, social and health services on equal basis with nationals (Art.43(1))
Art.43(1)(e) Access to social and health services, provided that the requirements for participation in the respective schemes are met.
Gaygusez v Austria, Application No /90, Judgment 16 Sept 1996

23. Part IV of the Migrant Workers Convention
Family unity (Art.44)
1. States Parties, … shall take appropriate measures to ensure the protection of the unity of the families of migrant workers.
2. States Parties shall take measures that they deem appropriate and that fall within their competence to facilitate the reunification of migrant workers with their spouses or persons who have with the migrant worker a relationship that, according to applicable law, produces effects equivalent to marriage, as well as with their minor dependent unmarried children.
States are not obliged to grant, but only to facilitate reunification. They are obliged to take only such measures ‘that they deem appropriate’

24. Undocumented migrant worker
The easy way out?
State
Human Rights claim
Expulsion
Undocumented migrant worker
Labour rights claim
Termination of employment
Employer

25. No ‘shield’ for undocumented migrants
Article 83 Each State Party to the present Convention undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any persons seeking such a remedy shall have his or her claim reviewed and decided by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c) To ensure that the competent authorities shall enforce such remedies when granted.

26. The Double Vulnerability of the Migrant Worker
A worker complaining about rights in the workplace may put her job at risk.
An undocumented migrant risks removal from state territory once detected by authorities.
An undocumented migrant worker complaining about rights in the workplace and human rights puts her job and her presence on state territory at risk.
The right to a remedy in Art. 83 is nullified where the complaining migrant worker is removed from state territory.

27. Contradicting assumptions
Granting HR to undocumented migrants is a pull factor for irregular migration – more irregular migration (Art.35: no regulariation)
Granting HR to undocumented migrants will discourage employers to hire them – less irregular migration (Preamble, Migrant Workers Convention , Recital 14)
So, we should recognize some human rights ???
So, we should not recognize any human rights ???

28. Is the disentitliment of undocumented migrants in the interests of both migrant receiving and migrant sending states? Aren't the both sides profiting from irregular migration?

29. Monitoring Committee on Migrant Workers
- Reports on how states have given effect to the provisions of the Migrant Workers Convention: every five years. The Committee issues non-binding concluding observations.
- Comments –
Inter-state communications – Declaration by Guatemala
Communications from individuals - Declaration by Guatemala; Mexico