Contribution from CARAM Asia to the Committee On Migrant Workers of the UNHCR

This is a written contribution from CARAM Asia to the One Day General Discussion: Protecting the rights of all migrant workers as a tool to enhance development, held by the Committee On Migrant Workers of the UN High Commissioner for Human Rights, on 15th December 2005.

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Migrant workers in Asia - issues and concern

Previous work with migrant workers, their families and communities have shown that it is not sufficient to stay active merely on the migrant community level - there is a need to bring the information gathered in a very organized way and cohesive way to the attention of governments and the UN institutions

Legal Protection to Migrant Workers and their Families

There should be a comprehensive set of instruments for legal recognition and protection of migrant workers that includes employment contracts, bilateral agreements, national laws and regulations in both the sending and receiving countries and International human rights conventions and treaties.

Currently contracts and agreements are made between different stakeholders involved in the process of employments of the migrant worker namely: the recruiting agency and the worker between recruiting agency and government between governments of the sending and receiving countries (bilateral agreements) between worker and employers.

It is well known that in many instances the national instruments designed to provide protection for a migrants workers are not sufficient as they are easily amended without the workers knowledge thus denying the worker the basic right to an adequate standard of living. At another level agreements made between sending and receiving counties are kept away from migrant workers and those advocating on their behalf for the protection and promotion of their rights. Sending countries within the region have become dependent on the remittances from abroad and in the process policy makers have turned a blind eye to the issue of protection of rights of migrant workers. The laws are written in such a way that does not provide a strong legal framework to punish those who abuse the system.

It is felt that the following are specific to the situation of Asian migrant workers that need to be protected.

  • Regarding domestic workers - the recognition of the home as a workplace which should then address such issues as confinement (the withholding of documents, denial of access to communication, no break times and denial of the right to free movement
  • Violence and abuse
  • Decent work, transit to, from and between jobs where the role of the sponsors and agents including illegal recruiters needs to be addressed
  • Prison and detention sites i.e the right to decent treatment - an entitlement to all humans, access to legal counsel and fair trials should be protected.

The right of the migrant workers which require protection include the whole gamut of human rights including civil, political, social, economic and cultural rights in particular and their rights as workers, right as women as a specific group (reproductive rights, right to be free from gender-based discrimination and violence)

There is currently no standardized employment contract designed specifically for the protection of the rights of migrant workers within Asia. Enforcement of existing contracts is problematic (bonded contracts, non-recognition and contract substitution is receiving countries) and it depends also on workers access to legal assistance and fair trials. Long processing time by criminal justice system in cases of breach of contract undermines migrant workers’ right to employment as they cannot work while in the process of seeking legal redress.

National laws and regulations relevant to the recognition and protection of the rights of the migrant workers include labour laws (recognition of domestic workers as workers) domestic violence laws (identifying violence against domestic workers as part of domestic violence) as well as anti-discriminatory and human rights laws.

Bilateral agreements that effectively protect the rights of migrant workers are difficult to obtain because of the unequal power relation between the sending and receiving countries. Facilitation of collective bargaining processes between sending and receiving countries could contribute to the development of a model bilateral agreement that would be readily adopted by responsible sending and receiving countries.

Setting up the standards for protection of migrant workers would require the following:

  • A definition of `domestic work’
  • A means of measuring `decent work burden’ for all migrant workers which takes into account a combination of factors: hours of work, type of work, size of house and grounds, umber of household members, as well as the combination of tasks to be performed;
  • An accessible and fair procedure of enforcement that fits the specific vulnerabilities of migrant workers, particularly migrant workers.

In Asia alone, increasing numbers of women are leaving behind families and loved ones every year to work as domestic workers in other countries. Unfortunately for this type of workers, there is still no agreed upon definition despite the urgency of such a definition for the purpose of obtaining a legal recognition of domestic workers as workers. ILO’s definition of domestic work in the 1950′s need to be reviewed and updated to reflect more contemporary realities, understandings and standards.

Collective Approach to Migrants’ Rights

`All migrant workers and members of their families’ is the crucial aspect of the convention and in every article of the convention says’ the rights of all migrant workers and members of their families’ which means the convention is not individualistic but collective, this approach is fundamental from the perspective of the rights of migrant workers.

Migrants do not become individuals on their own as soon as they leave their home. Therefore, it is important to define what these collective rights of the migrant workers and their families are, governments do not usually look upon these collective rights because, in reality migrant worker is seen as an individual economic migrant and not in relation to his/her family. National plans and interventions are directed to individual migrant workers, who are seen as economic tools and not social beings.

There are two major gaps in most current policies, laws and bilateral agreements. The first - a migrant is seen as an economic tool and not a social being. The second - no recognition is given to migrants’ families.

In Asia most migrant workers have extended families. Their families depend on migrants very much all through their migration process. If the wages are low and remittances system is faulty, the implications extend both to migrants and their families. Similarly, if in the home country, there are no support systems for migrants’ spouses and their families, the implications are extensive and may be irreversible.

Migrants and their families are experiencing the following in Asia:

  • An extensive disintegration of families in all the sending countries has become a major concern. In the Philippines, India, Bangladesh and Sri Lanka, families have become disintegrated and children feel lost.
  • Increased poverty and loss of land and resources is characteristic to the recruitment phase of migration process, land and resources are sold to cover migration costs, whereas actual income decreases the result is migrant families could have subsistent living. Their subsistent living is gone to cover the costs of migration. Increased poverty means greater social impact on the lives of the community.
  • Increase in single parent families is another characteristic trait of migration. There is an increase in unrecognized new families in host countries. New relationships take place where locals get married to migrants, or migrants get married to other migrants and such relationships are often not recognized

Health of the Migrant Workers

Though the Convention 1990 recognizes the “the right to receive any medical care that is urgently required for the preservation of Life” (article 28) and the “the right to receive medical care, irrespective of the status of in the country” but in reality the migrant workers stay in host countries for a long period of time and all factors of vulnerability take a toll of their health, so it must go beyond `urgency’. The convention should also cover the undocumented migrant workers and everyone must have right to health.

Every migrant worker is subjected to mandatory testing for a variety of diseases and illness. In some receiving countries migrants are tested for fifteen medical conditions- usually migrant workers are not even informed about what they are tested for, pregnancy is one of the conditions migrant women are tested for. Testing positive in any of the conditions means immediate deportation of the migrant.

Another aspect of the problem is limited access of migrant workers to medical treatment and in particular, high cost of healthcare for migrants. Many receiving countries have privatized healthcare, which incurs rising costs to migrants.

Migrant workers are commonly seen as transmitters of diseases. This concept has to change as it creates many discriminatory practices in receiving countries.

Occupational health and work related hazards are another area of concern. They suffer from minor to major injuries and even death due to industrial accidents. Protection and social security in terms of Employees Provident fund and health insurance are denied to the migrant workers.

Violence and abuse against migrant workers has been rampant, particularly against domestic workers who are increasingly sexually abused and raped in their homes.

Arrest, detention and deportation of migrants are another vulnerability factor influencing their health, migrants who do not have documents are commonly seen as criminals such undocumented migrant workers are usually not criminals - most of them did not come to the country without documents - migrants lose their documents because these are taken by employers, immigration department and other law enforcing agencies. When migrants are arrested, imprisoned and even whipped, they become marginalized and being labeled a criminal has social implications not only in the country of destination, but also at the migrants home country. Criminalized migrants are eliminated, discriminated and isolated from the community and suffer stigmatization.

Migrants’ sexuality is denied- they cannot have sex, become pregnant nor have babies (they will not be recognized). Banning pregnancy leads to high number of abortions, and unsafe abortions.

Migration in the Context of Conflict and Terrorism

Most of the migrant workers are from countries that are defined as terrorist producing or harboring countries, so the receiving countries treat them as security threat or risk so either they deport them or sent them to detention centres. The migrant workers are taken as hostages by the groups which work against the state. New mechanisms and strategies are needed to protect the migrant workers and their families in the places of conflict and terror.