In this country, everyday could well be International Migrants Day for without the OFWs our country would have sunk a long, long time ago. We’re likely still going down but the OFW remittances are keeping us afloat, for now.
But, let’s focus on our migrant workers and the legal provisions set in place for their protection. To be clear, the Convention does not give them special rights but basically emphasizes their human rights to ensure respect for, and protection of, the same wherever they may end up especially since they are foreigners, a minority, likely uneducated and poor in their country of employment and thus vulnerable to discrimination or exploitation of all kinds, women in particular.
As always, for a better understanding, the full text should be read which may be found here: Migrant Workers’ Convention.
Who are Migrant Workers
Its funny but with a very large migrant population, our law on migrant workers (the Migrant Workers and Overseas Filipinos Act of 1995) seems already antiquated. Fortunately, we are signatory to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (in force since July 1, 2003) which is more in tune with the times.
For instance, the Act defines a migrant worker as a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a country of which he/she is not a legal resident. (Section 3a) While the Convention defines the worker similarly but one engaged in a country of which he/she is not a national. It is quite possible nowadays that a migrant worker is also a legal resident of his/her place of work. (Article 2.1)
And while the Act is silent, the Convention specifically defines "frontier worker" (one who retains habitual residence in a country to which he/she normally returns at least once a week); "seasonal worker" (whose work depends on seasonal conditions and performed only part of the year); "seafarer" (one, including a fisherman, employed on board a vessel registered in a country of which he/she isn’t a national); "worker on an offshore installation" (employed on an offshore installation under the jurisdiction of a country of which he/she isn’t a national); "itinerant worker'' (one having habitual residence in one country and has to travel to another country for short periods, owing to the nature of his/her occupation; "project-tied worker" (worker admitted to a country of employment for a defined period to work solely on a specific project being carried out in that country by his/ her employer). (Article 2.2)
It’s also enlightening to know who are not deemed migrant workers a) those sent or employed by international organizations and agencies or by a country outside its territory to perform official functions, whose admission and status are regulated by general international law or by specific international agreements or conventions; b) those sent or employed by a country or on its behalf outside its territory who participate in development or co-operation programmes, whose admission and status are regulated by agreement with the country of employment and who, in accordance with that agreement, are not considered migrant workers; c) those taking up residence in a country different from their country of origin as investors; d) refugees and stateless persons, unless such application is provided for in the relevant national legislation of, or international instruments in force for, the country concerned; e) students and trainees; f) seafarers and workers on an offshore installation who have not been admitted to take up residence and engage in a remunerated activity in the country of employment. (Article 3)
Migrant Workers’ Rights (Documented or not)
As mentioned earlier, they’re fundamental human rights and the Convention makes them applicable to their family members.
Basic Human Rights:
1. Non-discrimination on account of “sex, race, colour, language, religion or conviction, political or other opinion, national, ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status” (Article 7)Due Process Rights
2. Freedom of Movement (Article 8)
3. Freedom against “torture or to cruel, inhuman or degrading treatment or punishment” (Article 10)
4. Freedom against “slavery or servitude” and “forced or compulsory labour” (Article 11)
5. Freedom of thought, conscience and religion (Article 12)
6. Freedom of expression (Article 13)
7. Right to privacy (Article 14)
8. Right to property (Article 15)
9. Right to liberty and security of person, including freedom against “violence, physical injury, threats and intimidation” and “arbitrary arrest or detention”. If arrested, right to be promptly informed of the charges in a language they understand. (Article 16)
When a migrant worker or a family member is arrested or committed to prison or custody pending trial or is detained in any other manner:
- His/her country’s diplomatic authorities shall, if he/she requests, be informed without delay of the arrest or detention and of the reasons therefor;
- He/she has the right to communicate with said authorities. Such communication shall be forwarded without delay, and he/ she shall also have the right to receive communications sent by said authorities without delay;
- He/she shall be informed without delay of this right and of rights deriving from applicable treaties, if any, to correspond and to meet with representatives of said authorities and to make arrangements with them for legal representation.
- He/she is entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used. (Article 16.7 – 8 )
- He/she has the right to be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity. (Article 17.1)
- If a migrant worker or a member of his or her family is detained for the purpose of verifying any infraction of provisions related to migration, he or she shall not bear any costs arising therefrom. (Article 17.8).
- He/she has the right to due process (Article 18)
Migrant workers and family members who are victims of unlawful arrest or detention have an enforceable right to compensation. (Article 16.9)
Humanitarian considerations related to the migrant worker’s status, in particular with respect to right of residence or work, should be taken into account in imposing a sentence for the crime committed by a migrant worker or family member. (Article 19)
No migrant worker or family member shall be imprisoned, deprived of authorization of residence or work permit or expelled merely for failure to fulfill a contractual obligation. (Article 20)
10. Right not to be subject to collective expulsion. (Article 22)Employment rights:
11. Right to have recourse to the protection and assistance of consular or diplomatic authorities. (Article 23)
12. Right to enjoy treatment not less favourable than that which applies to nationals of the country of employment in respect of remuneration and: a) other conditions of work, and b) other terms of employment. (Article 25)Cultural, Education and Economic Rights:
13. Freedom of association. (Article 26)
14. Right to enjoy social security with the same treatment as nationals of the country of employment similar circumstances (Article 27)
15. Right to receive any medical care for the preservation of life or the avoidance of irreparable harm to health on the basis of equality of treatment with nationals of the country concerned. (Article 28)
16. Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality. (Article 29)Right to be informed of rights under the Convention:
17. 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 country concerned. (Article 30)
18. Right to cultural identity and to maintain links with country of origin (Article 31)
19. Right to transfer their earnings and savings and personal effects and belongings. (Article 32)
20. Right to be informed by the country of origin/employment/ transit of a) their Convention rights; b) conditions of their admission, rights and obligations under the law and practice of the country concerned and other matters as will enable them to comply with administrative or other formalities in that country. (Article 33)Migrant Workers’ Rights (Those documented only)
1. Right to be informed by the country of origin/employment of all conditions applicable to their admission, their stay and work. (Article 37)Remedies
2. Right to be temporarily absent without effect upon their stay or work. (Article 38)
3. Right to liberty of movement in the country of employment and freedom to choose their residence. (Article 39)
4. Right to form associations and trade unions (Article 40)
5. Right to participate in the public affairs of their country of origin (Article 41)
6. Equal treatment with nationals of the country of employment in relation to: a) access to education; b) access to vocational guidance and placement services; c) access to vocational training and retraining facilities and institutions; d) access to housing, including social housing schemes, and protection against exploitation in respect of rents; e) access to social and health services; f) access to co-operatives and self-managed enterprises; g) access to and participation in cultural life. (Article 45)
7. Enjoy exemption from import and export duties and taxes in respect of their personal and household effects as well as the equipment necessary to work. (Article 46)
8. Right to transfer earnings and savings. (Article 47)
9. Right not to be liable to taxes, duties or charges of any description higher or more onerous than those imposed on nationals in similar circumstances; and be entitled to deductions or exemptions from taxes of any description and to any tax allowances applicable to nationals in similar circumstances, including tax allowances for dependent members of their families. (Article 48)
Countries that signed the Convention undertake:
a) to ensure that any person whose rights are violated shall have an effective remedy;Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
b) to ensure that any persons seeking such a remedy shall have his/ her claim reviewed and decided by competent judicial, administrative or legislative authorities, and to develop the possibilities of judicial remedy;
c) to ensure that competent authorities shall enforce such remedies when granted. (Article 83)
For the purpose of reviewing the Convention’s application, a Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has been established comprising 14 experts of high moral standing, impartiality and recognized competence in the field covered by the Convention. (Article 72.1)
The Committee may receive complaints filed by countries party to the Convention as well as individual migrant workers.
In the case of individual complaints, the Committee shall consider the same only if:
a) the matter has not been, and is not being, examined under another procedure of international investigation or settlement;Despite their guaranteed human rights, and more and more focus on their plight, thousands of migrant workers are still disadvantaged. There are loads of issues surrounding migrant workers, discrimination, abuse, family separation, to name a few crucial ones. The migrant worker need not even be poor to be subjected to all these issues.
b) the individual has exhausted all available domestic remedies; unless the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the individual.
The migrants’ countries of employment, since they thrive directly from migrants’ work, must commit to respect and protect their rights. And the migrants’ countries of origin must ensure protection of their nationals’ welfare. Migrants must also be fully aware of their rights and the obligations of their countries of origin and employment. That is the ideal to be reached. And on December 18, if not always, we must all (migrants or not) appreciate the migrants’ contribution and sacrifices for we are most likely beneficiaries wherever we maybe.
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