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Migration for Employment Convention (Revised), 1949 (No. 97) - Brazil (RATIFICATION: 1965)

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The Committee notes the observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI) received on 30 August 2022.

Measures addressing the situation of migrant workers during the COVID-19 pandemic. The Committee welcomes the Government’s indication, in its report, that a number of measures were adopted to address the situation of foreign workers during the COVID-19 pandemic in particular by: (1) extending until 15 March 2022 the deadline for immigrants residing in Brazil to regularize their residence permit and temporary visa registration that have expired since 16 March 2020 (Ordinance No. 25 of 17 August 2021); and (2) assisting in the repatriation of Brazilian citizens who were not able to return to the country. The Committee requests the Government to provide information on the implementation and impact over time of the specific temporary measures adopted in the context of the COVID-19 pandemic on the situation of migrant workers.

Article 1 of the Convention. Migration flows. The Committee notes that, in their observations, the CNI and the IOE highlight that Brazil is a country with a tradition of welcoming migrants and refugees while guaranteeing proper documentation for regularization and access to the labour market, including in the recent years Haitian, Venezuelan, and Syrian immigrants. In that regard, the Committee notes the Government’s indication that, according to the National Committee for Refugees (CONARE), more than 807,000 migrants, out of whom 43,000 have refugee status, are currently registered in the country. According to the 2021 and 2022 annual reports from the Observatory of International Migration (OBMigra),there has been an intensification of the immigration flow over the last decade. The Committee notes that, while the number of registered long-term resident Haitian migrants has shown a progressive increase since 2010, with a very sharp growth in 2018 (with 16,943 new Haitian migrants registered), in the recent years, Venezuelan migrants represented the higher number of registered long-term residents (70,653 new Venezuelan migrants registered in 2018). Indeed, in September 2022, it was estimated that 345,000 Venezuelan citizens were in the Brazil, with migrant, refugee or asylum seekers status. For the sole first quarter of 2022, Venezuelan migrants represented 80 per cent of asylum-seeking requests (OBMigra, Quaterly report, 2022). The Committee requests the Government to continue to provide statistical information, disaggregated by sex and nationality where available, on: (i) the employment of migrant workers in the various economic sectors; (ii) the number of permanent Brazilian emigrants; and (iii) the number of returning Brazilian nationals who lived outside the country.

Information on national policies, laws and regulations. The Committee notes with interest that a new legislative framework was introduced in order to ensure a better protection for the rights of immigrants and emigrants, namely through the adoption of: (1) Migration Law No. 13.445, of 24 May 2017 and its regulation Decree 9.199, of 20 November 2017; and (2) Law 13.684 of 21 June 2018 which defines emergency assistance measures for people in situation of vulnerability resulting from migration caused by humanitarian crisis. As regards the National Immigration Council (CNIg), which after administrative restructuring was re-established by Decree 9.873/2019, of 27 June 2019, the Committee notes the detailed information provided by the Government on the forty-five normative resolutions adopted by the CNIg, which is a tripartite body, since the adoption of the Migration Law. The Government adds that new internal regulations of the CNIg were approved in June 2022 (MJSP Ordinance No. 89, of 14 June 2022) and attributes the following competencies to the Council: (1) formulate the national immigration policy; (2) coordinate and guide labour immigration activities; (3) carry out a periodic survey of the needs of qualified immigrant labour; (4) promote and elaborate studies related to labour immigration; (5) recommend the conditions for attracting qualified immigrant labour; and (6) suggest amendments to the legislation regulating labour migration. The Committee requests the Government to continue to provide information on: (i) national policies, laws and regulations elaborated and implemented to give effect to the provisions of the Convention; and (ii) the activities of the CNIg, more particularly regarding any recommendations made with a view to formulating a national immigration policy.

Article 1(c). Information on general agreements and special arrangements. The Committee notes that citizens of Argentina, Bolivia, Chili, Colombia, Ecuador, Paraguay, Peru and Uruguay benefit from the MERCOSUR residence agreement which gives full access to the labour market for citizens of those countries. It notes with interest that, in order to face mass migration flow from Venezuela, Normative Resolution CNIg No. 126/2017 and Inter-Ministerial Ordinance No. 9, of 14 March 2018, provide that citizens from neighbouring countries where the MERCOSUR residence agreement is still not in force and who are already in the Brazilian territory can benefit from temporary residence permits. The Committee further notes that, in June 2019, the CONARE decided to recognize the condition of refugee to Venezuelan citizens considering the hypothesis of a serious and widespread violation of human rights in Venezuela. By October 2019, the CONARE received more than 120,000 applications by Venezuelan citizens seeking refugee status. The Committee notes that, pursuant to the Migration Law, provision is made for temporary visas and residence permits for humanitarian purposes for citizens from Haiti (Inter-ministerial Ordinance No. 29 of 25 April 2022) and citizens from Syria, Afghanistan and Ukraine that arrived in Brazil after fleeing conflicts at home (Inter-ministerial Ordinances Nos 9, of 8 October 2019; 24, of 3 September 2021; and 30, of 25 August 2022). It further notes that, in the framework of the Universal Periodic Review (UPR), the Government highlights the Ministry of Education’s support for the recognition of academic degrees of citizens from countries facing humanitarian crises, such as Venezuela and Syria (A/HRC/WG.6/41/BRA/1, 1 September 2022, paragraph 87). The Committee asks the Government to continue to provide information on the general agreements and special arrangements concluded, in particular in the framework of the MERCOSUR and their application in practice; and the difficulties encountered in their implementation.

Articles 2, 4 and 7. Free services and assistance. The Committee notes that the Government indicates that migrant workers have access to the public employment service (SINE) which provides assistance across the board, within the framework of the programs and services already established for nationals. In addition to the face-to-face services available at the 1,400 SINE employment agencies throughout the country, SINE also provides services through its digital platform (Portal Emprega Brasil). The Government adds that all public employment services are offered free of charge to both Brazilians and foreign citizens. In 2021, 24,172 new migrant workers registered with the SINE, mainly Venezuelan and Haitian. Furthermore, the total number of immigrants employed with a formal contract was estimated at 147,700 in 2019, which represents an 8.3 per cent increase compared to 2018. The Committee notes with interest that, in order to deal with the massive arrival of Venezuelan citizens in the last five years in northern Brazil, in the state of Roraima, the Federal Government began to implement, in April 2018, Operation Welcome (“Operación Bienvenida” –“Operation Welcome”- “Operação Acolhida”). Operation Welcome consists of emergency assistance and voluntary transportation of Venezuelan citizens to other federal states with a view to ensuring their socioeconomic integration, in accordance with the guidelines prepared by government agencies, as well as civil society and international organizations. From April 2018 to September 2021, more than 60,700 Venezuelan citizens residing in temporary shelters in Roraima have been relocated to more than 730 municipalities in different regions. In that regard, the Committee notes, from a study published in December 2021 by the UN Refugee Agency (UNHCR), UN Women and the United Nations Population Fund (UNFPA), that the outcomes of the operation have been positive. The unemployment rate for relocated Venezuelan citizens is 17.8 per cent compared to 30.8 per cent for Venezuelan citizens still living in shelters in Roraima. Relocated Venezuelan citizens are also potentially earning higher wages (“Limits and challenges to the local integration of Venezuelan refugees and migrants relocated during the COVID-19 pandemic”, 2021). However, the Committee notes that, in the UPR report, the United Nations country team, based on information from UNFPA, highlighted that some challenges remain in providing full adequate access to employment, social protection, public education and health to migrants. (A/HRC/WG.6/41/BRA/2, August 25, 2022, paragraph 67). The Committee asks the Government to continue to provide information on: (i) the measures taken to maintain adequate and free services to assist foreign workers, and provide them with accurate information; (ii) the manner in which such services address their particular concerns and needs, and any obstacles encountered; and (iii) the measures taken to facilitate the migration process and provide free services to Brazilian emigrants and returnees, including through bilateral agreements.

Article 3. Misleading propaganda. The Committee welcomes the Government's indication that, in September 2020, the Sub-secretariat for Labour Inspection (SIT), in collaboration with the ILO, the International Organization for Migration (IOM) and UNHCR, launched the “Labour Protection” (“Proteja o Trabalho”) campaign in order to provide information to migrants and refugees in Portuguese, Spanish, English, French and Arabic on labour standards, workers' rights, forced labour and child labour. Such information is publicly available through the project’s website and online transmissions are carried out on the Youtube channel of the National School of the Labour Inspectorate (ENIT). As a result, in June 2021, web-series called “Ser Brasil: Migrantes e Refugiados” were launched. The Government adds that the second phase of the “Protecting work” campaign is under development and will feature new themes on work and employment from a migrant workers’ and refugees’ perspective. The Committee notes the Government’s indication that, from 2006 to 2020, 880 migrant workers were rescued from forced labour situations by the labour inspectorate, mainly in the agriculture sector, textile industry and domestic work. The Government adds that, in 2021, 73 migrants were rescued from forced labour situations, mainly Paraguayan and Venezuelan workers, which represents an increase of 78 per cent compared to 2020. The Committee notes the Government’s statement that migrant workers who are victim of trafficking in persons can benefit from assistance measures provided for in Law No. 13.344, of 6 October 2016 regarding the prevention and suppression of trafficking in persons and the protection of victims. It further notes that section 232 of the Penal Code, introduced by the Migration Law, criminalizes actions promoting illegal migration and establishes penalties of imprisonment and a fine. The Committee asks the Government to continue to provide information on: (i) the measures adopted to prevent migrant workers from becoming victims of misleading propaganda, as well as to prevent and address forced labour and trafficking in persons targeting in particular migrant workers; (ii) the number of prosecutions initiated against those making use of misleading propaganda to recruit migrant workers, and the penalties imposed including pursuant to section 232 of the Penal Code; and (iii) any specific cooperation measures adopted with other States in that regard.

Article 6. Equality of treatment. The Committee notes with interest that section 4 of the Migration Law guarantees equal and free access of migrants to services, programmes and social benefits, public goods, education, comprehensive public legal assistance, work, housing, banking services and social security, without discrimination on the ground of nationality and immigration status. In that regard, it notes that the CNI and the IOE point out that the Federal Constitution and national legislation provide for the same labour rights to immigrants workers on an equal term with nationals. As regards domestic workers, the Committee welcomes the ratification of Domestic Workers Convention, 2011 (No. 189) by Brazil on 31 January 2018. The Committee however notes that, in its 2021 report on the situation of human rights in Brazil, the Inter-American Commission on Human Rights (IACHR) indicates that immigrants from Haiti and Syria face specific difficulty in accessing educational services and employment. The IACHR also refers to complaints filed about exploitation and discrimination in the workplace in which migrant workers reported working longer hours or receiving lower wages than Brazilian workers, in addition to being subjected to degrading working conditions and long working hours. The Committee asks the Government to provide information on: (i) the measures taken to ensure that, in practice, no less favourable treatment is applied to migrant workers lawfully within its territory than that applied to its own nationals, in respect of the matters set out in Article 6(1)(a)–(d) of the Convention, in particular remuneration, working time and working conditions, and their outcomes; and (ii) the number of cases of unequal treatment against migrant workers dealt with by the labour inspectors, the courts or any other competent authorities and the penalties imposed.

Annex I. Private employment agencies. The Committee notes that the Government does not provide any information regarding the draft Presidential Decree issuing regulations to give effect to Annex I of the Convention. The Committee requests the Government to provide information on any progress made in the adoption of legal measures with a view to regulating the activities of private employment agencies in order to protect migrant workers against possible abuses.

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Article 1 of the Convention. The Committee notes the Government’s indication that Bill No. 5655 of 2009, establishing a new system for migration and amending the mandate of the National Immigration Council, has been forwarded to the Congress. The Government indicates that the broadening of the Council’s mandate seeks also to cover Brazilian workers who emigrate, and that the measure was submitted for consultation within the Council, which is tripartite, as well as for public consultation. The Government adds that up to 2008, there was an increasing flow of emigrants; however, due to the current financial crisis, the situation has reversed, with an increase currently being observed in the return of Brazilian nationals who lived outside the country. The Government indicates that it gives special attention to measures to assist Brazilian nationals who had emigrated to return to the labour market. The flow of migrants into Brazil has also increased considerably. The Committee also notes that in 2008 the National Immigration Council organized a tripartite dialogue on public policies on migration for employment, which gave rise in 2010 to a proposal for a national policy on immigration and the protection of migrant workers, which forms the basis of the work of the Council and is currently being submitted to the federal Government for the possible adoption of a presidential decree. The Committee also notes the standards adopted by the Council regarding temporary and permanent work permits, and particularly the decision granting permanent work visas to Haitian nationals. The Committee requests the Government to continue providing information on the progress in examining Bill No. 5655 of 2009, establishing a new migration system and revising the mandate of the National Immigration Council, and on the adoption of the national policy on immigration and the protection of migrant workers, the specific measures adopted under the policy and their impact. The Committee also requests the Government to continue providing information on the decisions adopted by the National Immigration Council.

Article 1(c). Information on general agreements and special arrangements. The Government indicates that, by means of Decree No. 6975 of October 2009, the residence agreement entered into force for nationals of the member States of MERCOSUR, the Plurinational State of Bolivia and Chile, which gives full access to the labour market for citizens of those countries. Since 2011, citizens of Peru and Ecuador have also been granted the same benefits (Decisions Nos 04/11 and 21/11), which were also extended to Colombia in 2012. The workers covered by the agreement can obtain work permits and social benefits. Under the terms of standard-setting instruction No. 111 of 2010, they can also register enterprises. Measures are currently being taken for the certification of the education diplomas obtained in other MERCOSUR countries. Since 2010, a total of 32,760 immigrants have been granted residence. The Committee also notes the full statistical information available on the website of the National Immigration Council concerning workers from MERCOSUR, other South American countries and the rest of the world. The Committee requests the Government to continue providing information on the general agreements and special arrangements concluded, their application in practice and the difficulties encountered in their implementation, and particularly on any agreement concluded in the framework of the MERCOSUR, including on the Regional Labour Inspection Plan, the Multilateral Social Security Agreement and any progress in the amendment of the socio-labour declaration referred to in the previous report.

Articles 2, 4 and 7. Adequate and free services and measures to facilitate the migration process. The Committee notes the Government’s indication that various measures have been adopted to provide guidance and information to Brazilian workers abroad, such as the publication of various information brochures (also available on the Internet), including the brochure for workers wishing to find work in any MERCOSUR country, the organization of information weeks in the countries of destination of Brazilian migrant workers and the establishment of migrant houses in frontier areas. The Secretariat for Women’s Policies has also participated in these projects, in light of the significant number of complaints of abuse, violence and exploitation against migrant women. In this respect, and with a view to the protection of these women, the National Immigration Council has adopted specific measures and included a heading on this subject in its national policy. A special working group on migration and gender has also been established and a telephone number created to receive complaints from Brazilian women in Italy, Portugal and Spain. The Committee further notes the Government’s indication that various decisions have been adopted to make migration law simpler and more coherent with a view to facilitating the travel and arrival of migrant workers. The Government adds that the procedure for the ratification of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 1990, is before Congress. Moreover, taking into account the number of workers returning from abroad, an Information and Support Unit for Brazilians returning from Abroad was inaugurated in 2011, with a view to assisting them to obtain employment, particularly the approximately 100,000 Brazilian nationals who have returned from Japan since 2009. The Committee requests the Government to continue providing information on the specific measures adopted with a view to the protection of Brazilian workers who migrate abroad, and particularly the measures intended to prevent abuse and exploitation of and violence against women migrant workers. The Committee also requests the Government to indicate the activities undertaken by the special working group on migration and gender that has been established, and on progress in the ratification of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, 1990. Please also provide information on the assistance measures provided for immigrant workers and returning migrant workers, including the number of workers benefitting from such assistance and the economic sectors in which they work.

Article 3. Misleading propaganda. The Government indicates that, according to the information provided by the Federal Public Prosecutor, the application of section 206 of the Penal Code, which criminalizes the recruitment of workers through the use of fraud with the objective of taking them abroad, has resulted in more police procedures than court actions. In the cases analysed, it was found that, although there were contracts for the provision of services, advertisements in the media, wage receipts and information on the enterprise in which they worked, in practice, once they had arrived at their destination, the workers were subjected to debt servitude under inhuman conditions. The Government provides specific examples of court action on this subject, which gave rise to prison sentences and fines for those responsible. The Committee requests the Government to continue providing information on the measures adopted with a view to preventing migrant workers from becoming victims of misleading propaganda, the prosecutions and administrative measures initiated against those making use of misleading propaganda to recruit migrant workers, and the penalties imposed. Please provide information on any specific cooperation measures adopted with other States.

Article 6. Equality of treatment. The Government indicates that only the Federal Union can discuss working conditions and establish rules applicable to all the states in the Federation. The Government adds that as foreign workers in Brazil have the same rights and duties as nationals, the administrative authorities, including the labour inspectorate and the Office of the State Labour Prosecutor, as well as the judicial authorities, have extended to foreign workers, including those in an irregular situation, the same rights as to Brazilian workers. The Government provides examples of decisions on this matter by the Higher Labour Tribunal and the labour inspectorate. The Committee emphasizes in this respect the decision by the labour inspectorate concerning the joint responsibility of the enterprise hiring the worker and the enterprise providing the service in relation to migrant workers for whom the rights set out in the law had not been respected. The National Immigration Council, through its National Immigration Policy and the Protection of Migrant Workers, provides for the same rights for national and migrant workers, without discrimination on grounds of gender, race, political opinion, national extraction, ethnic or social origin, nationality, age, economic position, wealth or civil status. Workers who have permanent residence are able to participate in the programme “My home, my life”, through which they can gain access to low-cost financing for housing. Furthermore, according to the information provided by the Government, the Charter for Foreign Nationals (Act No. 6815/80) is still under examination. The Government adds that, immediately following the adoption of the Domestic Workers Convention, 2011 (No. 189), the Government set in motion the procedures for its ratification and the National Immigration Council issued an explanatory brochure for women workers. The Committee requests the Government to continue providing information on the specific measures adopted under Article 6 of the Convention and their impact in practice in achieving equality of treatment between migrant workers who are lawfully within its territory and its own nationals, particularly in the context of the organization of the next Football World Cup. The Committee also requests the Government to provide information on developments in the reform of the Charter for Foreign Nationals (Act No. 6815/80). Please also continue providing information on the measures adopted in relation to women migrant domestic workers, and progress in the ratification of Convention No. 189.

Annex I. Private employment agencies. The Committee notes the Government’s indication that in 2010 the Ministry of Labour prepared a draft Presidential Decree issuing regulations to give effect to Annex I of the Convention, which are still with the Office of the President. The Committee requests the Government to continue providing information on developments in the procedure for the approval of the Presidential Decree to issue regulations under Annex I of the Convention.

Practical information. While noting the statistical information provided, the Committee requests the Government to take the necessary measures to ensure that statistical data is disaggregated by sex and economic sector. Please also continue providing information on any administrative or judicial procedures relating to the application of the Convention and on the activities of the labour inspection services in this regard.

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Article 1 of the Convention. Information on national laws and policies. The Committee notes that the National Immigration Council is the body responsible for immigration policy in Brazil, and endeavours to promote the immigration of skilled labour with a view to facilitating development, productivity and the assimilation of technology in the country. Particular attention is paid to family reunification. The Committee also notes the various resolutions adopted by the National Immigration Council setting standards with a view to simplifying procedures for the granting of both temporary and permanent work permits to migrant workers. The Committee further notes that, although the country has traditionally been a country of immigration, since 1980 there has been an increase in emigration flows, principally to the United States, Paraguay, Japan, Portugal and the United Kingdom, and that an increasing number of women are emigrating to seek employment. In view of this new trend, a working group is currently being established to reform the mandate of the National Immigration Council so that it can also address emigration policy formulation. The Committee requests the Government to provide information on any progress achieved in relation to the reform of the mandate of the National Immigration Council and to indicate the manner in which the organizations of employers and workers have been consulted on this matter. Please also provide information on the specific measures adopted or envisaged in relation to the implementation of the relevant legislation and of the resolutions adopted by the National Immigration Council.

Article 1(c). Information concerning general agreements and special arrangements. The Committee notes the Agreement on the Reciprocal Recruitment of Nationals concluded with Portugal in 2003. The Committee also notes the Agreement on the free movement of persons concluded in the context of MERCOSUR between Brazil, Argentina, Uruguay, Paraguay, Bolivia and Chile, which has not yet entered into force, although it is being applied at the bilateral level between Brazil and Uruguay and between Brazil and Argentina. The Committee further notes that, according to the Government’s report, specific agreements on migration have been concluded with Bolivia and Suriname. The Committee would be grateful if the Government would provide information on the effect given in practice to the above agreements and also requests it to continue providing information on any general agreements and special arrangements concluded in future. Please also provide copies of the above agreements.

Articles 2, 4 and 7. Assistance services to migrant workers. The Committee notes from the Government’s report that the immigration control units of the federal police (DELEMIG) are in possession of information for migrant workers covering, in particular, the extension of residence permits and the granting of permanent residence permits. The Regional Labour Delegations and the General Coordination of Immigration of the Ministry of Labour also provide general information free of charge on work by foreign nationals in the country. The Committee further notes that in January 2008 the Ministry of Labour and Employment, with ILO support, disseminated a guide on male and female Brazilian nationals abroad with a view to providing useful information to migrant workers on their rights and duties. With reference to the increasing feminization of migration and the particularly vulnerable position in which many female migrants can find themselves, the Committee recalls that information campaigns specifically directed towards women may be appropriate (General Survey on migrant workers, 1999, paragraph 198). The Committee requests the Government to provide more detailed information on the initiatives carried out by the above bodies in accordance with Articles 2, 4 and 7 of the Convention, including indications of the measures specifically intended for migrant women.

Article 3. Misleading propaganda. The Committee notes that section 206 of the Penal Code establishes a sentence of imprisonment of between one and three years and a fine for anyone who recruits workers by deceitful means with a view to taking them abroad. The Committee requests the Government to provide relevant examples of the application of section 206 of the Penal Code in relation to misleading propaganda relating to both immigration and emigration.

Article 6. Equality of treatment. The Committee notes the Government’s indication that the national legislative framework ensures equal treatment to migrant workers in relation to that granted to national workers on all the matters enumerated in Article 6(1) of the Convention. In particular, the Committee notes that under the terms of resolution No. 79 of 9 February 2007 of the National Immigration Council, the granting of authorization to work is subject to the condition that the remuneration received by the migrant worker is not lower than that paid to nationals performing the same work. Furthermore, the Committee notes the reform process, which is still under way, of the Conditions of employment of foreign nationals (Act No. 6815/80), which is intended to clarify the rights of migrants and eliminate current restrictions on holding office in trade unions which, according to the Government’s report, are no longer applied in practice. Nevertheless, the Committee recalls that legislative provisions alone are not sufficient to ensure that migrant workers enjoy equality of treatment with nationals and that it is therefore essential that States ensure that the legislation is applied in practice, particularly by means of labour inspection services or other supervisory authorities (General Survey, op. cit., paragraph 371). The Committee therefore requests the Government to provide information on the application in practice of the principle of equality of treatment between migrant workers and nationals in relation to the matters enumerated in clauses (a), (b), (c) and (d) of Article 6(1) of the Convention and it once again asks it to indicate the extent to which the matters dealt with by the provisions of Article 6(1) of the Convention may be subject to the control of the federal administrative authorities. The Committee also requests the Government to provide information on any complaints submitted to the judicial or administrative authorities concerning the principle of equality of treatment, and their outcome. Please keep the Committee informed of the reform process that is still under way concerning the Conditions of employment of foreign nationals (Act No. 6815/80).

Non-discrimination on grounds of sex and race. The Committee notes with interest the programme “Brazil, Gender and Race” which seeks to combat discrimination against women and blacks in access to employment. The Committee also notes with interest that a specific programme is being carried out in collaboration with the ILO on domestic workers which also covers migrant women, and that a national policy has been formulated to combat the trafficking of humans, with both initiatives targeting women in particular. The Committee requests the Government to provide information on any measure adopted or envisaged focusing on migrant workers within the context of the Programme “Brazil, Gender and Race”. The Committee would also be grateful if the Government would indicate the specific activities carried out in the context of the initiatives on migrant women workers and the trafficking of humans.

MERCOSUR. With reference to its previous direct request on the development of instruments relating to migrant workers in the framework of MERCOSUR, the Committee notes that the 1998 “MERCOSUR Social and Labour Declaration”, which envisages the principle of equality of treatment between migrant workers, is being revised and that, in this context, a comparative study is being undertaken of national labour legislation in the countries concerned with a view to their future harmonization. The Committee also notes that the formulation of an Action Plan for Migrants is being examined and that a Regional Plan on Labour Inspection was adopted. The Committee further notes the formulation of a Declaration on the Rights of Workers in the MERCOSUR area respecting social security, as well as the entry into force in 2005 of the “MERCOSUR Multilateral Agreement on Social Security”. Finally, the Committee notes that, under the terms of section 8 of the Agreement on the Residence of Nationals of the States Parties to MERCOSUR, Bolivia and Chile of 2002, persons who have obtained the right of residence in one of these countries in accordance with sections 4 and 5 of the Agreement are entitled, among other rights, to have access to any activity under the same conditions as the nationals of the receiving country. The Committee asks the Government to provide information on the activities carried out in the context of the Regional Plan on Labour Inspection and their results. The Committee also requests the Government to provide information on the effect given in practice to the MERCOSUR Multilateral Agreement on Social Security and section 8 of the Agreement on the Residence of Nationals of the States Parties to MERCOSUR, Bolivia and Chile, and invites it to continue providing information on the progress achieved in relation to the formulation of the Plan of Action for Migrants and the revision of the MERCOSUR Social and Labour Declaration. Please also provide a copy of these instruments when they are adopted.

Article 8. Maintenance of the right of residence in the event of incapacity for work. The Committee notes that, according to the Government’s report, migrant workers with permanent residence permits in the country do not lose their right to residence in the event of incapacity for work caused by an accident or illness, and that they also receive benefits from the National Social Security Institute. The Committee requests the Government to indicate the relevant legislative provisions and also to indicate whether cases have occurred of expulsion on grounds of incapacity for work, whether there have been appeals to the judicial authorities and their outcome.

Annex I. Private employment agencies. The Committee notes that since the denunciation of Convention No. 96 all supervision of private employment agencies has been removed. The Committee recalls that, given the wide scope for abuse by intermediaries of prospective migrants during the recruitment procedure, it has recommended that such operations should be subject to the approval and supervision of the competent authority (General Survey, op. cit., paragraph 172). The Committee further recalls that in March 2006 the ILO published a Multilateral Framework on Labour Migration, which includes non-binding principles and guidelines for a rights-based approach to labour migration. It provides in particular for the granting of permits and the supervision of agencies for the employment of migrant workers, in accordance with the Private Employment Agencies Convention, 1997 (No. 181), and Recommendation No. 188. The Committee therefore requests the Government to consider the regulation of the operations of hiring, bringing into the country and placing migrant workers with a view to protecting them against any abuse and asks it to provide information in this respect.

Practical information. The Committee once again requests the Government to provide information on any court rulings involving questions of principle relating to the application of the Convention. The Committee also requests the Government to provide statistical data disaggregated by sex, country of origin and sector of activity for migrant workers present in Brazil, as well as for Brazilian workers abroad. Finally, the Committee would be grateful if the Government would provide information on the activities of the labour inspection services in this field, including reports and the results achieved.

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The Committee notes the information supplied in the Government’s report.

1. The Committee noted in its General Survey of 1999 on migrant workers (see paragraphs 5-17) that the extent, direction and nature of international labour migration have undergone profound changes since the Convention was adopted. The Committee therefore asks the Government to provide copies of any new provisions of law or regulations adopted, together with up-to-date information on its emigration and immigration policy. It would also be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national policy and legislation on emigration and immigration.

2. Recalling that under Article 6, paragraph 1, every State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters enumerated in subparagraphs (a) to (d) of this Article, the Committee would be grateful if the Government would provide further details on the situation of migrant workers, particularly in respect of working and living conditions, work-related taxes, and access to the justice system. The Committee would also appreciate it if the Government would indicate the measures taken or envisaged to ensure that women migrant workers are treated on a par with their male counterparts, foreign or otherwise, in the abovementioned fields, in view of the growing feminization of migration for employment (see paragraphs 20-23 and 658 of the General Survey of 1999 on migrant workers). Please state to what extent the matters dealt with by the provisions of Article 6, paragraph 1, may be subject to the control of administrative authorities of the constituent states.

3. The Committee notes the information supplied by the Government in the context of MERCOSUR. It particularly notes the 1998 "MERCOSUR Social and Labour Declaration" which addresses the question of equality of treatment of migrant workers (article 4) and the "MERCOSUR Multilateral Agreement on Social Security" which seeks to provide all workers and their dependants outside their country of origin the same rights and social security benefits guaranteed to nationals, as well as recognizing rights acquired in any country of the block. The Committee asks the Government to provide any relevant information on the development and impact of these instruments. It would also be grateful if the Government would provide information regarding the implementation of the agreement on free movement of persons between the member States, which is expected to be finalized in 2006, and if it would communicate any results achieved by the Committee on Employment, Migration and Vocational Training.

4. The Committee notes that the National Immigration Council is seeking to introduce greater transparency and simplify the tasks involved in administrative procedures and that various proposals for resolutions are being examined in this regard, in line with the provisions of Annex I, Article 6 of the Convention. The Committee would be grateful if the Government would keep it informed of progress on the finalization of the resolutions referred to and supply a copy of them in its next report.

5. The Committee asks the Government to continue to provide information on Brazilian nationals working abroad as well as on the number and origin of foreigners employed in Brazil, and to communicate the results, if any, of the relevant activities of the labour inspection service, in accordance with the provisions of the Convention.

6. Finally, the Committee asks the Government to state whether courts or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.

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The Committee notes the detailed information supplied in the Government's report.

Article 6(a) of Annex I of the Convention. The Committee notes that the National Immigration Council is in process of considering several resolutions designed to make its work more transparent and to simplify administrative procedures. It requests the Government to supply copies of the relevant texts as soon as they are adopted.

Point V of the report form. The Committee requests the Government to continue to give a general appreciation of the manner in which the Convention is applied by supplying, for instance, extracts from inspection service reports (number and type of infringements recorded, penalties imposed, etc.).

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The Committee notes the information supplied by the Government.

Migrant workers in the MERCOSUR

With reference to the allegations of the Unique Workers Central (CUT) concerning the working conditions of Brazilian workers recruited by Brazilian employment agencies to work on construction sites in Argentina (La Plata and Quilmes), the Committee notes that the Government indicates that government investigations carried out on the spot have shown that the Brazilians worked in correct and adequate conditions. The Government adds that in the light of these results the CUT has withdrawn its observations.

The Committee requests the Government, in accordance with the provisions of Article 1(b) of the Convention, to continue to supply information on the movement of migrant workers and on any difficulties confronting them in their living and working conditions.

The Committee also notes the Government's statement to the effect that, despite increased flows of workers between the countries of the Southern Cone Common Market (MERCOSUR) and the concern expressed on this matter by governments and trade union organizations, to date there is no explicit form of cooperation between the immigration services of the region; each country administers its immigration services independently, in accordance with labour legislation. According to the Government, however, this matter will be discussed in MERCOSUR Subgroup 11, which deals with the employment and labour aspects involved in implementing an agreement. Furthermore, the Committee notes that the authorities concerned are studying, within the MERCOSUR framework, how to conclude an agreement allowing free circulation of persons among the member States with a view to implementing it in the year 2006.

The Committee requests the Government to continue to supply any information on the development of cooperation with the other members in regard to employment and migration services and, particularly, the results of the work done by MERCOSUR Subgroup 11, in application of Articles 6 and 10 of the Convention.

Misleading advertising

The Committee notes from the Government's report that the Brazilian legal system contains many constitutional and legislative provisions intended to suppress the various forms of misleading advertising, including those used in recruitment and employment of migrant and other workers. The Government refers specifically to the federal Constitution, which lays down in article 5, XIV, the right of access to information for all and provides legal measures to protect citizens against advertising of products, practices and services harmful to health or the environment (article 220, II). The Penal Code classifies deception among the offences set out in sections 206 and 207. The Government adds that, in order to solve the problem, the Ministry of Labour has taken measures to strengthen labour inspection of employment agencies in order to stamp out the practice of cheating workers with false promises.

The Committee requests the Government to supply copies of the labour inspection reports on the campaign against misleading advertising and on the penalties imposed on the authors or circulators of misleading advertising concerning emigration or immigration.

The Committee also draws the Government's attention to other points raised in a direct request.

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The Committee refers to its previous comments in which it indicated that the Unique Workers Central (CUT) had observed that the working conditions of Brazilian workers recruited by Brazilian employment agencies to work on construction sites in Argentina (La Plata et Quilmes) were very much inferior to those of Argentine workers.

The Committee notes the statement by the CUT supplied by the Government in its report, that it was withdrawing its observation. The Committee recalls the indications in paragraphs 80 to 108 of its general report of 1986 concerning the comments of employers' and workers' organizations on the implementation of international labour standards. It recalls in particular the indication in its paragraph 91 that "once the Committee of Experts has taken note of such comments and any relevant remarks made by the Government, it decides whether any action must be taken on them and makes its own comments".

The Committee also notes the CUT's statement in its letter that the working conditions in this sector, which caused the death of a Brazilian worker, have been improved, thanks to the efforts of the Brazilian and Argentine trade union movements and the commitment of the Brazilian Ministry of Labour. The Committee asks the Government to indicate the measures taken, in the light of Article 3, paragraphs 1 and 2 (steps against misleading propaganda), and Article 7, paragraph 1 (international cooperation between services concerning migration), of the Convention and Articles 3, paragraph 3(b) (recruitment by private agencies), and 4 (free public employment service) of Annex I, which made the above improvements possible. It also asks the Government to provide information on the nature of the improvements.

[The Government is asked to report in detail in 1996.]

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The Committee takes note of the observation made by the Unique Workers' Central (CUT) concerning the application of the Convention. The CUT alleges, among other things, that some Brazilian workers engaged in civil construction in La Plata (Argentina) by three Brazilian employment agencies enjoyed no insurance coverage, were inadequately lodged and had to undertake working weeks of over 44 hours, for daily wages of US$6, whereas Argentinian workers were paid US$46 per day. Furthermore, these wages were only paid upon returning to Brazil, after deduction of expenses incurred during their stay in the receiving country. Similar working conditions and discrepancies in the wage levels had been encountered by Brazilian workers on a construction site in Quilmes (Argentina).

The Committee notes that the Government has not communicated its comments on this observation and invites it to do so, taking into account especially the provisions of Article 3, paragraphs 1 and 2, and Article 7, paragraph 1, of the Convention, as well as Articles 3, paragraphs 3(b), and 4, of Annex I.

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The Committee notes that the Government's report contains no reply to its previous comments. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 6, paragraph 1(b), of the Convention. In relation to the Committee's previous comments indicating that equality of treatment should be assured to all migrant workers regardless of a reciprocity agreement, the Government indicated in its reports received in 1987 and 1988 that it had decided to undertake appropriate studies to bring the legislation into conformity with the Convention on this point. In its last report the Government states that the new Constitution of 1988 guarantees equality of rights and treatment to foreign workers who enjoy the same rights in social security as nationals. The Committee trusts that the next report will contain information on the measures taken as a result of the studies mentioned earlier to guarantee to all immigrants equality of treatment in respect of unemployment and family benefits, in accordance with the Convention and the new Constitution.

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Article 6, paragraph 1(b), of the Convention. In relation to the Committee's previous comments indicating that equality of treatment should be assured to all migrant workers regardless of a reciprocity agreement, the Government indicated in its reports received in 1987 and 1988 that it had decided to undertake appropriate studies to bring the legislation into harmony with the Convention on this point. In its last report the Government states that the new Constitution of 1988 guarantees equality of rights and treatment to foreign workers who enjoy the same rights in social security as nationals. The Committee trusts that the next report will contain information on the measures taken as a result of the studies mentioned earlier to guarantee to all immigrants equality of treatment in respect of unemployment and family benefits, in accordance with the Convention and the new Constitution.