Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Convenio sobre los trabajadores migrantes (disposiciones complementarias), 1975 (núm. 143) - Portugal (Ratificación : 1978)

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Observación

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), both received on 28 August 2017, as well as of the General Confederation of Portuguese Workers – National Trade Unions (CGTP-IN), received on 1 September 2017, all forwarded by the Government.

Article 1 of the Convention. Basic human rights. The Committee previously noted the diverse measures adopted by the Government to ensure respect for the human rights of all migrant workers but expressed concern at the potential impact of the measures adopted to address the economic and financial crises on the enjoyment of migrant workers’ human rights. The Committee notes the Government’s statement, in its report, that despite the economic and financial situation of recent years and the simultaneous rise in unemployment, particularly among migrant workers, the Government successfully maintained the most important elements of its policies, programmes and services with a view to better integrating migrant workers. The Government adds that the Office of the High Commissioner for Migration provided support to migrant workers and refugees, including through the implementation of the Mentors for Migrants programme, in cooperation with local partners, to promote exchange of experiences and support between migrants. The Committee notes that several initiatives were implemented to offer Portuguese language courses for migrants and refugees and that the Office of the High Commissioner for Migration established to this end an online Portuguese platform accessible in various languages, including English and Arabic. Noting that the Second Plan for Immigrant Integration ended in 2013, the Committee takes note of the adoption of the Strategic Plan for Migration (2015–2020) which includes over 100 measures aiming at the integration of immigrants; the promotion of integration of new citizens; the coordination of migration flows; the improvement of legislation on migration and the quality of migration services; as well as the enhancement, monitoring and supporting of the return of citizens who have emigrated. The Committee asks the Government to continue to provide information on the measures adopted in order to ensure full respect for the basic human rights of all migrant workers irrespective of their legal status, in particular in the framework of the Strategic Plan for Migration (2015–2020). It further asks the Government to provide statistical information, disaggregated by sex, nationality and sector of activity, on the number of migrant workers, whether in a regular or irregular situation.

Articles 2 to 7. Measures to combat irregular migration. The Committee previously noted the efforts made by the Government to address irregular migration, including through the adoption of Act No. 29/2012, amending Act No. 23/2007 and transposing Directive No. 2009/52/CE; the Second Plan for Immigrant Integration (2010–13); as well as cooperation with other countries to prevent and combat irregular immigration and human trafficking. The Committee notes the CGTP-IN’s indication that further amendments were adopted concerning Act No. 23/2007, namely Acts Nos 56/2015 and 63/2015, of 23 and 30 June 2015, respectively. The CGTP-IN reiterates its concerns regarding Act No, 23/2007 of 4 July 2007 that could create difference of treatment between migrant workers and ultimately force unskilled workers to remain in irregular situations. The Committee notes the Government’s statement that specific measures are planned in the framework of the Strategic Plan for Migration for 2015–2020 for preventing and combating labour exploitation of foreign workers who are not legally entitled to work, including by reinforcing inspections of employment entities, and disseminating information on the rights and obligations of immigrant workers. It further notes the adoption of the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017). It observes however, from the statistical information provided by the Government, that the number of labour inspections involving arrest as a result of trafficking in persons for the purposes of labour exploitation increased from 20 in 2014 to 44 in 2016. The Committee asks the Government to provide information on the measures taken to effectively detect, prevent and suppress irregular migration and illegal employment, including in the framework of the Third National Plan on Preventing and Combating Trafficking in Persons (2014–2017), and on the concrete impact of these measures on the reduction of this phenomenon. It also asks the Government to provide statistical information on the number of labour inspections carried out and of migrant workers in an irregular situation or illegally employed, as well as on the nature of the infringements identified and the administrative, civil and penal sanctions imposed on employers. The Committee further asks the Government to provide specific information on the penalties and other measures adopted against organizers of illegal or clandestine movements of migrant workers.

Article 9(1). Measures relating to rights arising out of past employment. The Committee previously noted that section 63(2) of Act No. 84/2007 provides for the fulfilment of fiscal and social security obligations as a condition for the renewal of the residence permit, except if it is the employer who has not respected the obligations concerning social security (measure No. 22 of the Second Plan for Immigrant Integration 2010–13) and requested the Government to indicate how it was ensured that migrant workers whose situation could not be regularized, and their families, enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards remuneration, social security and other benefits. The Committee notes the Government’s indication that section 7 of the Social Security System Act No. 4/2007 of 16 January 2007 sets the principle of non-discrimination, including on the ground of nationality, without prejudice to residency or reciprocity requirements. The Government however adds that there may be a residency requirement for the receipt of some social benefits, but that section 25 of the above-mentioned Act requires the Government to promote the signing of social security coordination instruments in order to ensure the equal treatment of recipients who work or reside in Portugal in respect of protection of acquired rights and future entitlements. The Committee asks the Government to provide information on the measures taken to ensure that migrant workers for whom residence permit could not be renewed, and their family, enjoy equality of treatment in respect of rights arising out of past employment, in particular as regards social security and other benefits but also remuneration. It asks the Government to provide information on the number of social security coordination instruments signed pursuant to section 25 of the Social Security System Act No. 4/2007. Noting that the Second Plan for Immigration Integration ended in 2013, it asks the Government to provide information on any actions taken to replace measure No. 22 of the Plan, including in the framework of the Strategic Plan for Migration (2015–2020).

Article 9(3). Expulsion. The Committee previously noted that, according to section 213 of Act 23/2007, “expenses necessary to leave the country that cannot be supported by the foreign national, or should not be supported by him under special international conventions, shall be borne by the State”, and that the State may bear the expenses for voluntary return of the members of the migrant worker’s family upon the expulsion or deportation of the migrant worker. Noting the Government’s indication that Act No. 23/2007 was amended by Act No. 63/2015 of 30 June 2015, the Committee however notes that the wording of section 213 remains unchanged. It notes the CIP’s observation that the national legislation is in conformity with the provision of the Convention but that additional information could be requested on the practical application of section 213 of Act No. 23/2007. The Committee again asks the Government to take appropriate measures so as to ensure that migrant workers in an irregular situation for reasons that cannot be attributed to them are not required to bear the costs of expulsion, in conformity with Article 9(3) of the Convention. It further asks the Government to provide information on the application of section 213 of Act No. 23/2007 in practice, including on the number of migrant workers and family relatives for whom the State did or did not bear the expenses to leave the country in case of expulsion.

Articles 10 and 12. Equality of opportunity and treatment. Referring to its previous comments where it requested the Government to provide information on the concrete impact of legislative and practical measures adopted in the framework of the Second Plan for Immigrant Integration 2010–2013, as well as any other measures adopted to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers, the Committee takes note of the final implementation report on the Second Plan for the Integration of Immigrants which includes a chapter on employment, vocational training and entrepreneurship. It notes the Government’s statement that the Strategic Plan for Migration (2015–2020), which covers not only immigrants but also emigrants and refugees, takes into account the importance of strengthening the many sectors in which integration is needed, such as education, employment, health, housing, justice and combating trafficking in persons, while maintaining cross-cutting issues such as gender, racism, discrimination and the promotion of diversity. It further notes that the Observatory for Migration established in the framework of the High Commissioner for Migration published several studies and collected statistical information on the integration of migrants and their situation in the labour market. The Committee notes the UGT’s observation that, while the national legislation prohibits discrimination against foreign workers in the Labour Code, there is a need for promoting the integration of foreign workers in practice, through inclusive policy, in order to ensure their access to accommodation, health, education and social protection. The UGT adds that despite the efforts made some difficulties persist in practice, in particular to address discrimination at the workplace, as a result of the situation of vulnerability of migrant workers who have a low level of awareness of their rights. The UGT further expresses particular concerns about the ineffectiveness of the labour inspectorate or judicial system. The Committee asks the Government to provide information on the concrete impact of the actions implemented in the framework of the Strategic Plan for Migration (2015–2020), as well as any other measures adopted to guarantee equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention, including women migrant workers. It further asks the Government to provide information on the main difficulties faced by men and women migrant workers, respectively, in the country according to the information gathered and research developed by the Observatory for Migration.

Article 13. Family reunification. The Committee previously noted the establishment of the Office for the Support of Family Reunification (GARF) in the framework of the High Commissioner for Migration, with the objective of providing information and assisting migrant workers in the process of family reunification, and requested the Government to provide further information on the concrete measures adopted to this end. The Committee notes the Government’s indication that the GARF provides more particularly information and assistance on the documents needed to start the family reunification process, legal deadlines, prior steps to be taken by the persons concerned, and documents certification and translation. The GARF also monitors ongoing cases, and requests the relevant information to facilitate the success of family reunification applications. The Committee notes, from the statistical information provided by the Government, that there has been a consistent need for the services offered by the GARF with 5,517 requests in 2014; 4,929 in 2015 and 5,622 in 2016. The Committee asks the Government to provide concrete information on any additional measures adopted to facilitate migrant workers’ family reunification, including information on the number of migrant workers who have benefited from such measures, as well as from the assistance of the GARF, the number of applications for family reunification which succeeded, and any difficulties that have arisen in their implementation.

Enforcement. Referring to its previous comments where it noted that the number of cases involving migrant workers in which the Working Conditions Authority (ACT) imposed fines decreased from 340 in 2010 to 62 in 2012, the Committee notes that the Government does not provide updated information in that regard. It notes however, from the statistical information provided by the Government, that the number of foreign workers covered by labour inspections decreased from 3,604 in 2014 to 3,195 in 2016, of which 82 were in an irregular situation, and observes that 2,367 men were covered by labour inspections in 2016 compared to only 828 women. The Committee asks the Government to provide information on the activities of the Working Conditions Authority with respect to migrant workers, including statistical data, disaggregated by sex, economic sector and legal status, on the number of inspections carried out and of migrant workers covered, as well as on the number and nature of fines and other sanctions imposed and remedies granted. It also asks the Government to provide summaries of any administrative or judicial decisions adopted with respect to the equality and non-discrimination provisions in the legislation regarding migrant workers.