Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 143) sur les travailleurs migrants (dispositions complémentaires), 1975 - Portugal (Ratification: 1978)

Autre commentaire sur C143

Observation

Demande directe

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and the General Confederation of Portuguese Workers - National Trade Unions (CGTP-IN) communicated with the Government’s report.

Article 1 of the Convention. Basic human rights. The Committee previously requested the Government 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, following the adoption of the Strategic Plan for Migration for 2015-2020 (PEM). The Committee notes the Government’s indication, in its report, that, according to the final evaluation report of the PEM, which ended in 2020, its overall execution rate was estimated at 86.9 per cent. The Committee takes note of the adoption of the National Plan for the Implementation of the Global Compact for Migration (PNIPGM), by Resolution of the Council of Ministers No. 141/2019 of 1 August 2019, with a view to implement the United Nations (UN) Global Compact for Safe, Orderly and Regular Migration (UN Resolution, A/73/L.66, 12 December 2018). It notes that the PNIPGM sets 23 objectives articulated around five main dimensions: (1) promoting safe, orderly and regular migration; (2) improving the processes to organize and manage migratory flows; (3) promoting and qualifying migrant reception and integration mechanisms; (4) supporting connections between migrants and their home countries and projects for return; and (5) enhancing development partnerships with countries of origin and transit. The Committee welcomes this information. It however notes that, in its observations, the CGTP-IN highlights that unacceptable living conditions of immigrants resulted in an accelerated spread of the COVID-19, thus revealing the situation of seasonal and temporary immigrant workers who are subject to situations amounting to forced labour, in particular in the agriculture sector. The CGTP-IN adds that no sanction was imposed to those perpetrators, despite the legislative framework in place. The Committee asks the Government to continue to provide information on the nature and impact of the measures taken to ensure full respect for the basic human rights of all migrant workers irrespective of their legal status, in particular in the agriculture sector, in the framework of the National Plan for the Implementation of the Global Compact for Migration or otherwise. 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 2–7. Measures to detect, prevent and suppress irregular migration and illegal employment of migrant workers. The Committee previously noted the efforts made by the Government to prevent and combat irregular migration and trafficking in persons, including through the PEM and the Third National Plan on Preventing and Combating Trafficking in Persons (2014-2017). It requested the Government to provide information on the concrete impact of these measures on the reduction of this phenomenon. The Committee notes the Government’s statement that, according to the final evaluation report of the Third National Plan on Preventing and Combating Trafficking in Persons, which ended in 2017, 48 out of the 53 measures established under this plan were executed, in particular to prevent and prosecute trafficking in persons. It also notes the adoption of the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021 (IV PACTSH), adopted by Resolution of the Council of Ministers No. 80/2018, of 7 June 2018, which sets as specific objectives: (1) to raise awareness on trafficking in persons; (2) to ensure that victims have access to their rights; and (3) to promote the fight against organized crime networks. The IV PACTSH foresees, among others, measures to: reinforce inter-institutional cooperation; strengthen the involvement of municipalities and local networks; promote a better monitoring of the formal and informal labour market and of recruitment agencies; promote the prevention of and combat trafficking in supply chains and in public procurement; and improve victims’ access to their rights such as compensation. The Committee further notes that the National Plan for the Implementation of the Global Pact on Migration of 2019, contains several measures aiming at promoting safe and regular migration including through formal migration channels. The Government adds that Law No. 75-B/2020 of 31 December 2020, which approved the budget for the year 2021 foresees the reinforcement of human resources for combating trafficking in human beings, and Law No. 55/2020 of 23 August 2020, which defined priorities in criminal policy for 2020–22 sets as a priority the prevention and suppression of trafficking in persons. The Committee welcomes all these initiatives. In this regard, it notes with interest the ratification on 23 December 2020 by Portugal of the Protocol of 2014 of the Forced Labour Convention, 1930 (No. 29). The Committee however notes that, in its 2020 report, the National Observatory on Trafficking in Persons highlights that 75 per cent of the victims of trafficking in persons identified were trafficked for the purpose of labour exploitation mainly in agriculture, construction, hotels and restaurants and domestic work. Of the victims identified in 2020, 23 per cent were from UE member states and 77 per cent from third countries (compared to 67 per cent in 2019). The Committee further notes that, in April 2021, the United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) highlighted the increasing trend of trafficking and exploitation of undocumented migrant workers in the agricultural sector and other sectors (E/C.12/PRT/Q/5, 1 April 2021, para. 15). It also notes that, in its 2019 concluding observations, the UN Committee against Torture (CAT) expressed specific concern about (1) reports that law enforcement officers are not adequately trained in identifying victims of trafficking; and (2) delays in the issuance of temporary residence permits for victims. The CAT recommended that the Government intensify its efforts to prevent and combat trafficking in persons, including by putting in place effective procedures for the identification and referral of victims among vulnerable groups, such as asylum seekers and migrants in an irregular situation (CAT/C/PRT/CO/7, 18 December 2019, para. 43 and 44). The Committee notes with concern this information. The Committee therefore asks the Government to provide information on: (i) the proactive measures taken to detect, prevent and suppress irregular migration and illegal employment, including in the framework of the IV Action Plan on Preventing and Combating Trafficking in Persons for 2018-2021 and the National Plan for the Implementation of the Global Pact on Migration; and (ii) the concrete impact of these measures on the reduction of this phenomenon. It also asks the Government to provide information on the specific measures taken to strengthen the monitoring of workplaces in sectors such as agriculture, domestic work and construction, to facilitate the reporting of violations of labour rights therein and to provide reparations, including for undocumented migrant workers. The Committee asks the Government to provide statistical information on the number of labour inspections carried out, migrant workers in an irregular situation or illegally employed identified, as well as on the nature of the infringements identified and the administrative, civil and penal sanctions imposed on employers and 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 Law No. 84/2007 of 5 November 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. It requested the Government to indicate how it is ensured that migrant workers and their family in respect of whom residence permit could not be renewed, 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 repeated statement that section 7 of Law No. 4/2007 of 16 January 2007 on the social security system, sets the principle of non-discrimination, including on the ground of nationality, without prejudice to residency or reciprocity requirements. The Government however adds that several social security benefits, in particular regarding unemployment, illness and family protection, are subjected to a residency requirement, while future entitlements, such as pensions, may be subjected to a reciprocity requirement. Referring to its previous comments regarding section 25 of Law No. 4/2007, which 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 notes that the Government merely refers to the revision, in 2018, of three social security coordination instruments previously signed with Cabo Verde, Mozambique and the Philippines. The Committee notes the lack of information provided by the Government on the measures taken in the framework of section 25 of Law No. 4/2007, since 2018. The Committee again asks the Government to provide information on the measures taken to ensure that migrant workers and their family for whom residence permit could not be renewed, 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 Law No. 4/2007.

Article 9(3). Costs of expulsion. Previously the Committee noted that, according to section 213 of Foreigners Act No. 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. In light of the absence of information provided, 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 in practice of section 213 of Act No. 23/2007, 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. The Committee previously requested the Government to provide information on the concrete impact of the measures and actions implemented 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 notes the Government’s indication that several measures where implemented in the framework of the Strategic Plan for Migration for 2015–2020 (PEM) in order to enhance a better integration of immigrants. In that regard, it notes that the National Plan for the Implementation of the Global Compact for Migration (PNIPGM) includes 97 measures aiming, in particular, at the integration of immigrants, including by : (1) offering Portuguese language courses, (2) ensuring access to school for children and young people, as well as access to education and professional training for adults, (3) improving the conditions of access to housing, health and social protection, and (4) encouraging the integration and participation of immigrants into the society. The Committee notes that, as a result of the PNIPGM, a new programme for Portuguese language courses (“Português Língua de Acolhimento”) was established by Ordinance No. 183/2020, of 5 August 2020. The Government indicates that this new language training has been adjusted to the specific learning needs of immigrants, as a way to promote social inclusion and cohesion. The Committee welcomes this information. It also notes the general reference made by the Government to several instruments adopted to promote equality and non-discrimination, such as for example, the National Strategy for Equality and Non Discrimination for 2018–2030 (ENIND), but observes that no specific information is provided by the Government on the specific measures implemented to enhance equality of opportunity and treatment for migrant workers. In that regard, the Committee refers to its 2021 direct request on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). It notes that, in its 2020 report, the High Commission for Migration (ACM) highlights that (1) there are higher unemployment rates among foreigners; (2) the insertion of foreigners into the Portuguese labour market still does not necessarily reflect their qualifications as they continue to be more represented in lower professional groups; (3) foreign workers continue to have lower average wages than nationals and are more exposed to poverty and social exclusion; and (4) there is an increase in fatal and non-fatal work accidents among foreigners, reflecting the employability of foreign workers in sectors with greater exposure to occupational accidents, such as construction. In that regard, it notes, from the statistical information provided by the Government, that the number of victims of work accident identified through surveys of the Working Conditions Authority (ACT) increased from 119, in 2017, to 355, in 2019, with 4 victims from UE countries and 37 victims from third-countries (compared to 2 and 7 victims identified in 2017, respectively). It further notes that, according to the 2020 Migrant Pay Gap report of the ILO, the wage gap between migrants and native citizens in Portugal increased from 25.4 per cent in 2015 to 28.9 per cent in 2020 (“Table E-1: the 20 widest migrant pay gaps“, p. 16). The Committee therefore asks the Government to increase its efforts in order to guarantee in practice equality of opportunity and treatment for migrant workers in accordance with Articles 10 and 12 of the Convention. It asks the Government to provide information on the nature and results of any measures implemented to that end, as well as on any obstacle encountered.

Article 13. Family reunification. The Committee previously noted that the Office for the Support of Family Reunification (GARF), established in the framework of the ACM, is responsible for providing information and assisting migrant workers in the process of family reunification. It requested the Government to provide information on any additional measures adopted to facilitate migrant workers’ family reunification. The Committee takes note of the Government’s indication that no significant legislative change has been made regarding family reunification which is still regulated by the Foreigners Act, but observes that no information is provided by the Government on the implementation of these provisions in practice or on number of migrant workers who have benefited from such measures. The Committee observes that the National Plan for the Implementation of the Global Pact on Migration, adopted in 2019, sets as specific objective to promote family reunification. The Committee again asks the Government to provide concrete information on any measures adopted to facilitate migrant workers’ family reunification and their impact, such as statistical data on (i) the number of migrant workers who have benefited from such measures, as well as from the assistance of the GARF, (ii) the number of applications for family reunification which succeeded, and (iii) any difficulties that have arisen in their implementation.

Article 14(b). Recognition of diplomas and qualifications. The Committee takes note of Law No. 31/2021 of 24 May 2021, which provides for the simplification of the procedures associated with the recognition of professional qualifications, transposing Directive 2005/36/EC of the European Parliament and of the EU Council of 7 September 2005 on the recognition of professional qualifications. The Committee welcomes this information. The Committee asks the Government to provide information, including studies or surveys, on any obstacles encountered in practice regarding the recognition of diplomas and qualifications of third-country nationals. It further asks the Government to provide information on any specific legislative provisions regarding recognition of the professional qualifications of third-country nationals.

Enforcement. Referring to its previous comments, the Committee notes, from the statistical information provided by the Government, that the number of foreign workers covered by labour inspections increased from 2,147 in 2017 to 3,007 in 2019, and observes that, in 2019, 2,244 men were covered by labour inspections compared to only 676 women. It further notes that the number of migrant workers in an irregular situation identified by the ACT increased from 50 in 2017 to 87 in 2019. The Committee asks the Government to continue to provide information on the activities of the Working Conditions Authority with respect to migrant workers, including: (i) statistical data, disaggregated by sex, economic sector and legal status, (ii) on the number of inspections carried out and of migrant workers covered, as well as (iii) on the nature of fines and other sanctions imposed and remedies granted. It further 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.