Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 97) sur les travailleurs migrants (révisée), 1949 - Belgique (Ratification: 1953)

Autre commentaire sur C097

Demande directe

2023
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The Committee notes the joint observations sent on 1 September 2022 by the General Confederation of Liberal Trade Unions of Belgium (CGSLB), the Confederation of Christian Trade Unions (CSC) and the General Labour Federation of Belgium (FGTB).

Articles 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the Government’s indication in its reports that since the sixth reform of the State, which came into force on 1 July 2014, regulation with respect to foreign workers comes within the competence of the regions. The Federal State retains regulatory competence with regard to foreigners for whom permission to work derives directly from a particular residence situation, such as nationals of Member States of the European Economic Area (EEA) and the Swiss Confederation, and also those holding a long-term work permit; international protection seekers and recognized refugees; and students and family members. Since 1 January 2019, a single permit exists further to the transposition of Directive 2011/98/EU (European Union), the residence permit indicating whether the person concerned is allowed to work (“A” and “C” work permits have been abolished as a result of the introduction of the single permit). As regards the codification announced in previous Government reports, the Committee notes the Government’s indication that a “conceptual note”, covering the general structure and main basic principles for the future migration code, was approved by the Council of Ministers in February 2022 but that this codification has not yet been implemented. The Committee invites the Government to continue providing information on its national immigration policy and legislation, and also on progress made on the codification of migration law.

Article 2. Procedures for civic integration and assistance. The Committee notes the information provided by the Government on the functioning of the civic integration and assistance procedures in the German-speaking Community, the Walloon Region and the Brussels-Capital Region. It notes the Government’s indication that the remit for integrating new arrivals is divided among the linguistic regions and communities, the situation being made more complex by the institutional structure of Brussels, where three entities have competence in the matter: the Flemish Community, the French Community Commission (Cocof) and the Joint Community Commission (Cocom), the latter being the only one with the power to impose an obligation to follow an assistance procedure. The Committee requests the Government to provide information on the functioning of the various assistance and integration procedures in practice (difficulties encountered, results achieved, reports produced including statistics, etc.) and in particular on the number of migrants who follow such a procedure, whether compulsory or voluntary, and on any penalties imposed (indicating the grounds for such penalties).

Article 6. Equality of treatment. The Committee notes the information provided by the Government and the examples of court decisions, some of which relate to issues of discrimination on the basis of nationality. It recalls that section 7(2) of the Act of 30 July 1981 concerning the suppression of certain acts inspired by racism or xenophobia, as amended in 2007 and 2013, provides that “any direct distinction based on nationality shall constitute direct discrimination, unless it is objectively justified by a legitimate purpose and the means of achieving this objective are appropriate and necessary”. In this regard, the Committee notes the Government’s statement that section 8(1) of the above-mentioned Act provides that, in the area of employment relationships, any direct distinction on the basis of race, colour, extraction, or national or ethnic origin can only be justified on the basis of an “essential and crucial occupational requirement” which it is for the judge to assess on a case-by-case basis. The Government explains that three conditions must be fulfilled: (1) the required characteristic must be essential and crucial, in other words it must be indispensable for performing the function; (2) it must have a legitimate purpose, with the objective sufficiently relevant to justify a departure from the fundamental right to equal treatment; and (3) the measure must be reasonably proportionate to the objective sought, which has to be analysed on a case-by-case basis. The Government adds that, under section 10(1) of the above-mentioned Act, “a direct or indirect distinction on the basis of one of the protected criteria cannot be construed as some form of discrimination when this direct or indirect distinction constitutes an affirmative action measure”. The Committee notes the data cited by the Government relating to reports made to the Interfederal Centre for Equal Opportunities (Unia). According to Unia’s 2021 annual report, 21.8 per cent of the 603 discrimination files opened in the area of employment related to “racial” criteria (colour, extraction, nationality, national or ethnic origin, and supposed race). The fifth edition of “Socio-economic monitoring – Labour market and origin”, published in October 2022 by the Federal Public Service (SPF) for Employment, Work and Social Cooperation and Unia, indicates that persons of foreign origin are less likely to be employed and, if they are, it is often in jobs which are less stable, of lower quality and less well paid, even where diploma and study levels are identical. The Committee also notes the concern expressed by the United Nations Committee on the Elimination of Racial Discrimination (CERD), in its concluding observations of 21 May 2021, at the discrimination and the many obstacles faced by nationals of non-EU countries when trying to enter the labour market (CERD/C/BEL/CO/20-22, paragraphs 26–27). The Committee requests the Government to provide detailed information on the number of reports specifically concerned with discrimination based on nationality in the area of employment which have been received and handled by Unia or any other body, and on the follow-up action taken.

Article 6(1)(a)(iii). Equality of treatment with regard to accommodation. The Committee recalls that in its previous comment it asked the Government to continue to survey the impact of the procedure for assigning social housing in Flanders – particularly the need for applicant tenants to prove that they speak Dutch or are committed to learning it – to ensure that it does not result in practice in the application to migrant workers who are legally resident on Belgian territory of treatment that is less favourable than that applied to Belgian nationals in relation to accommodation. The Committee notes that the Government does not provide any information on this matter. It also notes that, according to the Unia annual report, 51.1 per cent of the 897 files opened in 2021 involving “racial” criteria were concerned with housing, most of them involving refusals to visit or rent accommodation. The Government indicates that the Brussels region has established a new mechanism for combating discrimination in access to housing. The Ordinance of 21 December 2018 (amending the Brussels Housing Code in order to reinforce action against discrimination regarding access to accommodation) provides for the possibility for officials of the Regional Housing Inspection Directorate (DIRL) to carry out discrimination tests which, if positive, enable a presumption of the existence of discrimination liable to incur a penalty. Moreover, a new draft ordinance is being adopted which would strengthen action against discrimination with regard to housing, including vis-à-vis migrant workers (the addition of a new protected criterion of “residence status” in the Brussels Housing Code; a clear definition of multiple discrimination; the possibility for DIRL officials to have recourse to actors or associations to carry out discrimination tests; and the possibility of carrying out “proactive” tests, that is to say where there is no prior indication of discrimination, particularly vis-à-vis estate agents). The Government adds that from 2017 to 2022 a total of 26 complaints claiming discrimination on the basis of nationality were filed, of which eight resulted in a decision imposing an administrative fine. In addition, a public awareness-raising and information campaign was launched in May 2021. The Committee requests the Government to provide information on: (i) the measures taken at national level to ensure equal treatment with regard to accommodation, particularly with respect to the criterion of nationality; (ii) the impact of the procedure for assigning social housing in Flanders on migrant workers who are legally resident on Belgian territory, and (iii) the administrative and judicial procedures available to deal with complaints from migrant workers with regard to accommodation.

Article 6(1)(d). Legal proceedings. The Committee notes the Government’s indications concerning appeals filed by employers and by workers for refusal or withdrawal of the recruitment permit or work permit and, from 2019, of the single permit, in the German-speaking Community, in the Walloon Region and in Flanders. It also notes the Government’s statement that there is currently no statistical programme which makes it possible to verify which decisions were ultimately taken on the appeals lodged. In this regard, the Committee wishes to recall the importance of gathering judicial statistics disaggregated by subject area to enable evaluation of the effective application of adopted policies. The Committee requests the Government to continue providing information on the appeals lodged by employers and workers in cases involving the refusal or withdrawal of a work permit or of a single permit, and on any judicial assistance mechanism intended to assist migrant workers with such procedures, including linguistic assistance.

Article 8. Maintenance of residence in the event of incapacity for work. The Committee notes the amendment, by the Act of 24 February 2017, of section 21(3)(4) of the Act of 15 December 1980, which now indicates that “the minister or the deputy minister may terminate the residence of a national of a third country admitted or authorized to reside for a limited or unlimited duration and issue an order to leave the national territory for reasons of public order or national security”. The Government adds that only serious reasons of public order or national security give grounds for terminating the residence of EU nationals and their family members who have acquired permanent residence status: temporary or permanent incapacity for work would not justify such termination. As regards “highly qualified workers”, if these no longer have sufficient income because of incapacity for work, they may lose their right of residence. As regards migrant workers who have obtained an unlimited right of residence after a five-year period counting from the issuing of the first residence permit, the Immigration Office can terminate their right of residence, in the event of incapacity for work, “when the foreign citizen no longer has the status of worker (in other words, when the foreign citizen no longer meets the conditions of his/her residence).” In this regard, the Committee emphasizes that security of residence for permanent migrants and members of their families in case of ill health or injury constitutes one of the most important provisions of the Convention (Article 8 of the Convention; see also 2016 General Survey, Promoting fair migration, concerning the migrant workers instruments, paragraph 455). The Committee recalls that Paragraph 18(1) of the Migration for Employment Recommendation (Revised), 1949 (No. 86), provides as follows: “When a migrant for employment has been regularly admitted to the territory of a Member, the said Member should, as far as possible, refrain from removing such person or the members of his family from its territory on account of his lack of means or the state of the employment market, unless an agreement to this effect has been concluded between the competent authorities of the emigration and immigration territories concerned.” The Committee requests the Government to indicate the measures taken or envisaged to comply with the requirements of the Convention, in particular Article 8(1), in order to ensure that the right of residence of permanent workers and their families is maintained in the event of permanent or temporary incapacity for work due to illness or injury, even if the worker is no longer capable of obtaining a stable and sufficient personal income.

Statistics. The Committee notes the information provided by the Government and also the information available in the 2020 report of the Immigration Office and in the annual reports of the Federal Migration Centre (Myria) for the 2013–22 period. The Committee invites the Government to continue providing statistics on the number and origin of foreign workers employed in Belgium and to indicate the results of the relevant activities of the labour inspection services, in accordance with the provisions of the Convention.