A Rights-Based Approach toMigration and Development:SOLIDAR Reaction toEC Migration Policy Package

EU-level initiatives on

Brie�ng #40

Responsible Editor: Conny Reuter

Author: Michael Oberreuter

SOLIDAR is a European network of 56 NGOs working to advance social justice in Europe and worldwide.SOLIDAR lobbies the EU and international institutions in three primary areas: social affairs, international cooperation and education.

SOLIDARPublished November 2011

WWW.SOLIDAR.ORG

TABLE OF CONTENTS

Foreword 2Recommendations 31. Background 42. Mobility Partnerships 63. Analysis 7

©

This publication has been produced with the assistance of the European Union. The content of this publication is the sole responsibility of the author and can in no way be taken to re�ect the views of the European Union.

This briefing is carried out in the frame of the project “Making Migration Work for Development”, funded by the European Commission's AIDCO in coop-eration with the Foundation for European Progressive Studies. It aims to mobilise support from European citizens and politicians for a rights-based approach to labour migration and decent work (in line with the relevant UN and ILO conventions) and for policy coherence for development.

The project involves 7 SOLIDAR member organisations in Belgium (Pour la Solidarité), Czech Republic (Czech Council on Foreign Relations), France (Solidarité Laïque), Italy (ISCOS-CISL and PROSVIL), Romania (ADO SAH ROM), Spain (ISCOD) and will be delivered in close collaboration with SOLIDAR’s Global Network partners.

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Foreword The arrival of roughly 50,000 migrants from the Maghreb to Italy and Malta since January 2011

has put migration again at the centre of EU policy considerations and debates. It has resulted in

no less than two EC Communications and a Proposal for Regulation in May 20111, as well as a

rather polemic exchange on the right to mobility itself as we saw by the heated discussions on the

temporary reintroduction of border controls in the Schengen area.

While the European Commission has rebutted such controls without its consent in its capacity as

guardian of the treaties, the policy packages in May raised the concern of the EU focusing on a

more Eurocentric agenda of border security and skilled migration rather than fully appreciating the

development related push factors of migration and the related policy coherence for development

stipulated in Article 208 of the Lisbon Treaty, as well as stigmatising irregular migration.

Therefore, whilst the much anticipated “Migration Policy Package”, published last week

(18 November 2011), highlights several essential priorities such as the portability of social

rights and the monitoring of the Employers Sanctions Directive, it falls very short in

setting the policy context for an approach to migration which respects human and

workers’ rights as stipulated in the Charter for Fundamental Rights.

SOLIDAR has a long history of promoting workers’ rights and the protection of migrant rights, for

example by providing social services and organising migrants.

Migrants’ and workers’ rights are human rights. Migrants are human beings and are mostly

workers, regardless of their status. They make a vital contribution to their countries of destination

and their countries of origin. Nonetheless, many migrants face exploitation and violations of their

rights.

For a truly rights-based approach to migration, we need strong provisions for social protection,

the safeguarding of fundamental rights, access to health care, upward social mobility and access

to lifelong learning for all members of society. It is about human beings and human rights; it is

about the human face of open societies that Europe should represent.

Conny Reuter

SOLIDAR Secretary General

1 (COM (2011) 248; COM (2011) 292; COM (2011) 290

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Recommendations

The majority of migrants constitute a vulnerable group that is driven by the lack of decent work

opportunities and which faces an “exploitation trap” in receiving societies. In 2005, sub target 1B

was added to the first Millennium Development Goal, which is to: “Achieve full and productive

employment and decent work for all, including women and young people”, setting the decent work

and development agenda to supplement remittances and decrease the push factors of migration.2

The attainment of this goal therefore has to be the main priority of the EU and its Member States

in their development and migration policies.

To the EU and its Member States:

Promote international labour standards as cornerstones of EU migration policy.

Ensure the implementation of international human rights standards, including the EU

Charter of Fundamental Rights, for all migrants, irrespective of legal status.

Highlight decent work and development related push factors for migration with a view to

promoting migration out of choice.

Implement strong provisions addressing decent work related push factors of migration in

EU migration policies.

EU Member States must take the lead in the ratification process of the ILO Convention

on Domestic Workers (C189) and other related ILO Conventions: 97 on Migration for

Employment, 143 (supplementary provisions) on Migrant Workers, as well as the

International Convention on the Protection of the Rights of Migrant Workers and Their

Families.

Draft development and migration policies that promote the creation of decent work, social

protection and social inclusion mechanisms in countries of origin

Involve civil society in consultations when designing migration policies

Implement the EU’s commitment to policy coherence for development in the Lisbon

Treaty in dealing with migration and development issues.

Promote the mainstreaming of social policies in development cooperation.

To civil society and trade unions:

Actively promote the link between migration, development and decent work.

Consistently call for the mainstreaming of the push factors of migration and their link to

decent work in EU migration policy.

Campaign for the ratification and implementation of international standards by

governments worldwide.

Highlight the contribution of migrants in their country of destination regardless of their

status.

Consistently highlight that remittances cannot be a substitute for coherent development

policies for social protection and upward social mobility.

2 ://httpwww.unece.org/commission/MDGs/Regional_Consultation_17March2010/MDG1-02-

ILO_Ulshoefer%20&%20Nesporova.pdf

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1. Background

Poverty and the lack of decent work are

major driving forces behind international

migration, particularly in the developing

world. In fact, 90% of the total international

migrants, estimated by the International

Labour Organisation at 214 million in 2010,

are migrant workers and their families. The

majority of these are low skilled, seeking a

more prosperous life.3

Decent work sums up the aspirations of all

people in their working lives – for opportunity

and decent income; labour rights, voice and

recognition; and personal development; as

well as non-discrimination including gender

equality. A recurring statement by migrants

interviewed4 was that given the choice, they

would stay in their home countries if they

could earn enough to live on and support

their families.

In this context, according to United Nations

estimates, 15-20% of all migrants worldwide

are irregular. Analysts, however, identify

significant regional discrepancies, with

estimates for Asia and Latin America

running above 50%, highlighting the

unstable status of many migrants.5 Many of

these migrants, in particular from the South,

often work in precarious conditions being

socially excluded and dependent on their

employer in a “grey” legal area, with no

social and health security welfare, or labour

rights protection against mistreatment and

exploitation, as well as being very vulnerable

to economic downturns like the global

financial and economic crisis.

4 http://www.ilo.org/global/about-the-ilo/decent-work-

agenda/lang--en/index.htm; SOLIDAR (2011): International Migration – The Search for decent work, p.4 http://cms.horus.be/files/99931/MediaArchive/Migration_report_web.pdf; 5 The International Council on Human Rights Policy

(2010) : Irregular Migration, Migrant Smuggling and Human Rights: Towards Coherence, p.13 http://www.ichrp.org/files/reports/56/122_report_en.pdf

The European Commission’s Migration

Policy Package reviewing the EU’s Migration

Policy principally includes the

Communication on a Global Approach to

Migration to Mobility (GAMM)6. The main

aim of the GAMM is to provide more

strategic and efficient policy linkages

between the external and internal dimension

of EU Migration Policy.

As such, the Global Approach to Migration

and Mobility consists of 4 pillars:

Organising and facilitating legal

migration and mobility

Preventing and reducing irregular

migration and trafficking in human

beings

Promoting international protection

and enhancing the external

dimension of asylum policy

Maximising the development impact

of migration and mobility.

The GAMM is to be “migrant-centred” and

highlights the cross-cutting nature of the

human rights of migrants. It aims to facilitate

the labour mobility of migrants through

increased opportunities for “twinning” higher

education and training institutions, as well as

the facilitation of Migration and Mobility

Resource Centres to streamline the

recognition of skills and qualifications and

skills matching. In addition, the Directives on

Seasonal Workers, the Single Permit and

Intra-corporate Transferee are cited as

examples to use for a more regularised

migration processes that fulfil EU labour

market needs and benefit migrants workers

and their rights protection.7

6 A Global Approach Report will now be prepared every

two years, starting from June 2013, in order to monitor implementation and ensure progress: European Commission (2011), The Global Approach to Migration and Mobility, p.21 7 European Commission (2011), The Global Approach

to Migration and Mobility, p.7; p.12

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To prevent irregular migration and human

trafficking, the EU border agency FRONTEX

is to closely cooperate with countries of

origin and increased emphasis is put on the

transfer of related skills, capacity and

resources to non-EU partners. In this

context, the EU is committed to the

protection of the human rights of migrants

“throughout their entire migration process”,

which are to be strengthened through the

implementation of the Employers Sanctions

Directive and the Return Directive.8

Regarding the crucial link between migration

and development, complicated legal entry

procedures and limited access to them are

cited as major causes for irregular migration.

Attesting a far higher proportion of migration

in the global south, the communication

observes the vulnerability of migrants to

exploitation and trafficking calling for

awareness raising as well as the

identification and monitoring of “bona fide

recruiters” in partner countries to empower

migrants.

Similarly, it warns of brain drain, while at the

same promoting the facilitation of skilled

circular migration such as medical personnel

to promote the transfer of skills.9 High

emphasis is put on the “mainstreaming of

migration in development thinking” for

greater policy coherence, as well as the

importance and potential of remittances. The

remittance transactions are to be made

more cost-effective and a study on the

feasibility of a common EU portal on

remittances and assessing the usefulness of

an annual remittances forum by the end of

2012 are aimed at facilitating the impact and

further regularisation of related financial

flows.10

8 European Commission (2011), The Global Approach

to Migration and Mobility, p.12; p.16 9 European Commission (2011), The Global Approach

to Migration and Mobility, p.20; p.19 10

European Commission (2011), The Global Approach to Migration and Mobility, p.19-20

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2. Mobility Partnerships

Mobility partnerships (MP) have been

prioritised by the EU as a long-term policy

strategy in reaction to the recent events in

the Mediterranean.11

As of present, the EU

will offer the negotiation of MPs with Egypt,

Tunisia and Morocco.12

Current mobility

partnerships exist with Georgia, Cape

Verde, Moldova and most recently, Ghana.

The EU views MPs as “a long-term

framework based on political dialogue and

operational cooperation” with the aim to

regularise and institutionalise migration

flows and is envisaged to be “the principal

framework for cooperation in the area of

migration and mobility between the EU and

its partners”.13

In addition, preference is to

be given to the partners of the EU

Neighbourhood14

undermining their potential

in addressing the actual patterns of global

migration.

While third country interests are to be taken

into account in the negotiation of “tailored”

mobility partnerships, the planned bilateral

process based on the merit of a particular

country and EU imposed conditionality

leaves little diplomatic leverage vis-a-vis the

European Union. Similarly, the also

considered objective to attain the EU 2020

goal of 75% employment in the EU with the

help of skilled migration raises the concern

that the portability of social rights may be

sidelined in this context.

Thus, effective policy responses to the push

factors of migration, including poverty,

unemployment, lack of decent work

opportunities, climate change, persecution,

conflict, or political repression as well as 11

European Commission Communication, A dialogue for migration, mobility and security with the southern Mediterranean countries, COM(2011) 292/3, Brussels, 24 May 2011, page 11.

12 European Commission (2011), The Global Approach

to Migration and Mobility, p.2 13

European Commission (2011), The Global Approach to Migration and Mobility, p.10 14

European Commission (2011), The Global Approach to Migration and Mobility, p.10

their crucial implication for the development

dimension and policy coherence for

development (PCD), will have to be put at

the centre of the debate and related policy

responses.

Indeed, although intended to be mutually

beneficial, their “soft law” nature as well as

the planned EU imposed conditionality in

negotiations, raises the question as to

whether MPs can be viewed as being

consistent with the development priorities of

the GAMM and the essential push factors for

migration. The strong focus on border

security and skilled migration as well as the

linking of readmission agreements to visa

facilitation agreements as suggested in the

GAMM Communication are signs of a rather

selective migration process. Similarly, the

vulnerability of irregular migrants, while

discussed in the context of the South-South

Migration, is not considered in the European

context.

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3. Analysis CORE UNIVERSAL SOCIAL

PROTECTION AND DECENT WORK

STANDARDS

A wide range of universal standards

protecting all workers’ rights have been

developed, including some that specifically

address the needs of migrant workers. At

the international level, the rights of migrant

workers are protected notably by promoting

the ratification and implementation of the

principal international conventions protecting

migrant workers’ rights, namely the

International Convention on the Protection of

the Rights of Migrant Workers and Their

Families (ICRMW), the ILO Convention 97

on Migration for Employment and ILO

Convention 143 (supplementary provisions)

on Migrant Workers15

.

None of the EU Member States has yet

ratified the UN Convention on the Protection

of the Rights of Migrant Workers and Their

Families, while only eight (Italy, Germany,

France, Belgium, the Netherlands, Portugal,

Spain and the United Kingdom) have ratified

the ILO C97 and only five (Cyprus, Sweden,

Italy, Slovenia and Portugal) ratified the ILO

143 to date.16

Therefore an increased

coherence of the EU’s approach to decent

work is essential. Furthermore, in order to

consistently address the reasons why

people migrate to Europe like poverty and

the lack of decent work, these conventions

and related policy strategies will have to be

at the heart of the EU’s migration policies

(specifically Mobility Partnerships) with

regards to EU development cooperation

policy and external relations.

15

Concord (2011), Spotlight on EU Policy Coherence for Development, pp.58-59;

15 SOLIDAR (2011):

International Migration – The Search for decent work, p.14, http://cms.horus.be/files/99931/MediaArchive/Migration_report_web.pdf 16

SOLIDAR (2011): International Migration – The Search for decent work, p.14, http://cms.horus.be/files/99931/MediaArchive/Migration_report_web.pdf;

ESCAPING THE EXPLOITATION TRAP

Lack of decent work and social protection

are not only prevalent push factors for

migration out of necessity, but regrettably,

also the plight of many migrants in an

irregular situation in Europe. The current

discussion should therefore specifically

address this issue and distance itself from

the unfounded continuing stigmatisation of

irregular migrants.

This continuing stigmatisation of irregular

migrants draws the debate away from the

need of a broad ratification of ILO standards

by the EU Member States as well as their

stipulation in the provisions of mobility

partnerships. While the Employers

Sanctions Directive is an important tool,

these standards remain essential

safeguards against precarious working

conditions, employers that profit from

irregular migrant work and to ensure decent

work standards, access to health and social

security as well as upward social mobility as

fundamental rights for all.

One example is a recent study by the

European Fundamental Rights Agency

(FRA) sheds further light on this issue.

Focusing on the access of irregular migrants

to health care, the survey of ten EU Member

States not only reiterates the exposure of

irregular migrants to “health threatening

working conditions”, but also highlights a

crucial aspect of decent work, health

protection.17

The right to healthcare as a

basic social right is stipulated in Article 12 of

the United International Covenant on

Economic, Social and Cultural Rights

(ICESR). While all 27 EU Member have

ratified the Covenant, according to the FRA,

European human rights standards allow for

17

European Union Agency for Fundamental Rights “Migrants in an irregular situation: access to healthcare in 10 European Union Member States (2011), p.1

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a distinction of access to health care

between regular and irregular migrants.18

As a consequence, some EU Member states

surveyed do not provide healthcare beyond

emergency care, or if further care is

provided, it either has to be reported to the

authorities by the care provider or proof of

residence has to be produced. The GAMM

has to address this fundamental rights issue

rather than keeping the focus on the

distinction between regular and irregular

migrants.

CASE STUDY: DOMESTIC WORKERS

Domestic work - providing care to families

and households - is an important occupation

and source of revenue for millions of people.

Around the world, millions of domestic

workers clean, cook, look after children and

elderly people and do other tasks for private

households19

. In industrialised countries,

domestic work accounts for between 5-9 %

of all employment.

A majority of domestic workers are women

and migrant workers with an irregular status,

being forced to live in their employer’s

household and being very vulnerable to

exploitation. In Europe, demographic

factors (i.e. growing number of older people)

and changing patterns of employment (i.e.

more women working outside the

household), have resulted in a growing

demand for domestic work and in particular,

domestic full time care in the home.20

With

their services, these workers - often invisible

as their work place is a private household -

provide a considerable contribution to

European wealth and well-being.

18 European Union Agency for Fundamental Rights

(2011) “Migrants in an irregular situation: access to healthcare in 10 European Union Member States, p.12 19

ILO, Domestic Work, Policy Brief, n. 4

20 SOLIDAR, 2011, Domestic Workers: From Modern

Day Slavery to Equal Rights, p.12

In June 2011, ILO Conference delegates

adopted the Convention on Domestic

Workers (C189)21

. 25 out of 27 EU

Governments voted in favour of the

convention. If ratified and implemented,

domestic workers around the world will have

the same basic labour rights as those

available to other workers: reasonable hours

of work, weekly rest of at least 24

consecutive hours, a limit on in-kind

payment, clear information on terms and

conditions of employment, a safe and

healthy working environment, social

security, including maternity leave, respect

for the ILO Fundamental Principles and

Rights at Work including freedom of

association and the right to collective

bargaining, and protection against abusive

practices.

REMITTANCES ARE NOT ENOUGH

A prevalent discussion in the context of

south-south and south-north labour

migration - and highly prioritised in the

GAMM - is the role of remittances, that is

funds sent to the country of origin by migrant

workers to their dependents. Remittances

sent home by migrants is considerably

larger than Official Development Assistance

(ODA) and according to the World Bank

figures is the second largest source of

income for developing countries after

Foreign Direct Investment (FDI)22

. They can

contribute significantly to poverty reduction

and shelter households at times of political

or economic crisis. The Asian Development

Bank estimates that, in 2006, remittances

kept 4.3 million people out of poverty in the

Philippines. They can also help stimulate the

local economy through increased

21

By a vote of 396 to 16, with 63 abstentions and the accompanying Recommendation by a vote of 434 to 8, with 42 abstentions. 22

World Bank’s Migration and Development Brief 12 (April 23, 2010): Outlook for Remittance Flows 2010-11, http://go.worldbank.org/SSW3DDNLQ0

9

consumption and even help create

employment.23

These remittances to developing countries

are, however, out of necessity, often mostly

spent on daily consumption. In addition, they

are very volatile and have been strongly

affected by the global economic crisis falling

by 5.8% in 2009, rising again in 2010 to 325

billion USD and are projected to reach 375

billion USD in 2012 and 404 billion USD in

2013. The increased volume of remittances

to developing countries has not kept pace

with local inflation and remittance flows from

Western Europe – due to the unfavourable

economic climate – are projected to

stagnate by the World Bank.24

In addition,

remittances may even often boost inflation in

receiving societies as well as most

importantly, dissuading governments in

developing countries from promoting firm

provisions for welfare and social protection

systems.

At the same time, these remittances come at

a high price. Migrants face a very uncertain

future in their country of destination if they

are, as the majority, irregular. In addition,

migrants often work in precarious conditions

being socially excluded and dependent on

their employer in a “grey legal area” with no

protection against mistreatment, as

witnessed in the domestic work sector.

23

“Migrant Workers’ Remittances: A Development Instrument in Question” European Social Watch Report 2009 24

World Bank’s Migration and Development Brief 12 (April 23, 2010): Outlook for Remittance Flows 2010-11, http://go.worldbank.org/SSW3DDNLQ, p.1