Human rights impact of migration policies

Background

In international human rights law, migrant workers are in principle well protected —through general norms of non-discrimination and equality; substantive rights such as freedom of movement, labour rights, and the right to be free from debt bondage; and through identity rights for specific groups, such as women’s and children’s rights. The list of applicable human rights norms include: International Covenant on Civil and Political Rights, International Covenant on Social, Economic and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention against Torture, Convention on the Rights of the Child, and International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). In addition, there are a number of International Labour Organization (ILO) Conventions relevant to migrant workers.4

Key features of migration policy and migrants’ rights in South Asia

South Asia displays certain specific features with respect to labour migration, all of which affect the ability of migrants to access and enjoy their human rights:

  • A strict temporary labour migration regime with employment tied to one employer with tight contractual restrictions. This is especially prominent in GCC countries.
  • A skill profile of migrants dominated by semi-skilled to low-skilled workers (with little professional, highly skilled migration).
  • Recruitment and hiring processes dominated by the private sector in both countries of origin and destination.
  • High incidences of irregular migration.
  • High share of female migration in the case of Sri Lanka but increasingly so in the case of Nepal (Bhadra 2007) and to a lesser extent in Bangladesh (Siddiqui 2001, Dannecker 2005).
  • Increased trafficking and forced labour.
  • Temporary labour migration.

The migration regime that has evolved in Asia—to the GCC countries as well as within Asia at large—is primarily a system of temporary migration largely of low-skilled and semi-skilled workers with contracts typically lasting one to three years (Wickramasekara 2006). Such contracts typically tie the worker to one specific employer. Breaking the contract to seek employment elsewhere—for instance, in the case of abuse or contract violation on the part of the employer—can change the status of a migrant to the status of an irregular migrant.

In existing temporary labour migration schemes, rights are linked to skill levels and lower-skilled categories. For example, Khadria and others (2010) report that highly skilled workers from India that migrate to GCC countries are allowed to bring their families while migrants classified as semi- and unskilled workers (70 per cent) cannot bring family members along. In the absence of family reunification policies in Asia, most migrant households constitute transnationally split families, either with one parent working abroad or both parents overseas but often in different countries.

Migration flows dominated by semi-skilled and low-skilled workers

Lower-skilled temporary migrant workers constitute the majority of labour migrants in South Asia. In general, they are more vulnerable to rights violations than higher-skilled ones, as they tend to work in the informal sectors of the labour market, or in sectors where labour standards are not applied or do not even exist for local workers. In terms of position within the labour market, most male migrants are hired to work in the construction sector, small-scale manufacturing firms, subcontracting companies engaged in agricultural sectors and food processing, on shipyards, in fisheries as well as in service industries. The demand for low-skilled workers exists in jobs such as domestic workers, cooks, gardeners and drivers, where there is typically no protection by any local labour laws.

In countries of origin, migrant workers can be subject to abuse by private and public recruitment agencies. Once at the destination, the key issues and concerns of foreign workers, therefore, centre upon workplace grievances and can be broadly classified under two headings: 1) employment-related, and 2) welfare, occupational health and safety issues. Employment-related issues are mainly about non-payment or under-payment of wages and unauthorized deductions. Issues in the second category (welfare, occupational health and safety) pertain to accommodation, long working hours and workplace hazards. The latter includes work-related injuries and accidents as well as physical and sexual abuse. Official statistics on the numbers and types of the various workplace grievances as well as systematic studies or recording activities by non-governmental organizations on this issue are rare.

Recruitment

Legal migration is limited to workers who have individually arranged their employment contracts in advance, while still in their country of origin. The limited role of governments in the process of recruitment has led to the commercialization of migrant labour flows through the assistance of designated public or private recruitment agencies. Studies have shown that a large portion of the labour recruitment in Bangladesh, India, Pakistan and Sri Lanka is carried out by private agencies. This practice exposes migrants in the low-skill categories to illegal human and financial exploitation (Plant 2008, Rannveig Agunias 2010). It also exacerbates the potential for collusion among members of business and government circles (Piper and Iredale 2003).

Growing share of female migration

The increasing share of women in migration can be attributed to gendered push and pull factors. In South Asia, a subregion characterized by extreme poverty, the trend towards the feminization of migration is directly related to the feminization of poverty. Migrant women find work in traditionally female-dominated occupations, mostly in the health sector and carrying out domestic services. A smaller but considerable number of them work in factories, especially in the garment sector. As domestic workers, they lack recognition as workers and are as a result inadequately addressed by labour legislation.5

Domestic work deserves special attention in a discussion about labour migration because it is a highly significant source of legal employment for women in South Asia, and to a lesser extent for men, with demand for such services steady. Although well regulated through formal migration policies, possession of legal status (entry and work permit) does not necessarily translate into labour law protection or even recognition by labour laws. In fact, domestic work is widely excluded from national labour legislation. Foreign domestic workers or carers (typically women) do not fall under national employment acts (in Singapore; Malaysia; Taiwan Province of China; and the GCC countries) whereas foreign workers in industries such as construction and manufacturing are usually covered by industrial relations legislation. Thus, national employment acts or labour standard laws do not recognize domestic work as a legitimate form of labour despite the work permit most of these migrants hold. The ILO Convention Nº. 189 on Decent Work for Domestic Workers, adopted on June 16, 2011 addresses these issues.6

Areas of concern related to the protection of the rights of migrant workers

All migrants, regardless of their legal status, are entitled to respect for and protection of their fundamental human rights. These rights include the right to life, freedom from torture and other ill-treatment, freedom from arbitrary detention, as well as their social and economic rights, including rights at work, and freedom from any form of discrimination.7

Human rights abuses of migrant workers, especially domestic workers, in the GCC countries and South-East Asia have received a lot of attention in recent years. Reports of different kinds of abuse of migrant workers, including sexual abuse, are frequent (Khadria and others 2010). Of the official complaints received by the Government of Sri Lanka, most come from women working in the GCC countries, with the highest number of complaints between 2006 and 2009 having come from those deployed in Saudi Arabia and Kuwait (SLBFE 2009). The specific abuses, included among others, confiscation of passports or other identity documents, routine withholding of salaries, working excessively long hours, verbal and physical abuse at the hands of the employers, restrictions on freedom of movement, and violations by the host countries when they encounter the justice system, including arbitrary arrest and detention and expulsion (HRW 2009 and 2010). Some examples of concerns related to the protection of the rights of migrant workers are given below:

Civil and political rights

  • Detention and deportation of South Asian workers by several South-East Asian countries (Wickramasekara 2004).

Social rights

  • Health and safety management in the construction industry, one of the key sectors for male migrant employment, as a whole is poor. The fatal and major injuries rate is one of the highest for any industry, despite the fact that both hazards and prevention measures are well known (IFBWW 2004). There are also numerous incidences of domestic workers falling off high-rise buildings when cleaning windows.
  • A study focusing on Indian migrant workers has shown the specific vulnerability of migrant workers to HIV and AIDS. It also cited the inadequate provisions (information and otherwise) to prevent these workers from being exposed to HIV and AIDS (Piper and Yeoh 2005).
  • Low-skilled migrants are typically accommodated in crowded labour camps in small rooms with bunk beds which in some incidences have to be shared by at least two workers. The facilities provided to them, such as toilets and kitchens, are inadequate. Generally, the living conditions and amenities provided by large corporations are better than the facilities extended by small companies or individual employers. Many migrant workers who returned from work in the GCC countries and NGOs emphasize the need for improvement in both working and living conditions of low-skilled labour. Live-in domestic workers often lack privacy or are made to sleep in inadequate places without being provided their own rooms.
  • In most destination countries in Asia, including Western Asia, low-skilled foreign workers are excluded from social security systems. In Qatar, for instance, nationals have free access to a government-supported health-care system while non-citizens must generally pay for these services. The labour law stipulates that employers must provide health care for their workers but these relatively new regulations are not often carried out in practice (Breslin and Jones 2009).

Work and labour rights

  • A major issue resulting in, or the first step toward, the violation of labour rights is recruitment. Various reports show that the high majority of foreign job placements are done by private recruitment agencies.8 The ILO Convention Nº. 181 on private agencies encourages the non-collection or non-payment of fees from migrant workers. Unlawful deductions from wages also often include “training expenses” and accommodation and food even if stipulated in the contract that this would be for free or a lower amount.9
  • The employer-sponsored system, kafala, is often considered to be one of the causes for rights abuses against migrant workers. Due to the system’s limitations, Bahrain has announced plans to abolish it while Kuwait is looking into ways to reform it. Under this system, workers come to these GCC countries (or depart from them) through an invitation of their employers and their residency is subject to the signature of a work contract with an employer who can be an individual, an enterprise or even the State for a post in the public sector, such as a doctor or a nurse. Migrant workers are not allowed to change jobs or in some cases leave the country without the employer’s consent. The employers, on the other hand, are made accountable for actions by the migrant workers (for example, if the worker disappears, employers must pay a fine). For these reasons, employers often withhold the migrant workers’ passports. This system restricts workers as well as employers.
  • On the issue of wages, a recent study on Pakistani and Bangladeshi migrants working in GCC countries found that their main concern involved actual wages. Many workers received their wages on a regular basis, but said that there was a discrepancy between the promised and the actual wage (Plant 2008). This was prevalent for female domestic workers as well as male workers in other sectors. One male respondent stated that he received less than 60 per cent of the promised amount. The sectors where this practice appears to be most widespread are cleaning, construction, domestic service and farm work (Plant 2008).
  • There is also evidence of contract workers being misinformed as to the nature of the job to be carried out upon arrival. For example, through a personal interview conducted by the main author of this chapter in Kuala Lumpur in 2005, many workers indicated that they had been promised work as tailors or tilers, but ended up having to do arduous jobs of heavy loading or similar (Plant 2008).

 

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4 For a full list of all relevant ILO conventions, see the ILO Multl-Lateral Framework on Labour Migration. Available from www.ilo.org/public/libdoc/ilo/2006/106B09_343_engl.pdf.

5 For more details, please see chapters on labour migration and gender and migration chapters in this report.

6 See www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---travail/documents/publication/wcms_161104.pdf.

7 See United Nations Economic And Social Council Report of the United Nations High Commissioner for Human Rights Document E/2010/89.

8 Please refer to chapter on labour migration in this report.

9 See www.ilo.org/ilolex/cgi-lex/convde.pl?C181.