EXCLUSIVE

Migrants are not criminals - UN Special Rapporteur on Human Rights of Migrants

by Dilrukshi Handunneti

Sri Lanka should convert unlawful migration an administrative offence instead of a criminal offence, calls Francois Crépeau, the UN Special Rapporteur on the Human Rights of Migrants.

In an exclusive interview, Crepeau, a Professor at the Faculty of Law of McGill University, Montréal, where he holds the Hans and Tamar Oppenheimer Chair in Public International Law, noted with concern that there had been a trend among ethnic minorities of taking risky boat rides to escape their country of origin, both for economic and political reason.

Crepeau also advocated better pre-departure training, more scrutiny and measures to curb corruption by the recruitment agencies and sub agents.

He also called for providing alternate income generating avenues instead of prohibiting women with children less than five years of age seeking overseas employment.

The Special Rapporteur will present a comprehensive report to the UN Human Rights Council in June 2015.

Excerpts of the interview:

Q: A key concern for Sri Lanka had been the safety of migrant workers, specially in the Gulf countries. What needs to be done to improve their physical safety?

A: Generally, there is strong focus on physical safety but legal and social safety are equally important. These issues require bilateral and multilateral understanding and binding agreements. The labour situation in Sri Lanka could be much better, if migrant workers are better trained.

I stress on the skills aspect because, exploitation of migrants happens often when they don't have skills or are low-skilled. There should be better mechanisms to protect their rights, but the first step is, sound training that will enable migrant workers to deliver on their duties.

Training quality has improved from what I have learnt during my visit to Colombo, but there is much room for improvement.

Q: Are the exploitative practices, rights abuses and contractual violations largely linked to weak contracts or lack of support from the Sri Lankan authorities, or both?

A: There are reasons as to why the Sri Lankan authorities are sometimes unable to protect Sri Lankan migrants in the destination States.

Such problems need to be addressed through co-operation with destination States. The government must take measures and win the support of destination countries to address safety and labour rights of Sri Lankans. The whole migration process should be safe.

Sri Lanka is currently the chair of the Colombo Process, the forum of the sending countries. It provides an excellent opportunity to develop international co-operation on these issues, and to address issues affecting Sri Lankan migrants.

I strongly feel that the countries must discuss among themselves. This may take time and until there is a common position, there should be strategies that can effectively protect migrant workers.

There will be pressure but there is also a labour need in the destination countries. The demand can be used to introduce some basic standards based on which countries can demand better labour conditions.

Q: Migrant workers often complain of contracts being substituted in the destination State. This also involves having to undertake jobs they are unprepared for. What are your recommendations?

A: I have seen reports of migrants signing a contract in Sri Lanka only to have it replaced by another, upon arrival in the destination State, with a lower salary and often a different job description.

Many migrants also report paying excessive recruitment fees, as well as human rights violations in the workplace, including serious abuse and exploitation. The work is cut out for the Sri Lankan Government.

Q: In your view, who are the most vulnerable categories of migrant workers?

A: Vulnerability can be defined in many ways and each country has its own examples and categories.

A unique situation however is that women often go as ‘live-in care givers’, either at homes or at institutions. Those working for institutions are better protected because they are not living in households, exposed to a few people. They also have fixed hours of work.

Domestic workers and live-in care givers are extremely vulnerable to exploitation of various kinds.

Q: Weaknesses in contracts is another issue faced by migrant workers. What is your view on South Asian understanding on the uniformity of contracts, which may give the sending countries more bargaining clout? Is this feasible?

A: The market argument is that this is not feasible. Countries of origin should push for positive changes and change is inevitable. The process, the arguments and the standards were different before and they are changing. Labour sending countries influence positive change.

There should be discussions on the key issues that will lead to better protection for migrant workers through the introduction of a standardised contract. What I call for is collective protection for migrant workers. It requires position-taking.

Q: There had been instances when Sri Lankan migrant workers have complained of not receiving adequate support by the Sri Lankan authorities in the destination States. There had been complaints about migrants’ safety being compromised, even in the so-called safe houses. Have your received complaints on this specific issue?

A: Yes I have. My office in Qatar has referred specific information on this matter.

I did not visit Sri Lankan safe houses there but visited those of the Philippines.

Here is an area with massive improvement. More people should be posted, including Labour Attaches.

Q: You referred to pre-departure training as a step that can help minimize problems for migrant workers. What specific recommendations do you make?

A: The Sri Lankan Government has placed great emphasis on increasing the migration of skilled workers, which is good. But to effectively increase the number of skilled workers to traditionally labour receiving countries will take time.

In the meantime, the majority of Sri Lankan migrants are still low-skilled, more likely to face human rights violations, including harassment and abuse in the work place.

The authorities must increase the quality of pre-departure training and information programmes, supporting informed decision-making and improving skills levels, including language skills and a basic understanding of the prevalent legal systems.

Q: The majority of Sri Lankan migrant workers are women, often working as domestic aides. Besides harassment and violence, they also face sexual harassment. What are your specific recommendations, on women workers’ safety?

A: It is true that the majority of Sri Lankan women migrate to work as domestic workers, although the proportion of domestic workers is decreasing.

Due to the financial incentives provided, some of these women are sent abroad by their husbands or family members, who expect them to send their salaries back home.

Due to the work site being a private household and the informal nature of the work, domestic workers are particularly vulnerable to abuse and exploitation. “Domestic work is excluded from most of the labour laws in many countries, including in Sri Lanka.

This creates a huge legal concern and safety becomes a key issue. I call on the authorities to create income-generating opportunities within Sri Lanka, especially for women, youth and minorities, including in rural areas, to ensure that migration is a choice, rather than a necessity.

If there were better opportunities at home and with wages that could help them run families, migration for work will be a choice, not a necessity, as it is today for most.

Q: There is an age restriction on women migrant workers, in addition to a stipulation that prevents mothers with children less than five years of age from being employed. Women claim this is unjust and prevents their opportunity to overcome poverty. Your views?

A: To begin with, it is a violation of human rights and denies women the opportunity to make that economic choice.

I do recognise the preoccupation of the government with women's safety and cultural requirements.

Very young women travelling to unknown destinations with limited skills and training can be truly problematic for a State. Yet, this issue needed to be addressed from multiple angles, not just socio-cultual. specific age limits applied to women who wish to migrate as domestic workers, depending on the destination State, as well as restrictions applied to mothers with children under five.

I regret the discrimination against Sri Lankan women in relation to the right to migrate.

The fact that they have small children, or that many domestic workers suffer abuse and exploitation, including the tragic execution of Rizana Nafeek, cannot be used as a reason to deny them the right to leave their country.

Making choices is linked to human dignity and about personal autonomy.

Effort must be made to encourage alternative childcare, alternative incomes, family support etc; if this needs to be minimised.

Also, Sri Lanka should creatively look for other employment options. Perhaps other categories of work can be considered, making it a less risky investment for a country.

I strongly believe in parental support and alternative care-giving. Prevention is is not the right idea and in fact contributes to migration through illegal means and even human trafficking.

Let there be better childcare support and specific income generating avenues introduced, to deal with this issue.

Q: In your report, reference has been made to migration of Tamils due to poor employment opportunities and discrimination. Do you hold the view that Sri Lanka had a discriminatory employment process that drove them to seek employment overseas or simply leave, fearing political persecution, sometimes risking their lives?

A: I have received information on this but I have no field observations to go by.

I feel the pressure to migrate is higher among ethnic minorities than others, particularly in certain regions. I think it reflects the country's political situation at that time.

Sri Lankan authorities have a particular moral and political obligation, to reduce and tackle such issues of discrimination. All citizens should feel protected.

Q: You have called for the decriminalisation of irregular migration and to consider it an administrative offense. Why?

A: The basic reason is that it is not a crime but a violation of the law.To criminalise something is an extreme measure.For many, taking risks to reach some other country is the only solution they can can imagine, to put food on the table. Or it is linked to safety. In a way, it is a very courageous act.

Administrative law violations carry some penalties. When people are criminalised in this manner, it immediately changes the public perception and sends message to society that they are a threat to society, property and national security.

These people need work to send money home. That's why they often leave their homes. They are also the most exploited, specially because of their irregular status.Migrants are trapped and recruiters and employers exploit them largely due to their weak legal status.Discrimination in increased when it comes to them. There is no social security net and there is not even information.

Nobody defends them and their rights, including political parties, because they will never qualify as voters.In Italy, this has been changed in 2013 to an administrative offence.

We need to change the tone of the debate to ensure these persons are not treated as criminals but violators of the law. They should not be viewed as criminals or a potential threat to society.

Q: During your visit, you also visited detention centres for unlawful migrants to Sri Lanka. What were your specific findings?

A: I did look at migration into Sri Lanka. I regret the policy of mandatory administrative detention of irregular migrants, with no individual assessment, no maximum time limit, no alternatives to detention, and the detention of families with children.

This really must change. In the Mirihana detention centre, I met five children who have stayed there with their families as long as two years, with no access to education, in violation of the principles set out in the Convention on the Rights of the Child.

Q: Corruption by recruitment agencies had remained a serious concern. What were your findings?

A: Sri Lanka has made progress but it still needs much better monitoring of the recruitment industry by putting in place a comprehensive policy that requires the improvement of recruitment agencies’ services, and holding them accountable for any breaches. Regulation of irregular sub-agents and reducing costs for migrants are two other areas that need better attention.

Over the years a large recruitment industry has developed in Sri Lanka and over 1.8 million Sri Lankans are working abroad. It is the duty of a government to ensure the migrant labour force, whose remittances are the main foreign exchange earning source for Sri Lanka, do not end up as victims of corruption, legal and administrative flaws.