Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Migration for Employment Convention (Revised), 1949 (No. 97) - Isle of Man

Article 1 of the Convention. Information on national policy and legislation. The Committee notes from the Government’s report and attached documentation that the current work permit system has undergone a review and that the Department of Trade and Industry (DTI) has made recommendations to improve work permit process and procedures. The Committee asks the Government to keep it informed of any policy changes and legislative amendments to the work permit legislation and administration and their impact on the application of the Convention.

Article 6(1)(b). Equality of treatment: Social security benefits. The Committee notes that one of the recommendations resulting from the Work Permit Review is to extend the qualifying period for Isle of Man worker status from five to ten years, the primary aim of this being to facilitate the granting of longer permits without Isle of Man status. The DTI indicates that, once a worker attains Isle of Man worker status, he or she becomes eligible for all social security benefits. The Committee recalls that Article 6(1)(b) of the Convention provides for equality of treatment between nationals and migrant workers lawfully in the country with respect to social security. While the Convention permits exceptions to the equality of treatment arrangements in the situations set out in subparagraphs (i) and (ii), it does not allow for the automatic exclusion of any given category of migrant workers from social security benefits. The Committee further recalls that the Convention covers all migrant workers, both those with permanent or temporary residency status (paragraph 431 of the General Survey of 1999 on migrant workers). The Committee asks the Government to specify the social security benefits to which nationals, migrant workers with Isle of Man worker status and temporary migrant workers are eligible, respectively.

Article 8. No return in the case of incapacity of work. The Committee notes that pursuant to the immigration rules, as amended (SD 62/05), indefinite leave to remain on the island may be granted holders of a work permit for employment (sections 131(iii), 134(ii)), highly skilled workers (sections 135A(iii) and 135G(ii)), domestic workers in private households (sections 159A(vi) and 158(G)(ii)), religious workers (sections 170(iv) and 176(ii) and persons with Isle of Man, United Kingdom or Channel Islands ancestry (186(v) and 192(i))  provided that they have spent a continuous period of five years in the Isle of Man in this capacity and have had the ability throughout this five year period to maintain and accommodate themselves and any dependants adequately without recourse to public funds. The Committee further notes that, pursuant to section 257(ii), nationals from the European Economic Area (EEA) and their family members who have ceased to be employed owing to permanent incapacity for work arising out of an accident at work or occupational disease or (after two years) owing to permanent incapacity of work may be permitted to remain in the Isle of Man indefinitely. Finally, the Committee notes that one of the recommendations in the final report of the review of the work permit legislation and administration, 2007, and the DTI response to the Work Permit Review is to amend the Control of Employment Regulations, 1993, and the Control of Employment Act to expand the list of circumstances under which a work permit may be revoked. The Committee recalls that Article 8(1) provides for the maintenance of the right to residence in case of incapacity of all migrant workers admitted on a permanent basis. The Committee refers to paragraph 604 of its General Survey of 1999 on migrant workers in which it points out that revoking permanent or indefinite residency permits if the individual becomes a burden to public funds or if it appears that the holder is not able to maintain himself or herself or his or her dependants, is contrary to the Convention. Recalling that security of residence of permanent migrants and members of their families in the case of ill health or illness constitutes one of the most important provisions of the Convention, the Committee asks the Government to indicate how the right of residency of migrants with indefinite leave to remain on the island is maintained in the event of incapacity for work, when as a result the worker risks finding himself or herself without means of support. The Committee also asks the Government to keep it informed of any developments in law or in practice with respect to the circumstances under which work permits can be revoked.

Enforcement. The Committee notes from the information provided by the Government that the labour inspections services have difficulties in enforcing the relevant legislation concerning immigration. The Committee recalls the importance of establishing effective mechanisms to ensure the application of the Convention, especially the principle of equality of treatment, given that migrant workers may not be in a position to take the initiative to secure respect for the relevant legislation due to lack of awareness or fear of reprisals. The Committee requests the Government to provide information on any practical measures taken to ensure the effective application of the Convention, including measures designed to improve the capacity of the labour inspectors to enforce the relevant legislation and the provisions of the Convention. Please provide information on any judicial or administrative decisions involving questions of principle relating to the application of the Convention as well as on any violations detected by the bodies entrusted with the supervision of the application of the Convention, particularly as regards equality of treatment.