Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Migration for Employment Convention (Revised), 1949 (No. 97) - Guyana (Ratification: 1966)

The Committee notes with deep concern that the Government’s report has not been received. It expects that the next report will contain full information on the matters raised in its previous comments. The Committee informs the Government that, if it has not supplied replies to the points raised by 1 September 2021, then it may proceed with the examination of the application of the Convention on the basis of the information at its disposal at its next session.

Repetition

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee takes note of the legislative measures taken since the last report on the Convention, including the Schedule to the Caribbean Community (Movement of Factors) Act No. 7 of 2006, amending the Immigration Act, Cap 14:02; the Immigration (Amendment) (No. 2) Act No. 28 of 2007; the Caribbean Community (Free Entry of Skilled Nationals) (Amendment) Act No. 15 of 2011; and the Immigration (Free Movement of Persons) Order No. 17 of 2003. The Committee asks the Government to continue to provide information on any legislative and policy measures taken regarding migrants leaving or entering the country seeking employment. Please provide up-to-date statistical data on the number of migrant workers entering and leaving Guyana, disaggregated by sex and country of origin, and if possible, by sector of activity.

Article 2. Provision of accurate information to migrant workers. The Committee notes the information in the Government’s report regarding the advisory role of the Ministry of Labour Affairs regarding immigration visas, work and residence permits. The Committee recalls that Article 2 requires the Government to maintain, or to satisfy itself that there is maintained, an adequate and free service to assist migrants for employment, in particular, to provide them with accurate information. The Committee refers to Paragraph 5(2)–(4) of Migration for Employment Recommendation (Revised), 1949 (No. 86), which provides further details on the contents of such services. Understanding that Guyana is mainly a country of emigration, the Committee asks the Government to indicate any measures taken or envisaged to provide or fund the provision of information or other assistance to Guyanese nationals seeking employment abroad or to ensure the existence of such service, and to indicate the type of service and information offered.

Article 3. Misleading propaganda. The Committee notes the Government’s statement that misleading propaganda in the media, exaggerated claims on living and working conditions and xenophobic measures, are covered by the provisions of the Defamation Act, Cap 6:03. The Committee recalls that the measures under Article 3 are also meant to combat false information being disseminated to nationals leaving the country. The Committee asks the Government to indicate whether any steps are being taken to prevent migrant workers leaving the country being subject to false information regarding the migration process, job offers or living and working conditions in the countries of employment. Please also provide information on any cases addressed by the courts regarding the application of the Defamation Act with respect to migrant workers.

Article 5. Entry requirements and testing related to health. The Committee notes that, pursuant to section 3(1)(a) and (g) of the Immigration Act, Cap 14:02, every person who “is an idiot, or an epileptic, or of unsound mind, or mentally deficient, or deaf and dumb, or deaf or blind, or dumb or blind”, or who if entered Guyana, is likely to become a charge on the public funds by reason of infirmity of body or mind, or ill health, or for any other reason, is considered a prohibited immigrant. Pursuant to section 3(1)(h) prohibited migrants also include a dependant of a prohibited immigrant. A person who is a prohibited immigrant or is deemed a prohibited immigrant cannot enter or remain in Guyana, although the President or an immigration officer may grant a permit to a prohibited immigrant to remain in Guyana, subject to certain conditions, including employment (section 15). Section 3(4) provides for the possibility that the Minister may from time to time exempt any person from the provisions of section 3(1)(a), (b), (f), (g) or (h). The Committee draws the Government’s attention to the fact that while medical testing and the prohibition of entry of persons on the grounds that they may constitute a grave risk to public health is likely to be a routine and a responsible precaution prior to permitting entry of non-nationals, the exclusion of individuals on certain medical or personal grounds who do not pose a danger to public health or a burden to public funds may be dated due to scientific developments or changing social attitudes, and some may now even constitute unacceptable discrimination (see General Survey on migrant workers, 1999, paragraphs 262 and 263). The Committee asks the Government to provide detailed information on the practical application of sections 3(1)(a), (g) and (h), and 15, of the Immigration Act, including the number of non-nationals seeking employment in Guyana who have been prohibited entry or who have been expelled on the basis of these provisions. Please also indicate whether any exemptions have been granted by virtue of sections 3(4) and 15 of the Act. The Committee also requests the Government to indicate whether any consideration has been given to amending the provisions of the Immigration Act concerning prohibited immigrants in the light of scientific developments and changing social attitudes, and to prevent discrimination.

Furthermore, the Committee notes that, pursuant to section 3(1)(b) of the Immigration Act, any person who is suffering from a communicable disease, as certified by the government medical officer is considered a prohibited immigrant, and that, pursuant to section 3(2), “communicable disease” means a “communicable disease which makes the entry into Guyana of a person suffering from it, dangerous to the community”. The Committee has considered that refusal of entry or repatriation on the grounds that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination (General Survey, 1999, paragraph 266). In this context, the Committee also refers to Paragraph 28 of the HIV and AIDS Recommendation, 2010 (No. 200), according to which migrant workers, or those seeking to migrate for employment, should not be excluded from migration by countries of origin, of transit or of destination on the basis of their real or perceived HIV status. The Committee requests the Government to provide information on whether any assessment is being made in cases where a migrant worker is refused entry on the basis of section 3(1)(b) and (2) of the Immigration Act as to whether the infection or illness would have had an effect on the task for which the worker has been recruited. The Committee also requests the Government to clarify whether section 3(1)(b) and (2) would cover migrant workers living with HIV, and to provide information on the number of migrant workers requesting to enter Guyana who have been refused entry on the basis of the above provisions of the Immigration Act.

Article 6. Equality of treatment. The Committee notes the information regarding the legislation applying Article 6(1)(a)–(d) of the Convention, including article 149 of the Constitution, the Equal Rights Act and the Prevention of Discrimination Act. With regard to equal treatment in respect of social security, in particular, the National Insurance and Social Security Act, Cap 36:01, the Committee refers to its 2011 direct request on the Equality of Treatment (Accident Compensation) Convention, 1925 (No. 19). The Committee requests the Government to provide information on the application in practice of article 149 of the Constitution, the Equal Rights Act and the Prevention of Discrimination Act, as well as any other measures taken to ensure that foreign workers lawfully in the territory enjoy no less favourable treatment than nationals in practice with respect to the matters raised in Article 6(1)(a)–(d) of the Convention. Please also provide information on any complaints submitted by migrant workers to administrative bodies or to the courts regarding non-application of the relevant legislation.

Article 8. Maintenance of residence in the case of incapacity for work. The Committee notes the Government’s statement that, under the Expulsion of Undesirables Act, Cap 14:05, permits can be revoked if a migrant becomes a burden on public funds. Section 21(4)(a) and (b) of the Immigration Act, Cap 14:02, provides that if a permit has been granted, it may be revoked if there is a contravention or a failure to comply with the conditions of the permit; or at any time by the President or an immigration officer acting on the direction of the President. The Committee recalls that security of residence of permanent migrants and members of their families in case of ill health or injury constitutes one of the most important provisions of the Convention, and it is concerned that, in cases where this is not effectively applied, permanently resident migrants may find themselves under constant threat of repatriation. The Committee therefore requests the Government to indicate how it is being ensured that migrant workers who have been admitted on a permanent basis, and the members of their family authorized to join them, and who are unable to work due to illness contracted or injury sustained subsequent to entry, maintain the right to residence, including those who have to rely on public funds. Please also provide information on the impact of section 3(1) of the Immigration Act in this context.